A power of attorney coupled with interest cannot be cancelled without proper notice. The cancellation must be duly intimated to the concerned party.

This Second Appeal appeal was originally dismissed on 24.09.2012 for default. Later on, it was restored on its file.

2. The facts of the Second Appeal, in a nutshell, is as follows:-

The defendant is the appellant herein. The first and second respondents are the plaintiffs before the trial Court. The second plaintiff obtained a settlement patta in her favour and thereafter, put up construction at her own cost. Thereafter, the second plaintiff executed the said settlement deed in favour of her husband, namely, the first plaintiff, in the year 1997. Right now, the first plaintiff is the owner of the property in question. The first plaintiff is working as a Village Administrative Officer. The first defendant in the suit was the sister's husband of the first plaintiff. Due to the close relationship, the first plaintiff had executed the power of attorney on 16.09.2002 in favour of him and he had also registered the said power of attorney. Consequently, the plaintiffs had handed over all the documents.

3. While the matter stood thus, since, the appellant herein acted against the interests to the plaintiffs/ respondents, by virtue of a document, dated 10.11.2005, the first respondent cancelled the said power of attorney. The same was also intimated by way of 'certificate of posting' to the first defendant/appellant, on 17.11.2005 itself. According to him, it was received by the first defendant. Thereafter, on 03.06.2006, he made a publication also in 'dinamalar' in this regard.

4. Inspite of the fact that the power of attorney was cancelled, the first defendant had executed the sale deed in his favour, on 05.05.2006, as if it has been sold for a consideration of Rs.3,36,000/-. Such document is not legally sustainable. Therefore, he issued a lawyer's notice on 29.06.2006. Though it was received by the first defendant, he has not replied the same. With this background, the plaintiffs/respondents filed suit for a declaration of title and possession of the property in question. He has also filed this suit for cancellation of the sale deed. He also impleaded the Sub-Registrar, Karaikudi, in this regard.

5. The first defendant has filed a written statement specifically denying that the cancellation of power of attorney was not intimated to him by the alleged 'certificate of posting' on 17.11.2005 and the alleged publication has been made only after the sale deed had been executed in his favour and even in the publication, nothing has been mentioned about the cancellation of the power of attorney. He would further contend that he has been in possession and enjoyment of the suit property in question. In fact, all the original documents have been handed over to him. He would mainly contend that even as early as prior to the power of attorney, on 14.09.2002 itself, the first plaintiff agreed to sell the property for which, he entered into a document also. Accordingly, the entire sale consideration was received, original title deeds was given and also the possession was handed over. Only for the completion of the sale deed, the power of attorney was executed. Therefore, the power of attorney is executed coupled with interest. Hence, it is an irrecovable power of attorney. Subsequently, the sale deed has also been executed. He has also specifically pleaded at no point of time, the cancellation of power of attorney was ever intimated to him.

6. The plaintiff had examined himself and produced documents Exs.A.1 to 13. Likewise, the defendant had examined himself and two others and produced Exs.B.1 to 11. The Court exhibits are marked as Exs.1 to 3.

7. The Lower Court, taking into consideration the close relationship between the parties, namely, the plaintiff and the first defendant and on the basis of the recital in the sale deed under Exs.B.4 and 6, it held that the sale deed did not contain anything about the alleged sale transaction nor there is an evidence that the sale took place prior to the power of attorney nor the power of attorney is cou