Madras High Court
M.C.Pandian vs Neelavathi on 8 June, 2018
Author: S.Baskaran
Bench: S.Baskaran
IN THE HIGH COURT OF JUDICATURE OF MADRAS
Judgment Reserved on : 19.07.2017
Judgment Pronounced on : 08.06.2018
CORAM:
THE HONOURABLE MR. JUSTICE S.BASKARAN
S.A.No.820 of 2008
M.C.Pandian ... Appellant
Vs.
1.Neelavathi
2.S.Kotteeswaran
3.S.Renuga Devi
4.S.Nandakumar
5.S.Mahendran ... Respondents
This second appeal has been filed under Section 100 of CPC, against the judgment and decree dated 19.12.2007 made in A.S.No.611 of 2007 passed by the learned III Additional Judge, City Civil Court, Chennai, reversing the Judgment and decree dated 27.08.2007 passed by the learned First Assistant Judge, City Civil Court, Chennai in O.S.No.110 of 2000.
For Appellant : Mr.M.Balasubramanian for
M/s.Delight Law Associates
For Respondents : Mr.H.Nazirudeen S.C.
For Mr.P.Haribabu for R1 to R5
JUDGMENT
This second appeal arises out of the Judgment and Decree dated 19.12.2007 made in A.S.No.611 of 2007 passed by the learned III Additional Judge, City Civil Court, Chennai, reversing the Judgment and decree dated 27.08.2007 passed by the learned First Assistant Judge, City Civil Court, Chennai in O.S.No.110 of 2000.
2. The case of the petitioner is as follows:-
The suit property originally belongs to one Santhagunam. The said Santhagunam died living behind the plaintiffs as legal heirs. The suit property measuring an extent of 1 acre and 44 cents comprised in Survey No.300/1 at 137, Velacherry Village was allotted to late Santhagunam by virtue of family arrangement on 11.03.1974. The said land is ancestral property of late Santhagunam. The patta and other revenue records are in the name of said Santhagunam. He passed away on 22.11.1998 intestate leaving behind all the plaintiffs as legal heir. The first plaintiff is the wife of late Santhagunam and plaintiffs 2 to 5 are the sons and daughters of late Santhagunam. After the death of Santhagunam, the plaintiffs are the absolute owner of the suit property. Since the suit property was not yielding any profit to improve the same, by converting the land into house sites, the said Santhagunam gave power of attorney in favour of the defendant on 20.07.1988 without any consideration. Since the defendant has acted against the interest of the said Santhagunam, he rightly cancelled the said power of attorney on 09.07.1992 as per document No.292/92 and the same was registered in the office of Joint Sub Registrar, Saidapet. The defendant was also duly informed about the cancellation of power of attorney, for which the defendant has sent a reply, claiming that huge amount has been spent by her for developing the said land and without furnishing any accounts sought for a sum of Rs.3,00,000/- from the plaintiffs. In the meantime, the said Santhagunam died living behind the plaintiffs as his legal heirs. Even after cancellation of the power, the defendant sold some portion of the suit property to third party and failed to furnish details to the plaintiff. The defendant is now preventing the plaintiffs from entering the suit property. The power of attorney was cancelled with the knowledge of the defendant. Hence, the plaintiffs have come forward with the suit for declaration that the power of attorney dated 20.07.1988 was duly cancelled and the sale or any other transaction effected by the defendant subsequent to the same in respect of the suit property is not valid and binding on the plaintiffs and also for consequential injunction.
3. On the other hand, opposing the claim of the plaintiffs by filing written statement, it is contended by the defendant that the plaintiffs are not the legal heirs of Santhagunam and they are not the absolute owners of the suit property. The plaintiffs are not in possession and enjoyment of the suit property. The suit for injunction without seeking the relief of possession is not maintainable. During the life time of Santhagunam, a suit was filed against the defendant by him seeking permanent injunction and the averments in the said suit itself will clearly disprove the present claim of the plaintiffs. The plaintiffs do not have any right or title over the suit property. The said Santhagunam, his brother Chidhambaram and another person Udhayan were entitled to an extent of 3.44 cents in Survey No.300 in Velacherry Village. After partition of the said property, the late Santhagunam was entitled for 1.44 cents, while the other two brothers were allotted one acre each. Subsequently, on 20.07.1988, the said Santhagunam executed a power of attorney relating to 1.44 cents in favour of the defendant. As per the averments of the said documents, the defendant was authorised by late Santhagunam to take possession of 1.44 cents in Survey No.300 in Velacherry Village and to manage the said property. Prior to giving the power of attorney to the defendant, the said Santhagunam and his brother Chidhambaram entered in a sale agreement with one Ethiraj for a sum of Rs.2,68,400/- offering to sell 2.44 cents to the said person. The same was entered into on 02.07.1988. The late Santhagunam informed the defendant about the said prior sale agreement and requested the defendant to pay the said amount to Ethiraj, the agreement holder. The power of attorney document dated 20.07.1988 executed in favour of the defendant was attested by the said Ethiraj also. Accordingly, the defendant has paid total sum of Rs.4,25,000/- on various dates to the said Ethiraj. The said Ethiraj also paid the entire sale consideration to the said Santhagunam and his brother. The power of attorney executed on 20.07.1988 by Sathagunam in favour of the defendant is coupled with the interest and the same cannot be revoked or cancelled unilaterally. Apart from Rs.4,25,000/- paid to Ethiraj as per the instruction of late Santhagunam, on 04.12.1990, the defendant paid a further sum of Rs.60,000/- directly to Santhagunam and the same was acknowledged in writing by Santhagunam himself. The late Santhagunm agreed to sell the property to Ethiraj at Rs.1100/- and if proper account is taken, Santhagunam would have received from the defendant amount in excess of the sale consideration itself. After the power attorney was given to him, the defendant is managing the said property and paying taxes. The suit property was developed as house site and the defendant executed sale deed to number of persons and delivered possession of the property also. The entire extent covered by the power of attorney dated 20.07.1988 have been fully disposed of. As the power of attorney dated 20.07.1988 is coupled with interest, the same cannot be revoked. It was only after all the plots were sold out, the defendant received notice from Santhagunam regarding cancellation of power of attorney. The person who purchased the plots from the defendant are in possession and enjoyment of the respective plots after making full payment of the sale consideration. The suit is not maintainable. Hence, the defendant seeks dismissal of the suit.
4.In support of their case, the plaintiffs examined P.W.1 and produced Ex.A1 to Ex.A5 to prove their claim. On the side of the defendant, D.W.1 was examined and Ex.B.1 to Ex.B.8 were marked. On consideration of the oral and documentary evidence adduced and the averments made by both sides, the trial Court was pleased to dismiss the suit laid by the plaintiffs and on appeal, the first appellate Court after considering the materials on record afresh was pleased to set aside the judgment and decree of the trial Court and accordingly allowing the appeal preferred by the plaintiffs decreed the suit as prayed for in favour of the plaintiffs. Aggrieved over the same, the defendant has come forward with the present second appeal.
5.At the time of admission of the second appeal, the following substantial question of law were formulated for consideration by this Court.
(1) Will not the suit one for declaration of the cancellation of a Power of Attorney would fall under Article 4 of the Limitation Act and as such, such a suit claiming the relief of declaration filed after three years from the date of cancellation of the power of attorney would be barred by limitation under Article 4 of the Limitation Act.
(2) When a residuary clause in the form of Article 113 of Limitation Act would apply to a suit for declaration of the cancellation of the power of attorney even if such a suit does not fall under Article 4 of the Limitation Act.
(3) When the possession of the suit property admitted having been given by the Principal to his Agent under the power of attorney itself, whether a suit for permanent injunction as against the agent without explaining as to how the Principle got back the possession of the property from the agent either in the pleadings or evidence, a suit for permanent injunction by the Principal as against his agent is maintainable.
4) When there was no finding given by the lower Appellate Court regarding the possession of the suit property by the plaintiffs inspite of the evidence and pleadings contra given by the defendant is not the judgement of the lower Appellate Court is vitiated by reason of not considering the question of possession.
6.I have heard the rival submissions and also perused the materials available on record.
7.The learned counsel appearing for the defendant/appellant submitted that the suit itself is barred by limitation under Article 4 of the Limitation Act and the First Appellate Court without properly considering the evidence on record has erroneously decreed the suit. The First Appellate Court has not properly appreciated the contents of power of attorney dated 20.07.1988 produced as Ex.A3. The first appellate Court ought to have held that the relief sought for in the plaint relates to termination of agency and as such the suit is barred by limitation as per Article 4 of the Limitation Act. The power of attorney having been terminated on 09.07.1992, the plaintiffs ought to have filed the suit within the period of three years from the date on which the mis-conduct of the power agent came to the notice of the plaintiff. As per the recitals in the cancellation deed, the late Santhagunam came to know about mis-conduct of the defendant on 09.07.1992 itself and as such the present suit is filed nearly 7 - 1/2 years later and therefore the suit is barred by limitation under Article 4 of the Limitation Act. It is further contended by the learned counsel for the appellant/defendant that the plaintiffs ought to have filed the suit within the period of three years from the date of cancellation of power of attorney, but, failed to do so. As such, even assuming the suit is not barred under Article 4 of the Limitation Act, the provisions of Article 113 of the Limitation Act will be attracted and on that ground also the suit is hopelessly barred on the ground of limitation. The lower appellate Court failed to consider the fact that the appellant/defendant has interest in the property and as such the agency cannot be terminated in the absence of express contract. Likewise, the first appellate Court failed to consider the fact that as the possession of the property was given to the defendant/agent/appellant, with power to seek the property after forming lay-out, the agency should be termed as one coupled with Interest and the same cannot be cancelled, as the provision of Section 202 of the Contract Act will be attracted. The First Appellate Court also failed to consider the fact that appellant/defendant have sold the land to various third parties as evidenced by entries in Ex.B2 Encumbrance certificate. As the Agency is coupled with interest, there is no scope for the plaintiffs to cancel the same. Further in Ex.A3, nothing is mentioned about Principal reserving his right to cancel the Power and as such the cancellation of Power itself is illegal and hit under Section 202 of Contract Act. At the time of execution of power of attorney in favour of the defendant, the possession of the suit property was also handed over to him. As such, without explaining as to how the possession was taken back from the defendant, the plaintiffs are not entitled to seek for consequential injunction. The failure to implead the third parties, who purchased different plots from the defendant is not proper and the suit is bad for non-joinder of necessary parties. As the possession of property was handed over to the defendant as evidenced by Ex.A3 and in the absence of any evidence to show that possession was taken back by Santhagunam or the plaintiffs herein, the suit filed by the Plaintiff is not maintainable. The findings of the first appellate Court is not proper and the appellant/defendant seeks to entertain the appeal and thus to set aside the findings of the first appellate Court.
8. Per contra, the learned counsel appearing for the respondents/Plaintiffs would submit that there is no specific clause in the power of attorney deed produced as Ex.A3 to prove that Agency is one coupled with the interest and as such, Section 202 of the Contract Act is not applicable. During the life time of Santhagunam itself, the power of attorney deed was cancelled by him, for which the defendant claimed compensation, but no further action was taken by the Power Agent and that itself is sufficient to prove the contention of Plaintiffs. Further more, the transaction if any made by the defendant after the cancellation of Agency will not bind on the plaintiffs. It is further contended that the question of getting back the possession of the suit property from the agent does not arise, since the possession of the defendant is only on behalf of the principal and not of his own. Therefore, the Lower Appellate Court rightly allowed the appeal on proper appreciation of evidence and there is no substantial question of law arising in this Second Appeal. Hence, the respondents/Plaintiffs prays for dismissal of this Second Appeal.
9. The Plaintiffs are the wife and children of the deceased Santhagunam. The suit property measuring 1 acre 44 cents in Survey No.300/1 Velacherry Village, is the ancestral property of Late Santhagunam. He inherited the property as per family arrangement dated 11.03.1974. The said property was in possession and enjoyment of Santhagunam and his predecessors. In support of the same, the Patta standing in the name of Santhagunam's father is produced as Ex.A1. The said Santhagunam died on 22.11.1998 leaving behind the Plaintiffs as legal heirs. To prove the same, the legal heir certificate is produced by the Plaintiffs as Ex.A2. The said Santhagunam executed a Power of Attorney in favour of the defendant, produced as Ex.A.3 for converting the land as house site and the defendant has not paid any consideration for the said power of attorney. After executing Ex.A3 Power Deed in favour of defendant on 20.07.1988, the possession was handed over to defendant Pandiyan to manage the property. Subsequently on 09.07.1992, the said Santhagunam cancelled the Power of Attorney given to Pandiyan by way of Registered deed copy of which is marked as Ex.A4. The late Santhagunam also informed the defendant Pandiyan about the cancellation by way of Letter. The same was acknowledged by defendant who sent his reply letter dated 06.11.1992 to the said Santhagunam. The copy of the said reply letter is produced as Ex.A.5. In his reply, the defendant contended that the power given to him was coupled with interest and the same cannot be revoked or cancelled unilaterally. After the demise of Santhagunam, his legal heirs, the Plaintiffs herein have come forward with the present suit seeking declaration that Power of Attorney dated 20.07.1988 is duly cancelled and for consequential relief of permanent injunction restraining the defendant from interfering with possession and enjoyment of the suit property by the Plaintiffs.
10. On the other hand, opposing the same, the defendant contended that Ex.A3 Power Deed was coupled with interest and possession was handed over to him authorising him to develop the same as a Lay-out and to sell the property to third parties. Accordingly, he took possession, developed the land into plots and sold to number of persons. The defendant also paid Rs.4,25,000/- on various dates to one Ethiraj as desired by the Principal. It is further contended that the suit is barred by limitation.
11.Thus, the claim of the Plaintiffs is opposed by defendant primarily on the ground that as Ex.A3-Power deed is one coupled with interest, the same cannot be cancelled unilaterally and the present suit has been filed beyond period of limitation. Thus, the primary issue to be decided is as to whether the Power of Attorney given by late Santhagunam to the defendant Pandiyan under Ex.A3-Registered Power Deed is one coupled with interest. In Ex.A3 Power Deed, it is stated as follows:-
me;j brhj;ij guhkhpf;ft[k;. thp tiffis brYj;jt[k;. mjw;F cz;lhd urPJfis bgwt[k;. tPl;L kidfshf gphpj;J tpwgis bra;at[k;. tpf;fpua ml;thd;!; gj;jpuk; v:Gjt[k;. mjw;fhf jh';fns ifbahg;gk; bra;at[k;. ml;thd;!; bjhif th';ft[k;. mjw;F cz;lhd urPJfis bgwt[k;. mf;fphpbkz;l; bfLtpw;Fs; fpuak; bgWgth;fs; mth;fs; brytpy; fpua gj;jpuj;jpy; jh';fns ifbahg;gk; bra;at[k;. mjd; rk;ge;jg;gl;l mYtyfj;jpy; gj;jpuk; gjpt[ fhyj;jpy; gl;lh kD nghd;w eK:dhf;fspy; ifbahg;gk; bra;at[k;. nuif itf;ft[k;. gj;jpuk; gjpt[ g{h;j;jp bra;at[k;. brhj;ij rk;ge;jg;gl;lthplk; xg;gilf;ft[k; j';fSf;F mjpfhuk; cz;L vd;gij cWjp Twfpnwd; vd;W Fwpg;gplg;gl;Ls;sJ/
12.It is contended by the defendant/appellant that subsequent to Ex.A3-Power Deed, he has handed over Rs.60,000/- to Santhagunam through one Ethiraj and the same was acknowledged by Santhagunam as per Ex.B5 Receipt issued on 04.12.1990. Relying upon Ex.B5, the learned counsel for the appellant contended that even though in Ex.A3-Power deed, it is mentioned as General Power of Attorney, after receiving Rs.60,000/- from the defendant and execution of Ex.B5 Receipt by Santhagunam, the said Ex.A3 Power Deed has become irrevocable one as the same is to be considered an agency coupled with interest. The learned counsel for the appellant/defendant also pointed out that the 5th Plaintiff who deposed as P.W.1 has clearly stated that he is unaware about the money transaction between his father Late Santhagunam and the defendant. Thus, the appellant/defendant contends that as the contents of Ex.B.5-Receipt given by Santhagunam is not disputed, the Power is to be treated as one coupled with interest. The trial court relying upon Ex.B.5 Receipt arrived at the conclusion that, Ex.A3 the Power of Attorney given to defendant is coupled with interest. The trial court held as follows:-
Even though it is considered as a general power of attorney deed as on the date of 20.07.1988, but after execution of Ex.B5 receipt it cannot be said that the above document is a general power of attorney deed, but, it is coupled with interest. Once it is coupled with interest then the principal cannot revoked the power of attorney automatically. He can give prior notice and then he may revoked the power. He has not done so in this case.
13. However, the First Appellate court, after reappraising the evidence on record found that in Ex.B5 Receipt, the amount and name are handwritten while other details are typed. The First Appellate Court also discussed in detail as to why Ex.B5-Receipt is being disbelieved. As such, the First Appellate Court held that Ex.A3 Power Deed is only General Power and the same is not coupled with interest as held by the trial court.
14.The same is challenged by the appellant/defendant. Therefore, it is to be seen as to what is meant by coupled with interest. In that regard, it will be appropriate to refer to the Ruling of the Apex court reported in Her Highness Maharani Shantidevi P.Gaikwad Vs. Savjibhai Haribhai Patel in AIR 2001 SC 1462. In the said case, the issued involved relates to the Development Agreement entered into between the owner and the Developer for development of large tract of land in the Housing Scheme complying with Urban Land Ceiling Act. A Power of Attorney expressly made irrevocable was also executed by the owner in favour of the developer. Subsequently, as the power was revoked and the same was challenged and in that regard, the Apex Court gave finding that the agreement was validly terminated under the terms of agreement and Section 202 of the Contract Act, has no applicability. In the said Ruling, it is held as follows:-
When there is no ambiguity in the clause, the question of intendment is immaterial. The fact that the clause is couched in a negative form is of no consequence. The intention is clear from the plain language of clause (17) of the agreement. In the case in hand, Section 202 has no applicability. It is not a case of agency coupled with interest. No interest can be said to have been created on account of plaintiff being permitted to prepare the scheme and take ancillary steps. Thus, it is clear from the above said Ruling that the agreement under which the Developer is permitted to develop the land does not create interest for him in the property so developed by him. Any such power given to the Developer can be terminated under the circumstances. Thus, the Power of Attorney given to a Developer for doing necessary ancillary work cannot be treated as one coupled with interest. As such, the same is revocable.
15.In the case on hand, admittedly Ex.A3 Power of Attorney was executed by the Santhagunam to the defendant for the specific purpose of developing the suit property in to layout. Following the above said Apex Court ruling, it is clear that any power given to the land developer cannot be coupled with interest. However, the Trial Court in the case on hand relying on Ex.B5-receipt issued by Santhagunam concluded that in view of the amount received by Santhagunam from the defendant, Ex.A3 Power of Attorney should be treated as one coupled with interest. In Ex.B5 receipt it is stated as follows:-
urPJ 1990k; Mz;L ork;gh; khjk; 4k; njjpapy; brd;id?42. ntsr;nrhp fpuhkj;jpy; fh;zk; bjU. 4k; bek;gh; tPl;oy; trpf;Fk; fhyk; brd;w Jiurhkp gps;is mth;fspd; Fkhuh; Rkhh; 59 taJs;s o/rhe;jFzk; Mfpa ehd;. brd;id?4. ikyhg;g{h;. eapdhh; ehlhh; bjU.1k; bek;gh; tPl;oy; trpf;Fk; Kj;J ehlhh; Fkhuh; 43 taJs;s vk;/rp/ghz;oad; mth;fSf;F fPH;f;fz;l rhl;rpfs; Kd;dpiyapy; vGjpf; bfhLj;j @gzg;gw;W@ urPJ vd;dbtd;why;
br';fy;gl;L $py;yh. irjhg;ngl;il jhYf;fh. ntsr;nrhp fpuhkk;. rh;nt bek;gh; 300y; ml';fpa vdf;F brhe;jkhd. 144 Vf;fh; tp!;jPh;zKs;s tptrha epyj;ij ehd; o/rhe;jFzk; //// njjp md;W jpU/vd;/vj;jpuh$; mth;fsplk; ek;gh; 30. tp$aefuk;. ntsr;nrhp. brd;id?42y; trpf;Fk; ehd; bra;J bfhz;l tpf;fpua mf;hpbkz;l;go. nkw;go epyj;jpw;F jpU/vd;/vj;jpuh$; mth;fsplkpUe;J Vw;fdnt ml;thd;!; Mf bgw;Wf; bfhz;l gzk; nghf kPjpj; bjhifahd U:/60.000-? (U:gha; mWgjhapuk; kl;Lk;)////// njjpapy; nkw;go jpU/vd;/vj;jpuh$; nfhhpago c';fSf;fhf mthplkpUe;J bgw;Wf; bfhz;ljw;F ,Jnt urPJ. ,g;gof;F (o/rhe;jFzk;)/ It is clear from the averments in Ex.B5 receipt that the late Santhagunam received Rs.60,000/- from one Ethiraj, who paid the amount on behalf of the defendant. The person who issued Ex.B5 receipt namely Santhagunam is no more, but the person who paid the amount, namely, Ethiraj is alive. As such, the correct person to speak about Ex.B5-receipt is the said Ethiraj. However, he is not examined before the Court and there is no other proof to show as to how much amount was given by Ethiraj in total. As such, the execution of Ex.B5 receipt as well as payment of money to late Santhagunam by the defendant on behalf of the said Ethiraj is not established before the Court. Therefore, the conclusion of the first appellate Court that Ex.B5 is a self serving document created for the purpose of the case is just and proper and the same is to be accepted.
16.In the case on hand, it is clearly mentioned in Ex.A4 registered cancellation deed as to under what circumstances the principal, namely Santhagunam cancelled the power given under Ex.A3. The reason assigned in Ex.A4 cancellation deed is as follows:-
vk;/rp/ghz;oad; mth;fs; vd;dplk; b$duy; gth; gj;jpuk; bgw;w njjpapypUe;J ,J ehs; tiuapy; vdf;F ve;j tpj bjhlh;g[k;. jftYk; bfhLf;fhkYk;. fzf;F tHf;Ffs; bfhLf;fhkYk; Vnjr;rjpfhukhf jd; ,c&lk; nghy; ele;J tUfpwhh; vd;Wk;. Kuz;ghlhd tifapYk; jtwhd tHp tifapYk; b$duy; gth; gj;jpuj;ij cgnahfg;gLj;jp tUtjhf bjhpa tUpfwJ vd;Wk;. jw;nghJ nkw;go vk;.rp/ghz;oad; mth;fs; kPJ vdf;F mtek;gpf;if Vw;gl;Ls;sJ/ Thus, the reason adduced by late Santhagunam for cancelling the power given to the defendant is breach of trust. Further, there is nothing on record to show that the defendant paid the entire sale consideration to late Santhagunam and obtained power deed on that basis. It is also clear from the reasons stated in Ex.A4 that the defendant failed to furnish any account to the principal. As such the principal lade Santhagunam has cancelled the power given to the defendant under Ex.A3 by executing Ex.A4 cancellation deed.
17.Further, the plaintiff informed the defendant about the cancellation of power of attorney and the same is acknowledged by the defendant as per his letter dated 06.11.1992, which is marked as Ex.A5. In the said letter dated 06.11.1992, the defendant has stated as follows:-
eP';fs; vdf;F Kd; mwptpg;g[ bra;ahky; vdf;F jh';fs; je;j bghJ mjpfhu gj;jpuj;ij uj;J bra;Jtpl;Oh;fs;/ c';fs; gtiu itj;J c';fs; ,lj;ij bltyg; bra;j bryt[j;bjhif nfl;L 22/07/1992 md;W j';fSf;F mDg;gpapUe;j nehl;O!; K:ykhf nfl;oUe;njd;/ ,Jehs; tiuapy; vdf;F eP';fs; te;J vd;id ghh;f;fnth. bryt[j;bjhif je;J brl;oy; gz;znth jh';fs; tutpy;iy/ ,g;gt[k; ,jd; K:yk; mwptpg;gJ vd;dbtd;why; ,e;j nehl;O!; fz;l xU thuj;jpw;Fs; jh';fs; ehd; bryt[ bra;j bjhif. ,jw;fhd vd; cly; ciHg;g[. bryt[f;fhf bjhif fld; th';fpajw;fhd tl;o. ,itfis je;J brl;oy; gz;z tutpy;iy vd;why; rl;lg;go eltof;if vLg;ngd; vd;W Fwpg;gpl;Ls;shh;/ However, there is nothing on record to show as to whether any action was initiated by the defendant subsequently as stated in Ex.A5 letter. There is no detail furnished by the defendant about the amount spent by him for developing the property. Further, inspite of the power deed being cancelled on 09.07.1992 itself and the said Santhagunam died only on 22.11.1988, the defendant has not come forward to initiate any action against the principal Santhagunam till his death. This also will clearly go to show that the power given to the defendant was properly cancelled as the same is not coupled with interest.
18.On the other hand, opposing the claim of the plaintiff, the learned counsel appearing for the defendant relying upon the ruling reported in 2014 (1) CTC 447 in T.SIVAPERUMAL Vs. S.VISWANATHAN AND OTHERS, contended that the possession of the suit property was handed over to him and in such circumstances, even if the power deed does not mention that it is coupled with interest, the same should be treated as power of attorney coupled with interest and it can be cancelled only after giving prior notice. In the said ruling, it is held as follows:-
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? P.W.1 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.
19.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. It is further contended by the learned counsel for the defendant that even if it is alleged that the cancellation notice was given through certificate of posting, the same is not sufficient and in the absence of proper proof of notice being given, the cancellation is improper and invalid. It is clear from the ruling relied upon by the defendant, it is clear that the possession of the property along with original title deeds was handed over to the power agent and the entire sale consideration was also paid to the principal. In that background, in the said case it was concluded that the power of attorney was coupled with interest. However, as rightly pointed out by the learned counsel for the plaintiffs in the case on hand, there is no evidence to show that the original title deed was handed over to the defendant and the entire sale consideration was paid to the late Santhagunam. In such circumstances, it is clear that the above said ruling relied upon by the appellant is not applicable to the facts of this case. As such, Ex.A3 Power of Attorney deed cannot be considered as one coupled with interest.
19.Likewise, the learned counsel appearing for the defendant relying upon the ruling reported in 2014 (3) CTC 258 in SENTHILSELVAM AND OTHERS Vs. SRINICASAN, REP. BY HIS POWER AGENT VIJAYARENGAN, contended that in the absence of any communication about the cancellation of power of attorney by principal to the power agent only sale deed executed by the power agent to third party cannot be declared as null and void. It is pointed out by the learned counsel for the defendant that he entered into sale agreement with number of persons and also executed sale deeds. Hence, the defendant seeks for dismissal of the suit. However, in the case on hand, it is clear from Ex.A4 revocation deed that power has been duly cancelled by the plaintiffs. It is clear from the evidence of P.W.1 that the cancellation of power was communicated to the defendant in writing by the plaintiffs and the same is acknowledged by the defendant in his reply dated 06.11.1992 which is marked as Ex.A5. As such, the ruling relied upon by the defendant is not applicable to the facts of this case as the defendant has been informed about the cancellation and he has responded to the same as evidenced by Ex.A5 letter. Therefore, as rightly pointed out by the learned counsel for the plaintiffs that Ex.A3 power deed is not coupled with interest and the plaintiffs have duly cancelled the power for the reasons stated in Ex.A4 and as such the power given to the defendant is properly cancelled. In such circumstances, the conclusion of the first appellate Court that Ex.A3 power deed is not coupled with interest and the same is properly revoked by the plaintiff as per Ex.A4 cancellation deed is just and correct and the same does not warrant any interference.
20.The plaintiffs have sought for declaration and also come forward with the prayer seeking permanent injunction to restrain the defendant and any one claiming through him from interfering with the enjoyment of the suit property measuring 1 acre 44 cents in Survey No.300 at Velacherry Village, Chennai. The same is opposed by the defendant on the ground that possession was handed over to him as per Ex.A3 Power Deed and he continuous to be in possession and the property sold by him is now in possession of the third parties. Thus, the plaintiffs without seeking recovery of possession is not entitled to come forward with the suit which on the face of it is unsustainable. Thus, the defendant sought for dismissal of the suit.
21.Refuting the contention of the defendant, the learned counsel for the plaintiffs contended that as per Ex.A4 cancellation deed, the power given to the defendant was properly revoked and the same was also communicated to the defendant who acknowledged the receipt of the communication by sending Ex.A5 reply to the late Santhagunam. The plaintiffs further contended that even assuming the possession was with the defendant, it was only on behalf of the plaintiffs and as cancellation of power is duly communicated, the defendant/agent has no right to remain in possession and the plaintiffs are entitled to get permanent injunction as sought for by him. In support of his contention, the learned counsel for the plaintiff relied upon the ruling reported in AIR 1990 SUPREME COURT 673 in SOUTHERN ROADWAYS LTD, MADURAI Vs. M.KRISHNA, wherein it has held as follows:-
Held, the agents's possession at the suit premises was on behalf of the company and not on his own right. It was, therefore, unnecessary for the company to file a suit for recovery of possession. The Agent has no right to remain in possession of the suit premises after termination of his agency. He has also no right to interfere with the company's business. Therefore, temporary injunction could be granted.
22.Similarly, the plaintiffs relied upon the ruling of the Apex Court reported in AIR 1989 SUPREME COURT 1269 in SMT.CHANDRAKANTABEN J. MODI AND NARENDRA JAYANTILAL MODI Vs. VADILAL BABALAL MODI AND OTHERS, to contend that the possession of the agent is to be deemed as possession of the principal.
23.Further, the plaintiff relied upon a ruling reported in AIR 1969 KERALA 214 in NARAYANI AMMA Vs. BHASKARAN PILLAI AND OTHERS, wherein it is held as follows:-
6.The appeal filed by the 10th defendant can be easily disposed of. Both the courts have concurrently disbelieved his case of lease. The trail Court held that the 12th defendant was in possession of the property, while the lower appellate Court held that the 10th defendant was in possession of the same, as caretaker. Under law it means that he was only an agent. An agent holds the principal's property only on behalf of the principal. The agent has no possession of his own. What is called a caretaker's possession is the possession of the principal. I should therefore, clarify the position, and hold that the 10th defendant had no possession of the property at any time. Admittedly, a receiver was appointed for the first item of the plaint schedule properties by the Executive First Class Magistrate , Devikulamp and he is in possession of the said property. He should restore possession of the property to the rightful owner. It is clear from the above said rulings relied upon by the plaintiffs that even if the possession is with the defendant it should be deemed as possession on behalf of the principal only. In the case on hand admittedly, the power was cancelled in 1992 as per Ex.A4. Subsequently, no action was initiated by the defendants till the death of the principal in 1998. In such circumstances, it is apparent that the plaintiffs are entitled to seek for injunction as the property is deemed to be in possession of the plaintiffs who are the legal heirs of the principal Late Santhagunam. For the reasons stated above, the question of taking possession from the power agent will not arise. Hence, the prayer for consequential injunction as sought for by the plaintiffs is to be granted and the conclusion of the first appellate Court in that regard is appropriate and correct. The same does not warrant any interference.
24.The next contention of the appellant/defendant is that the suit is barred by limitation. It is contended that as the termination of the tenancy was effected, Article 4 of the Limitation Act will apply and accordingly the suit is barred. It is further pointed out that even if Article 4 of the Limitation Act is not attracted, the suit is barred under Article 113 of the Limitation Act. In the case on hand, admittedly, the power given to the defendant was cancelled and the same was communicated to the defendant. The cause of action mentioned in the plaint is that the suit property is situated in Madras and on 20.07.1988 when the late Santhagunam has given power of attorney in favour of the defendant to improve the schedule mentioned land and on 09.07.1992 when the said power of attorney was duly cancelled and on 22.07.1992 and on 06.11.1992 when the defendant sent a letter seeking compensation for the amount spent by him to develop the suit property and on 22.11.1998 when Santhagunam died intestate leaving behind the plaintiff as legal heirs and subsequently on various dates, the defendant and his men interfered and prevented the plaintiff from peaceful possession and enjoyment of the suit property, the cause of action arose. Thus, the plaintiffs herein came into the picture only after the death of the said Santhagunam. As stated above, even though the power given to the defendant was cancelled by Ex.A4 registered cancellation deed on 06.11.1992 itself, till the death of Santhagunam on 22.11.1998, no steps were taken by the defendant against the cancellation. Further, it is pointed out that after cancellation of power, the defendant executed a sale deed to third parties. The defendant while deposing as D.W.1 has stated in his cross examination as follows:-
gth; gj;jpuj;ij uj;J bra;jjhf rhe;jFzk; vd;dplk; brhd;d gpd;dh; ehd; ve;j xU fpua xg;ge;jnkh. fpuankh bra;atpy;iy. nkw;go gth; gj;jpuj;jpy; fpuak; uj;J bra;jjhf 2. 3 tUl';fs; fHpj;J jhd; brhd;dhh;/ 06/11/1992 njjpapy; rhe;jFzk; gth; gj;jpuk; uj;J bra;j tptuk; vdf;F bjhpa[k;/ 07/11/1994y; Kjy; fpua Mtzk; gjpt[ bra;ag;gl;Ls;sjhf gp/rh/M/1y; fz;Ls;sJ/ gth; gj;jpuk; uj;J bra;j gpd;dh; jhd; nkw;g gj;jpuk; fpuak; bra;ag;gl;Ls;sJ/ 1995k; tUlk; gp/rh/M/2d; go ehd; fpuak; bra;J bfhLj;Js;nsd;/ Thus, it is clear that only after cancellation of power, the defendant has executed sale deed Ex.B1 and Ex.B2 without any right. Admittedly, the said Santhagunam died on 22.11.1998 only. The suit has been filed on 06.01.2000. It is pointed out that only after the demise of Santhagunam, succession opened for the plaintiffs. Thus, the plaintiffs have filed the suit within three years from the date of death of Santhagunam for declaration. As the relief sought for in the suit is not for any cancellation of document, but only for declaration that Ex.A3 power is already duly cancelled, Article 113 of the Limitation Act will not be attracted to the facts of this case. Further, the plaintiffs have come to the Court within three years from the demise of Santhagunam, as their right was denied by the defendant, the suit is maintainable and the question of limitation raised by the defendant is not sustainable. Thus, the first appellate Court has rightly reversed the findings of the trial Court and decreed the suit as prayed for. Thus, this Court find no infirmity in the findings of the lower appellate Court and the second appeal is devoid of merits and the same has to fail.
25.Considering all the materials available on record and for the reasons stated above, it is concluded that the first appellate Court has properly appreciated the evidence available on record and allowed the first appeal. The learned first appellate Court has given cogent and valid reasons for reversing the judgment and decree passed by the trial Court. In view of the above said discussion, the substantial question of law raised by the appellant/defendant before this Court are answered against the appellant.
26.In the result, the second appeal is dismissed with costs. The Judgment and decree dated 19.12.2007 made in A.S.No.611 of 2007 passed by the learned III Additional Judge, City Civil Court, Chennai, is hereby confirmed and the suit is decreed.
08.06.2018 rrg To
1.The III Additional Judge, City Civil Court, Chennai.
2.The I Assistant Judge, City Civil Court, Chennai.
S.BASKARAN,J., rrg Pre-Delivery Judgment in S.A.No.820 of 2008 08.06.2018