Madras High Court
T.Sivaperuaml vs S.Viswanathan on 19 April, 2013
Author: B.Rajendran
Bench: B.Rajendran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/04/2013 CORAM THE HONOURABLE MR.JUSTICE.B.RAJENDRAN S.A.(MD).No.1165 of 2011 T.Sivaperuaml ... Appellant Vs 1.S.Viswanathan 2.V.Subbulakshmi 3.The Sub-Registrar, No.II, Joint Sub-Registrar Office, Karaikudi. 4.The President, Sakkottai Panchayat Union ... Respondents This Second Appeal filed under Section 100 C.P.C. to set aside the decree and judgment passed by the Sub-Judge, Devakottai made in O.S.No.27 of 2007 dated 26.02.2010 confirming in judgment and decree by the District Judge, Sivagangai made in A.S.No.12 of 2010 dated 23.12.2010. !For Appellant .. Mr.D.Sadiqraja ^For R.1 AND 2 .. Mr.V.R.Venkatesan For R.3 AND r.4 .. Mr.Velmurugan Government Advocate :JUDGMENT
This Second Appeal appeal was originally dismissed on 24.09.2012 for default. Later on, it was restored on its file.
2. The facts of the Second Appeal, in a nutshell, is as follows:-
The defendant is the appellant herein. The first and second respondents are the plaintiffs before the trial Court. The second plaintiff obtained a settlement patta in her favour and thereafter, put up construction at her own cost. Thereafter, the second plaintiff executed the said settlement deed in favour of her husband, namely, the first plaintiff, in the year 1997. Right now, the first plaintiff is the owner of the property in question. The first plaintiff is working as a Village Administrative Officer. The first defendant in the suit was the sister's husband of the first plaintiff. Due to the close relationship, the first plaintiff had executed the power of attorney on 16.09.2002 in favour of him and he had also registered the said power of attorney. Consequently, the plaintiffs had handed over all the documents.
3. While the matter stood thus, since, the appellant herein acted against the interests to the plaintiffs/ respondents, by virtue of a document, dated 10.11.2005, the first respondent cancelled the said power of attorney. The same was also intimated by way of 'certificate of posting' to the first defendant/appellant, on 17.11.2005 itself. According to him, it was received by the first defendant. Thereafter, on 03.06.2006, he made a publication also in 'dinamalar' in this regard .
4. Inspite of the fact that the power of attorney was cancelled, the first defendant had executed the sale deed in his favour, on 05.05.2006, as if it has been sold for a consideration of Rs.3,36,000/-. Such document is not legally sustainable. Therefore, he issued a lawyer's notice on 29.06.2006. Though it was received by the first defendant, he has not replied the same. With this background, the plaintiffs / respondents filed suit for a declaration of title and possession of the property in question. He has also filed this suit for cancellation of the sale deed. He also impleaded the Sub-Registrar, Karaikudi, in this regard.
5. The first defendant has filed a written statement specifically denying that the cancellation of power of attorney was not intimated to him by the alleged 'certificate of posting' on 17.11.2005 and the alleged publication has been made only after the sale deed had been executed in his favour and even in the publication, nothing has been mentioned about the cancellation of the power of attorney. He would further contend that he has been in possession and enjoyment of the suit property in question. In fact, all the original documents have been handed over to him. He would mainly contend that even as early as prior to the power of attorney, on 14.09.2002 itself, the first plaintiff agreed to sell the property for which, he entered into a document also. Accordingly, the entire sale consideration was received, original title deeds was given and also the possession was handed over. Only for the completion of the sale deed, the power of attorney was executed. Therefore, the power of attorney is executed coupled with interest. Hence, it is an irrecovable power of attorney. Subsequently, the sale deed has also been executed. He has also specifically pleaded at no point of time, the cancellation of power of attorney was ever intimated to him.
6. The plaintiff had examined himself and produced documents Exs.A.1 to 13. Likewise, the defendant had examined himself and two others and produced Exs.B.1 to 11. The Court exhibits are marked as Exs.1 to 3.
7. The Lower Court, taking into consideration the close relationship between the parties, namely, the plaintiff and the first defendant and on the basis of the recital in the sale deed under Exs.B.4 and 6, it held that the sale deed did not contain anything about the alleged sale transaction nor there is an evidence that the sale took place prior to the power of attorney nor the power of attorney is coupled with interest is proved and the sale deed has been executed after the cancellation of power of attorney, that too, after the intimation and therefore, the sale is invalid and decreed the suit in toto.
8. Aggrieved against the same, the defendant preferred an appeal. The appellate Court also had taken into consideration Ex.B.4 an un- registered sale deed, dated 14.09.2002, and held that it was a fabricated one. It was further held that with the power of attorney, he had fraudulently created the registered sale deed and ultimately, dismissed the appeal confirming the judgment of the Courts below. Aggrieved against the same, the present Second Appeal has been filed.
9. The main point which is canvassed by the appellant/defendant is that both the Courts below have failed to take into consideration that even at the time of execution of power of attorney, possession of land was handed over to him. Apart from that, all the original documents relating to the suit property in question have been handed over to him. This power of attorney has been executed only because of the earlier transaction between the parties. Ex.B.4 dated 14.09.2002 is the document, which is the sale deed executed in favour of the first defendant by the first plaintiff. The first plaintiff is not an ordinary person. He is working as a Village Administrative Officer. He had executed the sale deed receiving full sale consideration. Thereafter, he executed the unregistered sale deed. However, the first plaintiff denied the sale deed-Ex.B.4 itself. Therefore, the signature of the first plaintiff was sent for expert opinion.
10. In the expert opinion, it has been categorically held that the signature found in Ex.B.4 and the signature found in the registered power of attorney and the signature obtained in the cancellation deed are all considered and found to be one and the same. Therefore, the document available under Ex.B.4 is the signature of the first plaintiff/ first respondent and same has been proved in a manner known to law. The signature of the first plaintiff and the close relationship between the parties clearly indicated that what was purported to be done is a sale deed made on 14.09.2002 and thereafter, the first plaintiff executed the power of attorney deed on 16.09.2002 in favour of the first defendant, which is marked as Ex.A.2.
11. For the first time, in the plaint, the plaintiffs would only say that the first defendant /appellant acted detrimental to the interests of the first plaintiff. What is the detrimental interest has not been explained or proved. No evidence is marked in this regard. But, it is contended that straight away cancellation of power of attorney took place and same alleged to have been made on 10.11.2005, which is marked as Ex.A.3. Though the first plaintiff says that the cancellation was intimated through his advocate, the said advocate has not been examined. Therefore, there is no direct evidence for cancellation to the first defendant.
12. Then, the only record is available Ex.A.5, the certificate of posting sent to the first defendant vide letter dated 17.11.2005 intimating about the cancellation of the power of attorney. However, his intimation through 'certificate of posting' is not clearly proved. No doubt, he filed the certificate of posting with slip, but the date, in that is written separately. It is not proved how it is served?. No efforts have been taken through the post office concerned for serving that 'certificate of posting'. Therefore, the only contention is the intimation of cancellation through the certificate of posting. When that is not proved, the factum of cancellation cannot be countenanced in law. In fact, the first plaintiff had executed the sale deed in favour of the first defendant, on 05.05.2006, which is marked as Ex.B.6, the registered sale deed. Ex.A.2 is the copy of the power of attorney given to the first defendant/appellant.
13. According to the appellant, the entire sale consideration has been paid and possession has been handed over and he had executed the sale deed dated 14.09.2002 in his name. There is no embargo in it. In fact, under Section 202 Indian Contract Act, the power of attorney coupled with interest cannot be cancelled because the date of power of attorney is on 16.09.2002, however, on 14.09.2002 itself, the sale consideration had been passed. That has been proved by the examination of the expert witness by way of marking the signatures of the plaintiffs and found it, it was all one and the same. But, curiously, the publication has been made in one issue of Dinamalar only on 03.06.2006, which is marked as Ex.A.6.
14. When this Court analyse this publication, nothing is mentioned about the cancellation of the power of attorney at all. What it says that somebody is trying to sell the property of his client without any right or interest and it will not bind his client. The publication is not for the purpose of intimating about the cancellation of the power of attorney, Ex.A.2. Further, the publication does not come to the rescue for the reason that Ex.A.6 is made only on 03.06.2006, whereas, the sale deed had been registered, on 05.05.2006 itself.
15. Now, the only question to be decided whether the intimation was proper in regard to the cancellation?
16. Since notice of motion was ordered, no question of law was framed. However, the following are the questions of law argued/framed in this Second Appeal is this:-
a) Whether the power of attorney in question is a power coupled with interest by virtue of Section 202 of the Indian Contract Act and Ex.A.4?
b) Whether the Courts below are right in ignoring Ex.B4 which has been proved without any ambiguity through expert opinion and attesting witness?.
17. When this Court analyse the entire evidence and the documents, the power of attorney is a registered power of attorney. The said power of attorney has been executed after Ex.B.4 in respect of the property in question. Of course, it is an unregistered sale deed. It is not admissible in evidence. But, in this case, the signature is marked through an expert. It is only marked for the purpose that the sale consideration has been passed and the same was received by the first plaintiff. The first plaintiff signature is clearly proved in this regard. The expert has also clearly opined that the signature found in the power of attorney and sale deed are one and the same. Therefore, the appellant/defendant has taken all steps in a manner known to law to prove the signature in the document for proving atleast passing of the consideration. Now, when this Court analyses the fact that when a person has received the entire sale consideration and also executed the power of attorney within three days and handed over the original title deeds to the purchaser, then, the power of attorney indicates that it is coupled with interest.
18. 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.B.4. The signature in that exhibit is admitted.
20. 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 judgment are also passed to that effect.
21. In this connection, the appellant had relied upon the judgment of the Hon'ble court in an unreported judgment made in Writ Petition No.444 of 2007 dated 22.12.2009, wherein it is stated that when the notice is served by way of certificate of posting, it could not be presumed that the notice was served on the person concerned, namely, the appellant herein. In this connection, it is relevant to extract paragraph Nos.22,23,25 and 27 of the said judgment:-
"22. Therefore, in the case on hand, the service of notice, before removing the name of the petitioner from the register of contract, could be effected only by registered post and not by certificate of posting, as shown in the records of the respondent.
23. It is seen from the records that the notice has been sent by certificate of posting and not by a registered post. It would, therefore, appear to this court that there is nothing on record to indicate that proper and valid service in fact effected nor could any presumption be drawn.
....
25. A perusal of the records would reveal that there is no documentary evidence to show that the petitioner has received the notice dated 01.12.2006 and therefore, she would not have sent any reply to the notice. As there were conflicting materials and contradictory versions that there was a notice dated 01.12.2006 and a show cause notice dated 01.11.2006 which is prior to the issuance of notice of calling of explanation, it could not be construed that there was a valid notice sent in writing to the petitioner before removing her name from the Register of Contractors. In the decision of the Delhi High Court in R.L.Narang Vs Commissioner of Income Tax, New Delhi (136 ITR 108 (Delhi) the ratio laid down in effect is the proposition to be applicable to this case.
22. He also relied upon a Delhi High Court judgment, in the case of Bharti Rani Singh Vs. Rajinder Singh Bedi, reported in 1997(42)DRJ 19, for the proposition that what is the evidentiary value of a letter being sent by way of certificate of posting infact, they only stated that it is only too well known that certificate of posting can be caught hold of without actually putting letters in the post. In that case, it is also stated that we have not felt safe to decide the controversy at hand on the basis of the certificates produced before us, as it is not difficult to get such postal seals at any point of time. The relevant portion found in the said judgment reads as follows:-
"In vain, therefore, have we heard so much in the course of the address on behalf of the appellants of notices of the meetings having been sent through certificate of posting, as if these certificates are clothed with sacrosanctity. No doubt, under illustration (e) to Section 114 of the Evidence Act the Court may presume that an official act has been regularly performed. But such a presumption is optional. But not that the court is bound to presume so in every case... That apart, how much of a letter sent with a certificate of posting is an official act? No officer of the Post Office guarantees even the address on the letter and the address on the certificate being the same. All that is guaranteed is the postal seal by the menial of the Post Office without any manner of the comparison. Nothing I imagine is easier for an unscrupulous person that to use a certificate of this sort as a bluff."
In Shiv Kumar's case (supra) regarding unreliability in sending of notices to the workmen under postal certificates, it has been observed as under:-
"we have not felt safe to decide the controversy at hand on the basis of the certificates produced before us, as it is not difficult to get such postal seals at any pointed of time."
Again, in Badri Dass's case (supra), a learned single Judge of this Court (Sultan Singh,J) has also noticed that sending notice by certificate of posting is dubious and it was observed as under:-
"IT is well known that it is not at all difficult these days to obtain a postal seal of a prior date on a certificate of posting."
23. The learned counsel also relied upon a Supreme Court judgment reported in AIR 1981 SC 1191, L.M.S.Ummu Saleems Vs. B.B.Gujaral for the proposition that neither Section 16 nor Section 114 of the Evidence Act compel the Court to draw a presumption. The presumption may or may not be drawn. On the facts and circumstances of a case, the Court may refuse to draw the presumption. On the other hand, the presumption may be drawn initially, but on a consideration of the evidence, the Court may hold the presumption rebutted and may arrive at the conclusion that no letter was received by the addressee or that no letter was ever despatched as claimed. After all, there have been cases in the past, though rare, where postal certificates and even postal seals have been manufactured. In the circumstances of the present case, circumstances to which we have already referred, we are satisfied that no such letter of retraction was posted as claimed by the detenu.
24. They have categorically stated the Section 114 and Section 16 Evidence act, the Court may draw the presumption. It is also a rebuttal presumption. In this case, though the certificate of posting is produced, the date is written in a separate ink and it is not explained nor the postman examined in a manner to law. It has been proved that the certificate of posting has not been received by the appellant.
25. 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?.
26. Under those circumstances and also taking into consideration the cumulative effect when he has gone to the extent of denying his own signature found in Ex.B.4, the original sale document, wherein the consideration has been passed, it cannot be out of place to mention that he has not sent the certificate of posting in time and it is only an eye wash to overcome the hurdles. It is also to be taken into account that he has made paper publication, after the sale deed executed. Even when this Court read the paper publication, it is only in respect of future transaction and no mention is made insofar as cancellation of the power of attorney. This vital aspect is taken into consideration, the factum of proof of cancellation of deed has not been intimated at all to this appellant.
27. Therefore, I will have to necessarily come to the conclusion that because it is a power of attorney coupled with interest in the property, the first respondent cannot summarily cancel the same without notice. As per Section 202 of the Indian Contract Act, even for cancellation, proper notice is to be issued. Therefore, there cannot be a reason to disbelive the document made in Ex.B.6. The sale deed, which has been duly registered in accordance with law, as a power of attorney holder. Since he paid the entire sale consideration, the execution of sale deed has taken place in his name. Hence, the substantial question of law has to be answered in favour of appellant.
28. At this juncture, the learned counsel placed another question of law to the effect that when the plaintiff has not paid the court fees to cancel the sale deed, whether he is entitled for declaration? Definitely not. In this case, though in amendment, he has stated about the cancellation of sale deed in the plaint, he has sought for cancellation not of the sale deed, but, he carefully worded in such a way that cancellation from the Registrer from the Registrar's Office in regard to the registered documents. He has paid the court fees of Rs.1,000/- only. Normally, cancellation has to be done at the value of the sale deed. No doubt, for the relief of declaration, he has paid at the value of the property, but, he paid the half of the market value. But, he has failed to pay the court fees insofar as the cancellation of sale deed. Therefore, definitely, this point has not been considered by both the Courts below at all. He ought to have paid the Court fee. Even otherwise, the prayer is not sustainable, as it is prayed in such a manner that they want only cancellation in the Registrar Office. Hence, the second question is answered in favour of the appellant and against the first and second respondents herein.
29. Lastly, the third question of law, Ex.B.4, sale deed, a document, has been proved by the appellant. But, here the Ex.B.4 cannot be treated as sale deed which is an unregistered document. At best, what can be construed is for payment of receipt, since Ex.B.4 is only the signature, which is marked. Ex.B.4 is only a signature of the document and the signature alone has been proved. The signature tallies along with the signature of the other admitted documents. Therefore, it cannot be construed as a document as such it could only be considered as evidence for payment. In this aspect alone, it can be considered. Therefore, this question of law is answered in favour of the appellant only to treat that in Ex.B.4 the signature has been proved for the purpose that the transaction, which took place between the parties and the sale consideration has been passed. When the sale consideration is passed and also when the power of attorney is proved coupled with interest, definitely, the same cannot be cancelled. Unfortunately, the trial Court including the appellate Court has totally failed to consider this aspect and was swayed away by the document, namely, Ex.B.4 being an unregistered sale deed.
30. Before I part with this judgment, the learned counsel for the respondent has relied upon a judgment of this Court reported in (2006) 4 MLJ 924, Siddha Construction (P) Ltd Vs. M.Shanmugam for the proposition that when the plaintiff are not parties to the impugned sale deeds they need not pay court fees under Section 40(1) of the Tamil Nadu Court fees and Suits Valuation Act (14 of 1955) and the payment of Court-fees under Section 25(d) is proper.
31. The said case relied upon by the learned counsel for the respondents will not be applicable to this case for the reason that here is the case that the plaintiff himself has executed power of attorney authorising the appellant herein to execute the sale deed. Therefore, the sale deed is executed on behalf of the first plaintiff . Therefore, under law, he has executed the sale deed. The case cited by the learned counsel for the first respondent is that wherein, the execution of the sale deed is not the party to the document. But, here is the case, he is the party to the sale deed, as it is executed by his power of attorney.
32. In view of the foregoing reasons, I have no hesitation to interfere with the findings of the Courts below and allow this Second Appeal.
33. Accordingly, this Second Appeal is allowed as prayed for and the judgment and decree granted in favour of first respondent is dismissed in toto. The suit is dismissed. No costs.
ssm To
(i)The Sub-Judge, Devakottai
(ii)The District Judge, Sivagangai.
Pre-delivery judgment made in S.A.(MD).No.1165 of 2011 To THE HONOURABLE MR.JUSTICE.B.RAJENDRAN Most respectfully submitted, (S.Selvam) P.A. to Hon'ble Judges.