IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 AFA.No. 20 of 1994() -------------------- AGAINST THE JUDGEMENT IN AS.134/1986 Dated 12/11/1992 OF THIS COURT AND OS.492/1983 of II ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): RESPONDENT/FIRST DEFENDANT: -------------- K.RADHAKRISHNAN NAIR, RADHA NIVAS, KUNNUKUZHI, THIRUVANANTHAPURAM. BY ADV. SRI.G.P.SHINOD SRI.G.UNNIKRISHNAN RESPONDENT(S): --------------- R.LALITHAMBIKA DEVI, RADHANIVAS, KUNNUKUZHY, THIRUVANANTHAPURAM NOW RESIDING IN V-133, KORAMANGALA EXTENSION, BANGALORE – 34, REPRESENTED BY N.M.K.NAYAR POWER OF ATTORNEY HOLDER. BY ADV. SRI.P.G PARAMESWARAPANICKER,P.GOPAL THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/08/2009, THE COURT ON 30/09/2009 DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- A.F.A.No. 20 of 1994 ------------------------------- Dated this the September, 2009 J U D G M E N T Raman, J. First defendant in a suit for cancellation of release deed and partition instituted by the plaintiff is the appellant herein. The suit was decreed in part. Plaint B & C schedules were directed to be partitioned allotting half right to the plaintiff. Suit was dismissed as against plaint 'A' schedule property. Plaintiff appealed and the first defendant preferred a cross appeal. Plaintiff's appeal was allowed and cross appeal dismissed. Hence, this appeal. 2. As per the plaint averment, plaintiff is the daughter of late C.Radha Devi, the first defendant is her brother and second defendant is her father. Radha Devi died on 16.1.1983. Radha Devi, plaintiff and the first defendant are members of the joint family following Marumakkathayam system. AFA.No.20/1994 2 There is no dispute regarding these facts. Radha Devi and first defendant along with the plaintiff were in joint possession and enjoyment of the properties as co-owners. Out of the 27 cents, plaintiff's mother sold two cents and 4 square links from her 1/3rd share to her sister Smt.Rajalekshmy Devi. Some of the property had already been acquired by the State Government for widening a nearby line in the year 1964. The remaining extent is only 24 cents and 96 square links. After the death of plaintiff's mother, her right on plaint 'A' Schedule property as co-owner devolved on the plaintiff and the first defendant in equal rights. Therefore, according to the plaintiff, she and the first defendant are entitled to ½ share each of plaint 'A' schedule property as co- owners. 3. It is stated that plaintiff is residing outside the State of Kerala with her husband. While so, she executed a power-of-attorney in favour of her father, second defendant, for managing the properties. The said power-of-attorney was produced as Ext.A2. The power-of-attorney was terminated AFA.No.20/1994 3 only on 4.3.1983. It is stated that in connection with the death of plaintiff's mother, she happened to stay in the house of her mother between January 1983 till July 1983 and during that period, she obtained certain diaries written by her deceased mother and several other documents which were in the custody of her mother. On going through the said diaries, she came to know that some fraudulent and illegal dealings were made by the defendants 1 and 2 and the deceased mother in respect of the properties in question. It is her case that though she had executed a power-of-attorney in favour of the father, second defendant, without authority of law, the father had executed a relinquishment deed in favour of the first defendant. The said relinquishment deed was produced as Ext.A5, the original of which is Ext.B1. The prayer in the suit is to cancel the said deed and to partition the said property also. 4. The defendants contested the suit. Though defendants 1 and 2 have filed separate written statements, the sum and substance of the contentions are same. In the written AFA.No.20/1994 4 statement of first defendant, it is averred that the power of attorney holder is incompetent to file a suit representing the plaintiff; that Radha Devi relinquished her 1/3 right in plaint 'A' schedule property by release deed and the plaintiff through her power-of-attorney holder, viz., second defendant, released her 1/3 share in the plaint 'A' schedule property on 23.7.1981. Radha Devi died on 16.1.1983. Thus, plaintiff has no right over the plaint 'A' schedule property. The said release deed has taken effect and pursuant to that, the first defendant is enjoying the plaint 'A' schedule property. The release deed was executed by the second defendant on the strength of power-of-attorney granted in his favour by the plaintiff. It is stated that the plaintiff has no right to cancel the power-of-attorney unilaterally; the reasons stated in the plaint for cancellation of the release deed are not sufficient; that the release deed is supported by consideration; and the suit is not maintainable. Similar contentions were raised by the second defendant also. 5. The trial court framed following issues:- AFA.No.20/1994 5 i) Whether the release deed, Ext.B1, is liable to be set aside. ii) Whether the properties are liable to be partitioned, and iii) what is the share to be allotted to the plaintiff. On the side of plaintiff, Pws.1 and 2 were examined and Exts.A1 to A44 were marked. Defendants examined DW.1 and Exts.B1 to B5 were marked. The court below found that the suit is maintainable. On the question as to whether the release deed is liable to be set aside, it found on appreciation of the evidence on record that the release deed by the second defendant, power of attorney holder, is liable to be cancelled, as regard the 1/3 right of the plaintiff. So however it upheld the release deed executed by Radha Devi, the mother of the plaintiff. The court also found that pursuant to the release deed, Ext.B1, first defendant has got possession over the property and reference is made to Exts.B2 to B5, the tax receipts, Ext.B3, the certificate of ownership and Ext.B4, the possession certificate. The first defendant thus having possession over the plaint 'A' schedule property, and in AFA.No.20/1994 6 the absence of any prayer in the plaint for recovery of 1/3 share of the plaintiff from the first defendant, the suit was dismissed as regards plaint 'A' schedule. But as regards plaint B and C schedule properties, it was found that the said items are liable to be partitioned and the plaintiff is entitled to get ½ share in both plaint B and C schedule properties. Aggrieved by the above finding, both the plaintiff as well as the first defendant preferred appeal and cross appeal respectively. The cross appeal was against the finding of the court invalidating the release deed by the second defendant on behalf of the plaintiff. The appeal filed by the plaintiff is only as against the dismissal of the suit as regards her claim on 1/3 right over plaint 'A' schedule property. In other words, 1/3 right of the plaintiff's mother, Radha Devi, whose relinquishment or release deed in favour of the first defendant has become final. 6. The learned Single Judge reversed the finding of the trial court and decreed the suit for partition allotting 1/3rd right in plaint 'A' schedule property also to the plaintiff and AFA.No.20/1994 7 allowed the appeal and the cross appeal was dismissed. The main argument raised before the court by the contesting defendant was that the power-of-attorney enables the second defendant to sell the properties of the plaintiff and Ext.A2 purports to be a general power, by which the second defendant was authorised to manage the properties, to execute all documents and to receive consideration. Placing reliance on the decision of the Supreme Court in Syed Abdul Khader v. Rami Reddy (AIR 1979 SC 553), it was contended that Ext.A2 recital constitutes a separate power on the strength of which the second defendant had every right either to sell the land or to release the undivided share of the plaintiff for consideration. But these contentions were negatived by the learned Single Judge. It was held that the property belongs to the mother and two children and the plaintiff was away from the place which necessitated the execution of the power of attorney. But the release deed was seen executed by the mother and father, the father acting on the basis of power-of-attorney, but there was no necessity to execute such a document and no written authorisation was given AFA.No.20/1994 8 to the second defendant to release the share of the plaintiff. Though a contention was raised that such a consent is not required, as the power was already granted under Ext.A2, it was negatived by saying that such a consent was specifically obtained in respect of Kanyakumari property. Hence, it was held that one should expect such an authorisation from the plaintiff in case she really intended to release her one-third share over plaint 'A' schedule property. Reliance was also placed on Ext.A23 letter sent by the second defendant on 21.5.1983. It was found that the said letter was sent probably in the cover Ext.A24. The learned Single Judge was not prepared to give much weight to the evidence of DW.1, since he was denying the very letter Ext.A23 with a view to help the first defendant. In the circumstances, it was held that there are indication to hold that Ext.A5 was executed without receiving any consideration and without written authorisation from the plaintiff. Thus, Ext.A5 release deed to the extend of the share of the plaintiff was held to be invalid. It was also found that once it is found that the release deed is not binding on the plaintiff, she being a co-owner, AFA.No.20/1994 9 must be in joint possession with others, and, therefore, the absence of a prayer for recovery of possession, is no reason to refuse partitioning of the said item also. Accordingly, the appeal was allowed and the judgment of the trial court was modified. A preliminary decree was granted for partition of plaint A schedule property into three equal shares and for allotment of one share to the plaintiff. In all other respects, the judgment and decree of the trial court was confirmed. It is against such judgment and decree that the present appeal is filed by the first defendant. 7. We have heard the learned counsel Sri.Shinod appearing for the appellant as also the learned Senior counsel Sri.P.G.Parameswara Panicker appearing for the respondent. 8. It was contended on behalf of the appellant that the learned Single Judge was not right in law in holding that the release deed is not valid in law. It was pointed out that even if the consideration is inadequate, that will not invalidate the release deed. According to him, the power granted as per AFA.No.20/1994 10 Ext.A2 enables the agent to deal with the property and to sell the same and first defendant being only a co-owner of the property, the release deed has the same effect of sale and if at all the right, if any, of the Principal is to sue the agent for the loss, if any, sustained for the act committed by the agent. Reliance is placed on Section 2 (h) of the Contract Act. It is also contended that the author of Ext.A23 letter is the second defendant who had denied having sent any such letter to the plaintiff. 9. Per contra, the learned Senior counsel appearing for the respondent argued that the power granted under Ext.A2, if at all, is only to sell the property and the release deed executed Ext.B2 is not for any consideration received and it is fictitious document. He also took us through Ext.A15 to A22 diaries written by the mother to show that relationship of the mother with the first defendant was not cordial and therefore there is every reason to infer from the totality of the circumstances that the release deed executed by the mother and the father could only be due to pressure exerted by the first AFA.No.20/1994 11 defendant over them. It is also contended that it is only if the plaintiff decides to sell the property that it enables the agent to execute the document. In other words, power granted by the plaintiff is a pre-condition for executing a document by the second defendant based on the power of attorney and in so far as Kanyakumari property is concerned, such a consent was given, and, therefore, the plaintiff did not object to the sale effected pursuant thereto. But in the case of release deed in question, no such consent was taken from the plaintiff and therefore the release deed does not convey any right over 1/3 share in plaint A schedule property belonging to the plaintiff. It was also contended that even assuming for argument sake, the release deed is otherwise valid, it cannot be said that the power as granted by the power of attorney deed in favour of the agent authorises him to execute any said release deed. The release deed is different from sale deed. The word means buying and selling and not to execute any gift deed. According to him, the release deed virtually is a gift deed by the father in favour of the son. He placed reliance on the decision of the privy AFA.No.20/1994 12 council in Ismail Mussajee Mookerdam v. Hafiz Boo (ILR 33 Culcutta 773) as also Thomman v. Taluk Land Board (1976 KLT 840) . He also placed reliance on a passage of Mulla Contract Act by 12th Edition (Page 2118-2120). 10. We have perused the power-of-attorney, Ext.P2. It is a general power-of-attorney by which power is conferred on the agent to execute all documents in respect of the properties and receive consideration. So, the agent has thus power to execute sale deed. The contention of the senior counsel, Sri.P.G.Parameswara Panicker, is that first a decision has to be taken by the Principal to sell the property, then only the question of executing the document arises. According to him, prior to execution of a document, the agent has to obtain consent from the Principal, as was done in the case of property at Kovalam, where such previous consent was obtained from the Principal before executing the sale deed in that regard. But we do not think that merely because another item was sold after obtaining such consent, will in any way affect the power vested AFA.No.20/1994 13 with the agent, as per the terms of the deed, Ext.A2. There is no indication anywhere in Ext.A2 restricting the power-of- attorney, as is now contended. Merely because the agent discussed with the Principal while taking a decision to sell an item of property on a previous occasion, one cannot read into Ext.A2, requiring such previous consent of the Principal. The power as granted under Ext.A2 is absolute and unrestricted. We are also not impressed with the argument that merely because the consideration shown in Ext.A2 is not received by the Principal (plaintiff), it will invalidate the sale, if it is otherwise valid. In this connection, we may refer to the decision of the Apex Court in Kaliaperumal v. Rajagopal and another (2009 (4) SCC 193) and Appu v. Bhaskaran (2001 (3) KLT 670), wherein it was held that the right of the vendor is to sue for the unpaid consideration, and will not invalidate the sale. For a sale to become valid and complete, the consideration can either be paid or promised and the deed requires registration. But we have to consider whether Ext.A5 is a 'sale deed' or a 'gift deed'. AFA.No.20/1994 14 11. The learned counsel for the respondent contended that Ext.A5 is not a sale deed, but in reality, it is a gift deed, the execution of which is beyond the power conferred as per Ext.A2. There is force in this contention. The consideration shown in Ext.A5 is only Rs.20,000/=. The property is a building with land situated in the heart of the city of Trivandrum, near Hospital Junction, as pleaded in the plaint, on which there appears no dispute. The consideration is grossly inadequate. The executant of Ext.A5 is none other than the father. The mother relinquished her 1/3 share in the co-owership property. It is in respect of the share of the plaintiff that under the purported exercise of the power under Ext.A2 that the father has executed Ext.A5 relinquishment deed. Of course, the co-ownership right can be released in favour of another co-owner and it need not be by a sale deed. But then the inadequacy of the consideration as shown in Ext.A5 coupled with the relationship of the parties leaves no doubt that the release deed, Ext.A5, though purported to be a sale deed is in fact a gift in favour of the defendant Son by the father. AFA.No.20/1994 15 12. In this connection, we may refer to two decisions, Ismail Mussajee Mookerdam v. Hafiz Boo (ILR 33 Calcutta 773 PC) and Thomman v. Taluk Land Board, Mukundapuram (1976 KLT 840). In Ismail Mussajee Mookerdam v. Hafiz Boo, supra, it was held as follows:- “The fact that the sum of Rs.10,000 is mentioned as the price, a sum which, according to the evidence, was far short of the actual value of the property, and the fact that that sum is stated to have been paid in advance, whereas in fact it was not paid at all, are strong to show that the transaction was not a sale, but a gift, with an imaginary consideration inserted, in a manner common in such transactions in India. Their Lordships, therefore, think that, as to this second property also, the case of benami fails.” 13. It is settled that the power of attorney should be strictly construed. That is to say that where an act purporting to be done under a power of attorney is challenged as being in excess of the authority conferred by the power, it is necessary to show that on a fair construction of the whole instrument that the authority in question is to be found within the four corners of the AFA.No.20/1994 16 instrument, either in express terms or by necessary implications. (See Vijithammal v. M.Kadir Sultan and another (AIR 1935 Madras 599); Shankar Tukaram Kakade v. Lakshmi Bai Shankar Rao Ghadge (AIR 1928 Bombay 225) and also Bryant Powis & Bryant Ltd. v. La Banque Du People and The Cuebec Bank Ltd. (1983 AC 170) 14. Applying the above principles, we have no doubt to hold that the purported exercise of power under Ext.A2, the agent has exceeded his power in executing Ext.A5, which can only be construed as a gift deed in the given circumstances, hence not valid and binding on the plaintiff. It is also found that the entries in the diary written by the mother also show that the mother who was residing with the son at the relevant time was humiliated and uncomfortable, indicating a strong undue influence on the parents to give away right on the property. Further, this appeal is an intra-court appeal, and in the absence of any valid and cogent grounds warranting interference, there is no reason to unsettle the decision of the learned Single Judge. AFA.No.20/1994 17 In the circumstances, we see no merit in this appeal. Accordingly, the appeal is dismissed. The parties are directed to bear their respective costs. P.R.RAMAN, JUDGE P.BHAVADASAN , JUDGE. nj. P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- A.F.A.No.20 of 1994 J U D G M E N T Dated: September, 2009. -------------------------------