DAMODARAN SURAN Vs. KESAVAN MEENAKSITY

JUDGEMENT

(1.) This second appeal at the instance of the plaintiffs is against the concurrent decision of the courts below dismissing their suit for declaration of title and recovery of possession of the plaint schedule property, 31 cents in extent, with a building thereon. The property belonged to Sekharan Nanu as per Ext.B2 assignment obtained by him in the year 1955. Shortly after Ext. B2 Nanu left for Malaysia and did not come back afterwards. His mother Kochali and sister Parvathy were in possession of the land and the building. The defendant was allowed to occupy a room in the building and later when the mother and the sister of Nanu vacated the building, the defendant occupied the entire building and is in possession of the same. Nanu assigned the property to the plaintiffs as per Ext. A2 sale deed in their favour on 15-4-1974. The document Ext. A2 was executed by Parvathy (Pw.2) on the strength of Ext. A5 Power of Attorney granted by Nanu to her. The plaintiffs seek recovery of possession of the property on the strength of Ext. A2 assignment in their favour. The defendant contended that she is the legally wedded wife of Nanu who left the country shortly after her marriage. Ext B2 sale deed in the name of Nanu was benami for her, and she is the real owner of the property. Ext. A2 sale in favour of the plaintiffs was attacked on the ground that Nanu had no title to the property and also on the ground that Pw. 2 who executed the sale deed had no valid authority or power from Nanu to execute the same. Ext. A5 Power of Attorney purported to have been granted by Nanu, according to the defendant, is not a properly executed Power of Attorney and on the strength of the same Pw. 2 does not derive any authority to execute Ext. A2 sale deed. The plaintiffs denied that the defendant was the legally wedded wife of Nanu. The defendant has a further contention that in the event of a decree for recovery of possession, she is entitled to value of improvements:

(2.) Both the courts below have found that the defendant is the wife of Nanu, Ext. B2 acquisition by Nanu of the suit property was not benami for the defendant and Nanu was the true owner of the property under that document. Both the courts below have however found that Ext. A5 is not a valid Power of Attorney empowering Pw. 2 to execute the sale deed Ext. A2. Ext. A2 was therefore invalid and cannot convey title to the plaintiffs. On these findings the suit was dismissed by the Trial Court and the decision of the Trial Court was confirmed in appeal. Both the courts below have found the defendant's possession of the property from 1955 onwards. Since her possession was in her capacity as the wife of Nanu, the courts below have found that she has not acquired a title by adverse possession. It is against this that the plaintiffs have come up in second appeal.

(3.) Ext. A5 Power of Attorney, on the authority of which Ext. A2 sale deed was executed by Pw. 2, is purported to have been executed by Nanu in the presence of the Commissioner for Oaths of the Federation of Malaysia at Kuala Lumpur. The Commissioner for Oaths has attested that Nanu had affixed his signature in his presence and that the signature contained in the document is the true signature of Nanu. The signature of the Commissioner for Oaths who attested Ext. A5 Power of Attorney is attested by the Assistant Secretary, Consular Division, Ministry of Foreign Affairs. There is also a seal of the Ministry of Foreign Affairs, Malaysia. Under S.85 of the Indian Evidence Act, 1872 the Court shall presume that every document purporting to be a Power of Attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, (Indian) Consul or Vice Consul, or representative of the Central Government, was so executed and authenticated. Ext. A5 is not authenticated by any of the authorities mentioned in S.85. S.32 of the Registration Act, 1908 empowers an agent of the executant of the document or his representative or assign, duly authorised by power - of - attorney executed and authenticated in the manner referred to in S.33 to present documents for registration. The relevant portion of S.33(1) of the Indian Registration Act is extracted below: