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2022 DIGILAW 490 (MAD)

A. M. K. Shahul Hameed v. D. Sharine

2022-02-25

G.JAYACHANDRAN

body2022
JUDGMENT : The first defendant in the suit for declaration and permanent injunction is the appellant herein. 2. The case of the plaintiffs is that defendants 1 to 3 purchased the suit property from one K.S. Sabarinathan through his power agent on 11/02/1997 under a registered sale deed. Later, they jointly executed a general power of attorney deed on 10/09/2003 in favour of the second plaintiff and got it registered on 18/09/2003. The defendants received the entire sale consideration from the 2nd plaintiff and handed over the title documents and possession of the property. 3. Since the defendants on execution of the power of attorney received the entire sale consideration and handed over the possession, it is a power coupled with interest. The plaintiffs on obtaining the power improved the property and tried to fetch third party buyers, but he could not, since the property had no proper access to the main road. Hence, he sold the property on 05/07/2004 to the first plaintiff, who is none other his wife. On the transfer of the title, the first plaintiff has mutated the revenue records and transferred the EB service in her name and enjoying the property absolutely. While the fact being so, during the month of January 2006, the first defendant started intimidating the plaintiffs demanding money in view of the hike in real estate price. Apprehending trouble, the plaintiffs gave a complaint to the Commissioner of Police, Egmore on 06/02/2006 and the first defendant was called for enquiry by Mambalam Police on 09/02/2006. In the enquiry, the first defendant gave an undertaking that he will not trouble the plaintiffs. However, after four years, he gave similar complaint before Mangadu Police Station and only during the enquiry by Mangadu Police on 17/05/2010, the first defendant, for the first time disclosed the fact that he unilaterally cancelled the power of attorney and got it registered on 12/12/2003. This was never brought to the notice of the plaintiffs anytime before 17/05/2010. 4. The power of attorney executed by all three defendants cannot be cancelled by the first defendant alone unilaterally without notice, that too after getting consideration for executing the power deed. The said cancellation deed dated 07/12/2003 is written on a stamp paper purchased on 12/12/2003. This was never brought to the notice of the plaintiffs anytime before 17/05/2010. 4. The power of attorney executed by all three defendants cannot be cancelled by the first defendant alone unilaterally without notice, that too after getting consideration for executing the power deed. The said cancellation deed dated 07/12/2003 is written on a stamp paper purchased on 12/12/2003. This will clearly show that the cancellation of the power deed by the first defendant and his threat to cause disturbance to the peaceful possession of the plaintiffs is only to extract money illegally. Hence, the suit seeking declaration of title over the suit property and consequential permanent injunction against defendants 1 to 3 and also to declare the unilateral cancellation of power of attorney dated 07/12/2003 and registered on 12/12/2003 as null and void. 5. The contra case of the first defendant is that, the suit is laid by the plaintiffs in collusion with other defendants 2 and 3. No consideration was passed, while executing the power deed. The father of the second plaintiff was known to the defendants for nearly 20 years. The contract to construct a compound wall in the land measuring to an extent of 1.62 acres at Chrompet owned by the defendants was entrusted to the father of the second plaintiff. The contract was for Rs.5,00,000/- therefore, as a security for payment, the title deed of the suit property was entrusted to the second plaintiff’s father. Also power of attorney was given to the second plaintiff to fetch buyer and sell the suit property on their behalf. No consideration received for executing the power of attorney deed. However, the second plaintiff after getting the power of attoney in his name started deceiving the first defendant in collusion with the other defendants, hence, the power of attorney was cancelled on 12/12/2003 and duly intimated to the plaintiffs through certificate of postings and he sought for return of the original documents from the second plaintiff. Instead of returning the document, the second plaintiff had created a sale deed in favour of his wife the first plaintiff and got it registered on 05/07/2004 much later to the cancellation of the power of attorney. The said sale deed which is not supported by any consideration is a sham and nominal document. Instead of returning the document, the second plaintiff had created a sale deed in favour of his wife the first plaintiff and got it registered on 05/07/2004 much later to the cancellation of the power of attorney. The said sale deed which is not supported by any consideration is a sham and nominal document. As Principal the first defendant is entitled to cancel the power deed, if the Agent act contrary to his interest. The second plaintiff have no right to challenge the cancellation and therefore, the plaintiffs are not entitled for any relief. 6. Defendants 2 and 3 in their written statement admit that they along with the first defendant executed General Power of Attorney in favour of the second plaintiff jointly and received the entire sale consideration. They also admit that the delivery of title deed and possession to the second plaintiff. Therefore, they have no claim over the suit property and no objection in granting decree of declaration of title in favour of the plaintiffs. It is averred in the written statement that they were shocked to know that the power of attorney jointly executed by them along with the first defendant was unilaterally cancelled by the first defendant without their knowledge, authorisation or consent. The said cancellation, without reference to them will not bind them. The power of attorney executed in favour of the second plaintiff is coupled with interest and therefore, it cannot be cancelled and they have not cancelled the power of attorney. 7. Based on the pleadings, the trial Court re-casted the Issues as below:- (1) Whether the plaintiffs are entitled to the relief of declaration and injunction ? (2) Whether the cancellation of power is valid ? (3) To what relief, the parties are entitled to ? 8. The 2nd plaintiff mounted the witness box and got examined as PW- 1 and marked 30 documents. The first defendant was examined as DW-1 and the third defendant examined as DW-2. 3 documents were marked. 9. The trial Court held that the power deed Ex.A-2 executed by three principals is coupled with interest, therefore, it cannot be unilaterally cancelled by one of the principal without the authorisation or consent of other principal and without prior notice to the Agent. Hence, the cancellation of power of attorney through the deed of cancellation Ex.A10 is not valid. 9. The trial Court held that the power deed Ex.A-2 executed by three principals is coupled with interest, therefore, it cannot be unilaterally cancelled by one of the principal without the authorisation or consent of other principal and without prior notice to the Agent. Hence, the cancellation of power of attorney through the deed of cancellation Ex.A10 is not valid. The first plaintiff had proved her title through sale deed Ex.3 and possession through Ex.A-11 to Ex.A-29 ( EB receipts) and Ex.A-30 (house tax receipt). Therefore, the plaintiffs are entitled for the relief of declaration and injunction. Accordingly, decreed the suit with costs. 10. In the appeal, the learned counsel for the appellant submitted that, the trail Court failed to properly appreciate the evidence and erred in allowing the suit. The sale of the suit property to the first plaintiff by the second plaintiff on 05//07/2004 under Ex.A-3 was much after the cancellation of power of attorney on 12/12/2003. The typographical error in mentioning the date of cancellation deed as 07/12/2003 cannot be a ground to reject the cancellation deed as not valid. The trial Court erred in holding that the cancellation of power was not intimated to the agent, in spite of the fact that he was intimated about the cancellation of the power of attorney through certificate of postings vide Ex.B-2. The trial Court failed to consider the fact that the sale of the suit property by the second plaintiff as power agent in favour of his wife the first plaintiff is not supported by any consideration and therefore, it is a sham and nominal document. No right or title will flow through Ex.A-3. In the power of attorney deed Ex.A-2, there is no recital to show that it is coupled with interest. It was executed jointly by all the co-owners of the property for promoting the property by putting up construction on it. No consideration passed and as one of the principals, the first defendant is entitled to cancel the power deed, when the agent has not discharged his role to the expectation. The suit being filed by the plaintiffs in collusion with defendants 2 and 3, the trial Court ought not to have given any weightage to the pleading of those defendants. 11. The suit being filed by the plaintiffs in collusion with defendants 2 and 3, the trial Court ought not to have given any weightage to the pleading of those defendants. 11. Per contra, the learned counsel for the respondents 1 and 2/plaintiffs submitted that, the first defendant cannot cancel the power of attorney deed executed jointly along with other defendants. More so, when the power executed is coupled with interest. This defendant admits delivery of original title document, but he contends that it was delivered as security for Rs.5,00,000/- which they owe to the father of the second plaintiff. However, his contention is denied and contradicted by his own co-sharers and co-executants of the power of attorney deed. The fraud attempted by the first defendant by creating a document dated 07/12/2003 with stamp paper dated 11/12/2003 believing that the fraud will not be noticed, is singularly enough to reject his case for coming to the Court with unclean hands. 12. The point for determination is, whether in view of Ex.A-10- cancellation of power of attorney by the first defendant/appellant, the decree passed by the trial Court suffers any legal or factual infirmity ? 13. Before adverting to the cancellation deed, it is necessary to trace how the plaintiffs claim title to the suit property. 14. Ex.A-1 is the original sale deed dated 11/02/1997 executed by one Sabarinathan in favour of the defendants 1 to 3. These three defendants have jointly executed a General Power of Attorney in favour of the second plaintiff vide, a registered deed dated 10/09/2003 marked as Ex.A-2. On the strength of the power of attorney, the second plaintiff has sold the property to the first plaintiff on 05/07/2004 under Ex.A-3. The first defendant claims that the power of attorney deed was cancelled on 07/12/2003 through Ex.A-10. Therefore, Ex.A-3 executed subsequently is not valid. 15. Whereas the fact remains that the cancellation deed was executed unilaterally by the first defendant alone, to cause an effect of nullifying a deed executed jointly by the first defendant along with two other defendants and those two other defendants have categorically denied in written statement that they did not consent for cancellation and they did not authorise the first defendant to cancel the power of attorney executed by them. Further, the power cannot be cancelled, without notice, since it was executed, after receiving consideration and coupled with interest. Further, the power cannot be cancelled, without notice, since it was executed, after receiving consideration and coupled with interest. The claim of the first defendant that he caused notice under certificate of postings (Ex.B-2) has to be rejected outright for the simple reason that, certificate of posting is only proof of posting and not proof of receipt of the post. Therefore, Ex.A-10 has to be ignored not only for its manifested infirmity in the date of the stamp paper, it is reduced and date of the execution and also for want of authority to cancel and for want of proper prior notice to the Agent. 16. Once the cancellation deed is held to be non-est in law, then the transfer of the property in favour of the first plaintiff by the second plaintiff based on the power of attorney deed which was in force at that point of time will be a valid transfer and the title conferred on the first plaintiff has to be legally recognised. 17. Regarding possession, the first plaintiff had produced ample evidence by way of tax receipts and EB receipts. The first defendant had relied on three documents. They are (1)the copy of the letter informing the cancellation of the power of attorney- Ex.B-1. (2) the certificate of postings Ex.B-2 and (3) The copy of the complaint given by the first defendant to the commissioner of Police, Chennai-Ex.B-3. None of these document show that the first defendant had any semblance of right to interfere the possession of the plaintiffs in the suit property . 18. If really the first defendant had any grievance with his power agent and his act of transferring the property to first plaintiff, he should have filed suit for declaration that Ex.A-2-sale deed is void in so far his share is concerned and consequentially recovery of his share in the property. Contrarily, he had created an unenforceable document Ex.A-10 and had interfered with the possession of the plaintiffs. 19. The appellant candidly admits that they owe Rs.5,00,000/- but to the father of the second plaintiff and not to the second plaintiff. There is no evidence to substantiate this plea. Contrarily, the other co-executants of the Power of Attorney deed had filed written statement admitting the case of the plaintiffs that they received consideration for executing the power of attorney. The appellant candidly admits that they owe Rs.5,00,000/- but to the father of the second plaintiff and not to the second plaintiff. There is no evidence to substantiate this plea. Contrarily, the other co-executants of the Power of Attorney deed had filed written statement admitting the case of the plaintiffs that they received consideration for executing the power of attorney. 20.The judgment of this Court in [T.Sivaperumal –Vs- S.Viswanathan and Others] reported in [2014(1)CTC 447] relied by the learned counsel for the respondent 1 and 2 is worth to refer since the facts of that case is also almost similar to the facts fo the case in hand. In this judgment High Court has held that, “17. Though that Power of Attorney did not state that it is a document coupled with interest, the possession has been given and also the original Title Deeds have also been given. In such circumstances, can he be allowed to cancel the power without notice? PW1 himself categorically admits in the cross-examination that the possession has been with the Defendant right from the date of Power of Attorney and he also admitted that he did not question the original Sale Deed, at any point of time, executed in favour of the Appellant as per the Power of Attorney. Therefore, normally, when a Power of Attorney is executed, nobody will hand over the possession or the original Title Deeds, coupled with the fact that the parties are close relatives and the First Plaintiff/the First Respondent is not an ordinary person that he is a Village Administrative Officer and wordly-wise. This vital aspect has not been considered by the both the Courts below. 18. The Courts below should have taken into consideration that unless there is Power of Attorney with coupled interest, the handing over of the document and the handing over of the possession will not arise at all. Therefore, in the admission of the Plaintiff, it is very clear that he handed over the possession. He also handed over the Title Deeds. Therefore, definitely, this has to be construed as the Power of Attorney with coupled interest. It is further clearly proved that the entire sale consideration has been received under Ex.B4. The signature in that Exhibit is admitted. 19. The next important aspect is the circumstances, under which, the Power of Attorney was cancelled. He also handed over the Title Deeds. Therefore, definitely, this has to be construed as the Power of Attorney with coupled interest. It is further clearly proved that the entire sale consideration has been received under Ex.B4. The signature in that Exhibit is admitted. 19. The next important aspect is the circumstances, under which, the Power of Attorney was cancelled. As stated supra, no reason is stated excepting to state the First Defendant acted against the interests of the First Plaintiff. There was no Notice prior to that. The cancellation has been done only after the Sale Deed is executed. The cancellation of Power of Attorney will come into play, only if it is duly intimated. As stated supra, the Certificate of Positing can always be manipulated. Various judgments are also passed to that effect. 24. Lastly, Lawyer's Notice is sent through the Registered Post. Why this Notice was not sent by Certificate of Posting, has not been explained. Whereas, the First Respondent is not an ordinary person, who is a Village Administrative Officer. He is worldly wise. Especially, the cancellation of Power of Attorney is done, he should have taken necessary steps to send it by Registered Post immediately. No explanation is given in this regard. It is not known to this Court why he sent the cancellation of Power of Attorney by Certificate of Posting and why he sent the Lawyer's Notice by Registered Post?” 21. Especially, the cancellation of Power of Attorney is done, he should have taken necessary steps to send it by Registered Post immediately. No explanation is given in this regard. It is not known to this Court why he sent the cancellation of Power of Attorney by Certificate of Posting and why he sent the Lawyer's Notice by Registered Post?” 21. Also in Ellammal and Others –vs- Shanmugam and ors.( MANU /TN/5212/2018), this Court has said, “Though the plaintiffs would claim that the sale deed dated 27.10.2004 had come to be executed after the cancellation of power of attorney deed Ex.A5, however, when the fact remains that the cancellation deed Ex.A5 had not been brought to the knowledge of the first defendant or the other defendants as the case may be, and when only after the same had been brought to the knowledge of the first defendant or the other defendants as the case may be, the same would come into effect as adumbrated under Section 208 of the Contract Act, 1872, it is seen that the contention of the plaintiffs that the sale deed executed by the first defendant in favour of the second defendant and following the same, the sale deed executed by the second defendant in favour of the third defendant on 20.03.2008 are all false and illegal documents, as such, cannot be countenanced, when they are found to have been emanated following the execution of the power of attorney deed in favour of the first defendant. As rightly argued, when the plaintiffs have failed to establish that the cancellation of the power of attorney deed had been brought to the knowledge of the first defendant, it is seen that in the absence of the proof of communication of the cancellation deed to the first defendant or the other defendants as the case may be, they are not bound by it and accordingly it is seen that when in the meanwhile, the first defendant is found to have acted in furtherance of the power of attorney deed executed in his favour and thereby had executed the sale agreement and the sale deed in favour of the second defendant and following the same the second defendant had executed the sale deed in favour of the third defendant in respect of the suit property, the suit laid by the plaintiffs thereafter challenging the abovesaid sale transactions would be of no avail to the plaintiffs and this position of law could be gathered from the principles of law outlined in the decision reported in MANU/TN/0238/2002 : 2002 (2) CTC 462 (S.V.Doraisamy v. T.Dayalan and others)” 22. Thus, the Court below had analysed the evidence and come to the conclusion that the sale deed executed by the second plaintiff in favour of the first plaintiff is valid and the cancellation of power of attorney is not legal. This Court do not see any factual or legal error in the said finding. 23. In the result, this Appeal Suit is dismissed with costs.