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2012 DIGILAW 3621 (MAD)

A. Pankajam v. G. Balasubramaniam

2012-08-17

G.RAJASURIA

body2012
Judgment :- 1. A.S.No.682 of 2009 is focussed by the plaintiff and A.S.No.689 of 2009 is focussed by the defendants as against the judgement and decree dated 21.1.2009 passed by the Additional District and Sessions Judge (Fast Track Court No.2), Coimbatore, in O.S.No.129 of 2006, which is one for rendition of accounts; for setting aside the sale deeds and for permanent injunction. 2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court. 3. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of these appeals, in a few broad strokes can be encapsulated thus: (i) The appellant in A.S.No.682 of 2009 filed the suit O.S.No.129 of 2006 seeking the following reliefs: "to pass a decree: a. directing the first defendant to render true and proper accounts to the plaintiff for all monies received by him in respect of sale of the sites set out in the schedule 'A' hereunder: b. setting aside the sale deed dated 27.12.2004 (Regtistered as Doc.No.6927/04) in favour of the second defendant as being unauthorised, invalid and not binding upon the plaintiff: c. setting aside the sale deed dated 6.10.2005 (registered as Doc.No.6663/04) in favour of the second defendant as being unauthorised, invalid and not binding upon the plaintiff. d. for a permanent injunction restraining the first defendant from in any way encumbering or alienating the property belonging to the plaintiff more fully setout and described in the schedule 'C' hereunder. e. directing the defendants to pay the plaintiff the cost of the suit and." (extracted as such) as against the defendants, who are appellants herein in A.S.689 of 2009. (ii) The defendants filed the written statement and resisted the suit. (iii) Issues were framed. During trial, the plaintiff examined herself as P.W.1 and Exs.A1 to A10 were marked. The first defendant examined himself as D.W.1 and no document was filed on the defendants side. Exs.X1 and X2 were marked as Court documents. (iv) Ultimately the trial Court decreed the suit by granting the reliefs as prayed under clause (b), (c) and (d) of the plaint, by setting aside the two sale deeds and granting injunction, but rejecting the prayer for rendition of accounts. 4. Exs.X1 and X2 were marked as Court documents. (iv) Ultimately the trial Court decreed the suit by granting the reliefs as prayed under clause (b), (c) and (d) of the plaint, by setting aside the two sale deeds and granting injunction, but rejecting the prayer for rendition of accounts. 4. Being aggrieved by and dissatisfied with the said judgement and decree of the trial Court, the plaintiff as well as the defendants preferred separately these two appeals respectively. 5. The learned Senior counsel for the plaintiff, by placing reliance on the grounds of appeal in A.S.No.582 of 2009, would advance his arguements, which could pithily and precisely be set out thus: (i) The indubitable and indisputable fact, is that the plaintiff happened to be the sister of D1; D2 is the wife of D1. The plaintiff executed Ex.A4, dated 12.12.1986-the General Power of Attorney in favour of D1, authorising him to manage her immovable properties described therein; carve out into plots and sell them to various persons and get the sale deeds also registered in favour of them. (ii) While so, it so happened that on 12.12.1990, the plaintiff executed Ex.X2-the General Power of Attorney in favour of the same D1 authorising him to sell her properties and also empowering him to appear on her behalf in a different pending suit O.S.No.72 of 1992. (iii) Thereafter the plaintiff, as per Ex.A5-the cancellation deed, dated 11.11.1998, cancelled the power deed-Ex.A4 dated 12.12.1986. However in Ex.A5-the cancellation deed, the power deed-Ex.X2 dated 12.12.1990, was not found referred to. (iv) It appears, taking undue advantage of the said missing of reference to the power deed-Ex.X2 in Ex.A5, D1 in collusion with D2, who is none but the wife of D1, executed the sale deed in favour of D2, which is a sham and nominal document. D1 also sold various other portions to third parties. (v) The plaintiff did choose to restrict her claim only in respect of the suit property, which D1 illegally and unauthorisedly sold in favour of his wife. D1 also sold various other portions to third parties. (v) The plaintiff did choose to restrict her claim only in respect of the suit property, which D1 illegally and unauthorisedly sold in favour of his wife. (vi) The lower Court considering the pro et contra held that Ex.A5-the cancellation deed dated 11.11.1998 is capable of cancelling the power in favour of D1 in toto and in entirety, leaving nothing more to survive in favour of D1, who subsequent to Ex.X2 dated 12.12.1990 had no authority to act as power of attorney of plaintiff and sell any property much less the property covered by the sale deeds Exs.A6 and A7 in favour of D2. (vii) Even though the defendant No.1 as D.W.1 claimed that various plots were sold by him, he did not account for it to the plaintiff; whereupon the latter was constrained to file the suit for rendition of accounts also along with the other prayers. However, the lower Court simply, without considering the merits of the plaintiff's case in demanding accounts from D1, rejected it. Accordingly, the learned Senior counsel for the appellant in A.S.682 of 2009 would pray for decreeing the suit in favour of the plaintiff in respect of prayer No.(a) in the plaint for rendition of accounts also and for confirming the judgement of the lower Court in respect of granting of the three other reliefs as prayed in the plaint. 6. Whereas, in a bid to torpedo and extirpate the arguements as put forth and set forth on the side of the appellant/plaintiff (A.S.No.682 of 2009), the learned counsel for the appellants herein/defendants in A.S.No.589 of 2009 would pyramid his arguements, which could in a few broad strokes can be encapsulated thus: (i) The lower Court while correctly rejecting the prayer for rendition of accounts by D1, erroneously decreed the suit granting the prayers in clauses (b), (c) and (d) of the plaint, warranting interference in appeal. (2) The plaintiff having chosen to execute Ex.A5-the registered cancellation deed dated 11.11.1998, cancelling the power granted in favour of D1 has not chosen to cancel Ex.X2-the General Power of Attorney dated 12.12.1990. (3) Ex.X2 is a self-contained power deed, which unambiguously and unequivocally highlight and spotlight the fact that the plaintiff authorised D1 to sell her properties even though there is no specificity concerning the immovable property sold by D1 on behalf of the plaintiff. (3) Ex.X2 is a self-contained power deed, which unambiguously and unequivocally highlight and spotlight the fact that the plaintiff authorised D1 to sell her properties even though there is no specificity concerning the immovable property sold by D1 on behalf of the plaintiff. (4) There is no presumption under law that merely because Ex.A4-the general power of attorney was cancelled by Ex.A5-the cancellation deed, Ex.X2-the general power of attorney also should be deemed to have been cancelled by virtue of the same Ex.A5, which is conspicuous of non referring to Ex.X2. (5) The lower Court was wrong in assuming and presuming as though the husband D1 sold the property in favour of his wife D2 without any consideration and also without any authority. Accordingly, the learned counsel for the appellants/defendants (A.S.No.689 of 2009) would pray for setting aside the judgement and decree of the trial Court in respect of granting of the reliefs as contained in the prayers (b), (c) and (d) of the plaint. 7. The points for consideration are as under: (1) Whether the prayer (a) in the plaint relating to the rendition of accounts is barred by limitation? (2) Whether the sale deeds Exs.A6-dated 27.12.2004 and A7-dated 6.10.2005 executed by D1 in favour of D2 were not having the authorisation of the plaintiff, in view of Ex.A5-the cancellation deed, by which Ex.A4-the power deed was cancelled, and whether such Ex.A5 could be taken as the one deemed to have cancelled impliedly Ex.X2-the power deed dated 12.12.1990 also? (3) Whether there is any perversity or illegality in the judgement and decree passed by the lower Court? 8. Point No.(1) My mind is reminiscent and redolent of Section 3 of the Limitation Act, which is extracted hereunder: "Sec.3 of the Limitation Act. Bar of Limitation – (1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. Bar of Limitation – (1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. (2) For the purposes of this Act,- (a) A suit is instituted,- (i) in an ordinary case, when the plaint is presented to the proper officer; (ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and (iii) in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator; (b) any claim by way of a set off, or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted- (i) in the case of a set off, on the same date as the suit in which the set off is pleaded; (ii) in the case of a counter claim, on the date on which the counter claim is made in Court; (c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court." 9. Trite the proposition of law is that despite the parties to a suit might not be interested on the Limitation point, the Court is expected to consider as to whether the suit is within limitation or not. Accordingly if viewed it is crystal clear from the admitted evidence available on record that Ex.A5-the cancellation deed emerged on 11.11.1996, whereas, the suit was filed during the year 2006 beyond three years as contemplated under Article 4 read with Section 113 of the Limitation Act. Even by phantasmagorical thoughts or by any stretch of imagination it cannot be visualised or comprehended that after the snapping of the relationship between the plaintiff and D1 as that of the principal and agent, there continued such relationship based on principal and agent and it cannot be assumed or presumed that any cause of action existed legally within three years anterior to the filing of the suit during the year 2006. 10. 10. There is no going back on the stand taken by the plaintiff that by the execution of Ex.A5-the cancellation deed, the relationship as principal and agent between the plaintiff and D1 got snapped once and for all, and basing such arguement alone the plaintiff would pray for setting aside the two impugned sale deeds referred to in the plaint on the ground that those sale deeds emerged after cancellation of the power given under Ex.X2, as per Ex.A5. As such, it is crystal clear that the cause of action on the part of the plaintiff to demand accounts from her erstwhile agent-D1 emerged even by the execution of Ex.A5. Within three years from the date of execution of Ex.A5 i.e. from 11.11.1998, had the suit been filed for rendition of accounts, certainly without any hesitation this Court would have held that the suit was within limitation so far prayer No. (a) in the plaint was concerned, but to the shock and surprise the plaintiff did choose to seek for accounts almost after 8 years of such execution of cancellation deed. The factual matrix indicates and demonstrates that the plaintiff slept at the wheel or allowed grass to grow under her feet in addition to she having ignored the maxim 'Vigilantibus et non dormientibus jura subveniunt' – The laws aid the vigilant, not those who sleep. As such, there is no gainsaying or denying of the fact that the said suit for rendition of accounts is barred by limitation and the plaintiff's claim concerning her prayer under clause (a) in the plaint turned out to be a basket case. 11. Even though the lower Court in very many words did not state that the suit was barred by limitation, it clearly pointed out that there were laches on the part of the plaintiff in demanding accounts. 12. It is a common or garden principle of law that there should not be any stale claim on the part of the plaintiff. Even though the lower Court in very many words did not state that the suit was barred by limitation, it clearly pointed out that there were laches on the part of the plaintiff in demanding accounts. 12. It is a common or garden principle of law that there should not be any stale claim on the part of the plaintiff. Even on merits, the case of the plaintiff relating to rendition of accounts has to be looked askance at, for the simple reason that no principal who is not in receipt of any money from his or her agent, would refrain from demanding accounts from the agent on the failure of the agent to furnish accounts; such principal would file a suit within reasonable time; so to say, by all means, the principal is expected to file the suit within three years from the date of such snapping of principal and agent relationship between the two. But in this case, that has not been done so. Hence, in these circumstances any Court would be tempted to look with suspicious eye the claim of the plaintiff for rendition of accounts as against his agent. On that basis also the findings of the lower Court have to be upheld. Accordingly, this point No.(1) is decided to the effect that the claim of the plaintiff for rendition of accounts was barred by limitation and even on merits the plaintiff could not establish that D1 did not furnish any accounts earlier. 13. Point No.(2) : The learned counsel for the defendants would strenuously point out that in the absence of any specification about Ex.X2 in Ex.A5 there is no assumption or presumption that Ex.X2 was got impliedly cancelled. 14. Whereas the learned Senior counsel for the plaintiff would submit that as per the well settled proposition of law relating to interpretation of documents, from the recitals in Ex.A5, it has to be construed that Ex.X2 also stood cancelled, as otherwise it would lead to disastrous consequences. According to the learned Senior counsel, a principal who did choose to express unambiguously and unequivocally her intention not to retain her agent any more by virtue of a document, cannot be imputed with knowledge that the same principal under some other earlier document intended to retain him as his agent for the very same purpose. 15. According to the learned Senior counsel, a principal who did choose to express unambiguously and unequivocally her intention not to retain her agent any more by virtue of a document, cannot be imputed with knowledge that the same principal under some other earlier document intended to retain him as his agent for the very same purpose. 15. It is not as though Ex.X2 emerged for totally a different purpose other than the one contemplated in Ex.A4. It is not as though in Ex.X2 a totally different property apart from the property contemplated in Ex.A4 was intended to be sold by the plaintiff through D1. But it is nothing but a reiteration of the recitals in Ex.A4. In fact, in Ex.A4-the details of the properties of plaintiff to be sold are found exemplified; whereas, in Ex.X2 in paragraph No.2, the right of the agent is pithily and precisely, succinctly and tersely stood specified without specifying the description of immovable properties of the plaintiff. But it is not the case of any one that under Ex.X2, a totally different property from the property contemplated under Exs.A4 and A5 was contemplated. In such a case, the lower Court, considering the pro et contra and that too, au fait with law and au courant with facts correctly decided that Ex.A5 had the effect of cancelling even the power given under Ex.X2. 16. My mind is reminiscent and redolent of the following maxims: (i)Verba generalia reneraliter sunt intelligenda – General words are to be understood generally. (ii) Animus hominis est anima scripti – The intention of the person is the soul of the instrument. (iii) Verba ita sunt intelligenda, ut res magis valeat quam pereat - Words are to be so understood that the matter may have effect rather than fail. (iv) Qui haeret in litera, haeret in cortice: One who clings to the letter clings to the shell or surface. (v) Mala grammatica non vitiat chartum. Sed in expositione instrumentorum mala grammatics quoad fieri possit evitanda est – Bad grammar does not vitiate a deed. But in the exposition of instruments, bad grammar, as far as it can be done, is to be avoided. 17. (v) Mala grammatica non vitiat chartum. Sed in expositione instrumentorum mala grammatics quoad fieri possit evitanda est – Bad grammar does not vitiate a deed. But in the exposition of instruments, bad grammar, as far as it can be done, is to be avoided. 17. The sum and substance of those maxims would unambiguously and unequivocally point out that a document has to be read as a whole and the spirit of it should be taken note of, and not to be carried away by the mere letters found therein. Any one who tries to rely on mere wordings but without keeping in mind the object and spirit of the document, would be considered as a person who has thrown the baby along with the bath water. 18. Indubitably and indisputably the plaintiff is the elder sister of D1 and by virtue of Ex.A5 she unambiguously and unequivocally, pellucidly and palpably expressed her intention not to retain D1, her brother as agent and a few moments' consideration would glaringly expose the legerdemain in the contention of the defendants. In this piquant situation, will it be possible for any one to contend that under Ex.A5 even though the plaintiff did not intend to retain D1, yet under Ex.X2 she intended to retain D1 as her agent in respect of the same property. As such, the plausible interpretation should be resorted to and not an interpretation which would lead to disastrous and absurd consequences. 19. Unambiguously and unassailably the fact remains that D1 was put on notice by the plaintiff about the cancellation even in the year 1998 and there is no gainsaying of the said fact. When such is the position I am at a loss to understand and there is no knowing of the fact as to how D1 could claim that he was given carte blanche to sell the immovable properties of the plaintiff covered under Exs.A5, through Exs.A6 and A7 the sale deeds in favour of his wife D2. 20. The lower Court taking into consideration the evidence on record both oral and documentary correctly, held that the emergence of sale deeds Ex.A6 and A7 after the cancellation deed Ex.A5, was null and void ,warranting no interference in appeals. 21. 20. The lower Court taking into consideration the evidence on record both oral and documentary correctly, held that the emergence of sale deeds Ex.A6 and A7 after the cancellation deed Ex.A5, was null and void ,warranting no interference in appeals. 21. Relating to passing of consideration is concerned, there also the lower Court, from the available evidence, held that there is nothing to indicate that the sale prices of Rs.2,00,000/- and Rs.3,00,000/-, respectively, were paid by D2 to D1. It is therefore crystal clear that the defendants 1 and 2 colluded together and created those Exs.A6 and A7 so as to deprive the plaintiff of her legitimate right over the suit property. The lower Court also adverted to the accounts of the D1 and D2 and highlighted as to how objectively there is no smidgeon of evidence to prove that D2 paid sale consideration to D1 and that D1 in turn even after Ex.A5, accounted for such sales as contained in Exs.A6 and A7 to the plaintiff. From the view point of defendants, if D1 had authority to sell even after Ex.A5, the there should be clinching and objective evidence relating to D1's accountability to the plaintiff, which is conspicuous of its missing, wherefore, Exs.A6 and A7 are nothing but ruse to keep the suit property out of the reach of the plaintiff. 22. I recollect and call up the following maxim: "In re dubia magis infitiatio quam affirmatio intelligenda – In a doubtful matter, the negation is to be understood rather than the affirmation. " 23. Accordingly, the plea of the defendants cannot be countenanced because absolutely there is no shard or shred, pint or molecular, jot or iota evidence to fortify and buttress their plea. But on the other hand, the preponderance of probabilities and the available evidence are strong in favour of the plaintiff and accordingly, the lower Court set aside the sale deeds executed by D1 and also consequently granted injunction. 24. The law also is well settled that in respect of vacant land possession follows title. In view of having held that the title remains with the plaintiff, absolutely there is nothing wrong on the part of the lower Court in holding the possession over the suit property in favour of the plaintiff and granting injunction. 24. The law also is well settled that in respect of vacant land possession follows title. In view of having held that the title remains with the plaintiff, absolutely there is nothing wrong on the part of the lower Court in holding the possession over the suit property in favour of the plaintiff and granting injunction. In this connection I would like to cite the Apex Court's judgement as under: 2001(3) CTC 393 – MURUGAIYAN AND 2 OTHERS V. SUBBAIYAN, certain excerpts from it would run thus: "12. The only question surviving for consideration is as regards possession. No doubt, the Commissioner has found that the defendant had raised paddy in the area covered by AJDEI. The suit was filed in the year 1985. The Commissioner filed his report in 1988. This would not show that on the date of the suit, the defendant was in possession of the area AJDEI or in any event in enjoyment of the palmyrah trees along the line/ridge AID. In one of this documents it is stated that the property excluding the palmyrah trees has been sold, though the other document shows including palmyrah trees. Those are documents among the family members of the defendant. His uncle or cousin had sold the middle and the southern portions of the property claimed by the defendant, to his wife. As rightly pointed out by the trial Court, the document which says that palmyrah trees were also subject matter of sale, is a self serving document and that will not prove the title of the defendant to the palmyrah trees or his possession and enjoyment of the same. The defendant set up two Panchayats with regard to palmyrah trees. None of the panchayatdars was examined before the courts below. The panchayats set up by the defendant have not been established. Exs.A.2 to A.12 show plaintiffs' possession for the period 1962 to 1976 and 1985. Even otherwise the established legal position when there is no adequate evidence with regard to possession by either party, is possession should follow title. In the instant case, the title of the plaintiffs having been clearly found, the lower appellate court was in error in finding that the defendant was in enjoyment of the palmyrah trees. There is some vague averment in the written statement with regard to adverse possession by the defendant. However, there is no proof of the same. In the instant case, the title of the plaintiffs having been clearly found, the lower appellate court was in error in finding that the defendant was in enjoyment of the palmyrah trees. There is some vague averment in the written statement with regard to adverse possession by the defendant. However, there is no proof of the same. The claim of the defendant on the basis of adverse possession cannot therefore be countenanced. 13. The plaintiffs have title. Possession follows title. The Substantial question of law is answered in favour of the appellants. The second appeal is allowed. The judgment and the decree of the lower appellate Court are set aside and those of the trial Court restored. In as much as the lower appellate court has committed a serious blunder with regard to the point arising for consideration, this Court is perforce obliged to interfere under Section 100 C.P.C.” 25. On balance Point No.(ii) is decided in favour of the plaintiff and as against the defendant. Applying the aforesaid dicta as it stood ennunciated in the precedent cited supra, I could see no perversity or illegality in the judgement and decree of the lower Court. 26. Point No.(iii): Accordingly, the judgement passed by the lower Court in toto is confirmed and both these appeals are dismissed. However, there is no order as to costs. Consequently, miscellaneous petition is dismissed. However there is no order as to costs.