IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 8^TH DAY OF MARCH 2022 / 17TH PHALGUNA, 1943 RFA NO. 405 OF 2016 AGAINST THE JUDGMENT AND DECREE DATED 30.08.2014 IN OS 139/2011 OF SUB COURT, PATHANAMTHITTA APPELLANTS/DEFENDANTS:

1 LILLY THOMAS AGED 59 YEARS,D/O. GEORGE, PAINUMMOOTIL,ARUKALICKAL KIZHAKKU MURI, EZHAMKULAM VILLAGE, PARAKODE P.O.

2 P.M. THOMAS AGED 68 YEARS,S/O. MATHAI, PAINUMMOOTIL, ARUKALICKAL KIZHAKKU MURI, EZHAMKULAM VILLAGE, PARAKODE P.O.

BY ADVS.

SRI.K.SHAJ SRI.SAJJU.S RESPONDENT/PLAINTIFF:

THANKAMMA GEORGE D/O. GEORGE, AGED 74 YEARS, CHERUMANATHU VEEDU, KOONAMKUZHY, PUNALUR VILLAGE, PATHANAPURAM TALUK, FROM PAINUMMOOTTIL, ARUKALICKAL KIZHAKKU MURI, EZHAMKULAM VILLAGE, PARAKODE P.O., 689641.

BY ADVS.

SRI.GEORGE CHERIAN SRI.RAJESH CHERIAN THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 08.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

What would be the effect of a registered power of attorney authorising the power holder to execute and transfer immovable property, whether it can be unilaterally cancelled after the exercise of right of alienation given under the power of attorney, what would be the validity of the sale executed by the power holder with respect to an immovable property, what actually amounts to a document ab initio void or a void document and whether the trial court is justified in decreeing the suit are the main questions that came up for consideration in this appeal.

2. It is the admitted case of the plaintiff that she had given a registered power of attorney, Ext.A4 to the first defendant authorising her to execute deed of sale and transfer in respect of her immovable properties on 16/04/2008. The first defendant, the power holder in turn executed a deed of sale on 11/05/2011 (Ext.A5) in respect of the fractional interest held by the plaintiff over the property. It is thereafter the plaintiff came up with this suit to declare Ext.A5 sale deed ab initio void and for partitioning her fractional interest over the property.

3. It is quite unfortunate that the suit was decreed by the trial court. It is illustrative of how the judicial system in our state is functioning. The trial court has overlooked all the settled legal principles and committed a grave mistake by decreeing the suit, that too, by overlooking the question of limitation. No relief is sought either to set aside or to cancel Ext.A5 sale deed executed by the power holder of the plaintiff under a registered power of attorney, Ext.A4. There is no dispute with respect to the due execution of the registered power of attorney in favour of the first defendant authorising her to execute deed of transfer, conveyance and alienation over the property belonged to the plaintiff. It is based on the said authority, the first defendant executed a deed of alienation of the fractional interest held by the plaintiff over the property under Ext.A5 sale deed. The suit was filed without seeking to set aside the abovesaid document of transfer, Ext.A5, on any vitiating ground such as fraud, undue influence, coercion etc.. Neither the plaintiff nor the first defendant had any such case, but the document was sought to be declared ab initio void. The trial court has failed to understand what actually amounts to the expression 'ab initio void’ which stands for 'a void document from its very inception’. It seems so strange that the trial court set aside Ext.A5 sale deed as void – a valid sale deed executed by the power holder under a registered power of attorney. I am at a loss to understand under what provision and circumstance the document would stand as void or ab initio void as claimed by the plaintiff. The basic principles governing the validity of a document, a sale deed executed in accordance with the mandate under Section 54 of the Transfer of Property Act through a power holder under a registered power of attorney was not understood properly by the trial court. It is so unfortuna