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2019 DIGILAW 1676 (MAD)

K. Santhappan v. Rangaraj

2019-06-18

T.RAVINDRAN

body2019
JUDGMENT : (Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree dated 05.07.2018 made in A.S.No. 08 of 2017 on the file of the learned Fourth Additional District Court, Erode at Bhavani (A.S.No. 24 of 2017 - Principal District Court, Erode) confirming the judgment and decree dated 19.09.2016 made in O.S. No.23 of 2010 on the file of the learned Sub Court, Bhavani.) 1. In this second appeal, challenge is made to the judgment and decree dated 05.07.2018, passed in A.S.No. 08 of 2017, on the file of the IV Additional District Court, Erode, Bhavani, confirming the judgment and decree dated 19.09.2016, passed in O.S. No.23 of 2010, on the file of the Sub Court, Bhavani. 2. The plaintiffs who have lost in both Courts have preferred the present second appeal. The suit has been laid by the plaintiffs seeking for the cancellation of the sale deed executed by the first defendant, as the power of attorney holder of the plaintiff, to the second defendant on 21.04.2004, as void and unenforceable and not binding on the plaintiffs. 3. The suit has been laid by the plaintiffs seeking for the cancellation of the sale deed executed by the first defendant, as the power of attorney holder of the plaintiff, to the second defendant on 21.04.2004, as void and unenforceable and not binding on the plaintiffs. 3. Briefly stated, according to the plaintiffs, the suit properties belong to them and as they were in need of money, they had approached the second defendant for loan and according to them, the second defendant insisted the plaintiffs to execute a mortgage deed in respect of the suit properties in favour of her husband, namely, the first defendant and thereby, according to the plaintiffs, they had gone to the Sub Registrar's Office and executed the documents projected by the second defendant without knowing the nature of the documents they were signing and further, according to the plaintiffs, later, developing suspicion over the conduct of the defendants, on inquiry, came to know that the second defendant had obtained a power of attorney deed from the plaintiffs in favour of the first defendant in the guise of obtaining a mortgage deed for the loan advanced and immediately, according to the plaintiffs, they reached the Sub Registrar's Office and cancelled the alleged Power of Attorney by a deed of cancellation on 14.05.2004 and thereafter, according to the plaintiffs, they had approached the second defendant to discharge the loan amount and as at that point of time, the second defendant declared that she had become the owner of the suit properties by virtue of the sale deed dated 21.01.2004, thereby according to the plaintiffs, they had verified the Encumbrance Certificate dated 31.08.2009 and came to know that the suit properties had been alienated by the first defendant in favour of the second defendant and further, also came to know that the first defendant had executed an agreement of sale in favour of one Appusamy and hence, according to the plaintiffs, they had been necessitated to lay the suit against the defendants for appropriate reliefs. 4. 4. Per contra, the defendants have, in toto, disputed the abovesaid case of the plaintiffs vehemently and contended that the plaintiffs, in order to alienate the suit properties, had executed a power of attorney deed in favour of the first defendant and thereafter, based on the said power, the first defendant had entered into an agreement of sale with one Appusamy and the plaintiffs did not agree for the said amount, hence, according to the defendants, the first defendant proceeded to alienate the suit properties in favour of the second defendant, which fact is known to the plaintiffs and further, it is also pleaded by the defendants that the plaintiffs had handed over the original partition deed to them as well as the possession of the suit properties to the first defendant and further, according to the defendants, the plaintiffs, after receiving the entire sale consideration, had also issued a receipt on 24.04.2004 and therefore, the plaintiffs are very well aware of the execution of the power of attorney deed and the sale deed as above pointed out. Therefore, the plaintiffs are not entitled to seek the relief as prayed for and further, the defendants have also stated that the suit is barred by limitation and there is no cause of action for the suit and hence, the suit is liable to be dismissed. 5. In support of the plaintiffs' case PWs 1 to 3 were examined, Exs.A1 to A14 were marked. On the side of the defendants, DW1 to 3 were examined, Exs.B1 to 17 were marked. 6. On a consideration of the oral and documentary evidence adduce by the respective parties and the submissions made, the Courts below were pleased to dismiss the plaintiffs' suit. Impugning the same, the present second appeal has been preferred. 7. The suit has come to be laid by the plaintiffs seeking for the cancellation of the sale deed executed by the first defendant, in favour of the second defendant in respect of the suit properties, on 21.04.2004. It is found that the abovesaid sale deed has been executed by the first defendant as the power of attorney holder of the plaintiffs in favour of the second defendant. Now, according to the defendants, the plaintiffs had executed a power of attorney deed in favour of the first defendant empowering him to alienate the suit properties on their behalf. It is found that the abovesaid sale deed has been executed by the first defendant as the power of attorney holder of the plaintiffs in favour of the second defendant. Now, according to the defendants, the plaintiffs had executed a power of attorney deed in favour of the first defendant empowering him to alienate the suit properties on their behalf. Per contra, according to the plaintiffs, as they were in need of money, they had approached the second defendant for loan and the second defendant had insisted them to execute a mortgage deed in favour of her husband, the first defendant and left with no other alternative, they had gone to the Registrar's office and signed and executed the document prepared by the defendants without knowing the contents thereof and only subsequently, developing suspicion over the conduct of the defendants, came to know that the defendants had obtained a power of attorney deed from them in the guise of obtaining a mortgage deed for the loan advanced and therefore, according to the plaintiffs, they had immediately cancelled the power of attorney by a deed of cancellation dated 14.05.2004. Therefore, as rightly found by the Courts below, when even as per the case of the plaintiffs, if really, according to them, they had been deceived by the defendants in obtaining the power of attorney deed instead of the mortgage deed, even as on 14.05.2004, and when it is found that the plaintiffs had executed a power of attorney deed in favour of the first defendant on 17.08.2000, which is marked as Ex.B3 and had also handed over the original partition deed to the first defendant, which document has come to be marked as Ex.B2, if really the case of the plaintiffs is true and that the defendants had stealthily obtained a power of attorney deed from them instead of the mortgage deed and when the plaintiffs had become aware of the said position during May 2004 and when thereafter, the plaintiffs had also admitted that they had cancelled the power of attorney, by way of the cancellation deed marked as Ex.A4, it is evident that if the abovesaid case projected by the plaintiffs has any semblance of truth, as prudent persons, they would have, at that point of time itself, made further inquiry as to whether any transaction had been made by the first defendant in favour of the others, on the strength of the power of attorney deed obtained by the defendants as put forth by them. On the other hand, the plaintiffs' case proceeds as if, after the cancellation of the power of attorney deed on 14.05.2004, they have not endeavored to proceed further and kept quiet and accordingly, the plaintiffs would come forward with the case, as if, when they had subsequently proceeded to discharge the debt said to have been obtained from the second defendant during 2009, it is put forth on their part that the second defendant had represented that the suit property had been alienated in her favour on 21.04.2004 itself and only thereafter, according to the plaintiffs, they had verified the encumbrance certificate dated 31.08.2009 and came to know that the sale deed had been taken by the second defendant from the first defendant in respect of the suit properties on 21.04.2004 itself on the strength of the power of attorney marked as Ex.B3 and therefore, according to the plaintiffs, they had been necessitated to lay the suit for appropriate reliefs. 8. 8. However, as rightly found and determined by the Courts below, the case projected by the plaintiffs is totally unacceptable. As abovenoted, when according to the plaintiffs, they had become fully aware that the defendants had deceived them in obtaining the power of attorney deed on 17.08.2000 and they had also chosen to cancel the alleged power of attorney on 14.05.2004, at that point of time itself they should have taken further steps to verify whether any encumbrance had been effected in respect of the suit properties by the first defendant, on the strength of the power of attorney. But, even thereafter, the plaintiffs have kept mum and not proceeded further in respect of the suit properties and hence the said case of the plaintiffs cannot be believed and accepted. 9. In such view of the matter, as rightly found and determined by the Courts below, the case of the plaintiffs that they had come to know about the sale deed dated 21.04.2004, only on obtaining the encumbrance certificate dated 31.08.2009, as such, cannot be believed. If the abovesaid case of the plaintiffs' is true, as rightly found by the Courts below, the encumbrance certificate dated 31.08.2009, said to have been secured by the plaintiffs, would have been projected in the suit by the plaintiffs in support of their version. On the other hand, the alleged encumbrance certificate said to have been obtained by the plaintiffs on 31.08.2009 has not been projected. Furthermore, as pointed out by the Courts below, when the plaintiffs had also handed over the original partition deed in favour of the defendants, in such view of the matter, it is evident that inasmuch as the plaintiffs had endeavored to sell the suit properties, accordingly, they had chosen to execute the power of attorney in favour of the first defendant with reference to the same. Further, according to the defendants, the plaintiffs had also received the entire sale consideration and issued a receipt on 24.04.2004, which document has come to be marked as Ex.B1. Evidence has been tendered by the defendants with reference to the same. 10. Further, according to the defendants, the plaintiffs had also received the entire sale consideration and issued a receipt on 24.04.2004, which document has come to be marked as Ex.B1. Evidence has been tendered by the defendants with reference to the same. 10. Considering the abovesaid factors, in toto, as rightly found by the Courts below, when the plaintiffs had become fully aware of the power of attorney deed executed in favour of the first defendant on 14.05.2004 itself, in such view of the matter, it is evident that the plaintiffs are also posted with the knowledge that the first defendant had executed the sale deed in favour of the second defendant in respect of the suit properties on 21.04.2004 itself, hence, as rightly found by the Courts below, in such a scenario, Article 59 of the Limitation Act would apply. As per Article 59 of the Indian Limitation Act, the period of 3 years time for cancelling the instrument would accrue to the plaintiffs when the facts entitling the plaintiffs to have the instrument or decree cancelled or set aside become known to them and when as above discussed, in the nature of the turn of events, the plaintiffs having knowledge about the sale deed executed by the first defendant in favour of the second defendant on the strength of the power of attorney deed by the plaintiffs during May 2004 itself and only thereafter, the plaintiffs had chosen to cancel the power of attorney and when there is no material on record and projected by the plaintiffs, to hold that the defendants had stealthily obtained the power of attorney from them on misrepresentation as the same is only a mortgage deed and the execution of the document before the Registrar has not been disputed by the plaintiffs as such and when even after coming to know of the execution of the power of attorney deed in favour of the first defendant during May 2004 itself, the conduct of the plaintiffs in not evincing any interest to initiate appropriate steps to cancel the sale deed in favour of the second defendant and when the plaintiffs have miserably failed to establish that they have came to know about the execution of the sale deed in favour of the second defendant only during August 2009 and with reference to the same, there is no acceptable and reliable materials, in all, it is found that the Courts below are fully justified in determining that the suit laid by the plaintiffs for the cancellation of the sale deed dated 21.04.2004 is hopelessly barred by limitation. 11. 11. In the light of the abovesaid reasons, it is found that the Courts below had assessed and analyzed the materials placed on record, both oral and documentary in the correct perspective and rightly came to the conclusion that the plaintiffs have no cause of action and that the suit laid by the plaintiffs is barred by limitation and the plaintiffs have failed to establish that the defendants had stealthily obtained the power of attorney deed from them in respect of the suit properties as alleged by them and on the other hand, it is found by the Courts below, it is only the plaintiffs who had executed the power of attorney in favour of the first defendant empowering him to sell the suit properties and as a corollary to the same, on the strength of the same, it is found that the first defendant had alienated his suit properties in favour of the second defendant and when the passing of the sale consideration under the same is also pleaded and established by the plaintiffs and when the sale deed dated 21.04.2004 in favour of the second defendant executed by the first defendant is found to be valid and only thereafter, it is found that the plaintiffs have cancelled the power of attorney deed, in all, it is found that absolutely there is no reason to interfere with the concurrent judgment and decree of the Courts below. 12. The counsel for the Appellants, in support of his contentions, placed reliance upon the decision reported in (2004) 9 Supreme Court Cases 468 (Krishna mohan kul alias Nani charan kul and another Vs. Pratima maity and others). The principles of law outlined in the above said decision are taken into consideration and followed as applicable to the case at hand. 13. Resultantly, it is found that no substantial question of law is involved in this second appeal. Accordingly, the second appeal is dismissed. Consequently, connected miscellaneous petition, if any, is closed.