THARAMMEL PEETHAMBARAN Vs. T. USHAKRISHNAN

JUDGEMENT

(1.) Leave granted.

(2.) The appeal is at the instance of the 1st and 2nd Defendants in O.S No. 197 of 2013 before the Senior Civil Judge, Kozhikode. The 1st Respondent filed OS No. 197 of 2013 for declaration, perpetual injunction, and damages for use and occupation. The Plaintiff is admittedly the owner of the Plaint ASchedule consisting of three items of immovable property. A few household items are mentioned in Plaint B-Schedule. The Plaintiff is the 1st Defendant 's sister. The Plaintiff resides in Mumbai, and the 1st Defendant resides in Kozhikode. The 1st defendant is the brother-in-law of the 2nd and 3rd Defendants. Stated chronologically, on 31/7/1998, the Plaintiff is said to have executed a Power of Attorney ("PoA") in favour of the 1st defendant. The PoA is exhibited by the Plaintiff as Exhibit A-4 and by the Defendants as Exhibit B-2, a notarised photocopy. On 15/3/2007, the 1st Defendant, in the purported authority given to him through the PoA/Exh. B-2, executed registered sale deeds nos. 262 and 263 of 2007 in favour of the 2nd and 3rd Defendants. The Plaintiff, having come to know of the sale in favour of the 2nd and 3rd Defendants, through the lawyer 's notice dtd. 20/4/2007, cancelled the PoA. The 1st Defendant refers to a receipt dtd. 23/4/2007, said to have been executed by the Plaintiff, acknowledging the receipt of Rs.6,00,000.00, forming part of the sale consideration under the sale deeds dtd. 15/3/2007. The 1st Defendant issued a reply notice dtd. 5/5/2007 to the Plaintiff 's legal notice dtd. 20/4/2007. In this background, O.S No. 597 of 2007 was filed before the Munsiff Court I, Kozhikode, renumbered as OS No. 197 of 2013 before the Senior Civil Judge, Kozhikode. The pleadings on both sides are considered in detail by the impugned judgment. Reference to pleadings as are necessary for disposing of the appeals is made in the Judgment. The Plaintiff claims title to item nos. 1 and 2 of the Plaint A-Schedule through the assignment deed dtd. 31/7/1998. Item no. 3 of the Plaint A-Schedule is claimed through the Partition Deed no. 317 of 1998.

(3.) The Plaintiff avers that the 1st Defendant has sent a draft PoA dtd. 31/7/1998/Exh. A-3 by post to her address in Mumbai for the execution of the PoA. Exh. A-3 is a general power of attorney. The Plaintiff, not interested in granting general power to the 1st Defendant to deal with the Plaint ASchedule, has scored out the clauses dealing with the power to mortgage, alienate, etc in Exh. A-3. The Plaintiff admits execution of the PoA, i.e. Exh. A-4, which grants specific power and not general power to alienate the plaint schedule properties. The Plaintiff states that the PoA/Exh. B-2, relied on by the defendant, is a sham and fudged document. Therefore, by referring to a fudged PoA, execution of assignment deed nos. 262 and 263 of 2007 is illegal, unenforceable and not binding on the Plaintiff. The agent exceeded the authority given to him and the sale deeds do not bind the principal. In other words, the Plaintiff asserts that the 1st Defendant/agent does not have the power to alienate or exceed the power granted to him under the PoA/Exh. A-