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2019 Supreme(Mad) 2007
IN THE HIGH COURT OF MADRAS
M.M. Sundresh, C. Saravanan, JJ.
B.R. Shankar and Ors. - Appellants
Vs.
B.R. Srinivasa Rao and Ors. - Respondent
O.S.A. Nos. 99 and 100 of 2018
Decided On : 26-06-2019
For the Appellant : G. Masilamani, Senior Counsel for T.C. Gopalakrishnan for G.K. Law Firm
For the Respondents: V. Raghupathi
Headnote:
Indian Evidence Act, 1872 - Section 65 - Registration Rules framed and the Registration Act - Rule 46 – claim of compensation - sale deed was executed - permanent injunction restraining - secondary evidence - There is no dispute that the 3rd defendant has, received full sale consideration. According to the plaintiffs the consideration for Exhibit P3 was paid to the 3rd defendant through 1st defendant he being the elder of the family, while the 1st defendant denied the same and claims to have independently paid the consideration to the 3rd defendant for purchasing the suit schedule property for the 4th defendant - According to the plaintiffs, after the 3rd defendant executed Exhibits P1/D4 and P2/D5 Power of Attorneys in favour of the 2nd plaintiff, the original were given to the 1st defendant, he being the elder brother out of respect as was the family custom. It appears that at that time the relationship were cordial between the members of the family, which later deteriorated – Held, Though the Learned Single Judge has stated that there was a procedural irregularity by the Sub-Registrar it is to be noted that the sale deed has been executed in the name of the 3rd defendant by her power of attorneys namely the 2nd plaintiff on the strength of a valid and subsisting Power of Attorneys in Exhibits P1/D4 and Exhibits P2/D5 - Fact that the Sub- Registrar had not mentioned that he had verified the power of attorney is immaterial as that there was a valid Power of Attorney subsisting on the date of execution of Exhibit P.3 vide Exhibits P1/D4 and Exhibits P2/D5 and it is only on the strength of these two documents the said sale deed was registered. Thus, we do not find any infirmity in the manner in which Exhibit P3 was executed - As we have already opined that Exhibit P3 was executed on the strength of a valid and subsisting power of attorney vide Exhibits P1/D4 and Exhibits P2/D5, the 3rd defendant did not have clear title over the suit schedule property and she could not have validly conveyed the same in favour of the 4th defendant. Such being the case, we are of the view that the judgment and decree of the Learned Single Judge requires no interference in these Appeals - Consequently, we do not find any reason to interfere with the impugned judgment and decree of the learned Single Judge decreeing the suit as prayed and for dismissing the counter claim of the defendants - Therefore, we do not find any error in the conclusion arrived by the learned Single Judge that if there was any discrepancy or short fall in the payment, it would be a private dispute inter se between the principal and the agent i.e. between the 2nd plaintiff and the 3rd defendant and any short fall in the payment has to be recovered from the 2nd plaintiff It is evident that the intention of the members of the family was to transfer the sale to one of them. It is also evident that though the 3rd defendant has been shown as a pivotal in the proceeding it is the 1st defendant who was calling the shots in a desperate attempt to wrest the suit schedule property from the hands of the 1st plaintiff and has used his proximity with 3rd defendant and her husband to his advantage. This also explains why the 1st defendant was in possession of the originals of the parent documents of the suit schedule property - Appeals are dismissed
JUDGMENT :
C. Saravanan, J.
1. The appellants are aggrieved by the impugned judgment and decree dated 15.03.2017 passed by the learned single Judge of this Court in C.S. No. 14 of 2009.
2. By the impugned judgment and decree, the learned single Judge has not only decreed the suit as prayed for by the respondents (plaintiffs) but has also dismissed the counter claim filed by the appellants (defendants). Thus, the present appeals.
3. For narration of relevant facts we are referring to the ranks of the respective parties in the above suit. To understand and appreciate the dispute we will briefly explain the relationship between the parties.
4. The plaintiffs and the defendants barring the 3rd defendant belong to the same family. The 1st plaintiff is the younger brother of the 1st defendant. 2nd plaintiff and the 2nd defendant are their respective spouses. The 4th defendant is the daughter of the 1st and 2nd defendants.
5. Dispute is primarily between the members of the same family who are incidentally business partners. Certain business dispute between the 1st - 2nd plaintiffs with 1st - 2nd defendants is in the background to the present dispute which had resulted in filing of the suit and counter claim.
6. We are not concerned with the collateral business dispute between the 1st - 2nd plaintiffs with 1st - 2nd defendants. It would suffice to state that those disputes have led to conflict between the parties.
7. The 3rd defendant is the seller of the suit schedule properties measuring 2511 sq. ft. and 2499 sq. ft. located adjacent to each other.
There is no dispute that the 3rd defendant has, received full sale consideration. According to the plaintiffs the consideration for Exhibit P3 was paid to the 3rd defendant through 1st defendant he being the elder of the family, while the 1st defendant denied the same and claims to have independently paid the consideration to the 3rd defendant for purchasing the suit schedule property for the 4th defendant.
8. According to the plaintiffs, after the 3rd defendant executed Exhibits P1/D4 and P2/D5 Power of Attorneys in favour of the 2nd plaintiff, the original were given to the 1st defendant, he being the elder brother out of respect as was the family custom. It appears that at that time the relationship were cordial between the members of the family, which later deteriorated.
9. The plaintiffs later obtained certified copy of Exhibit P1/D4 and Exhibit P2/D5 from the Sub- Registrar's office and on the strength of the certified copies, the 2nd plaintiff executed Exhibit P3 sale deed dated 15.04.2008 in favour of the 1st plaintiff in respect of the 2 properties.
10. The above sale deed was executed by the 2nd plaintiff as the power agent of the 3rd defendant on the strength of Exhibits P1/D4 and Exhibits P2/D5. After Exhibit P3 sale deed was executed on 15.04.2008, the 3rd defendant canceled/revoked Exhibits P1/D4 and Exhibits P2/D5 power of attorneys vide Exhibits D6/D7 dated 16.09.2008.
11. After cancelling Exhibits P1/D4 and Exhibits P2/D5 vide Exhibits D6/D7 dated 16.09.2008, the 3rd executed Exhibits P6/D8 sale dated 17.09.2008 sale deed in favour of the 4th defendant who is the 1st daughter of the 1st and the 2nd defendants. Exhibits P6/D8 dated 17.09.2008 was registered as Document No. 7353 of 2008 before the Sub- Registrar Sembium, Chennai.
12. On coming to know that Exhibits P6/D8 sale dated 17.09.2008 had been executed by the 3rd defendant in favour of the 4th defendant, the plaintiffs filed C.S. No. 14 of 2009 to declare Exhibits P6/D8 sale deed dated 17.09.2008 registered on 18.09.2008 as illegal, null and void and not binding on the plaintiffs. The plaintiffs also prayed for a permanent injunction restraining the appellants from interfering with their peaceful possession.
13. The defendants filed a common written statement and also filed a counter - claim to set aside Exhibit P3 sale deed dated 15.04.2008 executed by the 2nd plaintiff as power agent of the 3rd defendant in favour of the 1st pla
