Madras High Court
Rajkumar Selvanathan vs Murugan on 30 September, 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 30.09.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
A.S.Nos.46 & 91 of 2013
&
M.P.Nos.1 & 2 of 2013
A.S.No.46 of 2013:
Rajkumar Selvanathan ...Appellant
Vs.
Murugan ...Respondent
Prayer: Appeal Suit filed under Section 96 of the Code of Civil
Procedure against the Judgment and Decree dated 31.07.2012 passed
by the learned Second Additional District Judge, Puducherry in
O.S.No.100 of 2010.
A.S.No.91 of 2013:
1.De Canaga Marie Noel Jean
2.Motcha Marie Pushpam ...Appellants
https://www.mhc.tn.gov.in/judis
Vs.
1.Paramanandam
2.Murugan ...Respondents
Prayer: Appeal Suit filed under Section 96 of the Code of Civil
Procedure against the Judgment and Decree dated 31.07.2012 passed
by the learned Second Additional District Judge, Puducherry in
O.S.No.126 of 2008.
For Appellants : Mr.C.A.Diwakar
For Respondents : Mr.A.R.L.Sundaresan
Senior Counsel
for M/s.A.L.Ganthimathi
COMMON JUDGMENT
The plaintiffs in a suit O.S.No.126 of 2008 and the defendant in
the suit O.S.No.100 of 2010 are the appellants before this Court in both
the appeals A.S.Nos.46 and 91 of 2013 challenging the respective suits.
Since the facts relevant for disposing of both the appeals are one and
the same a common Judgement is being pronounced in the said appeals.
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2. The parties are referred to in the same array as in the suit
O.S.No.126 of 2008 and the defendant in the suit O.S.No.100 of 2010
is referred to by his name.
3. The subject matter of both the suits is the following property:
“g[Jit up/o/ cHtu;fiu rg;/ up/o/
cHtu;fiu Kdprpghypl;o. fpuhk be/38. rhuk;
butpd;a[ fpuhkk;. jl;;nlhl;L fsthngl;
cl;gFjpapy; f/be/1411. uP/r/be/138-4y; ml';fpa
fp/nk/ tlg[wk; 80 mo. bjd;g[wk; 100 mo.
bj/t/ fPH;g[wk; 48 mo. nky;g[wk; 45 mo.
gug;gst[s;s 4185 r/mo/ mst[s;s kida[k;
kw;Wk; mjpyl';fpa ehl;L XL nghl;l fy;tPLk;/
,jw;F rf;Fge;jp g[jpjhf tplg;gl;l tPjpf;F
fpHf;F. uP/r/be/138?y; ml';fpa epyj;jpw;F
nkw;F. bjw;F. rPDthr brl;oahh; mtu;fSf;F
brhe;jkhd 45. 46. 47 bfhz;l kidfSf;F
tlf;F/
4. The case of the plaintiffs is that under a Power of Attorney
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dated 08.05.1982 they had appointed the 1st defendant to manage all the
properties that were existing in the name of the plaintiffs 1 and 2,
which included the power of alienation by way of sale, mortgage etc,.
Thereafter, the plaintiffs had purchased the suit property under a
registered sale deed dated 19.11.1982. Further, the case of the
plaintiffs is that when they had returned to India in the year 1992 from
France, where they were employed, they were not satisfied with the
conduct of the 1st defendant, as a result of which they had revoked the
Power of Attorney dated 08.05.1982 under a cancellation deed dated
10.11.1992.
5. After the revocation of the power, the plaintiffs had executed a
fresh Power of Attorney dated 23.11.1992 in favour of the 1st defendant
authorizing him to manage a different property which were scheduled
in the power deed. The plaintiffs had clearly mentioned in this power
deed that the 1st defendant would not have any rights of alienation.
Therefore, the 1st defendant was very much aware about revocation of
the earlier Power of Attorney under the cancellation deed dated
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10.11.1992.
6. The plaintiffs had thereafter left for France and the 1st
defendant was taking care of the residential house and its appurtenants
as before. It is their case that he had access to all their personal rooms
and misusing the said confidence and trust placed on him he had
removed the original title deeds from the possession of the plaintiffs. It
appears that the 1st and 2nd defendants had colluded to create the sale
deed dated 08.06.1995 in favour of the 2nd defendant. The sale has
been effected after the revocation of the original Power of Attorney
dated 08.05.1982. The plaintiffs would submit that therefore the sale
deed is void and non-est in law and not binding on them.
7. The 1st plaintiff had retired and had returned to Puducherry
along with his wife, the 2nd plaintiff and they had settled down in
Puducherry. Since they were unable to manage the property
themselves they had appointed one Rajakumar Selvanathan as their
power agent by a deed of Power dated 17.03.2008. The power agent
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has been in possession and enjoyment of the suit property and was
looking after the same.
8. It is also the contention of the plaintiffs that though the 2nd
defendant had purchased the property in the year 1995 he had not taken
possession of the property and had neither taken steps to mutate the
revenue records in his name. While so, when the Rajakumar
Selvanathan, the power agent had visited the suit property to develop
the same by removing the bushes and leveling the uneven ground he
was prevented from doing so by the 2nd defendant and it was only then
that they had come to know about the purchase of the property by the
2nd defendant i.e., on 07.07.2008 for the first time they learned about
the purchase of the property by the 2nd defendant.
9. The plaintiffs would submit that the 1st defendant has alienated
the property in favour of the 2nd defendant when he no longer had an
authority to do so. He was also aware about the cancellation of the
Power of Attorney dated 08.05.1982 when the second Power of
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Attorney dated 23.11.1992 had been executed in his favour. The
plaintiffs would submit that the sale deed dated 08.06.1995 has been
created collusively by the defendants 1 and 2 and therefore they had
come forward with the suit O.S.No.126 of 2008 on the file of the II
Additional District Judge, Puducherry for the following reliefs:
“(a)Declaring that the plaintiffs no.1 and 2 are the absolute
owners of the suit property;
(b)Declaring that the sale deed dated 08.06.1995
registered as document No.1824/1995 executed by the
defendant no.1 in favour of the defendant no.2 is void and
non-est in law and is not binding on the plaintiffs no.1 and
2 herein;
Permanent injunction restraining the defendants
no.1 and 2 herein, their assignees transferees, men, and
agents from disturbing the peaceful possession and
enjoyment of the suit property by the plaintiffs no.1 and 2
herein;
(c)Direct the defendant no.2 herein to return the
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original sale deed dated 19.11.1982 bearing document
No.1254/1982 executed by Tv1.P.Vedhachalam and
M.Pandurangan in favour of the plaintiff no.2 herein to the
plaintiffs.
10. The 2nd defendant had filed a written statement inter alia
denying the allegations contained in the plaint. The 2nd defendant had
categorically denied the fact that the revocation of the Power of
Attorney dated 08.05.1982 was informed to the 1st defendant in the
manner known to law. Further, the 2nd defendant had denied the
contention of the plaintiffs that the earlier Power of Attorney dated
08.05.1982 was superseded by the subsequent Power of Attorney dated
23.11.1992. The allegation that the original title deeds had been
removed superstitiously was also denied.
11. The 2nd defendant would contend that the 1st defendant was
duly authorised to alienate the properties belonging to the plaintiffs and
accordingly had executed the sale deed dated 08.06.1995 in favour of
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the 2nd defendant. He had denied any collusion between him and the 1 st
defendant and had contended that he is only a bonafide purchaser for
value.
12. The 2nd defendant would further submit that on 07.07.2008
the said Dr.Rajakumar Selvanathan had attempted to trespass into the
suit property constraining the 2nd defendant to approach the local Police
Station, who however failed to take cognizance of the complaint, which
constrained the 2nd defendant to file the suit O.S.No.100 of 2010
against the said Dr.Rajakumar Selvanathan, the power agent holder of
the plaintiffs for a permanent injunction.
13. The 2nd defendant would submit that the present suit has been
filed during the subsistence of the suit O.S.No.100 of 2010 filed by
him. Further, he would contend that the sale in his favour has been
acted upon since all the original documents had been handed over to
him and therefore suit lacks substance and has to be dismissed.
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14. After the power agent had attempted to enter the suit property
to develop the same, the 2nd defendant had filed a suit O.S.No.1000 of
2008 on the file of the III Additional District Court, Puducherry which
was later transferred to the file of the II Additional District Court,
Puducherry and re-numbered as O.S.No.100 of 2010 for a bare
injunction and restraining the said Rajakumar Selvanathan from
interfering with their peaceful possession and enjoyment of the suit
property. The contents of this plaint is nothing but a repeat of the
written statement filed by the 2nd defendant in the suit O.S.No.126 of
2008.
15. The suits had been tried separately. The learned II Additional
District Judge, Puducherry, before whom both the suits were pending
had framed the following issues:
Issues framed in O.S.No.126 of 2008:
(i)Whether the suit is maintainable?
(ii)Whether there is any valid cause of action in the suit?
(iii))Whether the plaintiffs are entitled for declaration of title?
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(iv)Whether the sale deed dated 8.6.1995 is valid under law?
(v)Whether the plaintiffs are entitled for permanent injunction
against the defendants No.1 and 2?
(vi)Whether the plaintiffs are entitled for Judgement and Decree
as prayed for?
(vii)To what other relief the plaintiffs are entitled for?
Issues framed in O.S.No.100 of 2010:
(i)Whether the plaintiff is entitled to the relief of permanent
injunction as prayed for?
(ii)To what other relief the parties are entitled?
16. The 2nd plaintiff had adduced evidence as P.W1, the 1st
plaintiff as P.W.2 and the said Dr.Rajakumar Selvanathan, the power
agent as P.W.3. Ex.A.1 to Ex.A.17 were marked on the side of the
plaintiffs. The 2nd defendant had examined himself as D.W.1 and
marked Ex.B.1 to Ex.B.4 in suit O.S.No.126 of 2008.
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17. As regards the suit O.S.No.100 of 2010, the plaintiff therein
had examined himself as P.W.1 and marked Ex.A.1 to Ex.A.11.
Dr.Rajakumar Selvanathan had examined himself as D.W.1 and
marked Ex.B.1 and Ex.B.3.
18. The learned Judge on considering the evidence on record
dismissed the suit O.S.No.126 of 2008 and decreed the suit O.S.No.100
of 2010.
19. Challenging the said Judgement and Decree the plaintiffs in
O.S.No.126 of 2008 and the defendant in O.S.No.100 of 2010
Rajkumar Selvanathan are before this Court. The points that arise for
consideration in the above First Appeals are as follows:
(a)Whether the plaintiffs have given notice of the cancellation of
the power deed dated 08.05.1982 (Ex.A.2) to the 1st defendant?
(b)Whether the 2nd defendant is a bonafide purchaser for value?
(c)Whether the plaintiffs are in possession and enjoyment of the
property?
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20. Heard Mr.C.A.Diwakar, learned counsel appearing on behalf
of the appellants. The contention of the learned counsel is that under
Ex.A.5 the original power of Attorney, Ex.A.2 had been canceled
though there was no formal notice of cancellation. However, by
executing Ex.A.5 power once again in favour of the 1st defendant, the
1st defendant had come to learn about the cancellation of the power in
his favour. Despite such knowledge, he has proceeded to execute
Ex.A.6, sale deed in favour of the 2nd defendant.
21. The learned counsel would further argue that though the 2nd
defendant had purchased the property as early as in the year 1995, he
has not chosen to take possession of the same either by constructing
thereon or by mutating the revenue records in his name. On the
contrary, the plaintiffs continued to be in possession of the property.
He would further submit that they had come to know about the sale in
favour of the 2nd defendant only when attempts were made to clear the
suit property off the bushes and level it so as to make it habitable. It is
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his categoric case that a reading of the Power deed, Ex.A.2 = Ex.B.2
dated 08.05.1982 would clearly demonstrate that it does not cover the
suit property. The recitals therein would clearly show that the
permission to sell was given only in respect of the property then in
existence, which is evident from the recitals which is extracted herein
below:
“To sell without our permission and consent for
proper and adequate consideration any part of our
property to receive the price there of and to grant receipt
or affectual discharge for the same and to execute and sign
and get registered the sale deeds and other deeds
necessary to complete the sale.”
22. The learned counsel would therefore contend that the use of
the word “property” would clearly denote that it related only to
properties which were then in existence and not the property that was
to be acquired later. Admittedly, the learned counsel would submit that
the suit property had been purchased nearly 9 months after the
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execution of Ex.A.2, Power of Attorney and therefore by no stretch of
imagination can it be stated that Ex.A.2 also covers the suit property
purchased under Ex.A.3 on 19.11.1982.
23. The learned counsel would further submit that the execution
of the second Power of Attorney, Ex.A.5 would impliedly keep the 1st
defendant informed about the cancellation of the earlier power and
would constitute the knowledge as contemplated under Section 208 of
the Indian Contract Act. He would submit that the 2nd defendant who
had purchased the property from the power agent had failed to do his
due diligence since the power given in the favour of the 1 st defendant
was in the year 1982, whereas, the sale in favour of the 1st defendant
was in the year 1995, nearly 13 years later.
24. The learned counsel would submit that no steps have been
taken by the 2nd defendant to peruse the records at the Registrar's
Office, Puducherry, to verify as to whether Ex.A.2 power was still in
force or whether it had been canceled. Had such an inspection been
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undertaken, the 2nd defendant would have come to know about the
cancellation. The fact that such an inspection had not been done only
highlights the collusion between the 1st defendant and the 2nd defendant.
Further, the fact that the 2nd defendant had not taken any steps to take
possession of the property (which was vacant) till the year 2008 only
highlights the fact that the sale deeds were sham and nominal
documents and not acted upon.
25. The learned counsel would draw the attention of the Court to
the evidence of the 2nd defendant as P.W.1 in the suit O.S.No.100 of
2010, wherein he has stated as follows:
“jhth brhj;jpw;F Canaga Marie Neel Jean and
Motcha Marie Pushpam Mfpa ,UtUk;
cupikahsu;fs; vd;why; rupjhd;”
26. The learned counsel would submit that this is a categoric
admission on the side of the 2nd defendant to show that he had not taken
possession of the property. He would therefore submit that the Trial
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Court has totally misdirected itself into dismissing the suit filed by the
plaintiffs and decreeing the suit filed by the 2nd defendant. In support
of his contentions that the terms of the power of attorney has to be
strictly construed, the learned counsel would rely upon the Judgement
reported in 1979 (2) SCC 601 – Syed Abdul Khader Vs. Rami Reddy
And Others.
27. The learned counsel would submit that when the sale deed
was executed in favour of the 2nd defendant, the plaintiffs were very
much available at Puducherry. Despite this, the 2nd defendant has not
chosen to approach them to verify as to whether the power agent still
had the authority to execute the sale.
28. Per contra, Mr.A.R.L.Sundaresan, learned senior counsel
appearing on behalf of the 2nd defendant would submit that the
arguments put forward by the learned counsel for the plaintiffs that the
2nd defendant had not enquired with them about the right of the power
agent to execute the sale despite they being available in India is nothing
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but an afterthought. He would contend that even as per the pleadings
of the plaintiffs they had stated that they had come down to India only
in the year 2003 which is clear from a reading of paragraph no.5 of the
plaint. Therefore, the contention of the plaintiffs' counsel that the 2nd
defendant had not cross checked with the plaintiffs when he had
purchased the property is absolutely peurile.
29. The learned senior counsel would submit that the cancellation
of the power of attorney has not been properly communicated to the
power agent as envisaged under Section 208 of the Indian Contract
Act. He would further argue that termination of the agent's authority
comes into effect against the agent when he comes to know about it and
against the third parties before it becomes known to them. He would
argue that in the instant case there has been no manifest or overt
attempt to publicise the termination of the authority of the 1st defendant
either in the form of public notice or by any other mode. The 2 nd
defendant being a third party has been led to believe that the Power of
Attorney granted to the 1st defendant subsisted since he had not only
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produced the original Power of Attorney but also the entire documents
of title pertaining to the suit property from his custody.
30. The learned senior counsel would further submit that
although the plaintiffs would contend that they had canceled Power of
Attorney dated 08.05.1982, since the power agent was acting to the
detriment of the principals, they have within a few days of the
cancellation of the earlier deed executed a fresh power of attorney in
favour of the very same power agent. This would clearly disprove the
statement of the plaintiff that the power agent was acting against his
interest. Further, Ex.A.4 cancellation deed, does not make any mention
about the reasons for cancellation as stated at plaint. On the contrary,
the cancellation deed would only state that since the plaintiffs have
moved back to India and they would like to manage their properties by
themselves.
31. The learned senior counsel would therefore submit that in the
absence of the notice of revocation both to the power agent as well as
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third parties there is no valid cancellation and therefore the subsequent
sale deed executed by the power agent in favour of the 2nd defendant
was valid and binding on the plaintiffs. The production of the original
title deeds from the possession of the 2nd defendant is yet another
reason for disbelieving the case of the plaintiffs. He would therefore
submit that the well reasoned Judgement and Decree of the Trial Court
be confirmed.
32. He would also rely on the Judgement and Decree of the
Karnataka High Court reported in AIR 2001 KAR 141 – R.L.Pinto and
another Vs. F.F.Menzes and another, in support of his argument that
where the general Power of Attorney is granted, the right given to the
power agent to deal with the property would include not only the
property in existence but properties that are to be acquired in future, till
such time as the power is canceled in the manner known to law. In the
said Judgement the learned Judge has held as follows:
“11.In the case the general power of attorney
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relating to movable or immovable properties, the power of
attorney constituted will have the necessary legal power to
represent the principal and negotiate with the properties of
the principal which existed and belonged to the principal
as on the date of the power of attorney and any property
acquired by the principal subsequent thereto until the
power of attorney ceases or is revoked. However in case of
special power of attorney, the authority to represent and
act on behalf of the principal is limited to the extent
mentioned by the terms of the deed, whereas in general
power of attorney, no such limitations can be read into the
document. As long the general power of attorney legally
continues to subsist validly, the power of attorney will have
all the necessary authority to deal with all the properties
belonging to the principal without a distinction between
the property owned and acquired by the principal prior to
the power of attorney and subsequent thereto for
empowering the power of attorney to deal with them.”
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33. The learned senior counsel would also submit that the parties
have not filed any revenue documents since the suit property is a vacant
property. Therefore, once the title of the 2nd defendant is upheld,
possession would follow title and therefore his possession has to be
amply protected. Therefore, the decree for injunction granted by the II
Additional District Judge, in O.S.No.100 of 2010 shall be confirmed.
34. The learned senior counsel would also submit that the reason
for not impleading the plaintiffs in the suit O.S.No.100 of 2010 was on
account of the fact that the suit was one for bare injunction and the
same had to be filed against the person who was interfering with the
peaceful possession and enjoyment of the plaintiff and in the instant
case it was Dr.Rajakumar Selvanathan, who was interfering with the
possession and the suit had to be filed only against him.
Discussion:
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35. The main bone of contention between the parties is whether a
proper notice informing the power agent about the cancellation of the
power deed had been communicated. The plaintiff would concede that
no formal notice has been issued. However, the contention of the
plaintiffs is that though the notice has not been issued, the power agent
was aware about the cancellation since a fresh power of attorney,
Ex.A.5 has been given to him. This impliedly indicates that the earlier
power of attorney had been canceled. The said contention is refuted by
the 2nd defendant.
36. A perusal of Ex.A.5, Power of Attorney dated 23.11.1992,
which has been executed after the cancellation deed, Ex.A.4 does not
give any indication that the said document had been brought to the
notice of the 1st defendant, the power agent. The 1st defendant, power
agent is not a party to the said document and therefore unless the
plaintiffs specifically shows proof that when this power had been
entrusted to the 1st defendant, he was put on notice of the cancellation
of the earlier power, knowledge of the same cannot be imputed to the
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1st defendant. Ex.A.4 cancellation deed, therefore, admittedly, has not
been communicated to the 1st defendant. Section 206 of the Indian
Contract Act stipulates that reasonable notice of revocation or
renunciation has to be given to the agent. The revocation or
renunciation may be expressed or it can be implied in the conduct of
the principal or the agent respectively as contained in Section 207.
37. Section 208 of the Indian Contract Act provides that the
termination of the authority of agent takes effect only when it becomes
known to the agent and in so far as the third parties are concerned
before it becomes known to them. In the instant case, the revocation /
cancellation has been effected on 10.11.1992. The reason given for the
revocation is that the principals would themselves act upon the terms
given into general Power of Attorney earlier executed. This was
followed by another Power of Attorney executed on 23.11.1992 with
reference to a different property. After the execution of Ex.A.5 there
has been no other communication between the plaintiffs and the 1st
defendant, whereby, the cancellation and the subsequent power being
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granted to the 1st defendant has been made known to him.
38. Further, the plaintiffs on the cancellation of the Power of
Attorney has not taken steps to get back the documents. Even in the
plaint, the plaintiffs does not state as to how the 1st defendant had been
informed about the revocation of the power of attorney. In fact, a
reading of the plaint would indicate that the plaintiffs impute an
implied knowledge upon the 1st defendant about the cancellation.
Therefore, the first point for consideration is answered against the
plaintiffs.
39. Once it is seen that the notice of cancellation has not been
made known to the 1st defendant then the sale deed executed by him in
favour of the 2nd defendant under Ex.A.6 is done only on the basis of
the power granted to him by the plaintiffs and therefore the execution
of the same is valid. Further, the document of title have been handed
over to the 2nd defendant by the 1st defendant which is yet another proof
of the 1st defendant having the requisite authority to alienate the
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property.
40. Therefore, in the absence of the notice of cancellation of the
power by the plaintiffs, the power agent continues to hold the authority
to act as per terms of the agreement and therefore the sale deed, Ex.A.6
is a validly executed document. A perusal of Ex.A.2 = Ex.B.2 would
clearly indicate that the said deed is a general Power of Attorney in
which power has been granted to the power agent to sell any part of the
property belonging to the principals. Therefore, any property acquired
during the subsistence of the Power of Attorney would admittedly
come within the authority of the power agent.
41. Therefore, the suit property purchased subsequently, i.e.,
within 9 months from the execution of the Ex.A.2, would also come
within the administration and management of the power agent, the 1st
defendant as per terms and conditions in Ex.A.2. One of the conditions
is to sell the property of the principals i.e., plaintiffs.
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42. The Judgement and Decree of the Karnataka High Court
reported in AIR 2001 KAR 141 – R.L.Pinto and another Vs.
F.F.Menzes and another, clearly applies to the facts of the present
case. Therefore, taking into consideration the fact that the revocation
has not been informed to the power agent, the 1st defendant, the original
documents of title having been handed over by the power agent to the
2nd defendant on the date of the execution of the Ex.A.6 the 2nd
defendant is a bonafide purchaser for value. The second point for
consideration is answered in favour of the 2nd defendant.
43. The property in question is admittedly a vacant site and both
the parties have not filed any revenue document in support of their plea
of being in possession. The plaintiffs in their plaint would submit as
follows:
“The Power of Attorney was in possession and
enjoyment of the suit property and was looking after the
suit property.”
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44. Therefore, it is their contention that the power agent is in
possession since 2008. Be that as it may, once this Court has held that
the sale deed in favour of the 2nd defendant is validly executed the right
and title of the 2nd defendant to the property has been upheld. Being a
vacant property title follows possession. Therefore, it is held that the
2nd defendant is in possession of the suit property.
45. Therefore, on a conspectus of the above, I do not find any
merits in the First Appeals and consequently the two Appeals are
dismissed. Consequently, connected Miscellaneous Petitions are also
closed. However, there shall be no order as to costs.
30.09.2021
Index : Yes/No
Internet : Yes/No
kan
To
The II Additional District Judge, Puducherry .
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P.T. ASHA, J,
kan
A.S.Nos.46 & 91 of 2013
30.09.2021
https://www.mhc.tn.gov.in/judis
