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2017 DIGILAW 100 (KER)

P. T. ROY BABU v. P. T. RAJAN BABU

2017-01-12

P.N.RAVINDRAN, P.SOMARAJAN

body2017
JUDGMENT : P. SOMARAJAN, J. 1. These two appeals are arising out of a common decree and judgment dated 29.06.2001 in O.S. No. 255 of 1991 and O.S. No. 102 of 1992 of the Sub Court, Kottarakkara. The suit in O.S. No. 255 of 1991 was filed by the plaintiff for the grant of a decree setting aside Exhibit B1 sale deed dated 18.10.1985 alleged to have been executed by his father one Thomas Vaidyan as his power or attorney holder. According to the plaintiff, he had on earlier occasion executed Exhibit A1 power of attorney in favour of his father Thomas Vaidyan but he could not cancel the power of attorney in time and it was left out without a cancellation. It was further alleged that since he could not go abroad, the power of attorney was not acted upon, but, subsequently he came to know about the execution of Exhibit B1 sale deed by the power of attorney holder, his father Thomas Vaidyan, in favour of the defendant herein, and it has necessitated the suit for cancellation of the said sale deed. It was also inter-alia contended by the plaintiff that the power of attorney was not acted upon and it was kept in his custody without giving the original to his father, as such the exercise of power by the father over the power of attorney exhibited as Exhibit A1, is without actual power and hence the sale deed executed is not binding on him. It was also contended that the entire sale consideration was not received by the power holder, only a part of consideration alone was received and the balance sale consideration is yet to be satisfied. 2. The defendant entered appearance and disputed and denied the allegation leveled against the plaintiff regarding the execution of Exhibit B1 sale deed. According to the defendant, the sale deed was executed by the defendant by receiving the sale consideration thereof and the power of attorney was acted upon being it is a registered power of attorney in favour of his father. It was also submitted that the father, on an earlier occasion, executed several documents acting upon the power under Exhibit A1 power of attorney, including the execution of Exhibits B4, B5 and B6 documents of transfer of immovable properties. It was also submitted that the father, on an earlier occasion, executed several documents acting upon the power under Exhibit A1 power of attorney, including the execution of Exhibits B4, B5 and B6 documents of transfer of immovable properties. Exhibits B4, B5 and B6 documents are various sale deeds and document of alienation executed by the power holder Thomas Vaidyan by virtue of power under Exhibit A1 power of attorney in favour of his sons and daughters including a stranger. Exhibit B5 sale deed was executed in favour of a stranger. All these documents were so far not challenged. They have also raised a contention of bar of limitation and pressed for dismissal of the suit. 3. The other suit in O.S. No. 102 of 1992 was filed by the defendant herein, who claims title over the property under Exhibit B1 sale deed dated 18.10.1985 and based on the said title. The suit was filed for recovery of possession of the property being trespassed by the plaintiff and others on the death of the power holder Thomas Vaidyan. Both the suits tried jointly treating the suit in O.S. No. 255 of 1991 as the leading case and on hearing both the parties and having consideration of the pleadings and evidence involved in the suit, the lower court decreed the suit in O.S. No. 255 of 1991 and dismissed the suit in O.S. No. 102 of 1992 by its common decree and judgment dated 29.06.2001, against which these appeals preferred. 4. Heard the learned counsel for the appellant and the learned counsel for the respondent. 5. The parties herein below referred in their status in the leading case in O.S. No. 255 of 1991 for the sake of convenience and the suit in O.S. No. 102 of 1992 referred herein below as the connected suit. 6. The main dispute centered around the question of Exhibit A1 power of attorney, admittedly executed by the plaintiff in favour of his father Thomas Vaidyan, as early as in the year 1981.It is the admitted case of the plaintiff that the said power of attorney was registered with Registration No. 178 of 1981. It is the further case of the plaintiff that though such a power of attorney was executed, it was not acted upon, though initially it was executed for management of the properties of the plaintiff. It is the further case of the plaintiff that though such a power of attorney was executed, it was not acted upon, though initially it was executed for management of the properties of the plaintiff. It was also alleged by the plaintiff that the power of attorney was never revoked and there was no occasion for revoking the power of attorney as it was not acted upon by the parties. At the same time, it was admitted by the plaintiff that what he had executed is a registered power of attorney. Though a contention was raised that no power was conveyed or transferred in favour of the defendant including the power to alienate the property, a mere perusal of Exhibit A1 power of attorney would show otherwise, which includes the power to alienate the property owned by the original title holder. 7. On coming into the question whether the power of attorney was acted upon or not, the document which were produced by the defendant exhibited as B4, B5 and B6 are self explanatory. All these documents were executed prior to the execution of Exhibit A1 sale deed. These documents were executed by the father, power holder, by virtue of the power under Exhibit A1 power of attorney and exercising the power representing the principal, the plaintiff herein and alienated portions of properties belonged to him. It was never brought under challenge by the plaintiff. Those three documents were produced in the court as early as on 11.12.1996 in O.S. No. 102 of 1992 in I.A. No. 1598 of 1996. Even after the elapse of three years, no suit challenging those documents was brought into existence. Now, the same is stood as hopelessly barred by limitation. In fact, there is no challenge with respect to the execution of Exhibits B4, B5 and B6 document of alienation executed by the power of attorney holder exercising the power under Exhibit A1 power of attorney. The power holder had exercised its power under Exhibit A1 power of attorney by executing document of alienation, Exhibits B4, B5 and B6. So, we could not find any merit in the case advanced by the plaintiff that the power of attorney never came into existence and not acted upon. 8. The power holder had exercised its power under Exhibit A1 power of attorney by executing document of alienation, Exhibits B4, B5 and B6. So, we could not find any merit in the case advanced by the plaintiff that the power of attorney never came into existence and not acted upon. 8. On coming into the question of limitation though Ext.B1 document relates back to 18.10.1985, the suit was filed only in the year 1991 after a lapse of more than three years from the date of execution of Ext.B1 sale deed dated 18.10.1985. The pleading raised in the plaint is that the plaintiff came to know about the execution of Ext.B1 sale deed only subsequently after the death of his father, the power holder Thomas Vaidyan and that the suit was brought into existence within a period of three years from the date of notice. Now, our anxious consideration is whether the plaintiff can be permitted to raise such a contention in a suit wherein he had executed a power of attorney appointing a power holder, authorising him to do certain acts including the acts of alienation, transfer of right, title and interest over immovable property, what would be the effect of the act done by the power holder in furtherance to and in pursuant to the power under Ext.A1 power of attorney, whether it would bind on the principal, the plaintiff herein and what is the effect of notice of fact of execution of a document or act done by the power holder on the principal, the title holder. The base of the case advanced by the plaintiff is that he never came to know about the execution of Ext.B1 document till the death of the power holder his father Thomas Vaidyan. It is settled that the notice of agent would be the notice of principal unless the agent exceeds his power or conceals the notice of fact from the notice of the principal. No such case either advanced or brought into existence by the plaintiff but admitted the execution of Ext.A1 power of attorney duly registered under the law for the time being in force. What is pleaded in the present case is the negligence on the part of the plaintiff in making an enquiry with respect to the acts and deeds made by the power holder during the course of power of attorney. What is pleaded in the present case is the negligence on the part of the plaintiff in making an enquiry with respect to the acts and deeds made by the power holder during the course of power of attorney. The interpretation clause to section 3 of the Transfer of Property Act interpreting the expression "when a person said to have notice" assumes importance at this juncture. The abovesaid expression "when a person said to have notice" is sufficient enough to bring any gross negligence in making an enquiry which ought to have done by a party within the sphere of "when a person said to have notice" of the Act. Here in this case the plaintiff had executed a power of attorney in favour of his father as early as in the year 1981 and kept mum for a long period without having any enquiry regarding what are the deeds done by the power holder over his property and came with a suit after the death of the power holder stating that he did not have any notice of the execution of the acts done by his father the power holder. The matter would squarely come under the expression "when a person said to have notice" as interpreted under section 3 of the Transfer of Property Act. On that ground also the suit filed by the plaintiff will not stand as it is hopelessly barred by limitation. The notice of the plaintiff would go back to the date of execution of Ext.B1 document vice 18.10.1985, though it was executed through the power holder. 9. In so far as the other suit in O.S. No. 102 of 1992 is concerned it was filed by the defendant who claims title over the property by virtue of Ext.B1 registered sale deed dated 18.10.1985. His case is that on the death of the power holder Thomas Vaidyan, he was dispossessed from the property by the plaintiffs and took possession and the present suit is one for recovery of possession based on title. Incidentally another question was also came up for consideration with respect to the validity of Ext.B1 sale deed, whether the possession of the property is a mandate to have a complete sale under Ext.B1 sale deed. Section 54 of the Transfer of Property Act mandates only three conditions. Incidentally another question was also came up for consideration with respect to the validity of Ext.B1 sale deed, whether the possession of the property is a mandate to have a complete sale under Ext.B1 sale deed. Section 54 of the Transfer of Property Act mandates only three conditions. Of course, the question of non-possession of the property may have a say when there is vitiating circumstance attached to the execution of the said document. No such vitiating circumstance either pleaded or brought into existence. The present suit (the connected case) is one based on the title by the title holder for recovery of possession and hence the plaintiff in that suit (the defendant) is entitled to the grant of decree as prayed for in the connected suit in O.S. No. 102 of 1992. Hence, we are of the opinion that the lower court went wrong in decreeing the suit in O.S. No. 255 of 1991 and dismissing the suit in O.S. No. 102 of 1992. We set aside both the decree and judgment in O.S. No. 255 of 1991 and O.S. No. 102 of 1992. The suit in O.S. No. 255 of 1991 is dismissed and the suit in O.S. No. 102 of 1992 decreed granting recovery of possession of the property to the plaintiff therein. Considering the nature of dispute and the relationship between the parties, parties are directed to suffer their respective cost. Both the appeals are allowed accordingly.