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2017 DIGILAW 540 (KER)

St. Mary's Church, Pattanam v. O. P. Paul

2017-03-20

P.SOMARAJAN

body2017
JUDGMENT : P. Somarajan, J. 1. The challenge is against the order in I.A. No.2474 of 2012 dated 23.01.2013 (Ext.P4) in O.S. No.192 of 2011 of the Sub Court, North Paravur by the second defendant. 2. A preliminary objection was raised regarding correctness of the valuation made in the suit and the court fee paid along with the question of bar of limitation. The said application was dismissed by the lower court finding that the suit is not, barred by limitation and that the valuation made in the suit and the court fee paid are proper. The above said order is under challenge in this petition. 3. Heard Sri. K.V. Sohan, the learned counsel appearing for the petitioner and Sri. V.M. Kurian, the learned counsel appearing for the 2nd respondent. 4. The suit is for declaring two registered sale deeds as null and void. These two documents were executed by the power holder of the plaintiff, the first defendant, based on a registered power of attorney, in favour of the second defendant. The question regarding correctness of the valuation made in the suit and the court fee paid was not pressed at the time of hearing of the application The main contention raised by the plaintiff is that he came to know about the execution of the sale deeds only on a subsequent date and as such the suit was filed within a period of three years from the date of notice. 5. The questions came up for consideration are (1) Whether the notice of execution of registered deed of conveyance or an act done by the power of attorney holder would amount to notice to the Principal? (2) Whether the date of actual notice to the Principal have any relevance in the matter of limitation in challenging the acts and deeds done by the power holder? and (3) Is there any exception to the principle of constructive notice regarding Principal and Agent? and (4) what would be the effect of first and second limbs of the interpretation clause "a person is said to have notice" in Section 3 of the Transfer of Property Act, 1882, in relation to Principal and Agent? 6. It is by virtue of a power of attorney the first defendant had executed two sale deeds in favour of the second defendant for and on behalf of the Principal. 6. It is by virtue of a power of attorney the first defendant had executed two sale deeds in favour of the second defendant for and on behalf of the Principal. The acts which were done by the power holder perfectly in tune with the authority granted under a power of attorney would be binding on the Principal as if the same were done by the Principal in person. It is an admitted case of fir execution of a power of attorney by the plaintiff in favour of the first defendant. It is also not in dispute that the power holder has exercised only the authority given under the power of attorney at the time of execution of the two sale deeds. As far It as executant of a registered document is concerned, the person who executed the document would have notice of its execution and registration from the date of its execution and registration and the first limb of the interpretation clause "a person is said to have notice" would come into play as the fact of execution and registration is known to him from the date of its execution and registration. The two sale deeds were admittedly executed by the power holder/first defendant for and on behalf of the Principal/Plaintiff. 7. The Principal cannot avoid the authority given to the power holder to do certain acts or deeds for transfer of immovable property after its execution in the tune with the authority. The acts which were done by the power holder would be binding on the Principal as if it were done by the Principal in person and that the notice of agent/power holder would amount to notice of Principal unless there is an active concealment of the acts done by the power holder/agent, as the case may be. The active concealment of an act done by the agent/power holder against the Principal is the only exception to the general rule that the notice to the agent/power holder would amount to notice to the Principal. When there is an active concealment so as to deprive the Principal from taking notice of or knowing the acts or deeds done by the power holder, the notice of power holder cannot be treated as notice of the Principal. But the active concealment should be complete depriving the Principal from taking notice of the acts done by the power holder. But the active concealment should be complete depriving the Principal from taking notice of the acts done by the power holder. In the case of registered deeds of transfer of immovable property, there cannot be an active concealment since the Principal is at liberty to make an enquiry regarding documents executed before the concerned Registrar/Sub Registrar within whose jurisdiction the immovable property situates, in accordance with the law in force. This has to be read along with t he second limb of the interpretation clause "a person is said to have notice" in Section 3 of the Transfer of Property Act. A person is said to have notice of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. In so far as the executant of a document is concerned, the first limb of the said interpretation clause would come into play as the fact of execution of the document is actually known to him from the time on which it was executed. The question whether he was aware of the content of the document or the nature of the document would not change the legal position regarding notice of execution of a registered document and it would start from the date of its execution and registration. The ignorance or concealment of content of the document or the nature of the document from the knowledge of the person who had executed the document would not take away the actual notice of execution of a registered deed. Prime importance should not be given to the nature of the document or the content of the document, but to the fact of registration of a document regarding immovable property, in dealing with the question of notice of its execution and registration. Power of attorney holder who executed the document will have the actual notice of execution and its registration from the moment of its execution and registration. Since the power holder is acting as an authorized agent for the Principal under a registered power of attorney, the notice of agent/power holder would amount to notice of the Principal though he had no direct or actual knowledge regarding execution of the document or its registration and the parties are governed by Sections 229 and 238 of the Indian Contract Act. 8. 8. By virtue of application of the second limb of interpretation clause to the expression "a person is said to have notice" in Section 3 of the Transfer of Property Act and the plaintiff, after executing a power of attorney authorizing the power holder to deal with the immovable property and transfer the same, cannot be permitted to plead ignorance of the document or acts and deeds done by his agent/the power holder on a later stage. The second limb of the above said expression under interpretation clause in Section 3 of the Transfer of Property Act would come into play as the principal is expected to make enquiry regarding the acts and deeds done by the agent/power holder in tune with the power given and any abstention from making an enquiry which he ought to have been done or gross negligence would also come under the purview of the expression "a person is said to have notice". The principle of constructive notice embodied under the second limb would come into play in so far as the Principal is concerned besides the effect of Sections 229 and 238 of the Indian Contract Act. So it is quite impermissible under the law in force for the plaintiff/the Principal to plead ignorance about the acts and deeds done by his own power holder through a registered power of attorney unless there is an effective concealment by the power holder. The actual notice or a direct notice to the Principal has no relevancy when the acts were done through a power of attorney holder duly appointed. The Principal is not bound by the actual notice, but bound by the constructive notice under the second limb of the interpretation clause 'a person is said to have notice 1 in Section 3 of the Transfer of Property Act besides the effect of Sections 229 and 238 of the Indian Contract Act. The lower court has overlooked the above said legal position while rendering a decision holding that the Principal/plaintiff was not having actual notice of the execution of two sale deeds and that he came to know about it only on a subsequent date. The suit was admittedly filed after the expiry of the three years from the date of execution of the two registered sale deeds by the first defendant/power of attorney holder and hence stood as hopelessly barred by limitation. 9. The suit was admittedly filed after the expiry of the three years from the date of execution of the two registered sale deeds by the first defendant/power of attorney holder and hence stood as hopelessly barred by limitation. 9. Further, the registration of a sale deed by a power of attorney holder perfectly in tune with the power under a registered power of attorney cannot be considered as null and void. The prayer in the suit is to declare the two sale deeds as null and void. It is not specifically pleaded anywhere in the plaint how these two registered sale deeds stood as null and void. The expression 'null and void' stands for something non-est in the eye of law from which no legal consequences would flow. The two sale deeds involved are admittedly executed by the lawful power of attorney holder under a registered power of attorney admitted by the Principal, the plaintiff herein. So it cannot be even for a moment said as null and void or non-est in the eye of law. If it is null and void, no period of limitation would run from its date of execution as it is non-est in the eye of law. The lower court has overlooked all settled legal positions while rendering the impugned order and hence it is liable to be intercepted by exercising the supervisory jurisdiction under Article 227 of the Constitution of India and I do so. The order of the lower court is set aside. The suit is hopelessly barred by limitation and hence it is liable to be dismissed and I do so. Original petition is accordingly allowed. No order as to costs.