Sindhu Sidharthan vs Sidharthan on 10 May, 2013

[Cites 15, Cited by 0]

Kerala High Court

Sindhu Sidharthan vs Sidharthan on 10 May, 2013

1.The respondent herein, the husband of the appellant, was the petitioner in O.P.No.220/2013 before the Family Court, Palakkad. The prayers sought for in the petition were for a declaration that the property covered by document No.1027/2007 of the Trichur Sub Registry, executed by the appellant in her capacity as his power of attorney holder, in favour of herself is still owned by him and that the appellant has not obtained any right or title over the petition scheduled property. In the alternative, he has also sought cancellation of document No.1027/2007 of the Trichur Sub Registry on the ground that the same was executed without his consent or knowledge or without any authority and that it was not supported by consideration. He has also sought for a prohibitory injunction restraining the appellant from interfering with his enjoyment of the property and taking income therefrom.

Mat.A.436/13 2

2. Respondent is a businessman in UAE for the last more than 30 years. According to him, out of his savings, he had acquired several items of immovable properties in the different villages of Trichur and Alappuzha Districts. For managing and taking income from the properties owned by him, he had executed a power of attorney in favour of the appellant, his wife. That power of attorney was executed at the Indian Embassy in UAE. Later, on the demand of the appellant, on 24.06.2006, he executed Ext.A8, a registered General Power of Attorney bearing No.150/2006 at the Anthikad Sub Registry in favour of the appellant.

3. It is the case of the respondent that for various reasons which are not relevant for the purpose of this case, the relationship between the appellant and the respondent became strained and that on 05.02.2007, the respondent called the appellant by phone from UAE and informed her that he was going to revoke the power of attorney. It is stated that accordingly, he came to Mat.A.436/13 3 India on 07.02.2007 at 7.00 a.m. and from the Airport, he directly went to the petition scheduled property, where, Hotel Sidhartha Regency is situated. On reaching the hotel he enquired about the appellant and was told that she was at her residence. Thereupon, along with PW3, an advocate, and PW4, a security guard in the hotel, he went to Chelur Tower, where the appellant was residing. Along with PWs.3 and 4, he went to 4th floor flat of the appellant and rang the calling bell. When the appellant opened the door he informed her that he was cancelling the power of attorney. Thereafter, he sent PW4 back to the hotel and from there, along with PW3, he went to Anthikad Sub Registry where a document writer was waiting for him with Ext.A1, the cancellation deed, ready.

4. On reaching there, he read the document and presented it for registration and immediately after its registration, phoned up the appellant and informed her that the power of attorney was revoked. Thereafter, he and PW3 reached Trichur and from there, notices of cancellation were sent to the appellant by Mat.A.436/13 4 registered post, copies of which are Exts.A2 and A3. These notices, posted at the Railway Station Post Office, were tendered on the appellant on 07.02.2007 itself, but the authorized representative of the appellant did not receive the same and therefore, the postman gave intimation to the authorized representative. Respondent also published notices of revocation of the Power of Attorney in Mathrubhumi and Rashtra Deepika dailies on 09.02.2007. According to him, despite the knowledge of the cancellation of the power of attorneys in her favour, on 07.02.2007 and 08.02.2007, the appellant executed Exts.A8, A13, A14, A15, A23 and A24 Sale Deeds alienating various items of his properties. Thereafter, Exts.A2 and A3 were received by the appellant on 12.2.2007 and did not give him any reply to these notices.

5. It is stated that the respondent was not aware of the execution of these documents and that on 17.09.2007, from the conversation of the appellant, he suspected that she had alienated many of his properties. Thereupon he got an enquiry Mat.A.436/13 5 conducted, when only these facts were revealed to him. It was thereupon that aggrieved by the execution of Ext.A8 dated 08.02.2007 (Document No.1027/2007), he filed the OP seeking the aforesaid reliefs.

6.In the objection filed, the appellant admitted the execution of the documents, including Ext.A8, and contended that the properties were alienated on the instruction of the respondent and that the sale consideration, including that of Ext.A8, was also paid to him. According to her, the respondent had incurred huge liabilities in the United Arab Emirates and that to raise funds to discharge those liabilities, on his instruction, the properties were alienated. As far as Ext.A8 is concerned, she stated that since the respondent insisted to dispose of the property and in order to save it from being alienated to strangers, she paid Rs.29,62,000/- towards its value and transferred the property to herself and that this amount was also paid to the respondent. Thus, according to her, Ext.A8 sale deed was executed on the instruction of the respondent Mat.A.436/13 6 and as authorized by Ext.A10 Power of Attorney executed in her favour. She contended that she did not have notice of revocation of the Power of Attorney at any time prior to the execution of Ext.A8 and that she came to know of its revocation only on 12.2.2007, when Exts.A2 and A3 were served on her and that Ext.A8 sale deed in her favour is supported by adequate consideration paid by her.

7.Before the Family Court, the respondent and 3 other witnesses were examined as PWs.1 to 4 and on behalf of the appellant, herself and another witness were examined as RWs.1 and 2. Exts.A1 to A24, Exts.B1 to B4 and Exts.X1 to X5 summoned from the Indian Bank, Trichur were marked.

8.The Family Court framed the following points for its consideration:

1. Whether the petition is barred under Section 34 of the Specific Reliefs Act?

2. Whether the petitioner has cancelled Ext.A1 power of attorney No.30/2007/4 of Sub Registry Office, Mat.A.436/13 7 Anthikadu in favour of the respondent and intimated her on 07.02.2007?

3. Whether Ext.A8 sale deed No.1027/2007 executed by the respondent power of attorney holder in her favour is valid and binding on the petitioner?

4. Whether the petitioner is entitled to get a decree for permanent prohibitory injunction as prayed for?

5. Relief and costs?"

9.In the judgment, the first point was found in favour of the respondent and point Nos.2 and 3 were answered in favour of the appellant. Discussing Point No.4, the Family Court considered the question whether Ext.A8 is valid and binding upon the respondent and held that the transfer of the petition scheduled property by way of Ext.A8 was not as per the direction of the respondent and was also not supported by consideration. On that basis, it passed a decree of permanent prohibitory injunction, restraining the appellant and her men from interfering with the respondent's peaceful possession and enjoyment of the petition scheduled property. Mat.A.436/13 8

10.The decree passed by the Family Court reads thus:

"In the result, the petition is allowed by passing a decree as follows:-

1. the petition is allowed declaring that Ext.A8 sale deed No.1027 of 2007 dated 07.02.2007 of SRO Thrissur executed by the respondent in her favour on the strength of Ext.A10 power of attorney does not convey title to the respondent by virtue of Ext.A8 and the property is in the ownership and possession of the petitioner.

2. the respondent and her men are restrained by a decree of injunction not to prevent the petitioner from assuming actual possession and management of the petition schedule properties and also from interfering with the peaceful possession and enjoyment of the petition schedule property by the petitioner and

3. respondent being the receiver of the property shall submit accounts before the court within thirty days.

No costs."

It is this judgment and decree which is challenged before us. Mat.A.436/13 9

11. The first contention raised by the learned senior counsel for the appellant was that in view of Section 34 of the Specific Relief Act, without a prayer for recovery of possession of the scheduled property, the petition was not maintainable. According to him, a prayer for recovery of the scheduled property was a further relief that the plaintiff should have sought for and since the OP was filed with the prayer for a mere declaration, the court could not have allowed the declaration sought for by the respondent.

12.However, the learned counsel appearing for the respondent contended that since the possession of the appellant over the petition scheduled property was only in her capacity as the agent of the respondent, once the agency is terminated by revoking the power of attorney, she is disentitled to continue possession of the property. In such a case, according to him, a consequential decree of injunction alone and not an order for recovery of possession is to be sought for and that such a Mat.A.436/13 10 prayer was sought in the petition. Therefore, according to him, there is no substance in the contention raised.

13. We have considered the submissions made. Even according to the appellant, she came into possession of the petition scheduled property on the strength of Ext.A10 Power of Attorney. Therefore, her capacity is that of an agent of the respondent and her possession is on behalf of her principal. Once the source of her agency, the power of attorney, was revoked, either by Ext.A1 or otherwise, the appellant ceases to be the agent of the respondent and will have no right to retain possession of the petition scheduled property and the possession thereupon will, in law, be that of the principal. This being such a case, it was unnecessary to recover possession of the property from her and there was no necessity to seek such a prayer. Therefore, a prayer for injunction, restraining the appellant from preventing the respondent from assuming actual possession and management of the property or disturbing the peaceful possession of the respondent was the Mat.A.436/13 11 appropriate prayer to be sought and such a prayer has been sought and was granted by the Family Court.

14.In Southern Roadways Ltd., Madurai v. S.M.Krishnan [AIR 1990 SC 673], a similar contention was raised and following its earlier judgment, the Apex Court rejected the contention, holding thus:

"8. At the outset, we may state that we are not so much concerned with the rival claims relating to actual possession of the suit premises. Indeed, that is quite irrelevant for the purpose of determining the rights of the company to carry on its business. Mr. Venugopal, learned counsel for the appellant also discreetly did not advert to that controversy. He, however, rested his case on certain facts which are proved or agreed. They may be stated as follows :

The company was and is the tenant of the suit premises and has been paying rent to the owner. The lease in respect of the premises has been renewed up to November 22, 1993. It was the company which has executed the lease and not the respondent. The respondent as agent was allowed to remain in possession of the premises. It was only for the purpose of carrying on company's business. His agency Mat.A.436/13 12 has been terminated and his authority to act for the company has been put an end to. These facts are indeed not disputed. On these facts the contention of counsel is that when the agency has been terminated, the respondent has no legal right to remain in the premises or to interfere with the business activities of the company.

9.The force of this argument cannot be gainsaid.

Counsel, in our opinion, appears to be on terra firma. The principal has right to carry on business as usual after the removal of his agent. The Courts are rarely willing to imply a term fettering such freedom of the principal unless there is some agreement to the contrary. The agreement between the parties in this case does not confer right on the respondent to continue in possession of the suit premises even after termination of agency. Nor does it preserve right for him to interfere with the company's business. On the contrary, it provides that the respondent could be removed at any time without notice and after removal the company could carry on its business as usual. The company under the terms of the agreement is, therefore, entitled to assert and exercise its right which cannot be disputed or denied by the respondent.

10. Even otherwise, under law revocation of agency by the principal immediately terminates the agent's actual authority to act for the principal unless the agent's authority is coupled with an interest as envisaged under S. 202 of the Indian Contract Act. When agency is revoked, the agent could claim Mat.A.436/13 13 compensation if his case falls under S. 205 or could exercise a lien on the principal's property under S.

221. The agent's lien on principal's property recognised under S.221 could be exercised only when there is no agreement inconsistent with the lien. In the present case the terms of the agreement by which the respondent was appointed as agent, expressly authorises the company to occupy the godown upon revocation of agency. Secondly, the lien in any event, in our opinion, cannot be utilised or taken advantage of to interfere with principal's business activities.

11. There is yet another significant fact to be borne in mind when we deal with the rights of an agent. An agent who receives property or money from or for his principal obtains no interest for himself in the property. When he receives any such property he is bound to keep it separate from his own and that of others. Long ago, Lord Cottenham, L.C. (Foley v. Hill (1848) 2 HLC 28 : (1843-60) All ER (Reprint) 16 at p. 198 said:

".............So it is with regard to an agent dealing with property; he obtains no interest himself in the subject-matter beyond his remuneration; he is dealing throughout for another, and though he is not a trustee according to the strict technical meaning of the word, he is quasi a trustee for that particular transaction for which he is engaged."

12. Out of this practice there has emerged a rule, which is a normal incident of agency, that an agent cannot deny principal's title to property nor he can Mat.A.436/13 14 convert it into any other kind or use. Fridman's Law of Agency (5th Edition page 150) also supports this view:

"Respect of Principal's title:

"The agent cannot deny the title of the principal to goods, money, or land possessed by the agent on behalf of the principal. The possession of the agent is the possession of the principal for all purposes, including the acquisition of title under statutes of limitation, even where in fact the agent, though in ignorance of his claim, is entitled to the land, unless the agent possesses not as agent but on his own behalf, in which event his possession will be personal and not for his principal."

13. As to the nature of agent's-possession in respect of principal's property, this Court in a recent judgment rendered in Smt. Chandrakantaben v. Vadilal Bapalal Modi (1989) 2 SCC 630 said at p. 643 : (AIR 1989 SC 1269 at p. 1277) :

"It is well settled that the possession of the agent is the possession of the principal and in view of the fiduciary relationship defendant 1 cannot be permitted to claim his own possession. This aspect was well emphasised in David Lyell v. John Lawson Kennedy (1889) 14 App Cas 437 where the agent who was collecting the rent from the tenants on behalf of the owner and depositing it in a separate earmarked account continued to do so even after the death of the owner. After more than 12 years of the owner's death his heir's assignee brought the action against the agent for possession and the agent defendant pleaded adverse possession and limitation. The plaintiff Mat.A.436/13 15 succeeded in the first Court. But the action was dismissed by the Court of Appeal. The House of Lords reversed the decision of the Court of Appeal and remarked: "For whom, and on whose behalf, were those rents received after Ann Duncan's death? Not by the respondent for himself, or on his own behalf, any more than during her lifetime". Emphasising the fiduciary character of the agent his possession was likened to that of trustee, a solicitor or an agent receiving the rent under a power of attorney. Another English case of Williams v. Pott (1871) LR 12 Eq 149, arising out of the circumstances similar to the present case was more interesting. The agent in that case was the real owner of the estate but he collected the rents for a considerably long period as the agent of his principal who was his mother. After the agent's death his heir claimed the estate. The mother (the principal) had also by then died after purporting by her will to devise the disputed lands to the defendants upon certain trusts.

The claim of the plaintiff was dismissed on the plea of adverse possession. Lord Romilly, M. R. in his judgment observed that since the possession of the agent was the possession of the principal, the agent could not have made an entry as long as he was in the position of the agent for his mother, and that he could not get into possession without first resigning his position as her agent which he could have done by saying: "The property is mine; I claim the rents, and I shall apply the rents for my own purposes." The agent had thus lost his title by reason of his own possession as agent of the principal."

Mat.A.436/13 16

14. We wish to add that it is not every agent who is in a fiduciary position vis-a-vis his principal. For example if A appoints B to be his agent merely to sign a memorandum and places no particular trust in B, the doctrine of fiduciary relations would not apply. Likewise, where the principal authorises an agent to do particular or specified acts, the doctrine of fiduciary relation may not arise. What we want to emphasise is, in all cases of general agency, the relation may be generally fiduciary, but in other kinds of agencies, the relation may vary with the confidence which the principal chooses to repose in the agent. It may also depend upon the power which the agent exercises over the subject matter under the terms of the contract of agency or by virtue of the incident of law and usage of the business which the relation ship implies. Thus the fiduciary element in agency, though the key to much of the law governing this relation, is not the essential element in the relation. (See: Modern Law Review Vol. 17 pg. 31-32).

15. The crux of the matter is that an agent holds the principal's property only on behalf of the principal. He acquires no interest for himself in such property. He cannot deny principal's title to property. Nor he can convert it into any other kind or use. His possession is the possession of the principal for all purposes. As the Kerala High Court in Narayani Amma v. Bhaskaran Pillai, AIR 1969 Kerala 214, observed (at 217):

"The agent has no possession of his own. What is called a caretaker's possession is the possession of the agent."

Mat.A.436/13 17

16. So much is, we think, established law as regards agent's right to property belonging to the principal. Dr. Chitale, learned counsel for the respondent, however, cited in this context, two decisions: (i) Abdul Nabi Sahib v. Bajab Sahib, AIR 1944 Madras 221 and

(ii). Jemma v. Raghu, AIR 1977 Orissa 12. In the former case of the Madras High Court, the suit was for a permanent injunction restraining the defendant from interfering with the plaintiff's peaceful possession and enjoyment of the suit properties and performance of the religious services. The defendant admitted that he was agent of the plaintiff but set up title to the property in himself as donee. He has also set up title by adverse possession. On these claims, Kunhi Raman, J, observed:

"Since the plaintiff had not got possession of the property, it would not be sufficient to show that he was in constructive possession and the theory of constructive possession as between the principal and agent, cannot be relied upon by the principal for the purpose of meeting the contention of the description raised on behalf of the defendant, who is the agent. "

17. If the defendant in the above case, had admitted that he was the agent of the plaintiff and yet set up title to the property of his principal, the above observation may not be consistent with the settled principle of law. We have already stated that the agent acquires no interest in the property of the principal and he cannot, therefore, non-suit the principal on the possessory title as agent.

Mat.A.436/13 18

18. The second case in Jemma v. Raghu, (AIR 1977 Orissa 12) referred to us is the decision of the Orissa High Court. That case dealt with the general principle that the plaintiff who is not in possession of the suit premises is not entitled to relief of injunction. The plaintiff must ask for recovery of possession. But this principle has no application with regard to dispute between the principal and agent in respect of principal's property.

19.In this case, the respondent's possession of the suit premises was on behalf of the company and not on his own right. It is, therefore, unnecessary for the company to file a suit for recovery of possession. The respondent 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. The case, therefore, deserves the grant of temporary injunction. The learned single Judge of the High Court in our judgment, was justified in issuing the injunction. The Division Bench of the High Court was clearly in error in vacating it."

15.Therefore, in the light of our findings hereinabove and the principles laid down by the Apex Court, the first contention raised by the learned senior counsel for the appellant is only to be rejected and we do so.

Mat.A.436/13 19

16.The second and third points framed by the Family Court are whether the respondent had cancelled Ext.A10 power of attorney and intimated the appellant on 07.02.2007 and whether Ext.A8 sale deed No.1027/2007 executed by her in her own favour is valid and binding on the respondent. Judgment of the Family Court shows that disbelieving the evidence of PWs.1, 3 and 4, the Family Court declined to accept the case of the respondent that the appellant had notice of cancellation of Ext.A10 power of attorney before Ext.A8 sale deed was executed on 08.02.2007. The finding of the Family Court that cancellation of Ext.A10 was actually intimated to the appellant only on 9.2.2007 was in her favour. However, placing reliance on the provisions contained in Order XLI Rule 22 of the CPC, learned counsel for the respondent contended that the aforesaid finding of the Family Court was illegal and should be interfered with. Therefore, we shall examine the correctness of the aforesaid finding of the Family Court. Mat.A.436/13 20

17.The case of the respondent was that following the conversation that he had with the appellant on 05.02.2007, he came to India on 07.02.2007 and reached the petition scheduled property directly from the Airport. On enquiry, he was told that the appellant was not in the hotel. Thereupon, along with PWs.3 and 4, he went to Cheloor Tower, where the appellant is residing in a flat on the 4th floor. Three of them went to the 4th floor and when the appellant opened the door, in the presence PWs.3 and 4, the respondent told her that he was going to cancel Ext.A10 Power of Attorney. Thereafter, he sent PW4 back to the hotel and from there, along with PW3, proceeded to the Anthikad Sub Registry where a document writer was waiting for them with Ext.A1 document. On reaching there, he read the document that was kept ready, presented the same before the Sub Registrar and got Ext.A1 registered. Immediately thereafter, he phoned up the appellant and informed her that Ext.A10 has been revoked by Ext.A1 document. It is also his case that on 07.02.2007 itself, from the Railway Station Post Office, Trichur, Exts.A2 and A3 notices of Mat.A.436/13 21 cancellation were sent to the appellant by registered post acknowledgement due. According to him Exts.A2 and A3 were tendered to the appellant on 07.02.2007 itself and that due to the refusal of the appellant's authorized representative to receive the registered letters, intimations were given to her authorized representative. According to him, it was thereafter that Ext.A8 document was executed on 08.02.2007 and that therefore, she had notice of cancellation of Ext.A10 by Ext.A1 before the execution of Ext.A8 sale deed in her favour. He also contented that the receipt of the notices were deliberately delayed and were received by her authorised representative only on 12.02.2007 and that in the meanwhile, he had, on 09.02.2007 published Exts.A6 and A7 notices of cancellation in Mathrubhumi and Rashtra Deepika news papers having vide circulation in Trichur. However, Family Court found the evidence of PWs.1, 3 and 4 unreliable and unbelievable and held that the respondent failed to prove that the appellant had notice of cancellation of Ext.A10 before the execution of Ext.A8. In view of the contentions raised by both sides, we Mat.A.436/13 22 shall examine whether this finding of the Family Court is sustainable.

18.To answer this question, it is necessary to refer to the case of the parties. The relevant pleading in the petition is contained in para 8 and the averments therein read thus:

"dID_Oaf? fIxaN^xJ_\a", X"X^xJ_\a", dIUVJ_5 {_\a", XbM^UJ_\a" )I^O N^xfJ X"Lt_:na" Nxa"

%Hc^OA^xX NHXmX_\^A_OgM^Z %Hc^OA^xX 07_02_2007 D_OnD_fU:nm %L_A^?m XLnm y<_dXq_ 4_)0 IaXq5" 144_)0 U^\c" 177 NaDW M^7B{_W 2006_)N^I_f\ 150_)0 H"dLm Na5qc^VH^N" 30/07_)0 HdLm yg^G^x dI5^x"

ygm f:Oq_GaUD^Cm.e%Hc^OA^xX 07_02_2007 D_OnD_ 5^\Jm FaL^O_W H_Ka" UKm gHfx ?_O^fa X_FmG^VDmE y`<XX_ .K gY^G\_g\Am f:Km dID_fO %gHbW_:nafUC_\a" dID_ U`G_\^fCKy_ED_H^W %U_f?OaI^O_xaK 2xa gY^GW g<^\_A^xfHOa", %Hc^OA^xfa XadYaJ^OeV.V.g<^O_ .KO^g{^?a"

5bf? gHfx dID_Oaf? Ko^x_g\Am f:\oa5Oa", D^X dID_Am 2M_Gm HW5_O Na5qc^VH^N" ygm f:OnaU^X gI^5a5O^fCKm %gKF_UX" x^U_f\ 10 NC_Am dID_gO^?m gHx_W IyEm gL^FmGcfM?aJ_ O_GaUD^Cm.eNa5qc^V yg^G^x" 07_02_2007_W y<_dXq^A_O gVW" ND_O^O 5xaDW H?I?_ .K H_\O_W %gKF_UX" DfK %Hc^OA^xX dID_Am x<_XmxV gH^G`Xm %OAa5Oa", Na5qc^V ygm f:Oq U_Ux" gx6^Nb\"

%y_O_:n_GaUDa", dID_, ?_O^x_Oaf? d5aDcN^O U_\^XJ_W )I^O_xaK_Ga" &ODm I_K`?m N^dDN^Cm h5Mx_OD^O_ 5^CaKDm.e %Hc^OA^xX 5_2_2007 Mat.A.436/13 23 D_OD_ dID_gO^?m U_gFVJm H_Km gK^Y Nag6H :_\ UXqaD5f{ X"Lt_:na" :_\ UXqaUY5{af? &F^OfJ X"LHmG_:na" gK^C_\bf? 5CAa5Z &UVcfM?a5Oa"

DrNO" dID_ d5aDcN^Oa" Vx_O^Oa" NyaI?_ HW5^fD %U_VbXH`ON^O :_\ X"7D_5{a" UXqaD5{a" NyaI?_ xbgIH %Hc^OA^xfH gL^G_M_:nm Vx_O^O NyaI?_ HW5^fD 2]_EaN^ya5O^Cm )I^ODm.eDa?VKm %Hc^OA^xHa" dID_Oa" gK^C_\bf? U^AaDVA"

)I^Ua5Oa" &OD_fH Da?VKm dID_ %Hc^OA^xfH gD^WM_AaKD_Ha gUI_ gNW Xb:_M_:n Na5qc^V FaxaIgO^7fM?aJafNKa" gUI_UK^W UY5Z NxaUUVAm h5N^yafNKm %Hc^OA^xfH gK^C_\bf?

M`WC_fM?aJ_O_GaUD^Cm.e)?X DfK %Hc^OA^xX dID_gO^?m %Hc^OA^xX HW5_O Na5qc^V Nag6HOaU %G_5^x" U^A^W I_XeU\_Aa5Oa" dID_gO^?m gNW U_Ux" %gM^Z DfK gK^Y Nag6H %y_O_Aa5Oa"

Na5qc^V FaxaIgO^7fM?aJxafDKm dID_gO^?m %gM^Z DfK &UVcfMG_GaUDaN^Cm.e.K^W dID_Oaf? gK^C_\bf?OaU dID_5xCUa" dID_Oaf? XbM^UUa"

Uc5qN^O_ NHT_\^A_O %Hc^OA^xX dID_Oaf? fIxaN^xJ_W X"VO" gD^K_OD_H^W 7_2_2007 5^\Jm 'XAcO_W Ux_5Oa" gNW Xb:_M_:ndI5^x"

dIUVJ_:n_GaUDaN^Cm.e%Hc^OA^xX 07_02_2007 D_OnD_ 5^\Jm 11_00 NC_Am DfK Na5qc^V ygm f:Oq U_Ux"

           dID_fO        %y_O_:n_GaUDaN^Cm.e5b?^fD           dID_
           %Hc^OA^xX       07_02_2007   D_OnD_  %O:n      gH^G`Xm
           NH:IbVUn"       h5Mx^fD          I_K`?m       N^dDN^Cm

h5Mx_O_GaUDm.e5b?^fD %Hc^OA^xX 5xaDW H?I?_ .K H_\Am N^dDaMbN_ N\O^{ F_HIdDJ_\a" Nxm X^O^YmHIdDB{_\a", Na5qc^V ygm f:Oq U_Ux"

%y_O_M^O_ dIX_FmG`5x_:n_GaUD^Cm.e&ODm 09_02_2007 D_OnD_ N^dDaMbN_ F_HIdDJ_\a", 08_02_2007 D_OnD_ x^Wmd?F`I_5 F_HIdDJ_\a" dIX_FmG`5x_:n_Ga UD^Cm.e5b?^fD %Hc^OA^xX 07_02_2007 D_OnD_ X_FmG^VDmE gY^G\_Hm XN`IfJ R.S.egI^Xmxm 3K`X_W H_K^Cm gH^G`Xm x<_XmxV f:Oqm %O:nDa", Mat.A.436/13 24 %gKF_UX" DfK gI^XmxmN^X dID_fO gY^G\_W fU:nm gHx_Gm 5^Ca5Oa", dID_Oa" gI^XmxmN^Ha" DN_\aU G^xCOaf? %?_XmE^HJ_W dID_Am gH^G`Xm HW5^fD %gKF_UX" Intimation HW5_ .Km gx6fM?aJ_O_GaUD^Cm.egNW 5^xcJ_Hm gY^GW <`UHA^V X^f_5{^Cm.eOE^VDmEJ_W %Hc^O A^xX Na5qc^V ygm f:OnaK U_Ux" ygm f:OnaKD_Hm NaXI^Oa" ygm f:OqD_Ha gVW" %gD D_OnD_Am 11_00 NC_ XNOJm %Hc^OA^xX dID_fO gHx_W %y_O_:n_GaUD^Cm.e&OD_HagVW" dID_Am ygm f:Oq Na5qc^y_fa %?_XmE^HJ_W dIUVJ_AaU^gH^ 7aC"

%HaMU_AaU^gH^ H_ONIxN^O_ %G_5^x^U5^VN_\o^J D^Cm.e%Hc^OA^xfa H_VggVN_\o^fD, XNDN_\o^fD dIUVJ_:n dID_Oaf? .\o dIUVJ_5{a" H_ONdI5^x"

           H_\H_WAJAJD\o.e%dI5^x"         dID_Oaf?    H_ON
           U_xaFmGdIUVJH"    f5^Im   dID_gA^   NxaUUVgA^
           O^fD^xa    %U5^VUa"   2xa   UY5{_\a"   X_FmG_Aa

KDaN\o.egH^G`Xm dID_ gI^XmxmN^X IAW H_Ka"

gHx_W h5Mx^J X^Y:xcJ_W %Hc^OA^xX 8_2_2007 D_OnD_ U_gFVgJAm N?BaKD_Hm NaXI^O_ N^dDaMbN_ F_HIdDJ_W U^VJ HW5aKD_Hm gUI .VM^?a5Z f:Oq_xaKa."

19.Reading of the above averments in the petition shows that according to the respondent, when he went to the flat of the appellant on 07.02.2007 and informed her that he was going to cancel Ext.A10, he had with him, PW3 and an employee of the hotel. These averments in the petition Mat.A.436/13 25 were denied by the appellant in para 9 of the objections by stating thus:

           "%Hc^O"      8_)0  U5aM_f\      dIXq^UH5Z    5{Ua",
           UcUY^x^UVc^VDmE"      f5G_:nN:n_GaUDaN^Cm.  %Hc^O

A^xX dID_ gIx_\aU Na5qc^V H^N" ygaf:OnafNK X"

7D_ 2x_A\a" gHx_Gm dID_gO^?m IyOa5gO^, ygm f:OnaKU_UxgN^, f:Oq U_UxgN^ U^F_ gHx_Gm ( dID_gO^?m 2x_A\a" IyE_G_\o^JDaN^Cm.edID_ gIx_W U^F_ %O:n x<_XmgGVAm 5J_fH Ix_ gNWMyE D`y_HagVW" N^dDN^Cm dID_ %y_EDm.e%y_ENayOmAm &ODm dID_OmAagUI_ %G_5^xfM?aJ_O&Z h5Mx_O_GaUDaN^Cm.e%Hc^O" 8_)0 U5aM_W IyOa"

dI5^x" dID_ %Hc^OA^xfH M`WC_fM?aJa5gO^, %Hc^OA^xX dID_gO^?m UY5f{ X"Lt_:nm )U 5CAa5Z g:^F_Aa5gO^, gK^C_\bf? U^5m DVA"

)I^Ua5gO^ )I^O_G_\o^JD^5aKa.eU^A^W Na5qc^VH^N" I_XU\_:nD^O_ %Hc^OA^xX dID_gO^?m 2x_OmA\a" IyE_G_\o^JD^Cm.e7_2_2007 D_OnD_ %Hc^OA^xX Na5qc^VH^N" ygaf:Oqa .K U_Ux" gHx_Gm dID_fO %y_O_:na .K dIXq^UH 5{U^Cm.e%dI5^x"

O^fD^Ka" )I^O_G_\o.eU^F_Oa" dID_Oa" DN_W 07_02_2007 Hm 5^Ca5gO^, X"X^x_Aa5gO^ )I^O_G_\o^JD^5aKa.e%Hc^OA^xX %O:n gH^G`Xm h5Mx_OgM^Z N^dDN^C ?_ X"7D_ dID_Am NHT_\^O_GaUDm.e%Hc^OA^xX IdDB{_W f5^?aJa .KaIyOaK U^VJ dID_Oaf? dViO_W fIG_G_\o^JDa", ( dID_Am %y_U_\o^JDaN^ 5aKa.edID_Oa" gI^XmxmN^HaN^O_ O^fD^xaU_G 5I?XHmG_Oa" )I^O_G_\o^JDaN^5aKa.e%Hc^OA^xX H_VggV_:n dI5^xUa", IbVHN^Oa" )JN U_Vb^XJ_\aN^Cm ?_ Na5qc^V dI5^x" ( dID_ .\o^OmgI^]a" dIUVJ_:n_Ga{{Dm.e?_ 5^xcJ_W %Hc^OA^xX H_VggV_:n dI5^xN\o^fD 2x_OmA\a" ( Mat.A.436/13 26 dID_ dIUVJ_:n_G_\o^JDaN^5aKa.e?_ Na5qc^V )IgO^7_:nm O^fD^xaU_G H_ONU_xaFmGdIUVJ_Oa" dID_ f:Oq_G_\o^JDaN^Cm..e'D_fHD_x^O_ 8_)0 6m_5O_W IyE_Ga{{D^O X5\ X"7D_5{a" 5{Ua", f5G_:nN:nDaN^Cm."

20.The averments in his petition were reiterated in the proof affidavit filed by the respondent and he further stated that the employee of the hotel, who accompanied him on 07.02.2007 was Anil, who was examined as PW4. In his cross examination, the respondent stated that on his arrival at the Nedumbassery Airport on 07.02.2007, he went to the hotel directly and that among the security guards available in the hotel, one was PW4. He asked PW4 whether appellant was available in the hotel and on being informed that she was not there, along with PWs.3 and 4, he went to the flat where the appellant was residing and that on reaching her apartment, he told her that he was going to cancel Ext.A10 power of attorney. He stated that thereafter, he sent PW4 back and in the same taxi, along with PW3, he went to the Anthikad Sub Registry office and reached there at about 10.20 a.m. According to him, it was Mat.A.436/13 27 PW3 who had arranged the document writer and that after reading the document which was kept ready, the same was registered. He also confirmed that the document writer and PW3 were in the Registrar's Office throughout. He also deposed that by 10.30 a.m., registration of Ext.A10 was completed and that immediately thereafter, he phoned up the appellant in a mobile phone and informed her that the power of attorney was revoked. According to him, PW3 is a witness to this conversation with the appellant and he had heard what he told her. He also deposed that after completing all the above, he returned to UAE on 08.02.2007 itself.

21.Therefore, while in para 8 of his petition, the respondent had stated that PW3 and PW4 were witnesses to what transpired in the apartment before he went to the Sub Registry, in answer to a question in the cross examination, he also stated that PW3 has witnessed not only what transpired in the apartment of the appellant but also the execution of Ext.A1 and his telephone conversation with the appellant after the registration of Mat.A.436/13 28 Ext.A1. In spite of his presence at the Sub Registry and the admitted fact that PW3 is a witness to Ext.A1, in the judgment under appeal, the Family Court held that the evidence of PW1 about the presence of PW3 at the Anthikad Sub Registry was an improvement made by him in his oral testimony. While it is true that PW1 has not stated in his petition or proof affidavit anything about the presence of PW3 at the time of registration of Ext.A1, he has stated so in answer to a question in cross examination. Admittedly, PW1 is a businessman stationed outside the country for the last more than 30 years. Even according to the appellant, he was relying entirely on the appellant to manage his properties and businesses. When he found that the appellant was acting against his interests, he had to seek the assistance of others. It was accordingly that he sought the assistance of PW3, who is stated to be a lawyer.

22.The evidence of PW3 shows that on 5.2.2007, PW1 furnished him the details of Ext.A10 power of attorney and asked him to make arrangements for its revocation. According to him, on Mat.A.436/13 29 5th itself, he purchased stamp papers in the name of PW1 and arranged with Dinesan, a document writer of Anthikad Sub Registry to prepare and keep Ext.A1 ready. He has further stated that on 6.2.2007, PW1 informed him by phone that he would be arriving on 7.2.2007 and that, on his instructions, he had arranged a taxi from Guruvayoor and he went to the airport to pick up the respondent who arrived there on 7.2.2007 in the morning. According to him, from there, both of them directly went to Hotel Sidhartha Regency and reached there at about 9.45 a.m and when the respondent was informed by PW4 that the appellant was not available in the hotel, the respondent asked PW4 also to accompany them to Cheloor Tower, the residential apartment of the appellant. It was deposed that the three of them reached the 4th floor of the building and when PW1 rang the bell, the appellant opened the door in their presence. It was deposed that thereupon, PW1 informed the appellant that he was going to cancel the power of attorney and immediately the three of them came to the ground floor and after sending PW4 back to the hotel, PWs.1 Mat.A.436/13 30 and 3 proceeded to the Anthikad Sub Registry where Dinesan, the document writer arranged by PW3, was waiting with Ext.A1 document, which was already drafted by him on the instructions of PW3. He has further deposed that immediately after completing registration of Ext.A1, PW1 had called the appellant and informed her that Ext.A10 had been revoked. In his cross examination, he has given a more detailed account of what transpired on 7.2.2007.

23.The other witness whose evidence is of relevance is PW4, who was a security guard in the hotel. According to him, on 7.2.2007, PW1 came to the hotel along with PW3 and on being informed that the appellant was not available in the hotel, he was asked to accompany the respondent to Cheloor Tower and that on reaching there, three of them went to the flat of the appellant on the 4th floor. Thereupon, the respondent rang the bell and when the appellant opened the door, the respondent informed her that he was going to cancel the power of attorney. He deposed that thereafter, all the three of them Mat.A.436/13 31 came to the ground floor and that the respondent allowed him to return to the hotel. It is stated that he walked back to the hotel and the route taken by him also has been explained by him.

24.Therefore, in their evidence, PWs.1, 3 and 4, have uniformly stated that on arrival in India on 07.02.2007, along with PW3, the respondent went directly to the hotel and on being informed by PW4 that the appellant was not available in the hotel, along with PWs.3 and 4, went to Cheloor Tower, the residential apartment of the appellant and that on reaching there, PW1 informed her that he was going to cancel Ext.A10 and that thereafter, he and PW3 proceeded to the Anthikad Sub Registry and Ext.A1 was registered. It is also in evidence that after the registration of Ext.A1, in the presence of PW3, PW1 phoned up the appellant and informed her of having revoked Ext.A10 power of attorney. Though it is true that the respondent did not state in the petition about the presence of PW3 at the airport on his arrival, he deposed about the same. Mat.A.436/13 32 He has also, in clear terms, deposed about his presence during everything that transpired on 07.02.2007, such as his arrival at the Airport, his reaching the hotel, his visit to the apartment of the appellant, his informing the appellant that he was going to cancel Ext.A10, his journey to the Anthikad Sub Registry, registration of Ext.A1, to which PW3 was a witness and his phone call to the appellant immediately thereafter.

25.However, despite the uniformity in their evidence, which remained unshaken in spite of the searching cross examination, the Family Court disbelieved both PW1 and PW3 stating that PW1 improved his version in evidence and that PW3 had shown more interest than the respondent himself. In our view, substantially, there is no inconsistency in the evidence of PW1 and any additional factual disclosure made by him in his cross examination were only on matters of detail and did not affect the veracity of his testimony. Similarly, it was without any valid reason that the evidence of PW3 was disbelieved by stating that he was more loyal than the King. Mat.A.436/13 33

26.The Family Court also disbelieved the evidence of the respondent that after registration of the document he phoned up the appellant and informed her that Ext.A10 was cancelled. The reason stated by the Family Court in saying so is that the respondent could not recollect either the number of the telephone from which he made the phone call or the telephone number of the appellant to which he made the call. As we have already stated, he is a businessman stationed abroad and the phone call in question was made on 07.02.2007 whereas he was examined in the Family Court only on 15.10.2012 and 05.11.2012. It is not necessary that one should always remember the telephone numbers from which or to which calls were made 5 years back and there is nothing unnatural if the numbers are forgotten. In today's scenario when prepaid and post paid SIM cards are in vogue and telephone numbers are changed quite often, it will be illogical to find fault with one for his inability to recollect phone numbers. Therefore, the fact that the respondent could not recollect the number of the mobile phone from which he made the call or the phone to Mat.A.436/13 34 which he made the call, by itself, would not make his evidence unreliable.

27. Now, coming to the evidence of PW4, he deposed that at the relevant time he was working as a security guard in the hotel. Admittedly, on 07.02.2007, the owner of the property was none other than the respondent. Therefore, if the respondent asked PW4 to accompany him to the house of the appellant, he would naturally oblige and there is nothing unnatural if he accompanied the respondent. As far as this witness is concerned, the case of the appellant was that he was an employee of the hotel during 2005 and that after working in the hotel for some time and obtaining an experience certificate, he left the hotel. However, in spite of the fact that the appellant was exclusively managing the hotel since 2001 and had all the documents in her possession, she did not produce any document such as the muster roll, wage register or the contract with the security agency etc., by which, she could have proved her case that PW4 was not working in the Mat.A.436/13 35 hotel. The fact that PW4 could not explain why he was chosen by PW1 to accompany him to Cheloor Tower, is no reason to discard his evidence and if at all such an explanation was necessary, it was for the appellant to have asked such a question to PW1 and not PW4. Similar is the inference of the court that it was unlikely that ordinarily he would have been chosen to be a witness. In such circumstances there was no reason to doubt the evidence of PW4 that he was a security guard in the hotel, that he accompanied PW1 and PW3 to the apartment of the appellant, that he was present when PW1 informed the appellant that he was going to cancel Ext.A10 and that he returned to the hotel thereafter.

28.Therefore, if the evidence of PWs.1, 3 and 4 is appreciated in its totality, it can be seen that their evidence is consistent on material facts, such as the arrival of the respondent in Kerala on the morning on 07.02.2007, that he and PW3 reached the hotel straight from the airport, that from there, along with PWs.3 and 4, the respondent went to the apartment of the Mat.A.436/13 36 appellant, that in the presence of PWs.3 and 4, he informed the appellant that he was going to cancel of Ext.A10, that thereafter PWs.1 and 3 proceeded to the Anthikad Sub Registry, got Ext.A1 registered and that thereafter, in the presence of PW3, PW1 phoned up the appellant and informed her of having revoked Ext.A10 power of attorney by Ext.A1 document.

29.The issue whether the appellant had notice of cancellation of Ext.A10 power of attorney before executing Ext.A8 on 8.2.2007 is another aspect of the matter which is required to be considered. Earlier, an unregistered power of attorney was executed by the respondent in favour of the appellant at the Indian Embassy, Dubai. According to him, the appellant had impressed upon him the necessity to have a registered power of attorney to discharge her duties as his agent and it was in such circumstances that he executed Ext.A10 registered power of attorney in her favour. Soon after the cancellation of Ext.A10 power of attorney, on 7.2.2007 itself, counsel for the Mat.A.436/13 37 respondent issued Exts.A2 and A3 notices to the appellant. By Ext.A2, she was informed of the revocation of the unregistered power of attorney and by Ext.A3 notice, she was informed that by Ext.A1, Ext.A10 registered power of attorney was revoked.

30.These notices were sent by registered post to the appellant from the Railway Station Post Office, Trichur under registered post acknowledgement due, the numbers of which are 1523 and 1524. The acknowledgement cards of these notices and the other notices sent by the respondent to the appellant are produced as Ext.A5 series. Ext.A9 is an information obtained under the Right To Information Act from the Senior Superintendent of Post Offices, Thrissur Division, Thrissur -1. In this document, it is stated that intimations regarding registered letter Nos.1523 and 1524 were given to Smt.Sindhu Sidharthan, the appellant, on 7.2.2007 itself. It is also stated in this document that the registered letter Nos.1523 and 1524 and two other registered letters from Thrissur RS Post Office were tendered on the above addressee on 12.2.2007 and it was Mat.A.436/13 38 one P.Sudheer who received the above notices on authorisation. The fact that Exts.A2 and A3 were received by the representative of the appellant on 12.2.2007 is also evident from Ext.A5 series of acknowledgement cards, which contains the signature of the recipient and the date of receipt is shown as 12.2.2007. Therefore, from these documents, it is clear that Exts.A2 and A3 notices of revocation of the power of attorney were delivered on the appellant on 7.2.2007 itself and that on account of the failure of her authorised representative to receive the notices, intimations were given and that the registered letters were received by her representative only on 12.2.2007. She has not given any satisfactory explanation why Exts.A2 and A3 notices were not received on 7.2.2007 or why its receipt was delayed till 12.2.2007.

31.It was while so that on 7.2.2007, the appellant executed Exts.A13, A14, A15 and A23 documents conveying various items of properties of the respondent and that on 8.2.2007, Exts.A8 and A24 were also executed. In other words, the fact Mat.A.436/13 39 that Ext.A8 was executed after the intimations regarding Exts.A2 and A3 were received on 7.2.2007, is established beyond any doubt. Once intimation of cancellation of the power of attorney was served on the appellant or her authorised representative and she had chosen to receive Exts.A2 and A3 only on 12.2.2007, she cannot thereafter contend that the notices were received by her only on 12.2.2007 and that therefore, Ext.A8 was executed on 8.2.2007, before receipt of the notice of cancellation. Otherwise, any agent can avoid service of notice of revocation of agency and before its actual receipt, do acts prejudicial to the interests of the principal and avoid consequences of such illegitimate and illegal acts. In the light of the above facts, we are definite that the appellant had deliberately delayed the receipt of Exts.A2 and A3, knowing fully well its contents, only to execute Ext.A8 and to set up a case that the execution of Ext.A8 was prior to the receipt of the notice of cancellation. In this context, we should also make reference to Ext.X5, proved through PW2, which showed that describing herself as the Mat.A.436/13 40 power of attorney holder of the respondent, on 9.2.2007, 3.3.2007, 9.3.2007, 10.3.2007, 8.5.2007, 9.5.2007, 16.5.2007, 31.5.2007 and 27.9.2007, she has transferred from the account of the respondent in the Indian Bank to her account Rs.21,60,000/-, Rs.8,000/-, Rs.20,000/-, Rs.7,000/-, Rs.10,000/-, Rs.10,000/-, Rs.12,000/- Rs.10,000/- and Rs.6,638.75/- respectively. There is no justification for these transfers which are all made much after the cancellation of the power of attorney. In these circumstances, we conclude that the appellant had notice of cancellation of Ext.A10 power of attorney before the execution of Ext.A8 sale deed. In the light of the above discussion, we are satisfied that the evidence of PWs.1, 3 and 4 should have been accepted by the Family Court and its rejection, referring to irrelevant and insignificant details, was erroneous.

32.There are certain other circumstances which also needs to be taken note of. The evidence of RW1, the appellant and also her contention in paragraph 9 of the objection filed before the Mat.A.436/13 41 Family Court are to the effect that she came to know of the cancellation of Ext.A10, after the execution of Ext.A8 and on coming to know of Ext.A1, the notices of cancellation were received. However, nowhere in the pleadings or evidence of the appellant, the source from which she came to know of Ext.A1 has been stated. She has also not disclosed when she came to know of Ext.A1. These factual issues should have been explained by her and her failure to do so would only lend support to our conclusion that the case of respondent was true and that the appellant was desperately attempting to justify the deliberate illegality committed by her to escape from its inevitable consequences.

33.The question whether Ext.A8 document is supported by valid consideration, dealt with by the Family Court under point No.4, also needs to be considered in this context. The evidence of the appellant shows that according to her, in 2004, the respondent had entered into an agreement with one Khaleel for the purchase of a hotel in Dubai and that after Mat.A.436/13 42 receipt of the advance from him, Khaleel expired and as a result, the agreement could not be finalized. According to her, the respondent had incurred huge liabilities for raising the substantial amounts that were paid to Khaleel and that it was in order to discharge those liabilities, he had to sell his properties and that it was accordingly that, as instructed by him, she sold the properties. She also stated that she had paid to the respondent Rs.1 crore each, on 7.2.2007 and 8.2.2007, and that it includes the sale consideration due under Ext.A8 document also.

34.However, apart from alleging that the respondent had financial crisis in 2004, there is no evidence whatsoever to prove that either in 2004 or in 2007, when Ext.A8 was executed, the respondent was in financial crisis. There is also no evidence whatsoever to indicate that the respondent had, at any time, instructed the appellant to dispose of his properties. Therefore, both on the issue of the alleged financial crisis of the respondent and on the issue whether the respondent had Mat.A.436/13 43 directed her to alienate any of his properties, there is total dearth of evidence.

35. In so far as the consideration allegedly paid by the appellant is concerned, the recitals in Ext.A8 are that she had paid Rs.29.60,000/- to herself on behalf of the respondent. While examining as RW1, she confessed the absence of any evidence regarding the availability of the amount with her for paying such amount. Her case was that she had paid Rs.2 crores to the respondent in two instalments of Rs.1 crore each on 7.2.2007 and 8.2.2007 and that the amount paid on 8.2.2007 includes the sale consideration. On the availability of Rs.2 crores with her, she has not produced any evidence. She has stated that the amount paid as sale consideration was saved by her from the amounts given to her by the respondent for the maintenance of herself and the children and also from the income earned out of the properties of the respondent. If this claim of the appellant is factually correct, the amount that she allegedly had, is not that of herself, but of the respondent and Mat.A.436/13 44 she could not have utilized it for amassing wealth for herself. Her story that she had sold gold also was totally unbelievable in the absence of any proof for the same. According to her, she had kept the amount in a safe in her own flat and that on 7.2.2007, a person, whose name, address or whereabouts are unknown to her, came to her with a letter from the respondent and Rs.1 crore was handed over to that person. It is also stated that on 8.2.2007, a further amount of Rs.1 crore was also handed over to the very same person and by the same method. She has admitted that the recipient of Rs.2 crore did not give her any receipt or other acknowledgment of having received the amount. She has also stated that she did not bother to obtain the letter of the respondent that the stranger had shown to her, while receiving the amount. Thus, according to the appellant, she paid Rs.2 crore, the availability of which has not been proved, through a total stranger, without obtaining any document whatsoever. In other words, she wants this Court to accept her case that the money was transferred to the respondent through hawala transaction. Mat.A.436/13 45

36.Any transaction in excess of Rs.20,000/- to anyone cannot be done by cash and should be by cheque. It is in spite of it that the appellant is canvassing before this Court that she paid Rs.2 crore, including the sale consideration paid for Ext.A8, through hawala. In our considered view, in the absence of any evidence regarding the availability of money or its payment, the only conclusion that is possible is that Ext.A8 document is not supported by any consideration.

37.There is a strange recital in Ext.A8 document executed by the appellant in her favour, in the purported capacity as the power of attorney holder of the respondent, who is none other than her husband. In this document, it is recited that the power of attorney is still in force and that the executor of the power of attorney (who is none other than her husband) is alive as on the date of the document. This cannot be taken as a routine recital and instead, demonstrates her anxiety to legitimise the document executed by her knowing its illegality. Such unnatural conduct on her part reinforces our conclusion Mat.A.436/13 46 that Ext.A8 was executed after the revocation of Ext.A10 by Ext.A1 and that the appellant had notice of cancellation of the power of attorney.

38.Yet another aspect which requires to be considered is whether the appellant has discharged her burden of proof regarding the bonafides and genuineness of Ext.A8 document. The fact that the power of attorney holder acts in a fiduciary capacity cannot be disputed and it has been so clarified by the Apex Court in its judgment in State of Rajasthan v. Basant Nahata [AIR 2005 SC 3401], where, in paragraph 53, it has been held thus:

"53.Execution of a power of attorney in terms of the provisions of the Indian Contract Act as also the Power of Attorney Act is valid. A power of attorney, we have notified hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the Mat.A.436/13 47 power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."

30.The burden of proof that is required to be discharged by a person who is enjoying a dominant position and acting in a fiduciary capacity in respect of a document executed by him has been considered by the Apex Court in the context of the provisions contained in section 16 of the Indian Contract Act and section 111 of the Evidence Act in its judgment in Krishna Mohan Kul v. Pratima Maity [(2004) 9 SCC 468], where, it has been held thus:

"12. As has been pointed out by the High Court, the first Appellate Court totally ignored the relevant materials and recorded a completely erroneous finding that there was no material regarding age of the executant when the document in question itself indicated the age. The Court was dealing with a case where an old, ailing illiterate person was stated to be the executant and no witness was examined to prove the execution of the deed or putting of the thumb impression. It has been rightly noticed by the High Court that the Courts below have wrongly placed onus to prove execution of the deed by Dasu Charan Kul on Mat.A.436/13 48 the plaintiffs. There was challenge by the plaintiffs to validity of the deed. The onus to prove the validity of the deed of settlement was on defendant No. 1. When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person, in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position. This principle has been engrained in Section 111 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). The rule here laid down is in accordance with a principle long acknowledged and administered in Courts of Equity in Mat.A.436/13 49 England and America. This principle is that he who bargains in a matter of advantage with a person who places a confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The transaction is not necessarily void ipso facto, nor is it necessary or those who impeach it to establish that there has been fraud or imposition, but the burden of establishing its perfect fairness, adequacy and equity is cast upon the person in whom the confidence has been reposed. The rule applies equally to all persons standing in confidential relations with each other. Agents, trustees, executors, administrators, auctioneers, and other have been held to fall within the rule. The Section requires that the party on whom the burden of proof is laid should have been in a position of active confidence. Where fraud is alleged, the rule has been clearly established in England that in the case of a stranger equity will not set aside a voluntary deed or donation, however, improvident it may be, if it be free from the imputation of fraud, surprise, undue influence and spontaneously executed or made by the donor with his eyes open. Where an active, confidential, or fiduciary relation exists between the parties, there the burden of proof is on the donee or those claiming through him. It has further been laid down that where a person gains a great advantage over another by a voluntay instrument, the burden of proof is thrown upon the person receiving the benefit and he is under the necessity of showing that the transaction is fair and honest.

Mat.A.436/13 50

13. In judging of the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even de hors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before Court.

14. It is now well established that a Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift, of proving that in fact he exerted no influence for the purpose of obtaining it. The proposition is very clearly stated in Ashburner's Principles of Equity, 2nd Ed., p. 229, thus :

"When the relation between the donor and donee at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor, the Court sets aside the gift unless the donee can prove that the gift was the result of a free exercise of the donor's will."

15. The corollary to that principle is contained in Clause (3) of Section 16 of the Indian Contract Act, 1872 (in short 'Contract Act')."

Mat.A.436/13 51

31.In so far as this case is concerned, admittedly, the appellant, as the power of attorney holder, was acting in a fiduciary capacity. As power of attorney holder, the appellant was also enjoying a dominant position. Even otherwise, the appellant is a law graduate and the respondent is not even a matriculate. Therefore, in the light of the principles laid down by the Apex Court, the burden was entirely upon her to prove the bonafides and genuineness of Ext.A8 document. Having considered the evidence adduced by the appellant as RW1, we are satisfied that her evidence is totally unreliable and she has also failed to discharge her burden to prove that the document is a bonafide one executed to protect the interest of her principal which she was bound to protect. Therefore, on that count also, the appellant has to fail.

32.During the hearing, both sides referred to several documents. In this judgment, we have made reference only to those which we considered are relevant for this case and reference to Mat.A.436/13 52 others was avoided mainly to save the parties from being prejudiced in the several other cases, that, we are told, are pending between them.

For the aforesaid reasons, we do not find any substance in any one of the contentions raised by the appellant and the appeal deserves only dismissal and we do so.

Appeal is dismissed with costs quantified at Rs.10,000/- (Rupees Ten Thousand only).

Sd/-

ANTONY DOMINIC, Judge.

Sd/-

P.D.RAJAN, Judge.

kkb.

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Kerala High Court