PREMA SUDHAMANI Vs. D KRISHNA RAO

JUDGEMENT

(1.) THIS Original Side Appeal has been preferred by the appellants/applicants as against the order of the learned Single Judge dated 24. 04. 2007 passed in Application No. 3644 of 2007 in O. P. No. 92 of 2007 rejecting the application.

(2.) IN the affidavit filed by the fourth appellant/fourth applicant in Application No. 3644 of 2007, it is averred that their father who filed the O. P. in April 2006 for Letters of Administration of the Will of his sister, Late Thallam Leelavathi expired on 02. 05. 2006 and that the counsel for the respondents has filed caveat through Power of Attorney and that without serving the caveat No. 66 and without accompanying objections affidavit and sent the caveat only by registered post and that in the objection submitted it has been stated that a fresh Caveat No. 71 of 2007 has been filed and the caveat has been filed on the strength of the alleged Power of Attorney which is neither valid nor admissible in evidence and that the General Power of Attorney dated 09. 05. 2005 does not contain any witnesses to prove the manner of execution of the same and that the impugned Power of Attorney did not state that it was executed before the Notary Public nor did it bear any authentication by Notary Public in regard to the manner of execution or the person executing the Power of Attorney, and therefore, the presumption of execution could not be raised in favour of the Power of Attorney and that the impugned Power of Attorney was attested by a Notary only but not authenticated by him and the authentication is not merely attestation but means that the person authenticating as assured himself of the identity of execution who has signed the instrument as well as factum of execution and that the Power of Attorney neither has been authenticated by the Notary nor witnessed by any witness and hence, the power agent filing admissions which are unsustainable in law and in admissible and therefore, the Caveat No. 71 of 2007 ought not to have been numbered and that since the Power of Attorney dated 09. 05. 2005 mentions 'to collect rents and to withdraw amounts from and out of all statutory authorities, to appear and act in the Registration Officers and for the purpose of obtaining plan sanction and other service connections. ' The Power of Attorney which refers to the assignment of rent and creating interest in the title requires compulsory Registration as per the Registration Act and therefore, the Power of Attorney filed by the Caveator as a power agent is inadmissible in evidence and not valid in the eye of law and that the said power requires Registration as per Section 17 of the Registration Act and if it is not done and not enforceable and therefore, the same has to be rejected in limini and therefore, the power does not permit the power agent to oppose the Will in O. P. No. 92 of 2007 and therefore, a request is made to reject the Caveat No. 71 of 2007.

(3.) THE learned Single Judge while passing orders in Application No. 3644 of 2007 dated 24. 04. 2007 has inter alia stated that 'in the Power of Attorney in question, the agent has not been authorised to collect rents for appropriation to himself. If a power had been created empowering the agent to collect the rents and appropriate it to himself, then it is a document creating an interest in immovable property. Here, he has been authorised merely to go and collect it from the tenants and hence, this document and the recitals contained therein cannot be construed as a document creating a right or interest in immovable property and resultantly, rejected the said application. '