TMI Blog2004 (4) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to his mother Mrs. Aquis Pinto. After her demise, the plaintiff along with his father (defendant 5), sister (defendant 6) and brothers (defendants 7 to 9) succeeded to the property and they are all co-owners of the property. The suit property was mortgaged. The mortgagee had filed a suit in O.S. No. 22 of 1973 for recovery of the mortgage amount. The suit was decreed, the suit property was brought to sale for realisation of the decreetal debt. 5. The first defendant is an Advocate, who defended the interests of the plaintiff and defendants 5 to 7 in O.S. No. 22 of .1973. Mrs. Aquis Pinto found it difficult to manage the property, since her husband and children were all scattered and living at different places. Therefore, the 1st defendant was requested to negotiate and sell the property to third parties to avoid Court sale. The defendant 5 and defendants 7 and 8 executed the GPA in favour of the first defendant. The first defendant entered into an agreement with defendants 2 and 3. They insisted that the 1st defendant had to produce the powers of attorney of all the co-owners. Pursuant to which the plaintiff who is residing at Doha in Quotar executed power of attorney at Ex. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the notice of the adverse decree in O.S. No. 265 of 1983 although, he is not a party to the suit. The failure to file an appeal against the decree in O.S. No. 265 of 1983 apparently suggests a conflicting situation. 10. However, on thorough consideration, I find no legal impediment for the plaintiff in O.S. No. 62 of 1984, to maintain this appeal without preferring appeal against the decree in O.S. No. 265 of 1983, since he claims relief of possession free from all encumbrances from defendants 1 to 4. The sale deed obtained by the 4th defendant through Court in O.S. No. 265 of 1983 will be of no consequence in law as against the plaintiff, if he were to succeed in his suit. The reliefs prayed for in O.S. No. 62 of 1984 are comprehensive enough to effectively adjudicate the adverse claim of 4th defendant if any in this suit, notwithstanding the decree in O.S. No. 265 of 1983 and absence of appeal against that decree. 11. The contention of the Counsel for the plaintiff that the sale deed obtained by the 4th defendant through Court is hit by Section 52 of the Transfer of Property Act, 1882 is untenable. The suit filed by the 4th defendant for specific performance in O.S. No. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorised the alteration and those claiming under him, from putting the deed in suit to enforce, against any party bound thereby who did not consent to the alteration, any obligation, covenant or promise thereby undertaken or made. A material alteration is one which varies the rights, liabilities, or legal position of the parties ascertained by the deed in its original state or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty some provision which was originally unascertained and as such void, or may otherwise prejudice the party bound by the deed as originally executed. The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed. The avoidance of the deed is not retrospective and does not revest or re-convey any estate or interest in property which passed under it. And the deed may be put in evidence to prove that such estate or interest so passed or for any other purpose than to maintain an action to enforce some agreement therein contained . Referring to the policy of the rule, Sir George Jessel observed in Suffell v. Bank of England, (1882)9 QBD 555 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should : Gogun Chunder Ghose's at page 619 . 15. The ratio laid down by the Privy Council in Nathu Lal's case, is followed by the Supreme Court in Loonkaran Sethia v. Mr. Ivan E. John and Ors., the following observations are made: 23. Question No. 5.-Before proceeding to determine this question, it would be well to advert to the legal position bearing on the matter. As aptly stated in paragraph 1378 of Volume 12 of Halsbur/s Laws of England (Fourth Edition) if an alteration (by erasure, interlineation or otherwise) is made in a material part of a deed, after its execution, by or with the consent of any party to or person entitled under it, but without the consent of the party or parties liable under it, the deed is rendered void from the time of the alteration so as to prevent the person who has made or authorised the alteration, and those claiming under him, from putting the deed in suit to enforce against any party bound by it, who did not consent to the alteration, any obligation, covenant or promise thereby undertaken or made. A material alteration, according to this authoritative work, is one which varies the rights, liabilities, or legal position of the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase the properties under two sale deeds. The defendants 2 and 3 are the tools in the hands of defendant 1. Defendants 2 and 3 are name lenders for defendant 1. The defendant 1 brought the two sale deeds for his benefit only . 20. The evidence of P.W. 1 does not spell out knowledge and complicity of the 2nd defendant. In the cross-examination of the second defendant-D.W. 3 nothing is elicited or suggested to show that he had complicity in the act of forgery committed by the first defendant or had knowledge of forgery in any manner. Therefore, from the facts and evidence it is evident that the plaintiff has not made out any case of complicity or knowledge on the part of defendants 2 and 3 regarding tampering and forgery of Ex. D. 56 and Ex. D. 57. The evidence of P.W. 3 on the other hand discloses that the defendants 2 and 3 were assured by the first and 5th defendants and their relatives. They also consulted the lawyer before purchasing the property. In that view of the matter, the contention that the second defendant nastily purchased without scrutiny of the original document of title is an untenable argument. 21. The contention that the sale made by the 1st defendant if any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders of his principal to a bona fide holder without notice, the principal cannot reclaim them . 22. The provisions of Section 237 envisage that if the principal by his words or conduct induces third persons to believe that the acts and obligations are within the scope of agent's authority, it would bind the principal. In the present case, the plaintiff has constituted the first defendant as his power of attorney executing Ex. D. 57 may be to deal with only one item of the property. The said conduct takes the case squarely within the scope of the words principal by his act induces such third persons . The plaintiff to his peril has chosen unscrupulous person as his power of attorney and allowed scope for manipulation and forgery by the power of attorney. The defendants 2 and 3 without the knowledge of forgery and fraud, going by the apparent tenor of Ex. D. 57, bona fidely purchased the property assuming that the first defendant was within the scope to deal with the properties, therefore, the transaction binds the plaintiff. 23. It is a case of the first defendant playing fraud against his principal and also against the defendants 2 and 3. In such a case, the equity shou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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