The plaintiffs, who met their Waterloo at the hands
of the lower appellate court are the appellants.
2. There is not much dispute regarding the facts.
It is an admitted fact that at the relevant time the owner of
the property was the defendant. According to the plaintiffs
the defendant was heavily in debt, and therefore she had
decided to sell the property. As per an oral sale dated
4.4.1988 property was sold to the plaintiffs. According to
the plaintiffs, in order to get over the tax problems, the
defendant executed a power of attorney in favour of P.W.3.
The said power of attorney is marked as Ext.A1. It is
claimed that as per Ext.A2, the power of attorney holder
executed sale deed in favour of the plaintiffs. They would
say that since the husband of the defendant was seriously
ill, she was permitted to continue residence in the building
situate in the property. After the death of her husband,
though she was asked to vacate, she did not do so and
began to set up rights over the plaint schedule property.
Therefore, they were constrained to institute the suit.
3. The defendant denied the allegations made in
the plaint. She denied having executed a power of attorney
as alleged in the plaint. She denied the sale claimed on
4.4.1988. It was pointed out that so-called power of
attorney holder was the driver of an advocate and the third
plaintiff was latter's wife. The fourth plaintiff is the wife of
another Advocate. According to the defendant, her husband
was seriously ill and under the guise of helping the
defendant and her husband, they have fabricated
documents. She admitted that she had to borrow money but
denied that she was in such a situation that she was
compelled to sell the property. Those persons had taken
advantage of the situation and exploited the defendant. To
the notice issued by the plaintiffs, the defendant has sent a
reply stating the true facts. The power of attorney produced
is a fabricated and concocted document and is not binding
on the defendant. A sale deed obtained on the basis of such
a power of attorney has no value and confers no rights on
the plaintiffs. The plaintiffs are not entitled to any reliefs
and defendant is entitled to compensatory costs.
4. The trial court raised necessary issues. The
evidence in the case consists of the testimony of P.Ws. 1 to
4 and documents marked as Exts.A1 to A19 from the side of
the plaintiffs. The defendant examined herself as D.W.1 and
marked Exts.B1 and B2. Exts.X1 to X3 are third party
exhibits. The trial court on a consideration of the evidence
came to the conclusion that the plaintiffs have entitled to
succeed and granted them a decree.
5. The defendant took up the matter in appeal.
The appellate court on an independent evaluation of the
evidence came to the conclusion that the defendant's plea
that the power of attorney was not genuine appears to be
correct. The appellate court was of the view that there were
quite a few suspicious circumstances indicating that the
contentions taken by the defendant are probably true.
Therefore, the lower appellate court reversed the findings of
the trial court and dismissed the suit. Hence the Second
Appeal by the plaintiffs.
6. Notice appears to have been issued on the
following questions of law:
"i) Is not the lower appellate court erred in
reversing the judgment of the trial court without
properly appreciating the facts and also the law
involved?
ii) Whether the lower appellate curt is
justified in casting the burden on the appellant to
prove execution of Ext.A1?
iii) Is not the Appellate Court erred in
thinking that a registered power of attorney
executed for the purpose of registering a
document need be proved by calling attesting
witness u/s 68 of the Evidence Act?
iv) Is not the appellate court erred in
ignoring Sec. 33(4) of Indian Registration Act
which says that a power of attorney need not be
proved by calling attesting witnesses?
v) Is not the appellate court erred in
appreciating the evidence and factual
circumstances of the case and is it not mislead by
its wrong approach to the provisions of law
regarding proof of a registered document?
vi) Is not the dismissal of an indigent suit
filed for cancellation of the document precludes
the plaintiff defendant from challenging the
validity of those documents in any subsequent suit
by the principles of Order 9 Rule 9?
vii) Can a person who executed a registered
power of attorney impugn the transactions
entered by the power of attorney holder without
challenging the authority of the attorney of the
authority to enter into such transactions?"
7. The learned counsel appearing for the
appellants pointed out that the lower appellate court was
not justified in reversing the findings of the trial court. The
execution of the power of attorney is proved and is in fact
admitted by the defendant. Ext.A2 sale deed executed by
the power of attorney holder on the basis of Ext.A1 is valid.
The obligations cast under Ext.A2 have been discharged.
The learned counsel pointed out that in fact the defendant
had instituted an indigent O.P. challenging the sale deed.
However, she was directed to pay the court fee. She
challenged the said order before this Court, which confimed
the order of the lower court. She however abandoned the
suit. Therefore she cannot now say that the sale deed is
bad. The various letters produced by the plaintiffs will show
that the defendant had borrowed money from several
persons. According to the learned counsel the trial court
had elaborately considered the materials on record and had
come to the right conclusion. There were no grounds made
out to interfere with the judgment and decree of the trial
court.
8. The learned counsel appearing for the
respondent on the other hand pointed out that the appellate
court had considered the matter in the proper perspective.
The trial court had mechanically acted and accepted the
pleas of the plaintiff. However, the lower appellate court
has gone into the issues as to whether the power of
attorney is genuine. The appellate court has scrutinised the
various documents and arrived at the conclusion that in all
probability the defendant had been misled and defrauded
and that she had in fact no intention to sell the property.
The entire case set up by the plaintiffs was found to be false.
The learned counsel therefore would point out that no
grounds are made out to interfere with the decree of the
lower appellate court.
9. Principal issue centres around the validity of
Ext.A1 power of attorney. Before going into that question
certain dates maybe noted.
10. The husband of the defendant was admitted
to the hospital on 12.4.1988. According to the plaintiffs the
oral sale was on 4.4.1988. The power of attorney is seen
executed on 11.4.1988. Ext.A1 sale deed is dated
28.6.1988. Cancellation deed of the power of attorney was
executed on 1.7.988. Ext.B2 reply notice was sent by the
defendant on 25.7.1988.
11. A perusal of the power of attorney shows that
it was executed in favour of one Kunhiraman, who is a driver
by profession. It does not appear that there was any
relationship between the defendant and the said person. it
is stated in Ext.A1 that the entire sale consideration has
been received. There is no mention in Ext.A1 about the oral
sale on 4.4.1988. The reason for not executing a sale deed
then was the tax problem. According to the plaintiff, it was
felt that the tax concessions will be more beneficial in the
coming year. If this is to be believed, it escapes one's
understanding as to how the execution of a power of
attorney could improve the situation. Even if the sale deed
is executed by the power of attorney holder, still the tax
liability would fall on the defendant. Therefore the
observation of the lower appellate court in this regard seems
to be fully justified. Moreover, as rightly noticed by the
appellate court, the case of plaintiff was that in case
execution of the sale deed is postponed, it will be beneficial
to Gopalakrishnan Nambiar, the husband of the defendant,
cannot be accepted because the property belonged to the
defendant and not to Gopalakrishnan Nambiar.
12. Going by the recital in Ext.A2, the sale
consideration shown is Rs.1,10,000/-. An amount of
Rs.20,000/- is stated to have been received by the
defendant as advance. Out of the balance amount of
Rs.90,000/- rupees, rupees Rs.45,000/- is to be paid to Smt.
Pankajam, who is one of the sisters of the defendant and the
balance sum of Rs.45,000/- is to be paid to Sree
Raveendran Nair, who is the brother of the defendant. In
short, except for the sum of Rs.20,000/- the balance is
retained to be paid in the document itself. One may now
recall the recital regarding the consideration made mention
of in Ext.A1. There what has been stated is that the entire
consideration has already been received. There is thus
considerable inconsistency in the recital regarding the
consideration in Exts.A1 and A2. This cannot be easily
ignored. No explanation is offered in this regard.
13. According to the appellant, the fact that
Ext.A16 makes mention of Ext.A1, is sufficient to show that
Ext.A1 was in fact executed by the defendant. If that be so,
the defendant cannot be to say that she had been
defrauded. So also she cannot say that she had not
executed the said document.
14. Though the argument may look attractive at
the first blush, it lacks merits on a closer scrutiny. Ext.A16 is
a cancellation deed. Necessarily the executant had to refer
to Ext.A1. That does not mean that she has admitted that
the power of attorney was executed by her with full
knowledge of the contents of the deed. It is significant
notice that the power of attorney was executed on
11.4.1988. The evidence shows that the defendant had
taken her husband to the hospital on 12.4.1988. The
explanation offered by the defendant that she was in such a
state of mind she had signed some documents brought by
Sree Sreedharan Nambiar, who represented to her that she
had to sign them, in order to get money for treatment of her
husband need not be disbelieved. Therefore, this
submission by the appellant is devoid of merits.
15. Ext.A3 receipt was produced by the plaintiff
to show that they have discharged the burden under Ext.A2.
Apart from the fact that it is not a proper receipt, the lower
appellate court also noticed tampering of the document.
The lower appellate court has noticed that in fact the recital
therein would go to show that the amounts mentioned in
Ext.A2 were paid long ago.
16. The contention of non est factum is urged in
this case by the respondent. It is possible that the
contention taken that on the eve of going to the hospital she
happened to sign some documents could be true. The
various discrepancies noticed would suggests so. See the
decisions reported in Chandran Nair v. Krishnan (1997(1)
K.L.T. 656), Grasim Industries Limited v. Agarwal Steel
((2010) 1 SCC 83), (AIR 1990 SC 540) and Ali Kunju v.
Abdul Khathirkunju (2001(3) K.L.T. SN 38).
17. It will be profitable to refer to Ext.A4 notice
issued by the plaintiffs at this juncture. When one reads it
carefully it can be seen that the request to continue
residence in the building after the so-called oral sale was
made by the defendant even before her husband was taken
to the hospital. The request made was to permit them to
continue residence for three more months. Thereafter her
husband died. Further, it is stated that after the death of her
husband, she requested that she may be allowed to continue
residence for another 41 days. After that, even though
demand for vacating the building was made, it was not
heeded to. Significantly enough there is no whisper in
Ext.A4 about the payments made as per Ext.A3. The various
letters produced by the plaintiffs do not advance their case
much. It only shows that the defendant was in need of
money. None of the letters produced by the plaintiffs
referred to the so-called oral sale or to the power of
attorney.
18. Ext.A16 is put forward as an admission by the
defendant of the execution of Ext.A1. It is far from so. None
other letters or documents relied on by the plaintiffs give
any indication that the defendant had executed the power of
attorney namely Ext.A1. It is surprising to note that even
when there was a specific denial of execution of the power
of attorney, there was no attempt from the side of the
plaintiffs to examine any of he witnesses to Ext.A1. The
statement in Ext.A16 to the effect that a power of attorney is
seen to have been executed in favour of Kunhiraman cannot
be taken as an admission. The said statement is only for the
purpose of executing the cancellation deed.
19. It looks rather strange that the defendant
would have executed a power of attorney in favour of a
person who is a driver by profession. It is not as if the
defendant did not have any relatives in whose favour she
could have executed a power of attorney. It is highly
improbable and far-fetched to assume that the defendant
would execute a power of attorney in favour of Kunhirman.
There is no reason as to why she should do so.
20. One may now refer to the oral evidence in the
case. The first plaintiff is examined as P.W.1. He traces title
to the suit property. He says about the gift in favour of the
defendant and the execution of power of attorney by the
defendant. He then speaks about the execution of Ext.A2.
In cross-examination he denied that the power of attorney
holder was the driver of Advocate Sri.Sreedharan Nambiar.
According to him, the choice was made by the defendant.
However, he says that the power of attorney was executed
in the presence of the husband of the defendant. If that be
so, surely one would have expected him to be a witness. As
already stated, none of the witnesses to the power of
attorney is examined. P.W.2 admitted that it was he who
had presented the power of attorney for registration and had
taken it back. He denied that he had done so because the
power of attorney holder was his driver.
21. It is here that the evidence of P.W.3 assumes
significance. He is the power of attorney holder. He says
that he used to borrow money from the defendant. In
cross-examination, he admitted that he had never seen
Ext.A1 at all. And also that he had never possessed the
same.
22. In the light of the very unsatisfactory evidence
adduced, it is extremely difficult to hold in favour of the
plaintiffs.
23. Learned counsel appearing for the respondent
pointed out that the power of attorney does not conform the
requirements of the Registration Act and Rules. Provisions
relied on by the parties are Sections 32 and 33 of the
Registration Act and Rules 57, 60 and 61 of the Registration
Rules (Kerala). Sections 32 and 33 read as follows:
"32. Persons to present documents for
registration.- Except in the cases mentioned in
Section 31, 88 and 89, every document to be
registered under the Act, whether such
registration be compulsory or optional, shall be
presented at the proper registration office,-
(a) by some person executing or claiming
under the same, or, in the case of a copy of a
decree or order, claiming under the decree or
order, or
(b) by the representative or assign of such a
person, or
) by the agent of such a person,
representative or assign, duly authorised by
power-of-attorney executed and authenticated in
manner hereinafter mentioned.
33. Power-of-attorney recognizable for
purposes of Section 32.-(1) For the purposes of
Section 32, the following powers of attorney shall
alone be recognised, namely:-
(a) if the principal at the time of executing
the power of attorney resides in any part of India
in which this act is for the time being in force, a
power of attorney executed before and
authenticated by the Registrar or Sub Registrar
within whose district or sub-district the principal
resides;
(b) if the principal at the time aforesaid
resides in any part of India in which this Act is not
in force, a power of attorney executed before and
authenticated by any Magistrate;
) if the principal at the time aforesaid does
not reside in India, a power of attorney executed
before and authenticated by a Notary Public, or
any Court, Judge, Magistrate, Indian Consul or
Vice-Consul or representative of the Central
Government:
Provided that the following persons shall not
be required to attend at any registration office or
court for the purpose of executing any such power
of attorney as is mentioned in clauses (a) an (b) of
this section, namely:-
(i) persons who by reason of bodily infirmity
are unable without risk or serious inconvenience
so to attend;
(ii) persons who are in jail under civil or
criminal process; and
(iii) persons exempt by law from personal
appearance in the Court.
Explanation.- In this sub section "India"
means India, as defined in clause (28) of Section 3
of the General Clauses Act, 1897 (X of 1897).
(2) In the case of every such person the
Registrar or Sub-Registrar or Magistrate, as the
case may be, if satisfied that the power of
attorney has been voluntarily executed by the
person purporting to be the principal, may attest
the same without requiring his personal
attendance at the office or Court aforesaid.
(3) To obtain evidence as to the voluntary
nature of the execution, the Registrar or
Sub-Registrar or Magistrate may either himself go
to the house of the person purporting to be the
principal, or to the jail in which he is confined, and
examine him, or issue a commission for his
examination.
(4) Any power of attorney mentioned in this
section may be proved by the production of it
without further proof when it purports on the face
of it to have been executed before and
authenticated by the person or Court hereinbefore
mentioned in that behalf."
Rules 56, 60 and 61 read as follows:
"57.(i) When a power of attorney is executed
before a Registering Officer he shall, after
satisfying himself of the identity of the party and
obtaining when necessary his left thumb
impression against his signature, authenticate it in
the following form:-
No...................... of 19
Executed in my presence (at .................) at
(give exact hour and minute).............. this
day................... of 19..... by A.B., who is personally
known to me/0r whose identity is proved by
(signature of) C.D. (with addition) and (signature
of) E.F., (with addition).
Note.- To be filled in when the execution takes
place at a place other than the Registering Office,
e.g., a private residence.
(ii) When a power of attorney which has not been
executed before a Registering Officer is presented
to him for authentication under the proviso to
Section 33 of the Act, the Registering Officer,
shall, if he attends himself at the private
residence of the principal or if the principal
appears in the office behind a purdah and is
examined with the help of hammamnee or a
female attendant adopt the following form of
authentication:-
"No.......... of 19............. Fee levied Rs. ..........
I certify that I have satisfied myself on
examining at .. at............ on .................
hours/this............... day of 19......... (signature of )
A.B., who is a Gosha lady with the aid of .............
(signature of C.D.) hammamnee/female attendant
(with addition) that this power of attorney has
been voluntarily executed by the said A.B., who
purorts to be the principal and who is personally
known to me (or whose identity has been proved
by (1) (EF.) (Signature with addition) and (2)
(G.H.) (Signature with addition).
Signature of the Registering
Officer with name and
designation.
Station:
Date: Seal
(iii) In Authenticating a power of attorney which
occupies more than one sheet of paper, the seal
and the signature of the Registering Officer shall
be affixed to each sheet.
(iv) Every interlineation, blank, erasure or
alteration in the body of a power of attorney
which is authenticated and not registered shall, at
the time of authentication, be detailed in a
footnote added to the document below the
endorsement or authentication; an shall be signed
by the Registering Officer even if the party himself
has entered a similar note in the document. If
there are no interlineations, blanks, erasures or
alternations in the body, the fact shall be noted.
Interlineations, etc., in the authentication
endorsement shall be initialled by the Registering
Officer.
60.A power of attorney may be brought to a
Registering Officer (1) for authentication, or (2)
for registration, or (3) for both authentication and
registration. In the first case, he shall merely
make the entry prescribed for authentication; in
the second case, he shall register the power in the
same manner as any other document; and in the
third case, he shall first authenticate the power
and then admit it to registration in the usual
manner.
61. Although a power of attorney may be
registered like any other instrument, it is not valid
for registration purposes unless authenticated.
When a power of attorney is brought to a
Registering Officer by a person who does not
understand the distinction between authentication
and registration, the Registering Officer shall
explain the difference to him and give him such
information as may be necessary."
24. The contention taken is that the power of
attorney, namely, Ext.A1 does not satisfy the requirements
as per the provisions and therefore it is invalid in law. In
support of his contention, learned counsel relied on the
decisions reported in Jugarj Singh v. Jaswant Singh (AIR
1971 SC 761) and Damodaran Suran v. Kesavan
Meenakshy (1983 K.L.T. 1013).
25. Learned counsel appearing for the appellant
on the other hand pointed out that on the reverse side of the
first page all the necessary ingredients are shown and the
contention is without any basis whatsoever.
26. It is true that on the reverse side of the first
page the requirements contemplated by the above
provisions are seen complied with. However, going by
Clause 4 of Rule 57 it is necessary that the Registrar should
authenticate any interlineation, alterations etc in the body of
the power of attorney. In the case on hand that does not
seen to have been complied with. In the decision reported
in Jugarj Singh's case (supra) it was held as follows:
It is plain that presentation for
registration could be, either by the Principal or by
a duly constituted attorney. It is equally plain that
a proper power of attorney duly authenticated as
required by law had to be made before power
could be conferred on another either to execute
the document or to present for registration. That
indeed is the law.
27. Even assuming that the defect may not be
very significant, the interlineations, alterations etc are not
seen authenticated by the Registrar. Apart from this
defect, on facts also the appellant has to fail.
28. The inconsistency or the incongruity in the
evidence have already been referred to. It is very
unfortunate that it would appear from a close reading of the
evidence that a few persons were involved in dubious act
to deprive a widow of her property. The lower appellate
court has very carefully noticed the evidence and found that
a fraud has been played on the lady. The findings are fully
justified on going through the records and do not call for
interference.
The result is that this Second Appeal is without
any merits whatsoever and it is liable to be dismissed. I do
so with costs to the respondents quantified at Rs.15,000/-.
P. BHAVADASAN,
JUDGE
sb.