Madras High Court
Saroja vs Indirani on 21 December, 2021
S.A.No.934 of 2012
and M.P.No.1 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
S.A.No.934 of 2012
and M.P.No.1 of 2012
1.Saroja
2.Mageswari
3.Revathy
4.R.Venkatesan
5.V.D.Gopalakrishnan ... Appellants/Defendants
Vs.
Indirani ... Respondent/Plaintiff
PRAYER: This Second Appeal has been filed under Section 100 of CPC
against the judgment and decree passed in A.S.No.60 of 2010, on the file
of the Sub Court, Kancheepuram, dated 28.04.2011, reversing the
Judgment and Decree passed in O.S.No.359 of 2006, on the file of the
District Munsif Court, Kancheepuram, dated 17.06.2010.
For Appellants : Mr.J.Manoharan
For Respondent : Mr.R.Sathiya Murthy
https://www.mhc.tn.gov.in/judis
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S.A.No.934 of 2012
and M.P.No.1 of 2012
JUDGMENT
The defeated defendants are the appellant herein.
2.This Second Appeal has been against the judgment and decree
passed in A.S.No.60 of 2010, by the Sub Court, Kancheepuram, dated
28.04.2011, wherein, the learned Judged has reversed the judgment and
decree passed in O.S.No.359 of 2006, by the District Munsif Court,
Kancheepuram, dated 17.06.2010.
3.Brief facts of the case:
(a).The plaintiff/respondent has filed a suit in O.S.No.359 of 2006
to declare Ex.A3/Sale Deed executed by the fifth defendant/fifth
respondent herein, dated 12.07.2006, in favour of the fourth defendant as
null and void, not binding upon the him and consequently injunction
against the other defendants in respect of his share alone. The
preliminary contention in the plaint is that seeking Ex.B1/general power
of attorney, dated 14.06.2004, the plaintiff and the defendants 1, 2, 3 & 5
have executed a power of attorney in favour of the fifth defendant to
make arrangements to sell the schedule mentioned property and to submit
https://www.mhc.tn.gov.in/judis
S.A.No.934 of 2012
and M.P.No.1 of 2012
proper accounts to the plaintiff and others, but the was not carried on by
the fifth defendant and hence, under Ex.A1/legal notice dated
16.11.2005, the plaintiffs have cancelled the power of attorney in favour
of the fifth defendant in respect of entire property. Despite the
cancellation of the power of attorney, the fifth defendant along with
others have executed the sale deed under Ex.B3 and hence, the suit.
(b).The appellants/defendants have filed a written statement, inter
alia contending that they have received the money of Rs.1,25,000/- and
executed power of attorney under Ex.B1 and subsequently, the
plaintiff/respondent herein has issued the legal notice on 16.11.2005 not
to act in furtherance of the power of attorney given by her and do not
revoke the power by a registered instrument and based upon Ex.A3/sale
deed, he has also obtained Patta and he is in possession of the property.
(c).Before the Trial Court, on behalf of the plaintiff, she herself
was examined as PW1 and Exs.A1 to A4 were marked; on behalf of the
defendants DW1/the mother of the plaintiff and DW2/brother of the
plaintiff, were examined and marked Exs.B1 & B2.
https://www.mhc.tn.gov.in/judis
S.A.No.934 of 2012
and M.P.No.1 of 2012
(d).Taking into consideration the facts and circumstances of the
case, the Trial Court, by a judgment dated 17.06.2010, has dismissed the
suit. Aggrieved over the same, the plaintiff has filed an appeal suit in
A.S.No.60 of 2010 before the Sub Court, Kancheepuram. The learned
Judge by a judgment dated 28.04.2011, has allowed the appeal and
consequently the said suit in O.S.No.359 of 2006 was decreed. Hence
the Second Appeal by the defendants.
4.The Second Appeal was admitted on 21.09.2012, on the
following substantial questions of law:
“1.Whether the Lower Appellate Court has
committed an error in granting a decree of permanent
injunction not to alienate Items 1 and 3 of the suit
properties without even restricting the same to the
share of the plaintiff?
2.Whether the Power of Attorney granted in
favour of the fifth defendant is irrevocable to say that
the notice issued by the plaintiff revoking the same
does have no effect?”
https://www.mhc.tn.gov.in/judis
S.A.No.934 of 2012
and M.P.No.1 of 2012
5.Heard the learned counsels and perused the materials placed on
record.
6.After perusing the records, it is seen that admittedly, the general
power of attorney viz., fifth defendant has not entered into witness box,
he has not subjected himself to the cross examination. Under Sections
201 and 202 of the Indian Contract Act, the general Power of Attorney
can be revoked even by the notice, though a stand was taken by the
defendant that Ex.B1/Power of Attorney is coupled with consideration on
the receipt of Rs.25,000/- each and hence, it is projected as if, it is a
power coupled with consideration.
7.Admittedly, the defendants have not filed any document
evidencing the such payment to show the power is coupled with
consideration so as to make it as irrevocable. In the absence of any
clause in Ex.B1/Power of Attorney regarding irrevocable in nature, in
view of Ex.A1/legal notice issued for cancellation of power of attorney
in respect of her share, which was admittedly served under Ex.A2, the
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S.A.No.934 of 2012
and M.P.No.1 of 2012
Lower Appellate Court has rightly come to the conclusion that Ex.B1/
power of attorney executed in favour of the fifth defendant by the
plaintiff stands revoked to that extent and Ex.A3/sale deed is not binding
upon him. With this in nature the Lower Appellate Court has rightly
allowed the sale deed only to an extent so as to by the share of the
plaintiff alone.
8(a).Though, several substantial of law were raised in the second
appeal, I find that ground No.5 is wrong, which does not arise from
evidence. The respondent/plaintiff never admitted the receipt of money
and executed receipt for payment of money from the power agent/fifth
defendant. On a perusal of the evidence of PW1, it is seen that the
plaintiff denied the suggestion that she has received the money and
execution of alleged receipt for payment of money. When the respondent
herein/plaintiff has denied the receipt of any consideration for sale deed
or for execution of general power of attorney, the ground No.5 is wrongly
worded. It is for the appellants/defendants to show that the plaintiff has
received money either for execution of power of attorney or before
execution of the sale deed. Though, they claim they received Rs.25,000/-
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S.A.No.934 of 2012
and M.P.No.1 of 2012
each, though they claim there was a receipt, though they claim since it
was unregistered and unstamped, they could not be filed, however, these
excuses cannot save the plea.
8(b).The power of attorney was executed to all the properties of
the suit schedule since the sale under Ex.A3/sale deed was only in
respect of Item No.2 of the suit property and the same cannot be put
against the plaintiff. Since the fifth defendant has effected the sale in
clandestine manner, the plaintiff has chosen to cancel the power. Hence,
the plaintiff has cancelled the power deed dated 14.06.2004 by way of
legal notice under Ex.A1, stating that the power of attorney agent/fifth
defendant cannot represent on behalf of the plaintiff and therefore, the
Lower Appellate Court has rightly rejected the case of the defendants.
Hence,the substantial question of law No.1 is answered in negation
against the appellants/defendants, in view of Ex.A1/revocation of the
power, which is not supported by consideration is valid in law.
Consequently, the Judgment rendered by the Lower Appellate Court in
A.S.No.60 of 2010, dated 28.04.2011, does not call for any interference.
https://www.mhc.tn.gov.in/judis
S.A.No.934 of 2012
and M.P.No.1 of 2012
9.Accordingly, this Second Appeal is dismissed. The judgment
and decree passed in A.S.No.60 of 2010, by the Sub Court,
Kancheepuram, dated 28.04.2011, by reversing the judgment and decree
passed in O.S.No.359 of 2006, by the District Munsif Court,
Kancheepuram, dated 17.06.2010, is hereby confirmed. No costs.
Consequently, connected miscellaneous petition is closed.
21.12.2021
Internet : Yes
dua
To
1.The Sub Court, Kancheepuram.
2.The District Munsif Court, Kancheepuram.
https://www.mhc.tn.gov.in/judis
S.A.No.934 of 2012
and M.P.No.1 of 2012
RMT.TEEKAA RAMAN, J.
dua
S.A.No.934 of 2012
and M.P.No.1 of 2012
21.12.2021
https://www.mhc.tn.gov.in/judis
