IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 SA.No. 417 of 1995() ------------------------------ AS.281/1993 of DISTRICT COURT, THALASSERY OS.198/1993 of PRL.M.C.,KANNUR .................... APPELLANT(S): RESPONDENTS/PLAINTIFFS ----------------------------------------------------------------- *1. P.KUNJIRAMAN NAIR, S/O. KELU NAIR, RESIDING AT TALIPARAMBA AMSOM, TRICHAMBARAM DESOM IN KANAKA VILASOM, TALIPARAMBA TALUK, KANNUR DISTRICT (DIED). 2. PILLAYADI LAKSHMI AMMA, D/O. PARU AMMA, RESIDING AT MORAZHA AMSOM, KANOOL DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 3. MANGALESSERY THANKAM AMMA, D/O. MADHAVI AMMA, LOTUS COTTAGE TALIPARAMBA AMSOM, DEOSM, TALIPARAMBA TALUK, KANNUR DISTRICT. 4. K.PRAMODINI, D/O. DEVADAS, TALIPARAMBA AMSOM, TRICHAMBARAM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. *SUPPL. APPELLATNS 5 TO 11 IMPLEADED. 5. C.C.LAKSHMI AMMA, W/O. LATE KUNHIRAMAN NAIR, KANAKA VILASAM , AGED 70 YEARS, TALIPARAMBA AMSOM DESOM, KANNUR DISTRICT. 6. C.C. SHANTHA KUMARI, D/O. DO. DO. 7. C.C. SREEDHARAN, S/O. DO. DO. 8. C.C.PADMINI, D/O. DO. DO. 9. C.C.CHANDRASEKHARAN, S/O. DO. DO. 10. C.C.SATHYABHAMA, D/O. DO. DO. 11. C.C. KAMALAKSHY, D/O. DO. DO. DO. BY ADV. SRI.K.V.SOHAN S.A. NO.417/1995 RESPONDENT(S): APPELLANT/ DEFENDANT ----------------------------------------------------------------- MAKKUNI PUTHIYA VALAPPIL USHA @ USHA NAMBIAR, D/O. LAKSHMIKUTTY AMMA, RESIDING AT TALIPARAMBA AMSOM, TRICHAMBARAM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADVS. SRI.O.V.MUSTAFA ZAFEER SRI.O.RAMACHANDRAN NAMBIAR SRI.V.RAJAGOPAL SRI.R.SURENDRAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT No representation. Appeal is dismissed for default. There will be no order as to costs. 28/07/2010 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 417 of 1995 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of January, 2011. JUDGMENT The plaintiffs, who met their Waterloo at the hands of the lower appellate court are the appellants. 2. There is not much dispute regarding the facts. It is an admitted fact that at the relevant time the owner of the property was the defendant. According to the plaintiffs the defendant was heavily in debt, and therefore she had decided to sell the property. As per an oral sale dated 4.4.1988 property was sold to the plaintiffs. According to the plaintiffs, in order to get over the tax problems, the defendant executed a power of attorney in favour of P.W.3. The said power of attorney is marked as Ext.A1. It is claimed that as per Ext.A2, the power of attorney holder executed sale deed in favour of the plaintiffs. They would say that since the husband of the defendant was seriously ill, she was permitted to continue residence in the building situate in the property. After the death of her husband, S.A. 417/1995. 2 though she was asked to vacate, she did not do so and began to set up rights over the plaint schedule property. Therefore, they were constrained to institute the suit. 3. The defendant denied the allegations made in the plaint. She denied having executed a power of attorney as alleged in the plaint. She denied the sale claimed on 4.4.1988. It was pointed out that so-called power of attorney holder was the driver of an advocate and the third plaintiff was latter's wife. The fourth plaintiff is the wife of another Advocate. According to the defendant, her husband was seriously ill and under the guise of helping the defendant and her husband, they have fabricated documents. She admitted that she had to borrow money but denied that she was in such a situation that she was compelled to sell the property. Those persons had taken advantage of the situation and exploited the defendant. To the notice issued by the plaintiffs, the defendant has sent a reply stating the true facts. The power of attorney produced is a fabricated and concocted document and is not binding S.A. 417/1995. 3 on the defendant. A sale deed obtained on the basis of such a power of attorney has no value and confers no rights on the plaintiffs. The plaintiffs are not entitled to any reliefs and defendant is entitled to compensatory costs. 4. The trial court raised necessary issues. The evidence in the case consists of the testimony of P.Ws. 1 to 4 and documents marked as Exts.A1 to A19 from the side of the plaintiffs. The defendant examined herself as D.W.1 and marked Exts.B1 and B2. Exts.X1 to X3 are third party exhibits. The trial court on a consideration of the evidence came to the conclusion that the plaintiffs have entitled to succeed and granted them a decree. 5. The defendant took up the matter in appeal. The appellate court on an independent evaluation of the evidence came to the conclusion that the defendant's plea that the power of attorney was not genuine appears to be correct. The appellate court was of the view that there were quite a few suspicious circumstances indicating that the contentions taken by the defendant are probably true. S.A. 417/1995. 4 Therefore, the lower appellate court reversed the findings of the trial court and dismissed the suit. Hence the Second Appeal by the plaintiffs. 6. Notice appears to have been issued on the following questions of law: “i) Is not the lower appellate court erred in reversing the judgment of the trial court without properly appreciating the facts and also the law involved? ii) Whether the lower appellate curt is justified in casting the burden on the appellant to prove execution of Ext.A1? iii) Is not the Appellate Court erred in thinking that a registered power of attorney executed for the purpose of registering a document need be proved by calling attesting witness u/s 68 of the Evidence Act? iv) Is not the appellate court erred in ignoring Sec. 33(4) of Indian Registration Act which says that a power of attorney need not be proved by calling attesting witnesses? S.A. 417/1995. 5 v) Is not the appellate court erred in appreciating the evidence and factual circumstances of the case and is it not mislead by its wrong approach to the provisions of law regarding proof of a registered document? vi) Is not the dismissal of an indigent suit filed for cancellation of the document precludes the plaintiff defendant from challenging the validity of those documents in any subsequent suit by the principles of Order 9 Rule 9? vii) Can a person who executed a registered power of attorney impugn the transactions entered by the power of attorney holder without challenging the authority of the attorney of the authority to enter into such transactions?” 7. The learned counsel appearing for the appellants pointed out that the lower appellate court was not justified in reversing the findings of the trial court. The execution of the power of attorney is proved and is in fact admitted by the defendant. Ext.A2 sale deed executed by the power of attorney holder on the basis of Ext.A1 is valid. The obligations cast under Ext.A2 have been discharged. The learned counsel pointed out that in fact the defendant S.A. 417/1995. 6 had instituted an indigent O.P. challenging the sale deed. However, she was directed to pay the court fee. She challenged the said order before this Court, which confimed the order of the lower court. She however abandoned the suit. Therefore she cannot now say that the sale deed is bad. The various letters produced by the plaintiffs will show that the defendant had borrowed money from several persons. According to the learned counsel the trial court had elaborately considered the materials on record and had come to the right conclusion. There were no grounds made out to interfere with the judgment and decree of the trial court. 8. The learned counsel appearing for the respondent on the other hand pointed out that the appellate court had considered the matter in the proper perspective. The trial court had mechanically acted and accepted the pleas of the plaintiff. However, the lower appellate court has gone into the issues as to whether the power of attorney is genuine. The appellate court has scrutinised the S.A. 417/1995. 7 various documents and arrived at the conclusion that in all probability the defendant had been misled and defrauded and that she had in fact no intention to sell the property. The entire case set up by the plaintiffs was found to be false. The learned counsel therefore would point out that no grounds are made out to interfere with the decree of the lower appellate court. 9. Principal issue centres around the validity of Ext.A1 power of attorney. Before going into that question certain dates maybe noted. 10. The husband of the defendant was admitted to the hospital on 12.4.1988. According to the plaintiffs the oral sale was on 4.4.1988. The power of attorney is seen executed on 11.4.1988. Ext.A1 sale deed is dated 28.6.1988. Cancellation deed of the power of attorney was executed on 1.7.988. Ext.B2 reply notice was sent by the defendant on 25.7.1988. S.A. 417/1995. 8 11. A perusal of the power of attorney shows that it was executed in favour of one Kunhiraman, who is a driver by profession. It does not appear that there was any relationship between the defendant and the said person. it is stated in Ext.A1 that the entire sale consideration has been received. There is no mention in Ext.A1 about the oral sale on 4.4.1988. The reason for not executing a sale deed then was the tax problem. According to the plaintiff, it was felt that the tax concessions will be more beneficial in the coming year. If this is to be believed, it escapes one's understanding as to how the execution of a power of attorney could improve the situation. Even if the sale deed is executed by the power of attorney holder, still the tax liability would fall on the defendant. Therefore the observation of the lower appellate court in this regard seems to be fully justified. Moreover, as rightly noticed by the appellate court, the case of plaintiff was that in case execution of the sale deed is postponed, it will be beneficial to Gopalakrishnan Nambiar, the husband of the defendant, S.A. 417/1995. 9 cannot be accepted because the property belonged to the defendant and not to Gopalakrishnan Nambiar. 12. Going by the recital in Ext.A2, the sale consideration shown is Rs.1,10,000/-. An amount of Rs.20,000/- is stated to have been received by the defendant as advance. Out of the balance amount of Rs.90,000/- rupees, rupees Rs.45,000/- is to be paid to Smt. Pankajam, who is one of the sisters of the defendant and the balance sum of Rs.45,000/- is to be paid to Sree Raveendran Nair, who is the brother of the defendant. In short, except for the sum of Rs.20,000/- the balance is retained to be paid in the document itself. One may now recall the recital regarding the consideration made mention of in Ext.A1. There what has been stated is that the entire consideration has already been received. There is thus considerable inconsistency in the recital regarding the consideration in Exts.A1 and A2. This cannot be easily ignored. No explanation is offered in this regard. S.A. 417/1995. 10 13. According to the appellant, the fact that Ext.A16 makes mention of Ext.A1, is sufficient to show that Ext.A1 was in fact executed by the defendant. If that be so, the defendant cannot be to say that she had been defrauded. So also she cannot say that she had not executed the said document. 14. Though the argument may look attractive at the first blush, it lacks merits on a closer scrutiny. Ext.A16 is a cancellation deed. Necessarily the executant had to refer to Ext.A1. That does not mean that she has admitted that the power of attorney was executed by her with full knowledge of the contents of the deed. It is significant notice that the power of attorney was executed on 11.4.1988. The evidence shows that the defendant had taken her husband to the hospital on 12.4.1988. The explanation offered by the defendant that she was in such a state of mind she had signed some documents brought by Sree Sreedharan Nambiar, who represented to her that she S.A. 417/1995. 11 had to sign them, in order to get money for treatment of her husband need not be disbelieved. Therefore, this submission by the appellant is devoid of merits. 15. Ext.A3 receipt was produced by the plaintiff to show that they have discharged the burden under Ext.A2. Apart from the fact that it is not a proper receipt, the lower appellate court also noticed tampering of the document. The lower appellate court has noticed that in fact the recital therein would go to show that the amounts mentioned in Ext.A2 were paid long ago. 16. The contention of non est factum is urged in this case by the respondent. It is possible that the contention taken that on the eve of going to the hospital she happened to sign some documents could be true. The various discrepancies noticed would suggests so. See the decisions reported in Chandran Nair v. Krishnan (1997(1) K.L.T. 656), Grasim Industries Limited v. Agarwal Steel ((2010) 1 SCC 83), (AIR 1990 SC 540) and Ali Kunju v. Abdul Khathirkunju (2001(3) K.L.T. SN 38). S.A. 417/1995. 12 17. It will be profitable to refer to Ext.A4 notice issued by the plaintiffs at this juncture. When one reads it carefully it can be seen that the request to continue residence in the building after the so-called oral sale was made by the defendant even before her husband was taken to the hospital. The request made was to permit them to continue residence for three more months. Thereafter her husband died. Further, it is stated that after the death of her husband, she requested that she may be allowed to continue residence for another 41 days. After that, even though demand for vacating the building was made, it was not heeded to. Significantly enough there is no whisper in Ext.A4 about the payments made as per Ext.A3. The various letters produced by the plaintiffs do not advance their case much. It only shows that the defendant was in need of money. None of the letters produced by the plaintiffs referred to the so-called oral sale or to the power of attorney. S.A. 417/1995. 13 18. Ext.A16 is put forward as an admission by the defendant of the execution of Ext.A1. It is far from so. None other letters or documents relied on by the plaintiffs give any indication that the defendant had executed the power of attorney namely Ext.A1. It is surprising to note that even when there was a specific denial of execution of the power of attorney, there was no attempt from the side of the plaintiffs to examine any of he witnesses to Ext.A1. The statement in Ext.A16 to the effect that a power of attorney is seen to have been executed in favour of Kunhiraman cannot be taken as an admission. The said statement is only for the purpose of executing the cancellation deed. 19. It looks rather strange that the defendant would have executed a power of attorney in favour of a person who is a driver by profession. It is not as if the defendant did not have any relatives in whose favour she could have executed a power of attorney. It is highly S.A. 417/1995. 14 improbable and far-fetched to assume that the defendant would execute a power of attorney in favour of Kunhirman. There is no reason as to why she should do so. 20. One may now refer to the oral evidence in the case. The first plaintiff is examined as P.W.1. He traces title to the suit property. He says about the gift in favour of the defendant and the execution of power of attorney by the defendant. He then speaks about the execution of Ext.A2. In cross-examination he denied that the power of attorney holder was the driver of Advocate Sri.Sreedharan Nambiar. According to him, the choice was made by the defendant. However, he says that the power of attorney was executed in the presence of the husband of the defendant. If that be so, surely one would have expected him to be a witness. As already stated, none of the witnesses to the power of attorney is examined. P.W.2 admitted that it was he who had presented the power of attorney for registration and had taken it back. He denied that he had done so because the power of attorney holder was his driver. S.A. 417/1995. 15 21. It is here that the evidence of P.W.3 assumes significance. He is the power of attorney holder. He says that he used to borrow money from the defendant. In cross-examination, he admitted that he had never seen Ext.A1 at all. And also that he had never possessed the same. 22. In the light of the very unsatisfactory evidence adduced, it is extremely difficult to hold in favour of the plaintiffs. 23. Learned counsel appearing for the respondent pointed out that the power of attorney does not conform the requirements of the Registration Act and Rules. Provisions relied on by the parties are Sections 32 and 33 of the Registration Act and Rules 57, 60 and 61 of the Registration Rules (Kerala). Sections 32 and 33 read as follows: “32. Persons to present documents for registration.- Except in the cases mentioned in Section 31, 88 and 89, every document to be S.A. 417/1995. 16 registered under the Act, whether such registration be compulsory or optional, shall be presented at the proper registration office,- (a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or (b) by the representative or assign of such a person, or © by the agent of such a person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned. 33. Power-of-attorney recognizable for purposes of Section 32.-(1) For the purposes of Section 32, the following powers of attorney shall alone be recognised, namely:- (a) if the principal at the time of executing the power of attorney resides in any part of India in which this act is for the time being in force, a power of attorney executed before and authenticated by the Registrar or Sub Registrar within whose district or sub-district the principal resides; S.A. 417/1995. 17 (b) if the principal at the time aforesaid resides in any part of India in which this Act is not in force, a power of attorney executed before and authenticated by any Magistrate; © if the principal at the time aforesaid does not reside in India, a power of attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul or representative of the Central Government: Provided that the following persons shall not be required to attend at any registration office or court for the purpose of executing any such power of attorney as is mentioned in clauses (a) an (b) of this section, namely:- (i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend; (ii) persons who are in jail under civil or criminal process; and (iii) persons exempt by law from personal appearance in the Court. Explanation.- In this sub section “India” means India, as defined in clause (28) of Section 3 of the General Clauses Act, 1897 (X of 1897). S.A. 417/1995. 18 (2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power of attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or Court aforesaid. (3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination. (4) Any power of attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or Court hereinbefore mentioned in that behalf.” Rules 56, 60 and 61 read as follows: “57.(i) When a power of attorney is executed before a Registering Officer he shall, after satisfying himself of the identity of the party and S.A. 417/1995. 19 obtaining when necessary his left thumb impression against his signature, authenticate it in the following form:- No...................... of 19 Executed in my presence (at .................) at (give exact hour and minute).............. this day................... of 19..... by A.B., who is personally known to me/0r whose identity is proved by (signature of) C.D. (with addition) and (signature of) E.F., (with addition). Date Signature of the Registering Officer. Seal Note.- To be filled in when the execution takes place at a place other than the Registering Office, e.g., a private residence. (ii) When a power of attorney which has not been executed before a Registering Officer is presented to him for authentication under the proviso to Section 33 of the Act, the Registering Officer, shall, if he attends himself at the private residence of the principal or if the principal appears in the office behind a purdah and is S.A. 417/1995. 20 examined with the help of hammamnee or a female attendant adopt the following form of authentication:- “No.......... of 19............. Fee levied Rs. .......... I certify that I have satisfied myself on examining at .. at............ on ................. hours/this............... day of 19......... (signature of ) A.B., who is a Gosha lady with the aid of ............. (signature of C.D.) hammamnee/female attendant (with addition) that this power of attorney has been voluntarily executed by the said A.B., who purorts to be the principal and who is personally known to me (or whose identity has been proved by (1) (EF.) (Signature with addition) and (2) (G.H.) (Signature with addition). Signature of the Registering Officer with name and designation. Station: Date: Seal (iii) In Authenticating a power of attorney which occupies more than one sheet of paper, the seal and the signature of the Registering Officer shall be affixed to each sheet. (iv) Every interlineation, blank, erasure or alteration in the body of a power of attorney which is authenticated and not registered shall, at S.A. 417/1995. 21 the time of authentication, be detailed in a footnote added to the document below the endorsement or authentication; an shall be signed by the Registering Officer even if the party himself has entered a similar note in the document. If there are no interlineations, blanks, erasures or alternations in the body, the fact shall be noted. Interlineations, etc., in the authentication endorsement shall be initialled by the Registering Officer. 60.A power of attorney may be brought to a Registering Officer (1) for authentication, or (2) for registration, or (3) for both authentication and registration. In the first case, he shall merely make the entry prescribed for authentication; in the second case, he shall register the power in the same manner as any other document; and in the third case, he shall first authenticate the power and then admit it to registration in the usual manner. 61. Although a power of attorney may be registered like any other instrument, it is not valid for registration purposes unless authenticated. S.A. 417/1995. 22 When a power of attorney is brought to a Registering Officer by a person who does not understand the distinction between authentication and registration, the Registering Officer shall explain the difference to him and give him such information as