IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 SA.No. 844 of 1998(A) --------------------- AS.173/1993 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.38/1996 of MUNSIFF COURT, MAVELIKKARA .................... APPELLANT(S): IST RESPONDENT /IST DEFENDANT --------------------------------------------------------------------------- BENJAMIN, S/O.OOMMEN, KOYICKAL VEETTIL, MATTOM VADAKKUM MURI, KANNAMANGALAM VILLAGE. BY ADVS. SRI.B.KRISHNA MANI SRI.K.SUBASH CHANDRA BOSE SRI.V.PREMCHAND RESPONDENT(S): APPELLANT 2ND RESPONDENT/PLAINTIFF, 2ND DEFENDANT ------------------------------------------------------------------------------------------------------------------ 1. BHAVANI AMMA RADHAMMA, W/O. GOPALAKRISHNA PILLAI, POOZHIKKATTU HOUSE, MATTOM VADAKKUM MURI, KANNAMANGALAM VILLAGE, MAVELIKKARA. 2. VIJAYALAKSHMI OF DO. DO. 3. SUSHAMA OF DO. DO. 4. RAJALAKSHMI OF DO. DO. 5. SIVAPRASAD (MINOR) OF DO. DO. REPRESENTED BY THE RESPONDENT NATURAL GUARDIAN. 6. GOPALAKRISHNA PILLAI, H/O. IST RESPONDENT OF DO. DO. BY ADV. SUBHASH CYRIAC THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2011, ALONG WITH S.A. NO.846 OF 1998 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss ORDER ON CMP. NO.2493/1998 IN S.A. NO.844/1998 DISMISSED 26/05/2011 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE tss P.BHAVADASAN, J. ---------------------------- S.A.Nos. 844 and 846 of 1998 --------------------------------------- Dated this the 26th day of May, 2011 JUDGMENT Two suits namely O.S.No.24/1986 and O.S.No.38/1986 were jointly tried and disposed of by a common judgment. The trial court decreed O.S.No.24/1986 and dismissed O.S.No.38/1986. The defendants in O.S.No.24/1986 preferred A.S.No.172/1993 and they also preferred A.S.No.173/1993 against the judgment and decree in O.S.No.38/1986. The lower appellate court heard the appeals jointly and disposed of by a common judgment whereby the decree of the trial court was reversed and resulting in dismissal of O.S.No.24/1986 and decree was granted in favour of the plaintiff in O.S.No.38/1986. The plaintiff in O.S.No.24/1986 who suffered a decree of dismissal of the suit is the appellant before this Court. S.A.No.846/1998 is directed against judgment and decree in O.S.24/1986 while S.A.No.844/1998 is directed against the judgment and decree in O.S.38/1986. 2. The facts fall within a very narrow compass. 3. Since O.S.No.24/1986 was treated as a leading case, the S.A.Nos. 844 and 846 of 1998 2 facts in the said case are being referred to the disposal of these appeals. 4. The plaintiff pointed out that the plaint item exclusively belonged to him and was in absolute possession and enjoyment of the same, having obtained the same under Ext.A2 dated 30.11.1982. Since the plaintiff had to leave the place due to some personal reasons, he executed a Power of Attorney in favour of the first defendant, which is evidenced by Ext.B2 dated 19.04.1983. Later, the plaintiff claimed to have cancelled the Power of Attorney in favour of the defendant with the consent of the defendant. The plaintiff claimed that thereafter he along with his family were residing in the rooms of the plaint schedule property and they were in possession and enjoyment of the same. The defendant was occupying a portion of the building and wanted some time to remove his articles. With ulterior motive, the defendants tried to interfere with the possession and enjoyment of the plaintiff over the suit property, whereby it became necessary for the plaintiff to seek declaration of title and possession over the plaint schedule property. S.A.Nos. 844 and 846 of 1998 3 5. The first defendant resisted the suit. He pointed out that Ext.A2 came to be executed under peculiar circumstances in favour of the plaintiff. One Sankaran Pillai was the owner and possession of the plaint schedule property and he agreed to sell the property to the first defendant as per an agreement dated 23.08.1982, which is marked as Ext.B1. Out of the sale consideration, which was fixed as Rs.45,000/-, Rs.15,000/- was paid by cash on the same day itself and another Rs.10,000/- was paid on 28.10.1982. Since the defendant was unable to raise the requisite fund, he approached the plaintiff for money and plaintiff agreed to pay the balance amount of Rs.20,000/-, if the first defendant was prepared to get the sale deed executed in his name. Further claim of the first defendant is that there was an understanding between the plaintiff that defendant will be put in possession of the property and power of attorney will be executed in his favour authorizing him to deal with the property and to repay a sum of Rs.20,000/-, which the plaintiff paid for the purchase of the property. Ever since the date of Ext.A2, the defendants have been in possession of the property and it was S.A.Nos. 844 and 846 of 1998 4 accepting that Ext.B2 Power of Attorney was executed. The defendant and his family are residing in the plaint schedule property. The plaintiff has never been in possession and enjoyment of the same. The so called cancellation deed was not informed to the defendant and therefore power of attorney granted could not be treated as cancelled. The first defendant, as per Ext.B4 dated 12.2.1985, had agreed to sell the property to his wife and children and in pursuance thereof as per Ext.B3 dated 12.07.1985, the property was assigned to them. He pointed out that the wife and children are enjoying the property as on the date of the suit. Therefore, he prayed for a dismissal of the suit. 6. In the written statement filed by the defendants 2 to 4, they referred to the agreement between Sankaran Pillai and first defendant and it is pointed out by them that even though Ext.A2 stands in the name of the plaintiff, he was only a nominee for the first defendant. They also refer to the power of attorney and further agreement for sale executed in their favour. Subsequently, sale deed namely Ext.B3 was executed by the S.A.Nos. 844 and 846 of 1998 5 first defendant. No notice of the cancellation deed was given to the first defendant and Ext.B3 is therefore valid and binding of the plaintiff. Therefore, they prayed for a dismissal of the suit. 7. The defendants in O.S.No.24/1986 in turn instituted O.S.No.38/1986, claiming absolute right of the suit property seeking injunction against the defendant in that suit who is the plaintiff in O.S.24/1986. It is unnecessary to narrate the rival contentions again for the reason they are same as the allegations in the plaint in O.S.No.24/1986 and written statement in that suit. 8. Based on the above pleadings, necessary issues were raised by the trial court. O.S.No.24 of 1986 was treated as a leading case and evidence was adduced in the said case. The evidence consists of the testimony of PWs 1 to 5 and documents marked as Exts. A1 to A13 from the side of the plaintiff. Defendants examined as DWs 1 to 6 and had Exhibits B1 to B9 marked. Exts. C1 and C2 are the commissioner's report and plan. CW1 is examined as Court Exhibit. The trial court after an elaborate consideration of the matter came into the conclusion S.A.Nos. 844 and 846 of 1998 6 that the first defendant was aware about the cancellation of the power of attorney and it was thereafter he had executed the sale deed. It is also noticed by the trial court that there was no evidence of any consideration having passed in pursuance to Ext.B3. There is nothing to show that any amount due to the plaintiff has been paid by the defendants. On an appreciation of the evidence, the trial court found that the defendants in O.S.No.24/1986 had not been able to establish the contentions and accordingly decreed O.S.No.24/1986 and consequently O.S.No.38/1986 was dismissed. 9. Aggrieved by the decrees, defendants in O.S.No.24/1986 preferred two appeals namely A.S.No.172/1993 and A.S.No.173/1993 for the respective decrees. The lower appellate Court took the view that there was lack of evidence to show that the plaintiff in O.S.No.24/1986 had given notice of cancellation of the Power of Attorney and therefore, Ext.B3 sale deed was valid and binding on the plaintiff in O.S.No.24/1986. Another aspect which weighed with the lower appellate court was that the defendants in O.S.No.24/1986 were in possession of the S.A.Nos. 844 and 846 of 1998 7 property. Accordingly, the judgment and decree of the trial court was reversed and O.S.No.24/1986 was dismissed and O.S.38/1996 was decreed. 10. Notice is seen issued on the following substantial questions of law : 1. Whether a power of attorney holder can execute any document under the power of attorney after the power of attorney is cancelled by the principal ? 2. Whether the registration of document amounts to public notice ? 3. Whether an agent is entitled to execute any document, for and on behalf of the principal, to a close relative of the agent without taking the principal into confidence and inviolation of sections 215 and 216 of Contract Act ? 4. Whether the lower appellate court is justified in finding that the first defendant has no knowledge about the revocation of the powers granted under Ext.B2 power of Attorney ? 5. Whether Ext.B3 sale deed is supported by consideration? 6. Is it Ext.B3 sale deed is void ab initio and the same has never taken effect ? 7. Is the lower appellate court justified in setting aside the decree and judgment of the trial without any legal ground ? S.A.Nos. 844 and 846 of 1998 8 11. The learned counsel appearing for the appellant pointed out that the lower appellate court has misdirected itself both on facts and in law. The trial court has appreciated the evidence in the proper perspective and had considered all the relevant aspects and had came to the conclusion that the first defendant was aware about the cancellation of the Power of Attorney and it was thereafter that he had chosen to execute Ext.B3 document. The learned counsel drew attention to the admitted fact that sale consideration for Ext.A2 has been paid by the plaintiff and there is nothing to show that any amount has been paid to him in pursuance to Ext.B3. 12. The learned counsel also stressed that, apart from the fact that the first defendant in O.S.No.24/1986 was personally told about the cancellation of the power of attorney, a notice was also issued to him as could be seen from Ext.A8 certificate of posting dated 30.3.1985. Accordingly, the learned counsel contended that the lower appellate court was not justified in holding that there was no notice of cancellation. S.A.Nos. 844 and 846 of 1998 9 13. It is not in dispute that initially the agreement in respect of the plaint schedule property was between Sankaran Pillai and first defendant, the former agreeing to sell the property to the latter for a total consideration of Rs.45,000/-. It is also not in dispute that ultimately the amount was advanced by the plaintiff and Ext.A2 sale deed was executed in his favour. There is considerable dispute regarding the possession thereafter. While the plaintiff would assert that he was in possession of the property and the defendants were occupying a portion were given some time to vacate the premises, the defendants would say that the plaintiff in O.S.No.24/1986 had never been possession of the property and immediately after the execution of Ext.A2 sale deed in favour of the plaintiff, the defendant was put in possession and they were residing in the property. 14. Possession may be one of the criteria to determine the issue involved but that cannot be a basis. 15. Admittedly, the plaintiff in O.S.No.24/1986 has advanced amount for the purchase of the suit property as per Ext.A2. It is not in dispute that the plaintiff had executed power S.A.Nos. 844 and 846 of 1998 10 of attorney, namely Ext.B2 in favour of the first defendant in O.S.No.24/1986. That given absolute power to deal with the suit property. The case of the defendants in O.S.No.24/1986 was that in pursuance thereof, Ext.B4 agreement was executed whereby the first defendant on behalf of the plaintiff agreed to sell the plaint schedule property to other defendant in the suit and subsequently by Ext.B3 sale deed was executed. 16. It is not in dispute that the trial court has considered the transaction in considerable detail and had come to the conclusion that the evidence would show that the consideration made mentioned either in Ext.B4 or in Ext.B3 had actually not been paid. The trial court was also found that there is nothing to show that any money has been paid to the plaintiff either by the first defendant or other defendants in O.S.No.24/1986. The trial court was of the view that the evidence of PW4 is sufficient to show that the first defendant in O.S.No.24/1986, who was the power of attorney holder had notice of cancellation. 17. As already noticed by the lower appellate court took a different view. S.A.Nos. 844 and 846 of 1998 11 18. It is admitted that the plaintiff did advance amount for the purchase of the property. As of now, there is very little evidence regarding the repayment. Even assuming that all contentions of defendants in O.S.No.24/1986 were true, the mere fact that the defendants have been found to be in possession by itself is not a ground to hold that the plaintiff in O.S.No.24/1986 has no right of the plaint schedule property. It is significant to note that in Ext.B3 sale deed there is no direct reference in Ext.B4 agreement at all. It is also interesting to note that in Ext.B4 agreement for sale, which is dated 12.2.1985, out of the total sale consideration of Rs.49,500/, Rs.45,000/- said to have been paid by adjusting to the earlier transaction and only a balance of Rs.4,500/- was due. It would therefore appear that actually no amount had been paid at all, at any rate, there is little evidence to show that the plaintiff has been reimbursed the amount paid by him. 19. The lower appellate court was not justified in saying that the first defendant had authority at the relevant time to execute Ext.B4 he also the authority to execute Ext.B3. If as a S.A.Nos. 844 and 846 of 1998 12 matter of fact, the first defendant was aware of the cancellation, he could not have executed Ext.B3 and the execution covered by Ext.B3 could not have considered as a valid transaction. The question that if Ext.B4 is valid the remedy available is to other defendants need not be considered in the suit. 20. There is nothing to show as of now that the amount due to the plaintiff has been paid. The reasons given by the appellate court for discarding Ext.A8 do not appear to be very convincing. The lower appellate court also not considered the oral evidence adduced in the case especially that of PW4 which would indicate that it is possible that the first defendant in O.S.No.24/1986 was aware of the cancellation and which the trial court found to be impressive. 21. It must be noticed that there is no case for the contesting defendants that the address shown in Ext.A8 is not their address. As to whether the certificate of posting is sufficient to draw a presumption under law is different question. It is not possible to simply say that since only the certificate of posting has been produced and no copy of the notice has been produced S.A.Nos. 844 and 846 of 1998 13 the plea of having issued cannot be accepted. The lower appellate court ought to have considered the oral evidence also in this regard. The lower appellate court finds fault with the plaintiff in O.S.No.24/1986 for not mentioning about Ext.A8 in objection in O.S.No.38/1986 but that cannot be taken as a ground to come to the conclusion that Ext.A8 is a subsequently procured document. 22. At any rate, on a reconsideration of the whole issues at the hand of lower appellate court has become absolutely necessary. The lower appellate court has not considered the oral evidence adduced in the case, which has a considerable bearing on the issue involved in the case. It was merely based on the fact that there is no convincing evidence to show that first defendant in O.S.No.24/1986 has received notice of cancellation, that the decree had gone in favour of defendant. In this regard one may notice that the evidence of DW1 and PW4 had not been considered. In the result, these appeals are allowed. The impugned judgment and decree of the appellate court are set aside and S.A.Nos. 844 and 846 of 1998 14 the matters are remanded to the lower appellate court for fresh consideration in accordance with law and in the light of what has been stated above. The parties shall appear before the lower appellate court on 05.07.2011. The lower appellate court shall make every endeavour to dispose of the appeals as expeditiously as possible, at any rate, within a period of six months from the date of appearance of the parties. There will be no order to costs. P.BHAVADASAN, JUDGE. ln