The court established that a power of attorney executed under the fiduciary exemption does not require registration, and valid consideration for a sale deed can be established without full payment being evidenced at execution.

JUDGMENT

This appeal is against the decree and judgment dated 29.11.2004 in O.S.No.91/2000 of the Sub Court, Attingal by the plaintiff. The original suit was filed for declaration of title, to set aside Ext.B10 sale deed and for prohibitory injunction. It was filed by the mother of one Vikramarajan who purchased the property by virtue of a sale deed dated 19/05/1995 (Sale deed No.1964/1995). In fact, he was employed abroad and as such, the property was looked after and managed by his brother, the plaintiff, during his absence. While so, it is alleged that, the owner of the property, Vikramarajan, started construction of a building in that property under the supervision of his younger brother Vinayamohanan. A loan facility was also raised from State Bank of Travancore, Varkala branch for the construction of the said building and it was constructed up to the roof level. But due to financial stringency, he had executed a power of attorney Ext.B3 in favour of the said Vinayamohan to sell the property. During the life time of Vikramarajan, he divorced his wife Shailaja as per Order in OP.No.654/1993 of the Family Court, Thiruvananthapuram. He passed away on 20/04/1998, leaving his mother as the sole legal heir. Hence, the plaintiff came up with the suit for declaration of title, to set aside Ext.B10 sale deed and for prohibitory injunction.

2. The main contention raised by the plaintiff against Ext.B10 sale deed is that the power given to the second defendant under Ext.B6 power of attorney (yet another one) will not authorise the second defendant to effect any deed of transfer, alienation of right, title and interest over the immovable property. Secondly, by disputing the due execution of the document by the deceased Vikramarajan, thirdly, on the question of want of consideration as far as Ext.B10 sale deed is concerned. All these were found against the plaintiff by the trial court and ultimately the suit was dismissed.

3. Necessarily, the question which requires consideration in this appeal is pertaining to the validity of Ext.B6 power of attorney and validity of Ext.B10 sale deed and whether it is supported by valid consideration and whether the court below is justified in dismissing the suit on the finding that the power of attorney is valid and the sale deed was executed validly through the power holder, for valid consideration. Initially, this court has passed a decree and judgment confirming the decree and judgment of the trial court, against which the matter was taken up before the Apex Court and the Apex Court in turn set aside the decree and judgment of this court and remanded the matter on account of non-raising of points to be considered in the appeal separately in the impugned judgment. Hence, once again the matter came up before this court.

4. Heard both sides in detail.

5. In so far as the first question referred above is concerned, the suit was not filed by the person who had executed the power of attorney, Ext.B6. By the time he passed away. It was executed while he was working abroad and the power of attorney is duly attested by the attache annexed to the Consular General and subsequently it was adjudicated for the purpose of engrossing stamp paper by the Revenue Divisional Officer. Till the date of death of the alleged executant of Ext.B6 power of attorney, no objection worth the name was taken by the said person and no action was taken by him, even though the power of attorney was acted upon by the second defendant by executing Ext.B10 sale deed during his life time. A power of attorney authorising to sell the right, title and interest over the immovable property if the value comes to more than Rs.100 requires registration as mandated under Section 17 of the Registration Act, 1908 , but with the exemption under that provision excluding the persons who are in the fiduciary relationship with the executant, such as, father, mother, son, brother, sister etc. Necessarily, there is no requirement of a registered document o