The validity of a Power of Attorney can be challenged if demonstrated to be forged, impacting subsequent transactions and affirming property title rights.

J U D G M E N T

The second defendant in a suit for a declaration that a power of attorney and a sale deed under challenge in the suit are null and void, for declaration of title and recovery of possession, and for mandatory and prohibitory injunctions is the appellant. The suit was decreed by the trial court.

2. The plaint schedule property has an extent of 3 acres and 76 cents. The plaintiff claims title over the same as per Ext.A1 Sale Deed No.2094/1992. The first defendant is the brother of one Koshy, who was a thick friend of the plaintiff. Both of them were abroad at UAE. Koshy decided to return to his native place. He proposed to make an investment in cardamom plantation. As suggested by Koshy, the plaintiff also ventured into the same and purchase of plaint schedule property under Ext.A1. Koshy was entrusted to manage the property and a power of attorney was given by the plaintiff to Koshy in the said regard. Later Koshy wanted to avail a loan and the plaintiff agreed for the same. Subsequently Koshy passed away. The first defendant-the brother of Koshy, agreed to look after the property. Sometime later, he suggested to the plaintiff that there is no income from the property and it would be better to dispose of the property. The plaintiff agreed for the same. The plaintiff executed a power of attorney in favour of the first defendant to manage the property and to enter into sale agreements in respect of the property. Sometime later, the first defendant paid an amount of ` 10 lakhs to the plaintiff, stated to be advance sale consideration from an intended purchaser. Subsequently the first defendant informed the plaintiff that there were litigations between the heirs of Koshy consequent to which has arisen delay in completion of the same. In August, 2007 the plaintiff came to his native place. On enquiries he understood that the first defendant had already executed a Sale Deed No.2959/2002 in favour of the second defendant in respect of the plaint schedule property on the strength of a Power of Attorney registered as No.162/2002. The plaintiff denies of having executed any such power of attorney. It is contended that the power of attorney is forged and fabricated and that the consequential sale deed is also null and void. The plaintiffs seeks for: -

(a) Declaration of his title over the plaint schedule property.

(b) A declaration that the Power of Attorney 162/2002 and Sale Deed No.2959/2002 are null and void.

(c) Recovery of possession on the strength of title.

(d) Mandatory injunction for return of the original of Ext.A1 Sale Deed.

(e) Prohibitory injunction against encumbering, alienating and trespassing into the plaint schedule property.

3. The defendants denied the plaint allegations. It was contended that the power of attorney is true and genuine and that the sale deed is valid. It was also contended that the plaint schedule property was conveyed to the second defendant for a sale consideration of ` 15 lakhs, out of which ` 10 lakhs was paid directly to the plaintiff and ` 4,60,677/- towards the loan account of the plaintiff with the Malanadu Co-operative Agricultural Development Bank. Accordingly, they prayed for dismissal of the suit.

4. The trial court found the power of attorney to be a forged and fabricated one and declared them as null and void. A decree for recovery of possession was granted to the plaintiff on the strength of title. The defendants were further directed to hand over the original of Ext.A1 sale deed to the plaintiff. Prohibitory injunction was granted restraining encumbering the plaint schedule property and from committing waste therein.

5. Heard Sri.S.Sreekumar, learned Senior Counsel on behalf of the appellant, Sri.P.Chandrasekhar, the learned counsel for the first respondent and Sri.N.Ashok Kumar for the other respondents.

6. The points that arise for determination are: -

(i) Is the finding of the trial court that the Power of Attorney 162/2002 is a forged and fabricated document, based on evidence?

(