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2018 DIGILAW 2277 (MAD)

R. Kumar (Deceased) v. S. Valliammal

2018-07-27

KRISHNAN RAMASAMY

body2018
ORDER : 1. This Civil Revision Petition has been filed against the order dated 07.01.2014, passed in I.A.No.1666 of 2012, in O.S.No.3481 of 2003 on the file of XVII Assistant Judge, City Civil Court, Chennai. 2. The brief facts of the case are as follows: The petitioner herein is the power agent of the plaintiffs in the suit. The Plaintiffs have executed the Power of Attorney dated 06.02.2012 registered as document No.211 of 2002 on the file of the Sub Registrar Office, Sembium in favour of the present petitioner appointing him as the power agent to conduct the case and also to perform all acts, deeds and things contained therein. Based on the said Power of Attorney, the petitioner herein filed the suit in O.S.No.3481/2003 before the XVII Assistant Judge, City Civil Court at Chennai. After filing the above suit, the second plaintiff passed away on 28.07.2010. Since the second plaintiff passed away, the power given by the second plaintiff, got terminated unless or otherwise, the legal heirs confers the power to the same agent permitting him to perform all the acts as stated in the original power of attorney executed by the second plaintiff. 3. In the present case, the power agent filed an application in I.A.No.1666/2012 in O.S.No.3481/2003, before the Lower Court to bring the Legal Representatives of the second plaintiff on record, as proposed Plaintiffs 3, 4 and 5. 4. The respondents/defendants filed a counter stating that the Power of Attorney was said to be registered but, it was not produced before the Court. Further, after the death of the second plaintiff, the power given by the second plaintiff got terminated and the further action cannot be carried out, on behalf of the second plaintiff by the power agent. 5. After hearing both sides, the Lower Court dismissed the I.A.No.1666/2012, vide its order dated 07.01.2014, on the ground that the petitioner has been conducting this case only as a power agent of the deceased R. Kumar/second plaintiff and the first plaintiff /R. Shankaranarayan. When once, one of the executors of the Power of Attorney deed died, the Power agent cannot represent until a new power deed has been executed in his favour by the legal heirs. According to the Lower Court no such Power of Attorney has been filed. Hence, the Lower Court dismissed the I.A.1666/2012. When once, one of the executors of the Power of Attorney deed died, the Power agent cannot represent until a new power deed has been executed in his favour by the legal heirs. According to the Lower Court no such Power of Attorney has been filed. Hence, the Lower Court dismissed the I.A.1666/2012. As against the order of the Lower Court, the petitioner/power agent preferred the present Civil Revision Petition under Article 227 of the Constitution of India. 6. The learned counsel for the petitioner submitted that he has filed the suit in O.S.No.3481/2003 before the Lower Court based on the Power of Attorney executed by the plaintiffs 1 and 2 dated 06.02.2002 and one of the plaintiffs namely second plaintiff passed away on 28.07.2010. The learned counsel for the petitioner has filed an additional typed set of papers, enclosing the document dated 02.06.2014 furnishing the General Power of Attorney executed by R.Sankaranarayanan and R.Kumar in his favour on 06.02.2002. Further, he contended that it was registered Power of Attorney with the Joint Sub Registrar Office, Chennai. 7. It is further stated that on the death of the second plaintiff, he cannot represent the second plaintiff, and therefore, he has filed the I.A.No.1666/2012 only for the limited purpose of impleading the legal heirs of the second plaintiff Kumar. There are three legal heirs for the deceased Kumar. They are sought to be impleaded as the proposed plaintiffs 3, 4 and 5. On behalf of the petitioner, further submission was made that it is the well settled principle that when one of the principals died, the Power of Attorney will get automatically terminated. However, the learned counsel for the petitioners referred Section 209 of Indian Contract Act, which reads as follows:- “209. Agents duty on termination of agency by principal's death or insanity:- When an agency is terminated by the principal dying or becoming of unsound mind, the agent is bound to take, on behalf of the representatives of his late principal, all reasonable steps for the protection and preservation of the interests entrusted to him.” 8. In terms of Section 209, it is the duty of the power agent to protect the interest of the principal and the power agent should take all reasonable steps for the same. In terms of Section 209, it is the duty of the power agent to protect the interest of the principal and the power agent should take all reasonable steps for the same. Therefore, the petitioner has filed the above application only for the limited purpose to bring the LR's of the deceased second plaintiff on record in the place of the deceased. The Lower Court has not considered Section 209 of the Act but, merely dismissed the application without assigning any proper reason. It was only stated that after the death of one of the principals, no new power of attorney was given to the power agent by the legal heirs of the deceased. Therefore, the Lower Court dismissed the application without assigning any proper reason. 9. In support of the contentions, the learned counsel for the petitioner referred to the judgment of the Hon'ble Division Bench of this Court passed in Writ Appeal (MD) Nos.998, 999 of 2015, The Inspector General of Registration, Pattinapakkam, Chennai an another Vs. J. Barathan, reported in CDJ 2015 MHC 7508, the relevant portion of the judgment in para No.47, is extracted hereunder:- “47. There is no direct reference in Section 202, to the termination of an agency by the death of the principal, except in the illustrations contained there under. The only provision that directly speaks about the termination of agency due to the death of the principal is Section 209(apart from Section 201). Section 209 obliges an agent to protect and preserve the interest of the principal entrusted to him. It does not speak about the agent's own interest. Therefore, the second contention of the respondent does not hold good, in the light of the provisions of Section 202 to 209 of the Indian Contract Act.” 10. By referring to the above judgments the learned counsel for the petitioner contend that he is entitled to file an application under Section 209 of the Act, after the death of one of the principals only for the limited purpose to bring the LR's on record. 11. Per contra, the learned counsel for the respondents submit that when one of the principals passed away, the Power of Attorney granted by him in favour of the power agent will get automatically terminated, unless or otherwise new Power of Attorney is executed by the legal heirs. 11. Per contra, the learned counsel for the respondents submit that when one of the principals passed away, the Power of Attorney granted by him in favour of the power agent will get automatically terminated, unless or otherwise new Power of Attorney is executed by the legal heirs. The power agent of the deceased will not have any right to perform any work on behalf of the legal representatives of the deceased. Further, the respondent's counsel stated that the Power of Attorney was granted by the deceased is not true and the same is not at all in existence or in force. According to the respondents, the petitioners 1 and 2 alone have manipulated the public records in the Office of the Sub-Registrar, Office of the Perambur-Purasaiwalkam Taluk and Office of the Corporation of Chennai. Even, according to the respondents if the power was executed by the deceased that has come to an end immediately upon the death of the deceased. 12. Therefore, he contended that unless or otherwise new Power of Attorney is executed he cannot represent the legal heirs. The Lower Court, is right in dismissing the application to implead LR's on record. The respondents were also impleaded here in the same manner. Therefore, the learned counsel for the respondents prayed for dismissal of the Civil Revision Petition. He also contended by referring to the judgment passed in above referred Writ Appeals that unless and otherwise the legal heirs confer any Power on the power of Attorney, the power agent cannot perform his duties on behalf of the legal heirs of the deceased. 13. This Court carefully examined the facts of the case, the judgment of the Lower Court and the judgment of the Hon'ble Division Bench passed in W.A.Nos.998, 999 of 2015. The petitioner herein filed an application, after the death of one of the principals of the power agent only to the limited extent to bring the LR's on record. Section 209 of the Act permits the power agent, after the demise of the principals, to file an application for the limited extent of bringing the LR's of the principals on record. Section 209 of the Act permits the power agent, after the demise of the principals, to file an application for the limited extent of bringing the LR's of the principals on record. In the Hon'ble Division Bench judgment referred by the petitioner's counsel it was held that the power agent has an obligation to protect and preserve the interest of the principle under Section 209 of the Act and it does not speak about the own interest of the power agent. In the present case, only to the limited extent of bringing the legal heirs of the deceased, the instant application was filed by the petitioner. The Court below, dismissed the I.A.1666/2012 without any application of mind and without analyzing the facts of the case and examining the Section 209 of The Contract Act. The application has been filed by the petitioner only to protect the interest of the principal and to discharge his obligation as contemplated under Section 209 of the Contract Act. 14. As stated above the application was filed for the purpose of bringing the legal heirs on record and not for anything else. Even though the respondents contends that the power of attorney itself has been manipulated, there is no document filed to substantiate the same. It is also not the case of the respondents that they have filed any Criminal complaint complaining about the alleged manipulation or forgery said to have been committed by the petitioner in obtaining the power of attorney. 15. In the light of the above, this Court has no hesitation to allow the Civil Revision Petition by setting aside the order of the Lower Court passed in I.A.No.1666/2012 dated 07.01.2014. The petitioner is permitted to bring the legal heirs of the deceased second plaintiff on record and thereafter, it is up to the legal heirs to retain the present power agent that the deceased to continue the suit. 16. Accordingly, the Civil Revision Petition is allowed. No costs. Consequently, connected Miscellaneous Petition is also closed.