Madras High Court
Devi vs Tamilarasi on 4 June, 2025
2025:MHC:1256
S.A.No.102 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 29 / 10 / 2024
JUDGMENT PRONOUNCED ON : 04 / 06 / 2025
CORAM:
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A.NO.102 OF 2020
AND
CMP NO.2144 OF 2020
1.Devi
2.Sivashanmugham ... Appellants / Appellants /
Defendants
Vs.
1.Tamilarasi
2.Rajamanickam
3.Sakthivel
4.Hari Prasad
5.Vijayalakshmi ... Respondents / Respondents /
Plaintiffs
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908, praying to set aside the Judgment and Decree dated
April 16, 2019 made in A.S.No.64 of 2018 on the file of the Subordinate
Court, Ulundurpet, confirming the Judgment and Decree dated July 20,
2015 made in O.S.No.35 of 2010 on the file of the Principal District
Munsif, Ulundurpet.
For Appellants : Mr.R.Rajarajan
Page No.1 of 34
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
S.A.No.102 of 2020
For Respondents : Mr.E.K.Kumaresan
JUDGMENT
This Second Appeal is directed against the Judgment and
Decree dated April 16, 2019 passed in A.S.No.64 of 2018 by the
'Subordinate Court, Ulundurpet' ['First Appellate Court' for brevity],
whereby the Judgment and Decree dated July 20, 2015 passed in
O.S.No.35 of 2010 by the 'Principal District Munsif, Ulundurpet' ['Trial
Court' for brevity] was confirmed.
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
PLAINTIFFS' CASE
3. The Suit Properties are ancestral properties in which the
plaintiffs hold joint ownership rights. Due to family circumstances, the
plaintiffs were unable to personally manage the properties. Hence, on July
29, 2002 they executed a registered 'General Power of Attorney' ('G.P.A.'
for brevity) in favour of the second defendant, authorizing him to manage
the Suit Properties on their behalf. Acting as their agent under the said
G.P.A., the second defendant administered the properties. However, the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
second defendant fraudulently executed Sale Deeds dated July 30, 2003
and June 19, 2007 in favour of the first defendant in respect of Item Nos.1
and 2 of the Suit Properties respectively, that too without consideration,
behind the back of the plaintiffs, only with a view to defeat and defraud
the legitimate rights of the plaintiffs. This came to the knowledge of the
plaintiffs only on November 1, 2009. Upon learning the same, the
plaintiffs revoked the G.P.A. on November 10, 2009. Thereafter, the
plaintiffs approached the defendants and attempted to reclaim the
properties through mediation by community elders, but the defendants
refused. Consequently, the plaintiffs issued a legal notice on December
14, 2009, demanding return of the Suit Properties. The defendants, upon
receiving the notice on January 2, 2010, responded with a reply notice
denying the plaintiffs’ claims. Therefore, the plaintiffs filed the Original
Suit praying for a decree of declaration of title and recovery of
possession.
DEFENDANTS' CASE
4. The first defendant filed a written statement, which was
adopted by the second defendant. In the written statement, it is averred
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
that the Suit filed by the plaintiffs is legally unsustainable and liable to be
dismissed. It is averred that, the Suit Properties originally belonged to
Muthulingam and others, which were later allocated to Muthulingam
through a Family Partition as his share. Upon Muthulingam's demise, the
plaintiffs, as his legal heirs, took possession of the Suit Properties and
executed the registered G.P.A. in favour of the second defendant. At the
time of executing the G.P.A., the plaintiffs received consideration from
the second defendant in the presence of witnesses. Pursuant to the
authority granted under the G.P.A., the second defendant took possession
of the Suit Properties and subsequently sold them to the first defendant
through valid Sale Deeds for consideration. From then on, the first
defendant is enjoying the absolute ownership of the Suit Properties and
the plaintiffs no longer have ownership rights over the properties
following these transactions. Furthermore, the plaintiffs cannot
unilaterally revoke / cancel the G.P.A., without prior notice to the second
defendant. Alleged Revocation / Cancellation Deed is invalid and has no
legal validity. The plaintiffs have filed the present Suit with the ulterior
motive of gaining unjust enrichment and unlawful possession of the Suit
Properties. The first defendant, after purchasing the properties, mortgaged
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
them to third parties and invested significant sums for their development.
The plaintiffs, with an intention to harass the defendants, have instituted
the Suit. Hence, the defendants prayed for dismissal of the Suit.
TRIAL COURT
5. At trial, M.Sakthivel / third plaintiff was examined as
P.W.1 and Ex-A.1 to Ex-A.6 were marked on the side of the plaintiffs. The
second defendant was examined as D.W.1 and one Ramachandran was
examined as D.W.2 and Ex-B.1 to Ex-B.6 were marked on the side of the
defendants.
5.1. After full-fledged trial, the Trial Court held that the Ex-
A.1 – G.P.A. is a true and valid document; that the second defendant /
power agent, with a view to usurp the Suit Properties, acted against the
interest and rights of the plaintiffs and executed Ex-A.2 and Ex-A.3 - Sale
Deeds without any consideration and without the plaintiffs’ knowledge
and consent; and that, hence, Ex-A.2 and Ex-A.3 – Sale Deeds as well as
pursuant Ex-B.4 and Ex-B.5 – Pattas would not confer any right to the
defendants in the Suit Properties. Upon these findings, it concluded that
the plaintiffs are entitled to the relief of declaration and recovery of
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
possession. Accordingly, decreed the Suit as prayed for.
FIRST APPELLATE COURT
6. Feeling aggrieved, the defendants 1 and 2 preferred an
appeal before the First Appellate Court, which after hearing both sides,
concurred with the findings of the Trial Court, in addition held that the
plaintiffs are entitled to repudiate the Sale Deeds as per Section 215 of the
'Indian Contract Act, 1872' ['Contract Act' for short], and went on to
dismiss the appeal by confirming the Judgment and Decree of the Trial
Court.
SECOND APPEAL
7. Feeling aggrieved, both the defendants have preferred the
present Second Appeal under Section 100 of the Code of Civil Procedure,
1908. The Second Appeal was admitted on August 28, 2024 on the
following substantial questions of law:
"(a) Whether the Courts below are right in holding that the
revocation of G.P.A. Deed on 10.11.2009 by the Principal is
valid especially after the exercise of the power by the agent by
execution of two Sale Deeds dated 30.07.2003 and 19.06.2007
in favour of the 1st appellant / 1st defendant?
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
(b) Whether the Courts below had not failed to appreciate that the
remedy of the vendors / plaintiffs to seek for either
cancellation of the Sale Deeds or for redemption of accounts
from their power agent and not for suit for declaration and
recovery of possession?
(c) Whether the Courts below have properly understood the
application of Chapter X of the Indian Contract Act, especially
Section 215 of the Contract Act which is in respect of the
business of the agency?"
ARGUMENTS
8. Mr.R.Rajarajan, learned Counsel for the appellants /
defendants submitted that the Trial Court as well as the First Appellate
Court wrongly concluded that no consideration was passed under Ex-A.2
and Ex-A.3 - Sale Deeds. He further submitted that the plaintiffs did not
deny or challenge the execution of Ex-A.1 – G.P.A. Hence, the plaintiffs
are precluded from denying a part thereof. The Trial Court as well as First
Appellate Court concurrently held that Ex-A.1 – G.P.A. is true and valid.
Pursuant to Ex-A.1, Ex-A.2 and Ex-A.3 - Sale Deeds were executed in
favour of first defendant. Sale price was fixed and consideration was
passed on from the purchaser to the Power Agent i.e., from the first
defendant to the second defendant. There is no legal bar to execute a Sale
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
Deed in favour of first defendant, who is the wife of second defendant /
power holder.
8.1. He further submitted that in this case, Sale Price was
paid to the plaintiffs at the time of execution of G.P.A. Deed itself. The
said aspect has been proved by the defendants by examining D.W.2, who
is the witness to Ex-A.1. He further submitted that the plaintiffs did not
challenge Ex-A.1 - G.P.A. as well as Ex-A.2 and Ex-A.3 - Sale Deeds. In
the absence of prayer for setting aside the Sale Deeds, the declaration
sought for by the plaintiffs is not maintainable. Further submitted that,
assuming a moment that the power agent / second defendant did not pay
the sale price to the Principal / plaintiffs, the remedy available to the
plaintiffs as per the terms of Ex-A.1 - G.P.A., is to seek rendition of
accounts; merely because sale consideration was not passed on to
Principal (assumption), Sale Deed cannot be termed as invalid.
8.2. Further that, Ex-A.2 - Sale Deed was executed on July
30, 2003 and Ex-A.3 - Sale Deed was executed on June 19, 2007. The
Suit was filed on February 8, 2010. Hence, the Suit is barred by limitation
qua Ex-A.2 - Sale Deed as per Article 58 and 59 of the Limitation Act,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
1963. The Trial Court as well as the First Appellate Court did not consider
the above aspects and erred in decreeing the Suit. Their Judgment and
Decree are liable to be set aside. He relied on the following Judgments in
support of his submissions:
(i) Judgment of the Hon'ble Supreme Court in Vishwambhar Vs.
Laxminarayan (Dead) through LRs reported in (2001) 6 SCC
163;
(ii) Judgment of the Hon'ble Supreme Court in Murugan Vs.
Kesava Gounder (Dead) thr LRs reported in (2019) 20 SCC
633;
(iii) Judgment of the Hon'ble Supreme Court in Dahiben Vs.
Arvindbhai Kalyanji Bhanusali (Gajra) (D) thr LRs reported
in (2020) 7 SCC 366.
9. In response to the above arguments, Mr.E.K.Kumaresan,
learned Counsel for the respondents / plaintiffs contended that Ex-A.1 -
G.P.A. was executed only for the purpose of maintaining the Suit
Properties and not for selling out the same. He drew attention of this
Court to the evidence of P.W.1 and D.W.1 to contend that the plaintiffs
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
and the defendants are close relatives; second defendant is the brother of
the first plaintiff as well as maternal uncle of Plaintiff Nos.2 to 5. The first
plaintiff's husband passed away. Hence, out of good faith and trust,
plaintiffs executed Ex-A.1 - G.P.A. in favour of the second defendant only
for the purpose of managing the property. However, in Ex-A.1, routine
recitals have been written, which do not reflect the true intention of the
parties. Further, no consideration was given by the second defendant at
the time of execution of Ex-A.1 to the plaintiffs. Further he argued that
the burden of proof that consideration was passed on to the Principal lies
upon the defendants. Further, the Sale Deeds were executed in favour of
the first defendant, who is none other than the wife of the second
defendant, collusively only with a view to defeat and defraud the rights of
the Principal and no consideration was passed under Ex-A.2 and Ex-A.3 -
Sale Deeds. The second defendant acted on his own account without the
knowledge of the Principal / plaintiffs and executed the Sale Deed in
favour his wife. There are sufficient pleadings and evidence in this regard.
Since there was no consideration, Ex-A.2 and Ex-A.3 - Sale Deeds are
void. Hence, the Suit for declaration and recovery of possession is
maintainable. The Trial Court and the First Appellate Court rightly
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
decreed the Suit in favour of plaintiffs. There is no reason to interfere
with the same. In support of his contention, he relied on the following
Judgments:
(i) Judgment of the Hon'ble Supreme Court in Suraj Lamp and
Industries Private Limited Vs. State of Haryana, reported in
(2012) 1 SCC 656;
(ii) Judgment of the Hon'ble Supreme Court in State of Rajasthan
Vs. Basant Nahata, reported in (2005) 12 SCC 77;
(iii) Judgment of the Hon'ble Supreme Court in Bhatori (Smt) Vs.
Ram Piari (Smt), reported in (1996) 11 SCC 655; and
(iv) Judgment of the Hon'ble Supreme Court in Kewal Krishan Vs.
Rajesh Kumar, reported in 2021 SCC OnLine SC 1097;
(v) Judgment of the Hon'ble Supreme Court in Suhrid Singh Alias
Sardool Singh Vs. Randhir Singh, reported in (2010) 12 SCC
112;
(vi) Judgment of Karnataka High Court in Sri U.Vijaya Kumar Vs.
Smt. Malini V. Rao, reported in 2016 SCC OnLine Kar 2128.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
DISCUSSION
10. Heard on either side and perused the entire evidence
available on record.
Substantial Question of Law (a)
11. The plaintiffs admitted the execution of Ex-A.1 - G.P.A.
P.W.1 / third plaintiff has categorically admitted the execution of Ex-A.1
in his chief as well as cross examination. The case of the plaintiffs is that
Ex-A.1 - G.P.A. was intended only for the purpose of maintaining the Suit
Properties and not for selling the same. This Court has perused Ex-A.1.
Ex-A.1 was stamped and registered duly in accordance with the Indian
Stamp Act, 1899 as well as the Registration Act, 1908. In Ex-A.1, it has
been specifically and clearly recited that under Ex-A.1, the Principal
confers power to the Agent to execute the Sale Deed in favour of any third
person and further recited that the Agent shall maintain accounts and hand
over the same whenever the Principal demands. The relevant extract is
hereunder:
“. . . brhj;J tpguj;jpy; fz;l brhj;Jf;fis
eh';fs; tpw;gid bra;a Kot[
bra;jpUf;fpnwhk;. eh';fs; ,Ue;J tpw;gid
bra;a v';fSf;F rhj;jpak; ,y;yhj
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
fhuzj;jhy; eh';fs; j';fis v';fsJ
bghJ mjpfhu Kftuhf epakdk; bra;J
j';fSf;F ,e;j bghJ mjpfhu gj;jpuj;ij
vGjpf;bfhLj;jpUf;fpnwhk;. ,jd;go brhj;J
tpguj;jpy; fz;l brhj;Jf;fis xUtUf;nfh
gyUf;nfh bkhj;jkhfnth jdpj;jdp
kidg;gphpt[fshfnth fpuak; ngrp
fpuaj;bjhif eph;zak; bra;J bfhs;st[k;
Kd;gzk; bgw;Wf; bfhs;st[k; fPH;f;fz;l
mjpfhuj;jpd;go v';fsJ bghJ mjpfhu
Kftuhf j';fis epakpj;Js;nshk;.
1.brhj;J tpguj;jpy; fz;l
brhj;Jf;fis xUtUf;nfh gyUf;nfh
bkhj;jkhfnth jdpj;jdp kid
gphpt[fshfnth fpuak; ngrp fpuaj;bjhif
eph;zak; bra;J bfhs;st[k; Kd;gzk;
bgw;Wf; bfhs;st[k; j';fSf;F ,jd; \yk;
mjpfhukspf;fpnwhk;.
2.fpuak; bgWgth;fsplk; fpuag;gj;jpuk;
vGjptur;bra;J mJ rk;ge;jg;gl;l
gj;jpugjpt[ mYtyf';fspy; v';fsJ bghJ
mjpfhu Kfth; vd;w Kiwapy; ifbahg;gk;
bra;J gj;jpuj;ij rhh; gjpthsh;
mYtyfj;jpnyh khtl;l gjpthsh;
mYtyfj;jpnyh brd;W jhf;fy; bra;J
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
fpuaj; bjhifapid nehpnyh my;yJ
rhh;gjpthsh; Kd;dpiyapnyh buhf;fk;
bgw;Wf;bfhs;st[k;. gjpt[ rk;ke;jkhd
bfhLf;f ntz;oa eKdhf;fspy; v';fsJ
bghJ mjpfhu Kfth; vd;w Kiwapy;
jh';fns ifbahg;gk; bra;J mJ
rk;ke;jkhf midj;J eltof;iffis bra;J
bfhLf;f j';fSf;F ,jd; \yk;
mjpfhukspf;fpnwhk;.
3.fPH;fz;l brhj;Jfs; rk;ke;jkhd
gjpt[ tifapYk; kw;Wk; rptpy; fphpkpdy;
tHf;Ffis elj;jt[k; mJ rk;ke;jkhf
midj;J fhhpa';fis bra;at[k; ,jd; \yk;
j';fSf;F mjpfhukspf;fpnwhk;.
4.nkYk; bghJ fhhpaj;jpw;fhf jhd
brl;oy;bkz;L gj;jpu';fs; vGjp
ifbahg;gkpl;L gjpt[ bra;J rk;ke;jg;gl;l
fpuhk g";;rhaj;J mYtyfj;jpy;
xg;gilf;ft[k; ,jd;\yk; j';fSf;F
mjpfhuk; mspf;fpnwhk;. brhj;J tpw;gid
rk;ke;jg;gl;l Mtz';fspy; ifbahg;gk;
bra;at[k; kw;Wk; ,ju muR mYtyf';fspy;
,e;j brhj;J rk;ke;jkhf jh';fs; bra;a[k;
tpw;gid kw;Wk; midj;J fhhpa';fisa[k;
eh';fns nehpy; ,Ue;J bra;jjhf
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
xg;g[f;bfhs;fpnwhk;. ,jd; tut[ bryt[
fzf;Ffis jh';fs; guhkhpj;J te;J
eh';fs; nfhUk;nghJ chpa bjhifa[ld;
v';fsplk; xg;gilf;f ntz;oaJ. ,jd;go
eh';fs; rk;kjpj;J vGjpf;bfhLj;j bghJ
mjpfhugj;jpuk;. . . . ”
11.1.The above recitals, in an unequivocal manner, express
the intention of the parties to sell the Suit Properties. The G.P.A. was
executed to sell the Suit Properties. Moreover, the plaintiffs did not
challenge the execution of Ex-A.1. In these circumstances, no doubt that
the plaintiffs are precluded from denying a portion of Ex-A.1 alone as
well as from taking a stand contrary to the recitals contained in Ex-A.1.
12. Pursuant to the execution of Ex-A.1 - G.P.A., the second
defendant, who is the Power Agent, executed two Sale Deeds dated July
30, 2003 and dated June 19, 2007; former in respect of Item No.1 of Suit
Properties and latter in respect of second item of Suit Properties, both in
favour of the first defendant who is none other than the wife of second
defendant. Thereafter, the plaintiffs cancelled Ex-A.1 – G.P.A., vide Ex-
A.4 - Cancellation Deed dated November 10, 2009. Since the Sale Deeds
were executed on July 30, 2003 and June 19, 2007 in pursuance of Ex-
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
A.1, revocation thereafter has no effect in law, in the absence of challenge
to Ex-A.1. The Trial Court as well as the First Appellate Court were not
right in holding that revocation of GPA was valid. Substantial Question
of Law (a) is answered accordingly in favour of the defendants and
against the plaintiffs.
Substantial Questions of Law (b) & (c)
13. As already stated, the execution of Ex-A.1 - G.P.A. is
admitted. The case of the defendants is that on the date of execution of
G.P.A. itself, a sum of Rs.5,25,000/- was paid to the plaintiffs. But the
said fact has not been proved by the defendants. Both the Courts
concurrently held that no consideration was passed on under Ex-A.1 to
the plaintiffs. If really the entire consideration was passed on the date of
execution of Ex-A.1 itself as contended by the defendants, they could
have obtained a Sale Deed in respect of the Suit Properties straight away
from the plaintiffs. There would have been no necessity to obtain Ex-A.1 -
G.P.A. Further, Ex-A.1 contains no recital supporting the defendants’
contention regarding passing of consideration under Ex-A.1. Further, the
defendants have not adduced any receipts or other evidence in support of
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
their contentions in this regard. Moreover, as per the Indian Stamp Act,
1899, when a G.P.A. is executed for consideration, it shall be stamped as
per Article 48 (e) of the said Act. However, Ex-A.1 - G.P.A. is stamped for
Rs.100/- i.e., it is not stamped in accordance with the Article 48(e). It
could only mean that there was no consideration under Ex-A.1 and it is
nothing more than a G.P.A., especially in the absence of recitals or
receipts in this regard. Hence, the argument that Rs.5,25,000/- was paid to
the plaintiffs on the date of execution of Ex-A.1 itself does not hold up
under scrutiny.
14. Be that as it may, pursuant to the execution of Ex-A.1 -
G.P.A., Ex-A.2 and Ex-A.3 - Sale Deeds were executed in favour of the
first defendant by the second defendant. First defendant is none other than
the wife of second defendant. Case of the plaintiffs is that the Sale Deeds
were executed collusively without any consideration behind the plaintiffs’
back only with a view to defeat and defraud their legitimate rights over
the Suit Properties. If it is so, the burden is upon the plaintiffs to plead
and prove the same. In this case, there is no evidence available on record
to support the contention of the plaintiffs that the Sale Deeds were
executed collusively without any consideration. On the other hand, on
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
perusal of Ex-A.2 and Ex-A.3 – Sale Deeds, it is seen that both the Sale
Deeds record that sale consideration thereunder were paid by the first
defendant to the second defendant in cash. Even while assuming that the
sale consideration is inadequate, that alone is not sufficient to render the
Sale Deeds invalid. At this juncture, the learned Counsel for the
respondents / plaintiffs would contend that the first defendant / vendee,
who is the competent witness, has not been examined on the side of the
defendants to prove the passing of consideration under Ex-A.2 and Ex-
A.3 - Sale Deeds. Since the plaintiffs failed to challenge the Sale Deeds
and seek relief to set aside / cancel them in the plaint prayer, as well as in
view of the positive recitals contained in the Sale Deeds regarding
passing of consideration, this Court is of the view that the contention of
the learned Counsel for the plaintiffs loses its significance. Hence, this
Court is of the view that consideration was passed to the Power Agent /
second defendant under Ex-A.2 and Ex-A.3 – Sale Deeds.
15. The First Appellate Court citing Section 215 of the
Contract Act, held that if the Agent / second defendant executed Sale
Deeds on his own account without prior notice or knowledge of the
Principal / plaintiffs, the plaintiffs have every right to repudiate the same.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
There is no quarrel with the legal position. In this case, the Sale Deeds
were executed duly under the power given under Ex-A.1. It is to be noted
that the transaction under the Sale Deeds are voidable ones and there is no
prayer for setting aside the Sale Deeds. The transactions being voidable
ones, the Sale Deeds, which are still in the books of records, hold good,
unless they are set aside. No doubt that, as far as Indian Law is concerned,
in general, spouses are separate legal persons and there is no legal barrier
against a power agent executing Sale Deed in favour of his/her spouse. As
elaborated above, Ex-A.4 – Cancellation Deed has no effect on the
execution of Ex-A.2 and Ex-A.3 - Sale Deeds. In these circumstances, this
Court is of the considered view that, Ex-A.2 and Ex-A.3 – Sale Deeds are
valid documents executed for consideration and confer rights upon the
first defendant over the Suit Properties. Thus, in the absence of prayer for
setting aside / cancelling Ex-A.2 and Ex-A.3 - Sale Deeds, the Suit for
declaration and recovery of possession is not maintainable. In case, the
Agent / second defendant did not pass on the Sale Consideration to the
Principal / plaintiffs, the remedy available to them is to file a Suit for
rendition of accounts and for recovery of money.
16. The Judgment relied on by the learned Counsel for the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
respondents in Sri U.Vijaya Kumar's Case (cited supra) is not applicable
to the facts and circumstances of present case for the reason that in that
case, the plaintiff therein challenged the Sale Deed dated February 17,
2009 in respect of 'B' Schedule Property thereof executed by the first
defendant therein as G.P.A. holder of plaintiff therein. In this case, as
already stated, the plaintiffs did not challenge Ex-A.2 and Ex-A.3 Sale
Deeds. Thus, the said Judgment is distinguishable and not applicable to
the facts and circumstances of the case on hand.
17. In the Judgment in Suhrid Singh's Case (cited supra)
relied on by the learned Counsel for the respondents, it has been observed
by the Hon'ble Supreme Court, while explaining Section 7(iv)(c), (v) and
Schedule II Article 17(iii) of the Court Fees Act, 1870 (As amended in
State of Punjab), as follows:
'7.Where the executant of a deed wants it to be
annulled, he has to seek cancellation of the deed. But if a non-
executant seeks annulment of a deed, he has to seek a
declaration that the deed is invalid, or non est, or illegal or
that it is not binding on him. The difference between a prayer
for cancellation and declaration in regard to a deed of transfer
/ conveyance, can be brought out by the following illustration
relating to A and B, two brothers. A executes a sale deed in
favour of C. Subsequently A wants to avoid the sale. A has to
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
sue for cancellation of the deed. On the other hand, if B, who is
not the executant of the deed, wants to avoid it, he has to sue
for a declaration that the deed executed by A is invalid/void
and non est / illegal and he is not bound by it. In essence both
may be suing to have the deed set aside or declared as non-
binding. But the form is different and court fee is also different.
If A, the executant of the deed, seeks cancellation of the deed,
has has to pay ad valorem court fee on the consideration stated
in the sale deed. If B, who is a non-executant, is in possession
and sues for a declaration that the deed is null or void and
does not bind him or his share, he has to merely pay a fixed
court fee of Rs.19.50 under Article 17(iii) of the Second
Schedule of the Act. But if B, a non-executant, is not in
possession, and he seeks not only a declaration that the sale
deed is invalid, but also the consequential relief of possession,
he has to pay an ad valorem court fee as provided under
Section 7(iv)(c) of the Act.'
17.1. Acts of the Power Agent are deemed to be that of the
Principal. In this case, Ex-A.2 and Ex-A.3 – Sale Deeds were executed
under the power given by Ex-A.1 before it was revoked. Hence, the Sale
Deeds are deemed to be executed by the plaintiffs and hence, they cannot
be termed as non-executants. The plaintiffs being executants, as per the
legal position put forth in Suhrid Singh's Case, ought to have sought for
setting aside / cancellation of the Sale Deeds by paying necessary Court
Fee, as per Tamil Nadu Court Fees and Suits Valuation Act, 1955. But
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
they have failed to do so. Hence, Suhrid Singh's Case does not come to
the aid of the plaintiffs.
18. In Suraj Lamp's Case (cited supra) relied on by the
learned Counsel for the respondents, the Hon'ble Supreme Court held that
Sale Agreement / General Power of Attorney / Living Will transaction
does not convey any title nor create any interest in an immovable
property. There is no dispute with regard to the legal position stated in the
said Judgment, but it does not aid the plaintiffs’ case.
19. In so far as the Judgment relied on by the learned Counsel
for the respondents in Basant Nahata's Case (cited supra) is concerned,
constitutionality of Section 22-A of the Registration Act, 1908 as
amended by the State of Rajasthan as well as the Notification issued in
terms thereof was challenged. This Court is of the view that the case law
is not applicable to the facts and circumstances of the case on hand.
Further, in Bhatori's Case relied on by him, fraud was established and the
Supreme Court held that fraud unravels the contract rendering it void. In
the case on hand, the plaintiffs have failed to establish a case of fraud and
hence, that case is not applicable to the case on hand.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
20.In the Judgment relied on by the learned Counsel for the
respondents in Kewal Krishan's Case (cited supra), the Hon'ble Supreme
Court has held that sale of immovable property has to be for sale price.
The facts of the case have been captured in Paragraph Nos.2 to 4 and
reads as follows:
“2.The appellant Kewal Krishan and his elder brother
(one of the respondents) Sudarshan Kumar acquired the
properties which are the subject matter of these appeals (for
short “the suit properties”) under the sale deeds dated 12th
August 1976 and 19th October 1976.
3.The appellant Kewal Krishan executed a power of
attorney in favour of Sudarshan Kumar on 28th March 1980.
Acting on the basis of the said power of attorney, two sale
deeds were executed by Sudarshan Kumar on 10th April 1981.
The first sale deed was executed by him by which he purported
to sell a part of the suit properties to his minor sons. The sale
consideration was shown as Rs.5,500/-. The other sale deed
was executed by Sudarshan Kumar in favour of his wife in
respect of remaining part of the suit properties. The
consideration shown in the sale deed was of Rs.6,875/-. The
respondents are Sudarshan Kumar, his wife and his sons.
4.Two separate suits were instituted by the appellant on
10th May 1983. One was against Sudarshan Kumar and his two
sons and the other one was against Sudarshan Kumar and his
wife. Both the suits, as originally filed, were for injunction
restraining the defendants from interfering with the possession
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
of the appellant and from alienating the share of the appellant
in the suit properties. In the alternative, a prayer was made for
passing a decree for possession. On 23rd November, 1985, the
plaint in both the suits was amended by incorporating the relief
of declaration that the power of attorney and sale deeds were
null and void. A prayer was also incorporated for a money
decree for the share of the appellant in the compensation
awarded in respect of a tube well on the suit properties.”
20.1.While dealing with the above facts, the Hon'ble
Supreme Court, in Paragraph Nos.16 and 17 of the Judgment, held as
follows:
“16.Section 54 of the Transfer of Property Act, 1882
(for short “the TP Act”) reads thus:
“54.“Sale” defined.—“Sale” is a transfer of
ownership in exchange for a price paid or promised
or part-paid and part-promised.
Sale how made.—Such transfer, in the case of
tangible immoveable property of the value of one
hundred rupees and upwards, or in the case of a
reversion or other intangible thing, can be made
only by a registered instrument.
In the case of tangible immoveable property of a
value less than one hundred rupees, such transfer
may be made either by a registered instrument or by
delivery of the property.
Delivery of tangible immoveable property takes
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
place when the seller places the buyer, or such
person as he directs, in possession of the property.
Contract for sale.—A contract for the sale of
immoveable property is a contract that a sale of
such property shall take place on terms settled
between the parties.
It does not, of itself, create any interest in or charge
on such property.”
17.Hence, a sale of an immovable property has to be
for a price. The price may be payable in future. It may be
partly paid and the remaining part can be made payable in
future. The payment of price is an essential part of a sale
covered by section 54 of the TP Act. If a sale deed in respect of
an immovable property is executed without payment of price
and if it does not provide for the payment of price at a future
date, it is not a sale at all in the eyes of law. It is of no legal
effect. Therefore, such a sale will be void. It will not effect the
transfer of the immovable property.”
20.2.In the aforesaid case law, the plaintiff therein challenged
the G.P.A. and the pursuant Sale Deeds. Coming to the case on hand, as
stated supra, the plaintiffs failed to pray for cancellation of / setting aside
Ex-A.2 and Ex-A.3 – Sale Deeds. Unless they are set aside / cancelled,
law presumes that they are executed for valid consideration. Hence, the
above Judgment is distinguishable on facts and not applicable to the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
present case.
21.Therefore, as stated supra, Ex-A.2 and Ex-A.3 - Sale
Deeds are valid unless set aside / cancelled, and in these circumstances,
the remedy available to the plaintiffs is to seek rendition of accounts and
for recovery of money, and not for declaration and recovery of possession.
The Trial Court as well as the First Appellate Court failed to appreciate
the said aspect in the right manner. Substantial Question of Law (b) is
answered accordingly, in favour of the defendants and against the
plaintiffs.
22. Further, the First Appellate Court having properly
appreciated Chapter X of the Contract Act, failed to consider the facts and
circumstances of the case in the right perspective and wrongly applied the
provisions of the Contract Act. It did not consider the fact that the
plaintiffs ought to have challenged Ex-A.2 and Ex-A.3 – Sale Deeds to
repudiate the transactions thereunder. The findings of the First Appellate
Court that as per Section 215 of the Contract Act, Ex-A.2 and Ex-A.3 are
void is not justifiable, for they are only voidable at the instance of the
plaintiffs, and the plaintiffs have not sought for cancellation of Ex-A.2
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
and Ex-A.3 or declaration to that effect by paying necessary Court Fees.
Substantial Question of Law (c) is answered accordingly, in favour of
the defendants and against the plaintiffs.
23. As already stated, the remedy available to the plaintiffs is
rendition of accounts. In this case, the Suit Item No.1 was alienated in the
year 2003 under Ex-A.2 – Sale Deed and Suit Item No.2 was alienated in
the year 2007 under Ex-A.3 – Sale Deed. There is no evidence available
on record to show that the Power Agent / second defendant made any
improvements or developments to the Suit Properties. Further, the
defendants did not furnish any accounts in the Suit also. From the
evidence available on records, it could only be said that he transferred the
Suit Properties as such to the first defendant without making any
improvement or development. In these circumstances, with a view to
avoid multiplicity of proceedings and in the interest of justice, this Court
is of the view that it is not necessary to file a fresh Suit for rendition of
accounts. D.W.1 in his evidence has stated that a sum of Rs.5,000/- per
Cent was agreed as Sale Price for Item No.1 of Suit Properties and a sum
of Rs.60/- per Square Feet was agreed as sale price for Item No.2 of Suit
Properties. It is relevant to extract the cross examination of D.W.1
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
hereunder:
‘. . . fpiuak; ngrpa fhyj;jpy; tHf;F
brhj;Jf;fSf;F tHf;F 2tJ mapl;l brhj;jpw;F
rJuo +.60/-k;/ 1tJ mapl;lk; epykhf cs;sjhy;
bkhj;jkhf re;ij kjpg;ghf +.5000/-k; fzf;fpl;L
fpiuaj;bjhif ngrg;gl;lJ. bghJthf fpiuak;
bgWgth;fs; jhd; gj;jpu bryit
Vw;Wf;bfhs;thh;fs; vd;why; rhpjhd;. tHf;F 1tJ
mapl;l brhj;J epykhf cs;sjhy; mjd; re;ij
kjpg;ghd +.5000/-k; vd;id bghWj;j tiu bghpa
bryt[ fpilahJ vd;why; rhpjhd;. ehd;
Twpa[s;sgo 1tJ mapl;l brhj;jpw;F fpiuank
ngrp fpiuag;gj;jpuk; gjpt[ bra;jpUf;fyhk;
vd;why; rhpjhd;. vd;Dila vjph; tHf;Fiuapnyh
Kjy; tprhuiz thf;F\yj;jpnyh tHf;F
brhj;Jf;fs; fpiuakhf ngrpKof;fg;gl;L ,uz;L
jtizfshf +.525000/-k; brYj;jpndd; vd;Wk;/
gj;jpu bryit Fiwg;gjw;fhf bghJ mjpfhu
gj;jpuk; vGjpf;bfhz;nlhk; vd;w tptuj;ij
Twtpy;iy vd;why; rhpjhd;. tHf;F 2tJ brhj;J
rh;nt vz;zpy; 51 brd;l; nghf kPjpa[s;s
epyj;jpy; thjpfs; kid gphpt[fshf gphpj;J
fpiuak; bra;J bfhLj;jpUf;fpwhh;fs; vd;why;
rhpjhd;. 2002-k; Mz;L tHf;fpd; ,uz;L mapl;l
brhj;jpw;F mUfpy; cs;s kidgphpt[ xd;W
ruhrhpahf +.20000/-k; vd;W kjpg;gpl;L ntW
egh;fSf;F fpiuak; bra;J bfhLj;jpUf;fpwhh;fs;. .
. .’
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
(emphasis supplied by this Court)
23.1. D.W.1 / second defendant has admitted that, at the time
of sale negotiation, the market value of Item No.1 of the Suit Properties is
Rs.5,000/- per Cent and that of the Item No.2 is Rs.60 per sq. ft. Needless
to mention that it is the duty of the Power Agent / second defendant to sell
the Suit Properties not less than the market value and in a manner
advantageous to the Principal.
23.2. If this Court calculates the Sale Price based on the
candid admission made by D.W.1, the sale consideration for Item No.1 of
the Suit Properties (Ex-A.2 – Sale Deed) would be:
Rs.5,000/- [per Cent]
(X) 107 Cents
--------------------------------
Rs.5,35,000/-
--------------------------------
23.3. And the sale consideration for Item No.2 of the Suit
Properties (Ex-A.3 – Sale Deed) would be:
Rs.60/- [per Sq. ft.]
(X) 22236 sq. ft. (51 Cents)
--------------------------------
Rs.13,34,160/-
--------------------------------
23.4. Hence, the defendants are liable to pay a total sum of
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
Rs.18,69,160/- to the plaintiffs. Needless to mention that the said amount
is a statutory charge under Section 55 (4) (b) of the Transfer of Property
Act, 1882. With a view to avoid multiplicity of proceedings and in the
interest of justice, by invoking the Plaint prayer (d) i.e., residuary item of
the prayer, this Court directs the appellants / defendants to pay the
aforesaid amount as sale considerations along with simple interest at the
rate of 9% per annum from the date of execution of Ex-A.2 and Ex-A.3 -
Sale Deeds respectively till the date of realisation.
24. No quarrel with the case laws relied on by the learned
Counsel for the appellants / defendants.
RESULT
25. Resultantly, the Second Appeal is partly allowed and a
Money Decree is passed in the following terms:
(a) The plaintiffs are not entitled to the relief of declaration,
recovery of possession and mesne profits. Accordingly,
prayers (a) and (b) of the plaint are dismissed;
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
(b) The defendants shall pay the sale considerations of
Rs.5,35,000/- and Rs.13,34,160/- along with simple interest
at the rate of 9% per annum from the date of execution of Ex-
A.2 and Ex-A.3 - Sale Deeds respectively till the date of
realisation to the plaintiffs;
(c) The defendants shall pay the aforesaid amounts of
Rs.5,35,000/- and Rs.13,34,160/- along with interest as stated
supra within a period of three months from the date of receipt
of a copy of this Judgment;
(d) Charge is created over the Suit Properties under Section
55(4)(b) of the Transfer of Property Act, 1882 enabling the
plaintiff to realise the aforesaid amounts of Rs.5,35,000/- and
Rs.13,34,160/-along with respective interests;
(e) The plaintiffs are directed to pay the necessary Court Fee of
Rs.1,52,291/- under Section 35 read with Article 1 of
Schedule 1 of the Tamil Nadu Court-Fee and Suits Valuation
Act, 1955, within 30 days from the date of receipt of a copy
of this Judgment;
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
(f) Considering the facts and circumstances of the case, the
parties shall bear their own costs throughout the proceedings;
(g) Registry is to draw the Decree in the above terms;
(h) Consequently, connected Civil Miscellaneous Petition is
closed.
04 / 06 / 2025
Index : Yes / No
Speaking Order : Yes / No
Neutral Citation : Yes / No
TK
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
To
1.The Subordinate Judge
Subordinate Court
Ulundurpet.
2.The Principal District Munsif
Ulundurpet.
3.The V.R. Section
Madras High Court
Madras.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
R. SAKTHIVEL, J.
TK
PRE-DELIVERY JUDGMENT MADE IN
S.A.NO.102 OF 2020
04 / 06 / 2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:56:10 pm )
