Madras High Court
Prema Sudhamani vs D.Krishna Rao on 19 September, 2008
Author: M.Venugopal
Bench: M.Chockalingam, M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 19.09.2008 Coram THE HONOURABLE Mr. JUSTICE M.CHOCKALINGAM AND THE HONOURABLE Mr. JUSTICE M.VENUGOPAL O.S.A.No.189 of 2007 and M.P.No.1 of 2007 and M.P.No.1 of 2008 1.Prema Sudhamani 2.Patthi Prabhakar Rao 3.Patthi Bhaskar Rao 4.Patthi Nageswar Rao ... Appellants Vs. 1.D.Krishna Rao 2.Natha Rajalakshmi 3.Singiri Yogamba 4.Peruri Rajamma 5.Lakshmi Raju 6.Hemalatha 7.Nirmala 8.AVR.K.Kumar 9.Munaga Sukumari ... Respondents Prayer:- Appeal preferred under Order XXXVI Rule 9 of O.S. Rules against the order and decretal order of the learned Single Judge of this Court made in Application No.3644 of 2007 dated 24.04.2007. For Appellants : Miss.V.Vijayapoornima For RR 1 to 4 and RR 6 to 9 : Mr.P.B.Balaji JUDGMENT
M.VENUGOPAL,J.
This Original Side Appeal has been preferred by the appellants/applicants as against the order of the learned Single Judge dated 24.04.2007 passed in Application No.3644 of 2007 in O.P.No.92 of 2007 rejecting the application.
2.In the affidavit filed by the fourth appellant/fourth applicant in Application No.3644 of 2007, it is averred that their father who filed the O.P. in April 2006 for Letters of Administration of the Will of his sister, Late Thallam Leelavathi expired on 02.05.2006 and that the counsel for the respondents has filed caveat through Power of Attorney and that without serving the caveat No.66 and without accompanying objections affidavit and sent the caveat only by registered post and that in the objection submitted it has been stated that a fresh Caveat No.71 of 2007 has been filed and the caveat has been filed on the strength of the alleged Power of Attorney which is neither valid nor admissible in evidence and that the General Power of Attorney dated 09.05.2005 does not contain any witnesses to prove the manner of execution of the same and that the impugned Power of Attorney did not state that it was executed before the Notary Public nor did it bear any authentication by Notary Public in regard to the manner of execution or the person executing the Power of Attorney, and therefore, the presumption of execution could not be raised in favour of the Power of Attorney and that the impugned Power of Attorney was attested by a Notary only but not authenticated by him and the authentication is not merely attestation but means that the person authenticating as assured himself of the identity of execution who has signed the instrument as well as factum of execution and that the Power of Attorney neither has been authenticated by the Notary nor witnessed by any witness and hence, the power agent filing admissions which are unsustainable in law and in admissible and therefore, the Caveat No.71 of 2007 ought not to have been numbered and that since the Power of Attorney dated 09.05.2005 mentions 'to collect rents and to withdraw amounts from and out of all statutory authorities, to appear and act in the Registration Officers and for the purpose of obtaining plan sanction and other service connections.' The Power of Attorney which refers to the assignment of rent and creating interest in the title requires compulsory Registration as per the Registration Act and therefore, the Power of Attorney filed by the Caveator as a power agent is inadmissible in evidence and not valid in the eye of law and that the said power requires Registration as per Section 17 of the Registration Act and if it is not done and not enforceable and therefore, the same has to be rejected in limini and therefore, the power does not permit the power agent to oppose the Will in O.P.No.92 of 2007 and therefore, a request is made to reject the Caveat No.71 of 2007.
3.The learned Single Judge while passing orders in Application No.3644 of 2007 dated 24.04.2007 has inter alia stated that 'in the Power of Attorney in question, the agent has not been authorised to collect rents for appropriation to himself. If a power had been created empowering the agent to collect the rents and appropriate it to himself, then it is a document creating an interest in immovable property. Here, he has been authorised merely to go and collect it from the tenants and hence, this document and the recitals contained therein cannot be construed as a document creating a right or interest in immovable property and resultantly, rejected the said application.'
4.According to the learned counsel for the appellants/ applicants the General Power of Attorney dated 09.05.2005 lacks authentication of Notary Public which is mandatory as per the Section 85 of the Evidence Act and also as per Section 57 of the Evidence Act and that the said document was not witnessed by attesting witnesses and that the endorsement of the Notary identifying the execution was absent and that the validity of the Power of Attorney dated 09.05.2005 has been challenged in the Supreme Court in S.L.P.No.9159 of 2007 for lack of authentication which is mandatory and that stay has been granted on 18.05.2007 and that these facts were not taken into consideration by the learned Single Judge and that the Power of Attorney document is not an omni bus one and therefore, prays for allowing the appeal in the interest of justice.
5.The learned counsel for the appellants/applicants relies on the decision P.M.Desappa Nayanim Varu and others V. Ramabhaktula Ramaiah and others AIR 1952 Madras 559 at page 560 wherein it is observed as follows:
"Powers of attorney must be strictly pursued, and are construed as giving only such authority as they confer expressly or by necessary implication. The following are the most important rules of construction:
1.The operative part of the deed is controlled by the recitals.
2.Where authority is given to do particular acts, followed by general words, the general words are restricted to what is necessary for the proper performance of the particular acts.
3.General words do not confer general powers, but are limited to the purpose for which the authority is given, and are construed as enlarging the special powers when necessary and only when necessary for that purpose.
4.The deed must be construed so as to include all medium powers necessary for its effective execution."
Further, the appellants/applicants also relied on the decision A.R.Adaikappa Chettiar V. Thomas Cook & Son AIR 1933 Privy Council 78 wherein it is held as follows:
"The general words used in the subsequent clauses of a power of attorney must be read with the special powers given in the earlier clauses and cannot be construed as to enlarge the restricted powers there mentioned."
6.It is brought to the notice of this Court that one of the persons who executed the General Power of Attorney dated 09.05.2005 has expired and therefore, the said power is not binding. At this stage, the learned counsel for the appellants urges that as per Section 201 of the Contract Act on the death or insanity of the (sole) principal the agency terminates automatically and further that as a rule, the authority of the agent is revoked by the death of the principal and the agency comes to an end and any attempted execution of the authority after that event is not binding. Added further, the learned counsel for the appellants also cites the decision Garapati Venkanna V. Mullapudi Atchutaramanna and others AIR 1938 Madras 542 wherein it is laid down as follows:
"Where a power of attorney has been executed by several principals in favour of a person, and one of the principals having distinct interest in subject matter of the power of attorney dies, the death terminates the power of attorney."
7.Per contra, the learned counsel for the respondents submits that if there are two or more principals and they are joint and several, and if one of them dies, the agency terminates only in regard to the representatives of the deceased principal, but it continues as regards the surviving principal and in support of his contention, he places reliance on the decision Monindra Lal Chatterjee V. Hari Pada Ghose and others AIR 1936 Calcutta 650 wherein it is inter alia held that 'on death one agency terminates only as regards representative of deceased principal but continues as regards surviving principal and that surviving principal may sue for rendition of accounts within three years of termination of agency as against him.'
8.He also cites the decision M.Ponnusami Pillai and another V. Chidambaram Pillai and others Vol.35 M.L.J. 294 wherein it is held that 'A power of attorney given to an agent by two members of a joint Hindu trading family is not terminated by the death of one of the members.'
9.He presses into service the decision Syed Abdul Khader V. Rami Reddy and others (1979) 2 SCC 601 at page 602 where the Honourable Supreme Court has inter alia held that "What the Power of Attorney authorises depends on its terms and the purpose for which it is executed.
Where someone other than the person who has a right to act in respect of certain things has, under a contract of agency, the right to act on behalf of principal, the authority conferred by the written instrument has to be strictly construed. Ordinarily a Power of Attorney is construed strictly by Courts."
10.It is to be borne in mind that the petitioners in Original Petition filed O.A.No.3055 of 2007 praying for rejecting the caveat on the ground that the caveat was filed under Section 148-A of C.P.C. and that it was not as per Form No.69 of the Indian Succession Act and in lieu of objections the ceveators withdrew the same and projected a fresh ceveat in Form No.69. A perusal of the General Power of Attorney dated 09.05.2005 indicates that D.Krishna Rao and 7 others have appointed Mrs.Munaga Sukumari as a true and lawful attorney to do the acts of (1)To probate the above Will dated 27.01.2004 before a competent Court of law by engaging an Advocate on our behalf.
(2)To sign vakalat, petitions, affidavits and any other necessary papers for the said purpose.
(3)To engage an Advocate and issue notices to the tenants in the property bequeathed to us, to file if necessary eviction petitions against the said tenants or to collect rents and other incidental acts.
(4)To engage Advocate, signs vakalats, verify and sign plaints, written statements, counter affidavits, affidavits and to deposit and withdraw amounts from and out of all statutory authorities including civil courts, quasi judicial authorities, compromise, settle any dispute and to deal with all or any matters connected with any dispute if any arises with reference to the Schedule mentioned property.
(5)To appear and act in all courts, civil, Revenue, and criminal whether Original or Appellate Sides and in the Registration Officers and in other offices of the Government, District Board, or any other local authority including the competent authority.
(6)To represent before the Corporation of Chennai, Metropolitan Development Authority and local bodies and other competent bodies for the purpose of obtaining plan sanction and other service connections.
11.By applying the enunciated legal principles to the General Power of Attorney dated 09.05.2005, in the matter in issue, we opine that the said power deed does not get terminated by virtue of death of one of the executants.
12.In the said Power of Attorney the witnesses portion is left blank and no one has signed the same. In the aforesaid General Power of Attorney dated 09.05.2005 the address of Serial No.6 Mrs.Hemalatha, residing at No.76, Mountain Road, 1st Block East, Jeya Nagar, Bangalore 560 011 and Serial No.7 Mrs.Nirmala residing at Padma Rao Nagar, Walker Town, Secunderabad and Serial No.8 Mr.A.V.R.K.Kumar residing at Ambiga Bagh, 12-4-4 Maharanipet, Vishakapatinam 530 020 are mentioned. The learned counsel for the appellants/applicants points out that some of the persons who executed the General Power of Attorney are from outside Chennai and in the Power of Attorney document it is specifically mentioned that they have come to Madras and signed the said deed before the Notary Public and therefore, much importance should not be attached to the said deed. Continuing further, the learned counsel for the appellants submits that the Honourable Supreme Court in Petition(s) for Special Leave to Appeal (Civil) No(s). 9159/2007 (From the judgment and order dated 16.02.2007 in CRP (PD) No.310/2007 of the High Court of Madras) between V.Bhaskar Rao V. D.Krishna Rao and others the Honourable Supreme Court has issued notice and in the meantime, stayed the operation of the impugned judgement and order and therefore, the validity of the said Power of Attorney deed dated 09.05.2005 has been challenged.
13.On a careful consideration of the respective contentions, we are of the view that the respondents in T.O.S. can establish that the caveators were not present in Chennai and executed the said power deed nor the same has been authenticated, but one cannot loose sight of an important fact that the presumption as per Section 85 of the Evidence Act is a rebuttable one and this can be resorted to by means of oral or documentary evidence as the case may be during the trial of the testamentary original suit proceedings. Moreover, a cursory perusal of the General Power of Attorney deed dated 09.05.2005 clause 5 and 6 do candidly indicate that it creates no interest in an immovable property and it is evident from clause 3 of the said document that rents also can be collected etc. Therefore, it cannot be stretched too far to state that the document creates a right or interest in immovable property. In fact, a perusal of the power deed dated 09.05.2005 looking at from the point of view of the words couched therein clearly spells out that it is only a General Power of Attorney and not a special Power of Attorney, in our considered opinion.
14.Suffice it to state that the General Power of Attorney dated 09.05.2005 has no attesting witnesses or there is no endorsement of Notary identifying the execution of document are all matters which can be proved or rebutted at the appropriate time by the respective parties.
15.In the upshort of detailed discussions and on cumulative assessment of the facts and circumstances of the case and looking at any point of view, we opine that the order of the learned Single Judge in rejecting the Application No.3644 of 2007 does not require any interference in appeal and in that view of the matter, the Original Side Appeal fails and the same is hereby dismissed to prevent aberration of justice, leaving the parties to bear their own costs. Consequently, connected miscellaneous petitions are also dismissed.
(M.C. J.) (M.V.J.) 19.09.2008 Index :Yes Internet :Yes Sgl M.CHOCKALINGAM,J.
AND M.VENUGOPAL,J.
Sgl JUDGMENT IN O.S.A.No.189 OF 2007 19.09.2008