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HIGH COURT OF JUDICATURE AT MADRAS
R. MAHADEVAN, J.
R.V.E. Venkatachalam (Died) & Others - Appellant
Versus
B.A. Devaneson & Others - Respondent
A.S.No. 1077 of 2007 & C.M.P.Nos. 1 & 2 of 2007, 1 of 2008 & 1 of 2010
Decided on: 27-01-2015
Evidence Act - Section 67 - Powers of Attorney Act, 1882 - Sub Section 1-A and Section 2 - Possession of suit property - Power-of-Attorney - Appointed as Power Agent - Having been dissatisfied with dismissal of suit plaintiff has knocked at doors of this court by way of this appeal - For easy reference and also for sake of convenience parties to appeal may hereinafter be referred to as plaintiff and defendant respectively wherever context so require - Suit property commonly known as Allendale situated at Figure of Eight Road Connor Town, measuring of land together with building thereon belongs to defendants by virtue of their purchase under a registered sale deed - Defendants are sisters and brother - First defendant was appointed as Power Agent of second and third defendants under valid Power-of-Attorney empowering to deal with suit property - Fourth defendant was inducted into possession of suit property as a tenant first defendant as a co-owner and as Power-of-Attorney of defendants in pursuant to rental agreement - On an assurance given by defendants and having satisfied that as per Power-of-Attorney first defendant was authorized to sell suit property on behalf of defendants fourth defendant had negotiated for purchase of suit property – Held, Further on side of defendants was marked to prove criminal act of fourth defendant - Is paper clipping from pages of Indian Express - Cheat absconding with– Police are on looking out for a man who is absconding with obtained by fraudulent methods - It is said that one Ashok Andrew of had hired a bungalow in Upper Connor belonging to some people living in Bangalore - He had reportedly forged title documents to house and had enticed some people from Tripper to buy bungalow from him - There upon an agreement to sell house for was entered into and Andrew received an advance of Scheduled day of registration when buyers came to bungalow they were shocked to learn that they had been cheated - Above clipping clearly brings to light fraudulent act of fourth defendant - This Court feels that more than enough to prove case of defendants forged one - That apart to prove sale agreement no witness has been examined by plaintiff - Admitted and disputed signatures of first defendant were sent to handwriting expert for comparison - Though handwriting expert in his report has stated that there is no dissimilarity in signatures it is not sufficient to prove case of plaintiff when all other evidences are against plaintiff and fourth defendant - When defendants denied very execution of sale agreement it is bounden duty of fourth defendant and plaintiff as well to prove that sale agreement is not a forged one by examining independent witnesses or witnesses signed in and it is burden of fourth defendant and plaintiff to discharge but that burden has not been discharged in manner known to law which is fatal to case of plaintiff - In view of above this Court finds that Agreement of Sale has not been executed by first defendant as she has no authority to execute sale agreement and it is proved that agreement was not executed by first defendant as found in above discussions and concluded under Point forged and concocted one by fourth defendant as well as plaintiff and therefore Sale agreement is declared as invalid and whatever documents said to have been arisen from forged sale agreement are also declared as invalid – Appeal is dismissed
1. This regular appeal is directed against the judgment and decree dated 17.8.2007 made in O.S.No.115 of 1994 on the file of the learned District Judge, Nilgiris at Udagamandalam.
2. Having been dissatisfied with the dismissal of the suit, the plaintiff has knocked at the doors of this court by way of this appeal.
3. For easy reference and also for the sake of convenience, the parties to the appeal may hereinafter be referred to as the plaintiff and the defendant respectively wherever the context so require.
4. Background facts leading to the filing of the suit are as follows:-
(i) The suit property commonly known as " Allendale" situated at Figure of Eight Road, Coonoor Town, measuring 0.79.5 acres of land together with the building thereon in R.S.No.1181/2 belongs to the defendants by virtue of their purchase under a registered sale deed, dated 14.5.1980.
(ii) The defendants 1 to 3 are sisters and brother. The first defendant was appointed as the Power Agent of the second and third defendants under the valid Power-of-Attorney, dated 7.8.1980 empowering to deal with the suit property.
(iii) The fourth defendant was inducted into possession of the suit property as a tenant on 1.1.1992 by the first defendant as a co-owner and as the Power-of-Attorney of the defendants 2 and 3 in pursuant to the rental agreement, dated 27.12.1991.
(iv) On an assurance given by the defendants 1 to 3 and having satisfied that as per the Power-of-Attorney the first defendant was authorised to sell the suit property on behalf of the defendants 2 and 3, the fourth defendant had negotiated for the purchase of the suit property.
(v) The first defendant for herself and in her capacity as the Power Agent of the defendants 2 and 3 had executed the agreement of sale, dated 22.2.1992 in favour of the fourth defendant for the valuable consideration of Rs.5,00,000/- and received a sum of Rs.61,000/- as advance and also agreed to receive the balance price of Rs.4,39,000/- at the time of registration of the sale deed within a period of one year.
(vi) It was also agreed that the fourth defendant is fully empowered by the defendants to transfer this sale agreement and to deliver vacant possession to any third party and the fourth defendant is at liberty to advertise the property for sale and to negotiate with any person or persons for the purpose of transferring the sale agreement.
(vii) After the agreement of sale, dated 22.2.1992, the fourth defendant had developed the suit property at his own costs with the knowledge of the defendants 1 to 3.
(viii) As per the conditions stipulated in the sale agreement, dated 22.2.1992, the fourth defendant had assigned his rights under an assignment deed, dated 4.5.1992 to the plaintiff for the consideration of Rs.7,00,000/- and on the same date, the fourth defendant received a sum of Rs.2,61,000/- and the balance of Rs.4,39,000/- to be paid to the defendants 1 to 3 at the time of execution of the sale deed in favour of the plaintiff by the defendants.
(ix) As per the assignment deed, the fourth defendant had delivered actual and vacant possession of the suit property to the plaintiff in part performance of the said assignment deed and the plaintiff has been in possession and enjoyment of the suit property. The fourth defendant had also handed over the original documents to the plaintiff.
(x) The plaintiff is always ready and willing to perform his part of contract. Though the plaintiff requested the defendants to execute the sale deed, they are evading and neglecting to execute the sale deed under one pretext or the other.
(xi) While so, to the surprise of the plaintiff, the defendants 1 to 3 through their counsel had sent a notice, dated 25.5.1992 making false allegations against the plaintiff and denied the execution of the sale agreement, dated 22.2.1992 and their liability to execute the sale deed. Moreover, the defendants had threatened to launch criminal proceedings both civil and criminal against the plaintiff and the four
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