IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 AS.No. 85 of 1998(A) ------------------------------ O.S. NO.459/1991 SUB COURT , THODUPUZHA ...... APPELLANT(S): DEFENDANTS 1 AND 2 ---------------------- 1. ABI.K.ABEL, S/O. ABEL, KATTANGANAYIL HOUSE, KUROOR KARA, KOTHAMANGALAM VILLAGE, DO. TALUK. 2. K.E.ABEL S/O. ITTIAVIRAH, KATTANGANAYIL HOUSE, DO. DO. BY ADV. MR.N.SUKUMARAN MR.S.SHYAM RESPONDENT(S): PLAINTIFFS AND DEFENDANTS 3 AND 4. -------------------------- *1. ELIZABETH D/O. ITTIAVIRAH, KATTANGANAL HOUSE, KUROOR KARA, KOTHAMANGALAM VILLAGE DO. DO. *IT IS RECORDED THAT THE IST RESPONDENT DIED 2ND APPELLANT AND THE 2ND RESPONDENT ARE TWO OF HER LEGAL REPRESENTATIVES VIDE ORDER DT. 18.1.08 ON IA. 200/08. 2. YACOOB, S/O. ITTIAVIRA, KATTANGANAL HOUSE DO. DO. 3. ELDHO @ KUNJUMON, PARIYARATHU HOUSE, MACHIPLAVU KARA, MANNAMKANDAM VILLAGE, DEVIKULAM TALUK. 4. JAYAPAL, S/O. SANKARAN, PERUMCHIRA HOUSE, KUMMANAM KARA, CHERKULAM VILLAGE KOTTAYAM TALUK. A.S. NO.85/1998 ADDL.R5 & R6 ARE IMPLEADED. 5. MARIYAM, AGED 86, D/O.ITTIAVIRAH, ALIYATTUKUDY HOUSE, VENGOOR P.O., MUDAKKUZHA KARA, PERUMBAVOOR, KUNNATHUNADU TALUK. 6. VARKEY, S/O. ITTIAVIRAH, AGED 89, KATTANGANAL HOUSE, THANKALAM KARA, THRIKKARIYOOR P.O., ERAMALLOOR VILLAGE KOTHAMANGALAM TALUK OTHER LEGAL HEIRS OF THE DECEASED R1 ARE IMPLEADED AN ADDL. R5 & R6 VIDE ORDER DT. 18.1.08 ON IA. 200/08. BY ADVS. MR.P.VISWANATHAN MR.T.R.RAJEEV MR.DINESH R.SHENOY THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22/01/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.1696/2007 IN AS. NO.85/1998 Dismissed 22.01.2009 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE tss M.N. KRISHNAN, J ----------------------- A.S.No. 85 OF 1998 --------------------------------- Dated this the 22nd day of January, 2009 JUDGMENT This is an appeal preferred against the judgment and decree of the Subordinate Judge, Thodupuzha in O.S. 459/91. The suit is one of setting aside the sale deed No. 1011/90 of the of Sub Registry Devikulam. The trial court on a consideration of the entire materials granted a decree in favour of the plaintiffs and it is against that decision the defendants 1 and 2 have come up in appeal. 2. After the filing of the appeal the appellants have produced two documents as per I.A. 2436/08. One is with respect to an assignment deed executed by the 1st plaintiff in favour of the 2nd plaintiff and the other document is the original of the assignment deed by virtue of which the 1st plaintiff obtained the property. It is true that these documents could have been produced at the stage of trial and when the plaintiff attempted to produce a photocopy of the document relating to the sale it was objected to. Whatever it may be, I feel the parties are not taken aback by receiving these documents for the reason they are documents known to all. A.S. 85/1998 -2- Therefore I am inclined to receive those documents and mark it as Exts. B11 and B12 in the appeal. 3. The points that arises for determination in the appeal are : 1. Whether there are sufficient grounds to set aside the document? 2. Whether the trial court has erred in granting a decree in favour of the plaintiff? Points 1 & 2: For the sake of convenience, both these points are answered together. It is desirable to state the brief facts before entering into an discussion on the subject. The 1st plaintiff is the sister of the 2nd defendant. The 2nd plaintiff is also a brother of the 1st plaintiff who had obtained assignment deed in his favour from the 1st plaintiff. The 1st defendant is the son of the 2nd defendant and defendants 3 and 4 are impleaded as persons trying to inter meddle with the property. It is the case of the plaintiffs that the 1st plaintiff had executed a power of attorney in favour of the 2nd defendant in the year 1982 and that according to the plaintiffs consent of the 1st plaintiff is necessary for transferring the property. The plaintiffs would contend that with a view to defeat the 1st plaintiff, the 2nd A.S. 85/1998 -3- defendant had created a document in favour of the 1st defendant and that the 1st plaintiff has not obtained any consideration for the sale and further she had no intention to transfer the property. Therefore the document executed by the 2nd defendant in favour of the 1st defendant as the power of attorney holder of the 1st plaintiff is liable to be set aside. 4. On the other hand, defendants 1 and 2 would contend that the suit is not maintainable and that the power of attorney gives absolute power to the 2nd defendant to execute the document and 2nd defendant with the knowledge and consent of the 1st plaintiff had transferred the property in favour of the 1st defendant for consideration and the document is valid and it is not liable to be set aside. 5. The learned counsel for the appellant strongly contends before me by referring to the recital in the power of attorney that consent of the 1st plaintiff is not necessary to effect a transfer of the property. I had perused the said power of attorney which is marked as Ext. B6. It is a general power of attorney. It gives the right to the 2nd defendant to transfer the property as well along with the other rights to manage the property. But it is recited in the A.S. 85/1998 -4- document that the sale consideration so received has to be given to the 1st plaintiff. So the terms of the general power of attorney does not prohibit the 2nd defendant from executing the document. But the question is whether the document so executed is supported by consideration and is vitiated for any of the grounds stated by the 1st plaintiff. The document relates to an extent of 5.44 acres of property and by virtue of Ext. A5 property is transferred in favour of the 1st defendant by the power of attorney holder for a consideration of Rs. 54,500/-. According to the learned counsel, after the sale by virtue of a receipt of Ext. B2, the 1st plaintiff had received the sale consideration and therefore there is nothing to interfere with the same. So far as it relate to Ext. B2 receipt the contention of the 1st plaintiff is to the effect that at the time of execution of the power of attorney the 2nd defendant had taken blank signed papers and papers written and signed after the execution of the power of the attorney and one of such papers had been utilised for the creation of the Ext. B2 receipt. On the contra, 2nd defendant would contend immediately after the execution of the sale deed Ext. A5, the consideration had been handed over to the 1st plaintiff and she has signed the same. Let me consider about A.S. 85/1998 -5- the cases of the parties with respect to Ext. B2. So far as the defendants 1 and 2 are concerned, this receipt is a crucial clinching document. They filed a written statement wherein they had stated that the amount has been paid to the 1st plaintiff by obtaining document, but they did not state the date, year or anything regarding the same. They also did not produce this document along with written statement. So the non production of the document coupled with the non mentioning of the particulars of the document in the written statement rightly created a suspicion in the mind of the trial court regarding its genuineness. 6. The learned counsel for the appellant had drawn my attention to the evidence tendered in the case at the time of cross examination of PW2. PW2 were examined had stated “ The receipt dated 10.5.90 shown to the witness “ (answer). So the learned counsel would contend this will convincingly establish the execution of B2 by virtue of this candid admission made by the plaintiff from the box. I feel the isolated consideration of that sentence may not be proper in the backdrop of the facts and circumstances of this case. The 1st plaintiff is an unmarried lady A.S. 85/1998 -6- totally depend on her brothers for being looked after. This particular question was put to the party and she had answered in the affirmative. But in this context one has to realise that she has got a case that after execution of the power of attorney, the 2nd defendant had obtained signed papers and blank signed papers from the plaintiffs. This questions was put in continuation of those questions and a document is projected and she is asked whether it is her signature. She admits the same. She did not dispute the signature in the document but her constant case has been that she had not received the amount and she had not passed any receipt as contended by the defendant. This receipt Ext. B2 is alleged to be dated 10.5.90. It is for a sum of Rs. 54,500/-. The recitals in the receipt would show that the entire consideration of Rs. 54,500/- is given on that date. Regarding Ext. B2 it is attempted to be proved through DW3 Surendran who is a scribe to that document. He had very clearly deposed in cross examination that the letters in Ext. B2 as it comes down is bigger than the top portion. It is also admitted by him that the gap between the sentences is more when it comes down. The signature of the 1st plaintiff is almost an inch after the writing is concluded. The revenue stamp is affixed on the A.S. 85/1998 -7- right hand side without cancellation and the thump impression is just on the left side of that revenue stamp. The space between the thump impression and the end of the document is almost 1 ½ inches. The factum that the receipt starts with small letters written closely and as it comes down the size of the letter becomes bigger and the gap also widens is a indication of the factor that an attempt has been made to fill a blank signed paper. It has to be stated men may lie but circumstances will never lie. Now it is in this backdrop one has to analyse the evidence of DW2. He has got a totally different case than what is seen from the documents. According to him before the execution of the document an agreement was entered into between the 1st plaintiff and him and about 1 - 1 ½ months prior to the execution of the registered document, a consideration of Rs. 10,000/- was received and it was paid to the 1st plaintiff and the balance consideration was received at the time of execution of the document. The recital in Ext. A5 document which is the title deed of the 1st defendant would show that Rs. 40,000/- had been received at the time of the agreement entered into between the 1st defendant and 2nd defendant and the balance of Rs. 14,500/- had been received on the date of registration or execution A.S. 85/1998 -8- of the document. So the case becomes a totally different one and that is why most probably the defendants did not give the details in the pleadings. 7. Now turning into the consideration. The definite case in the written statement is that 1st defendant is capable of paying the consideration and that he has paid the consideration. A reference to para 6 of the written statement would reveal that it is specifically pleaded that the 1st defendant is a person having his own income and that he has paid the amount and purchased the property. But later it has come out in evidence that he is only an apprentice and is not having much income and the fund has been supplied by his mother who is none other than wife of the 2nd defendant. So even regarding the source of consideration the case is totally different. If these transactions had been between strangers much could be said about the evidence on both sides. But when the parties are in a very close relationship and when the 1st plaintiff who is unmarried is dependant on her brothers, certainly the matter has to be viewed in that back ground. Therefore each and every point though technical may loom large for the purpose of deciding the case. So the source of consideration for the 1st defendant to purchase the property is A.S. 85/1998 -9- though stated in the written statement as his own funds is not available with him. There is no case at any point of time before evidence that it was the mother who paid the amount. The receipts and the pleaded case does not tally each other both in figures as well as on other aspects. The appearance of B2 coupled with the evidence of DW2 who is a scribe would show that the case of defendants 1 & 2 regarding the execution of the document is not true. So I found that the trial court was perfectly justified in holding that Ext. B2 cannot be relied upon to prove the transaction. 8. The learned counsel for the appellant had brought to my notice to so many inconsistencies in the plaintiffs case. It has to be stated even chief examination is done in the form of question and answer and most probably it reveals the ignorance of the lady about the affairs and her version read together as a whole would establish that she was not aware of the transaction and she had not been paid the consideration as well. Similarly her contention that it is only a document executed by the father in favour of the son without consideration for the purpose of defeating her claims appears to be more probable and acceptable. Therefore from these discussions I hold that the trial court is A.S. 85/1998 -10- perfectly justified in granting a decree in favour of the plaintiffs and by setting aside the document which is impugned. Therefore the appeal is dismissed but under the circumstances, without any order as to costs. M.N. KRISHNAN,JUDGE vkm