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2025 Supreme(Online)(Ker) 40749

IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.A. ABDUL HAKHIM, J
Lathakumari – Appellant
Versus
Satheeshkumar – Respondent
Regular Second Appeal: RSA 766/2014 | Regular Second Appeal: RSA 160/2013

Advocates:
For the Appellants/Petitioners: G.S. Reghunath, K. Rajesh Kannan, A.S. Shammy Raj, P. Shanes
For the Respondents: R.S. Kalkura, Harish Gopinath, M.S. Kalesh, Preethi R. Nair, M. Ramaswamy Pillai

When a plaintiff denies execution of a registered power of attorney, the onus shifts to the counterparty to prove execution; registration creates only an initial presumption of validity, not execution if disputed; lower court findings on signature and limitatio n are upheld.

Headnote:(A) Law and references - Transfer of Property Act, 1882 - S.3; Explanation 1; Limitation Act - Articles 58 and 59; Indian Evidence Act - S.114(e); Indian Contract Act - Sections 15 to 18; Kerala Court Fees and Suit Valuation Act - S.40.

(B) Key principles - "registration could raise an initial presumption regarding compliance of formalities required for registration and about the validity of the execution of document, but ... cannot raise a presumption regarding execution when the execution itself is disputed."; "the starting point of the limitation is the date when the plaintiff discovers the true nature of the deed.";

(C) Findings - "The Trial Court as well as the First Appellate Court has specifically found that the signature in Ext.X1 and the signatures of the plaintiff in the vakalath, plaint and the deposition are having substantial difference.";

(D) Issues - as framed in the Memorandum of Regular Second Appeal, including: (1) whether the Appellate Court independently considered the case on basis of facts and evidence; (2) whether the judgment is illegal, perverse or arbitrary given admissions; (3) whether the Appellate Court should remand where the trial Court’s finding on X1 execution is based on comparison of signatures; (4) whether the lower court ought to remand for proper framing of title issues; (5) whether there is a presumption in favour of genuineness of X1 as a registered document; (6) whether observations on X1 are vitiated by illegality; (E) Ratio decidendi - the Court held that the plaintiff’s title over the plaint schedule property is proved by Ext.A1; Ext.X1 execution is denied by the plaintiff; the presumption of a registered document cannot substitute for proof of execution where disputed; there is no justified delay condonation; the appellate courts properly appreciated evidence; (F) Result - "the substantial questions of law framed in the Regular Second Appeals are answered in the negative and in favour of the contesting respondents" and thus, "both Regular Second Appeals are dismissed with costs."; (G) Parties - a plaintiff (the party claiming title) and the defendants (titled parties opposing), with the relation of plaintiff and defendants described in the suits; (H) Dissent - no dissenting opinions noted in the judgment.

Table of Content
1. procedural framing and judicial observations (Para 1 , 3 , 19)
2. facts and procedural history of the suits (Para 2 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16)
3. parties’ contentions and trial arguments (Para 17 , 18 , 25 , 26 , 27 , 28)
4. court’s analysis on execution of ext.x1, evidentiary issues, and limitation (Para 20 , 21 , 22 , 23 , 24 , 29 , 30 , 31 , 32)
5. final order and costs (Para 33)

JUDGMENT

[RSA Nos.766/2014, 160/2013]

1. These two Regular Second Appeals arise from two suits – O.S No.429/2002 and O.S No.481/2002 of the Principal Munsiff’s Court Nedumangad, which were disposed by a common judgment and hence these Appeals are also disposed by a common judgment.

2.O.S No. 429/2002 is a suit for declaration and injunction filed by the plaintiff against his father, sister and mother as the defendants 1 to 3. O.S No. 481/2002 is filed for injunction by the 2^nd defendant in O.S No. 429/2002 against the plaintiff and the defendants 1 and 3 in O.S No. 429/2002.

3. The parties are referred according to their status in O.S No. 429/2002.

4.The plaint schedule property consists of two items of 30 cents each which originally belonged to the 1^st defendant father as per Sale Deed No.1222 / 1974 and Sale Deed No. 1240/1977. There is a residential building in plaint schedule Item No.1. The 1^st defendant executed Ext.A1 settlement Deed of the year 1994 in favour of the plaintiff settling the plaint schedule property in favour of the plaintiff.

5.The case of the plaintiff is that the 2nd defendant falsely created Ext.A9/X1 Power of Attorney dated 19.02.1998 in favour of the 1^st defendant impersonating the plaintiff and thereafter the 1^st defendant executed Ext.A10/X2 and Ext.A11/X3 Sale Deeds dated 20.02.1992 as the power of attorney holder of the plaintiff transferring the plaint schedule properties in favour of the 2^nd defendant. Hence, the plaintiff filed the suit for declaration of title and possession of the plaint schedule property as per Ext.A1 Settlement Deed ignoring Exts.X1 to X3 documents as void and, if necessary, by setting aside those documents.

6. In O.S No. 481/2002, the 2nd defendant claimed title and possession of the plaint schedule property on the strength of Ext.X2 and X3 Sale Deeds and sought a permanent prohibitory injunction restraining the defendants therein from trespassing into the plaint schedule property and committing any waste therein.

7.The defendants 1 and 3 supported the plaintiff in both the suits. The plaintiff and the 2^nd defendant opposed the respective suits against them by filing a Written Statement raising the very same contentions in their respective suits.

8. Both the suits were jointly tried treating O.S NO. 429/2002 as the leading case.

9.On the side of the plaintiff, the plaintiff was examined as PW1, and the Scribe in Ext.X1 was examined as PW2 and proved Exts.A1 to A11 documents. On the side of the 2^nd defendant, she was examined as DW1, and Exts.B1 to B11 were marked. Four documents summoned from Sub Registry Office Chadayamangalam were marked as Exts.X1 to X4. The Commission Report and the Rough Plan were marked as Exts.C1 and C1(a).

10.The Trial Court decreed O.S No. 429/2002 with costs and dismissed O.S No.481/2002. O.S No. 429/2002 was decreed declaring the plaintiff’s title and possession over the plaint schedule property; granting a permanent prohibitory injunction restraining the 2^nd defendant from trespassing into the plaint schedule property or in any way interfering with the plaintiff’s peaceful enjoyment and possession over the same and cancelling Ext.X1 to X3 documents declaring the same as void.

11.The 2nd defendant filed A.S No. 67/2004 only against the judgment and decree in O.S No. 429/2002. Though a contention was taken before the First Appellate Court that A.S NO. 67/2004 is barred by res judicata for want of challenge against the judgment and decree in O.S No. 481/2002, the First Appellate Court found that the issues in both the suits were not

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2025 Supreme(Online)(Ker) 40749

IN THE HIGH COURT OF KERALA AT ERNAKULAMM.A. ABDUL HAKHIM, JLathakumari – AppellantVersusSatheeshkumar – RespondentRegular Second Appeal: RSA 766/2014 | Regular Second Appeal: RSA 160/2013

When a plaintiff denies execution of a registered power of attorney, the onus shifts to the counterparty to prove execution; registration creates only an initial presumption of validity, not execution if disputed; lower court findings on signature and limitatio n are upheld.

Cases Referred (4)

IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.A. ABDUL HAKHIM, J
Lathakumari – Appellant
Versus
Satheeshkumar – Respondent
Regular Second Appeal: RSA 766/2014 | Regular Second Appeal: RSA 160/2013