THANKAMMA GEORGE Vs. LILLY THOMAS

JUDGEMENT

(1.) Thankamma George/Appellant, and Lilly Thomas/Respondent No. 1, are sisters, and the daughters of one late George. P.M. Thomas/Respondent No. 2 is the husband of Respondent No. 1. The Appellant filed O.S. No. 139 of 2011 dtd. 11/5/2011 before the Court of Senior Civil Judge, Pathanamthitta for the relief of declaration that the Appellant is the sole title holder of the suit schedule property and for recovery of possession from the Respondents. The Appellant prayed that she be declared as the exclusive and sole owner of one-half of the plaint schedule property, sale deed no. 345/2008 dtd. 16/4/2008 (Ex. A-5) of Enathu Sub-Registrar office as void ab initio, for consequential relief of perpetual injunction restraining the Respondents from alienating and from encumbering the suit schedule property in any manner. The frame of the suit is for more than one relief and the suit schedule consists of an extent of 8.47 ares (1013 sq. yds.) in Re-Sy. No. 216/6, Block No. 19 of Village Ezhamkulam. The suit schedule reads thus:

(2.) The Appellant and Respondent No. 1, on 16/1/1991, through sale deed no. 61/1991 purchased 11.50 ares of open plot from one Sivadasan Pillai. On 4/12/2003, the Appellant, since had been working abroad, executed Power of Attorney No. 44/2003 (Ex. A-4) concerning the property covered by the sale deed dtd. 16/1/1991, in favour of Respondent No. 1. The Power of Attorney authorized Respondent No. 1 to execute appropriate deeds, if necessary, sale deeds, and receive sale consideration for and on behalf of the Appellant. The Power of Attorney (Ex. A-4) creates the relationship of the principal and the agent between the Appellant and Respondent No. 1. Ex. A-4 recites that sale can be effected, subject to necessity and accounting for sale proceeds. On 18/1/2008, the Appellant and Respondent No. 1, contrary to the principal and agent relationship, executed a sale deed in favour of one Joemon and his wife. Thus, upon the sale of a portion of the open plot, the Appellant/Plaintiff retained an extent of 8.47 ares as described in the suit schedule. On 16/4/2008, Respondent No. 1, by way of sale, transferred the suit schedule in favour of her husband/Respondent No. 2 vide sale deed no. 345/2008 (Ex. A-5). On 26/2/2009, the Appellant filed a petition before the Taluk Legal Services Authority for redressal of the dispute, i.e., the alienation of the Appellant's half share in the suit schedule in favour of Respondent No. 2. The Appellant did not get any relief from the Legal Services Authority; hence, on 11/5/2011, the Appellant filed the Suit for the reliefs noted above.

(3.) The Appellant has resided abroad since 1966 and worked as a Nurse in Bahrain, the U.K. and the U.S.A.. She claims to have remained as a spinster. From the earnings as a Nurse, the Appellant has supported Respondent No. 1 in more than one sense. The plaint refers to a few circumstances claiming exclusive ownership of the property purchased through sale deed nos. 61 and 877 of 1991. We are not referring to these averments for the appeal, which is confined to the relief granted by the Trial Court, i.e., half share in the suit schedule property. Having regard to the Appellant working overseas, Respondent No. 1 was authorised to act as the Appellant's agent, depending upon necessity. Contrary to the Power of Attorney dtd. 4/12/2003 (Ex. A-4), the Appellant in her capacity as the owner of the property, sold an extent of 3.03 ares in favour of Joemon and his wife. Thereafter, Respondent No. 1, through Ex. A-5, i.e., sale deed dtd. 16/4/2008, sold the property retained by the sisters to Respondent No. 2. The Appellant averred that the agency granted was withdrawn when the Appellant joined in the execution of sale deed No. 59 of 2008 in favour of Joemon and his wife. Therefore, the sale deed dtd. 16/4/2008 (Ex. A-5), executed after implied revocation, is void ab initio. Ex. A5 was executed without, both, the Appellant's knowledge, and the transfer of sale consideration by Respondent No. 2 to Respondent No. 1; thus, no right or title to the extent of half share of the Appellant is created or transferred in favour of Respondent No. 2. The sale unsupported by consideration is illegal and void ab initio. The cause of action for filing the suit arose when the Appellant moved the Legal Services Authority on 26/2/2009. Knowledge of the execution of Ex. A-5 is stated to have been acquired about that time.