P.R.RAMAN & P.BHAVADASAN v. RamiReddy (AIR 1979 SC 553), it was contended that Ext.A2 recitalconstitutes a & Ors.

P.R.RAMAN & P.BHAVADASAN, JJ.------------------------------- A.F.A.No. 20 of 1994-------------------------------Dated this the September, 2009J U D G M E N TRaman, J.First defendant in a suit for cancellation of releasedeed and partition instituted by the plaintiff is the appellantherein. The suit was decreed in part. Plaint B & C scheduleswere directed to be partitioned allotting half right to the plaintiff. Suit was dismissed as against plaint 'A' schedule property. Plaintiff appealed and the first defendant preferred a crossappeal. Plaintiff's appeal was allowed and cross appealdismissed. Hence, this appeal. 2. As per the plaint averment, plaintiff is thedaughter of late C.Radha Devi, the first defendant is her brotherand second defendant is her father. Radha Devi died on16.1.1983. Radha Devi, plaintiff and the first defendant aremembers of the joint family following Marumakkathayam system. AFA.No.20/19942There is no dispute regarding these facts. Radha Devi and firstdefendant along with the plaintiff were in joint possession andenjoyment of the properties as co-owners. Out of the 27 cents, plaintiff's mother sold two cents and 4 square links from her1/3rd share to her sister Smt. Rajalekshmy Devi. Some of theproperty had already been acquired by the State Government forwidening a nearby line in the year 1964. The remaining extent isonly 24 cents and 96 square links. After the death of plaintiff'smother, her right on plaint 'A' Schedule property as co-ownerdevolved on the plaintiff and the first defendant in equal rights. Therefore, according to the plaintiff, she and the first defendantare entitled to ½ share each of plaint 'A' schedule property as co-owners. 3. It is stated that plaintiff is residing outside theState of Kerala with her husband. While so, she executed apower-of-attorney in favour of her father, second defendant, formanaging the properties. The said power-of-attorney wasproduced as Ext.A2. The power-of-attorney was terminated AFA.No.20/19943only on 4.3.1983. It is stated that in connection with the deathof plaintiff's mother, she happened to stay in the house of hermother between January 1983 till July 1983 and during thatperiod, she obtained certain diaries written by her deceasedmother and several other documents which were in the custodyof her mother. On going through the said diaries, she came toknow that some fraudulent and illegal dealings were made bythe defendants 1 and 2 and the deceased mother in respect ofthe properties in question. It is her case that though she hadexecuted a power-of-attorney in favour of the father, seconddefendant, without authority of law, the father had executed arelinquishment deed in favour of the first defendant. The saidrelinquishment deed was produced as Ext.A5, the original ofwhich is Ext.B1. The prayer in the suit is to cancel the said deedand to partition the said property also. 4. The defendants contested the suit. Thoughdefendants 1 and 2 have filed separate written statements, thesum and substance of the contentions are same. In the written AFA.No.20/19944statement of first defendant, it is averred that the power ofattorney holder is incompetent to file a suit representing theplaintiff; that Radha Devi relinquished her 1/3 right in plaint'A' schedule property by release deed and the plaintiff throughher power-of-attorney holder, viz., second defendant, releasedher 1/3 share in the plaint 'A' schedule property on 23.7.1981.Radha Devi died on 16.1.1983. Thus, plaintiff has no right overthe plaint 'A' schedule property. The said release deed hastaken effect and pursuant to that, the first defendant is enjoyingthe plaint 'A' schedule property. The release deed was executedby the second defendant on the strength of power-of-attorneygranted in his favour by the plaintiff. It is stated that the plaintiffhas no right to cancel the power-of-attorney unilaterally; thereasons stated in the plaint for cancellation of the release deedare not sufficient; that the release deed is supported byconsideration; and the suit is not maintainable. Similarcontentions were raised by the second defendant also. 5. The trial court framed following issues:- AFA.No.20/19945i) Whether the release deed, Ext.B1, is liableto be set aside. ii) Whether the properties are liable to bepartitioned, andiii) what is the share to be allotted to theplaintiff. On the side of plaintiff, Pws.1 and 2 were examined and Exts.A1to A44 were marked. Defendants examined DW.1 and Exts.B1 toB5 were marked. The court below found that the suit ismaintainable. On the question as to whether the release deed isliable to be set aside, it found on appreciation of the evidence onrecord that the release deed by the second defendant, power ofattorney holder, is liable to be cancelled, as regard the 1/3 rightof the plaintiff. So however it upheld the release deed executedby Radha Devi, the mother of the plaintiff. The court also foundthat pursuant to the release deed, Ext.B1, first defendant has gotpossession over the property and reference is made to Exts.B2 toB5, the tax receipts, Ext.B3, the certificate of ownership andExt.B4, the possession certificate. The first defendant thushaving possession over the plaint 'A' schedule property, and in AFA.No.20/19946the absence of any prayer in the plaint for recovery of 1/3 shareof the plaintiff from the first defendant, the suit was dismissed asregards plaint 'A' schedule. But as regards plaint B and Cschedule properties, it was found that the said items are liable tobe partitioned and the plaintiff is entitled to get ½ share in bothplaint B and C schedule properties. Aggrieved by the abovefinding, both the plaintiff as well as the first defendant preferredappeal and cross appeal respectively. The cross appeal wasagainst the finding of the court invalidating the release deed bythe second defendant on behalf of the plaintiff. The appeal filedby the plaintiff is only as against the dismissal of the suit asregards her claim on 1/3 right over plaint 'A' schedule property.In other words, 1/3 right of the plaintiff's mother, Radha Devi, whose relinquishment or release deed in favour of the firstdefendant has become final. 6. The learned Single Judge reversed the findingof the trial court and decreed the suit for partition allotting 1/3rdright in plaint 'A' schedule property also to the plaintiff and AFA.No.20/19947allowed the appeal and the cross appeal was dismissed. Themain argument raised before the court by the contestingdefendant was that the power-of-attorney enables the seconddefendant to sell the properties of the plaintiff and Ext.A2purports to be a general power, by which the second defendantwas authorised to manage the properties, to execute alldocuments and to receive consideration. Placing reliance on thedecision of the Supreme Court in Syed Abdul Khader v. RamiReddy (AIR 1979 SC 553), it was contended that Ext.A2 recitalconstitutes a separate power on the strength of which the seconddefendant had every right either to sell the land or to release theundivided share of the plaintiff for consideration. But thesecontentions were negatived by the learned Single Judge. It washeld that the property belongs to the mother and two childrenand the plaintiff was away from the place which necessitated theexecution of the power of attorney. But the release deed wasseen executed by the mother and father, the father acting on thebasis of power-of-attorney, but there was no necessity toexecute such a document and no written authorisation was given AFA.No.20/19948to the second defendant to release the share of the plaintiff. Though a contention was raised that such a consent is notrequired, as the power was already granted under Ext.A2, it wasnegatived by saying that such a consent was specifically obtainedin respect of Kanyakumari property. Hence, it was held thatone should expect such an authorisation from the plaintiff incase she really intended to release her one-third share over plaint'A' schedule property. Reliance was also placed on Ext.A23letter sent by the second defendant on 21.5.1983. It was foundthat the said letter was sent probably in the cover Ext.A24. Thelearned Single Judge was not prepared to give much weight tothe evidence of DW.1, since he was denying the very letterExt.A23 with a view to help the first defendant. In thecircumstances, it was held that there are indication to hold thatExt.A5 was executed without receiving any consideration andwithout written authorisation from the plaintiff. Thus, Ext.A5release deed to the extend of the share of the plaintiff was heldto be invalid. It was also found that once it is found that therelease deed is not binding on the plaintiff, she being a co-owner, AFA.No.20/19949must be in joint possession with others, and, therefore, theabsence of a prayer for recovery of possession, is no reason torefuse partitioning of the said item also. Accordingly, the appealwas allowed and the judgment of the trial court was modified. Apreliminary decree was granted for partition of plaint Aschedule property into three equal shares and for allotment ofone share to the plaintiff. In all other respects, the judgmentand decree of the trial court was confirmed. It is against suchjudgment and decree that the present appeal is filed by the firstdefendant. 7. We have heard the learned counsel Sri. Shinodappearing for the appellant as also the learned Senior counselSri.P.G.Parameswara Panicker appearing for the respondent. 8. It was contended on behalf of the appellant thatthe learned Single Judge was not right in law in holding that therelease deed is not valid in law. It was pointed out that even ifthe consideration is inadequate, that will not invalidate therelease deed. According to him, the power granted as per AFA.No.20/199410Ext.A2 enables the agent to deal with the property and to sell thesame and first defendant being only a co-owner of the property, the release deed has the same effect of sale and if at all theright, if any, of the Principal is to sue the agent for the loss, ifany, sustained for the act committed by the agent. Reliance isplaced on Section 2 (h) of the Contract Act. It is also contendedthat the author of Ext.A23 letter is the second defendant who haddenied having sent any such letter to the plaintiff. 9. Per contra, the learned Senior counsel appearingfor the respondent argued that the power granted under Ext.A2,if at all, is only to sell the property and the release deedexecuted Ext.B2 is not for any consideration received and it isfictitious document. He also took us through Ext.A15 to A22diaries written by the mother to show that relationship of themother with the first defendant was not cordial and thereforethere is every reason to infer from the totality of thecircumstances that the release deed executed by the mother andthe father could only be due to pressure exerted by the first AFA.No.20/199411defendant over them. It is also contended that it is only if theplaintiff decides to sell the property that it enables the agent toexecute the document. In other words, power granted by theplaintiff is a pre-condition for executing a document by thesecond defendant based on the power of attorney and in so far asKanyakumari property is concerned, such a consent was given, and, therefore, the plaintiff did not object to the sale effectedpursuant thereto. But in the case of release deed in question, nosuch consent was taken from the plaintiff and therefore therelease deed does not convey any right over 1/3 share in plaintA schedule property belonging to the plaintiff. It was alsocontended that even assuming for argument sake, the releasedeed is otherwise valid, it cannot be said that the power asgranted by the power of attorney deed in favour of the agentauthorises him to execute any said release deed. The releasedeed is different from sale deed. The word meansbuying and selling and not to execute any gift deed. According tohim, the release deed virtually is a gift deed by the father infavour of the son. He placed reliance on the decision of the privy AFA.No.20/199412council in Ismail Mussajee Mookerdam v. Hafiz Boo (ILR 33Culcutta 773) as also Thomman v. Taluk Land Board (1976KLT 840) . He also placed reliance on a passage of MullaContract Act by 12th Edition (Page 2118-2120). 10. We have perused the power-of-attorney, Ext.P2. It is a general power-of-attorney by which power isconferred on the agent to execute all documents in respect of theproperties and receive consideration. So, the agent has thuspower to execute sale deed. The contention of the seniorcounsel, Sri.P.G.Parameswara Panicker, is that first a decisionhas to be taken by the Principal to sell the property, then onlythe question of executing the document arises. According to him, prior to execution of a document, the agent has to obtainconsent from the Principal, as was done in the case of propertyat Kovalam, where such previous consent was obtained fromthe Principal before executing the sale deed in that regard. Butwe do not think that merely because another item was sold afterobtaining such consent, will in any way affect the power vested AFA.No.20/199413with the agent, as per the terms of the deed, Ext.A2. There isno indication anywhere in Ext.A2 restricting the power-of-attorney, as is now contended. Merely because the agentdiscussed with the Principal while taking a decision to sell an itemof property on a previous occasion, one cannot read into Ext.A2,requiring such previous consent of the Principal. The power asgranted under Ext.A2 is absolute and unrestricted. We are alsonot impressed with the argument that merely because theconsideration shown in Ext.A2 is not received by the Principal(plaintiff), it will invalidate the sale, if it is otherwise valid. Inthis connection, we may refer to the decision of the Apex Court inKaliaperumal v. Rajagopal and another (2009 (4) SCC 193)and Appu v. Bhaskaran (2001 (3) KLT 670), wherein it washeld that the right of the vendor is to sue for the unpaidconsideration, and will not invalidate the sale. For a sale tobecome valid and complete, the consideration can either be paidor promised and the deed requires registration. But we haveto consider whether Ext.A5 is a 'sale deed' or a 'gift deed'. AFA.No.20/19941411. The learned counsel for the respondentcontended that Ext.A5 is not a sale deed, but in reality, it is a giftdeed, the execution of which is beyond the power conferred asper Ext.A2. There is force in this contention. The considerationshown in Ext.A5 is only Rs.20,000/=. The property is a buildingwith land situated in the heart of the city of Trivandrum, nearHospital Junction, as pleaded in the plaint, on which thereappears no dispute. The consideration is grossly inadequate. Theexecutant of Ext.A5 is none other than the father. The motherrelinquished her 1/3 share in the co-owership property. It is inrespect of the share of the plaintiff that under the purportedexercise of the power under Ext.A2 that the father has executedExt.A5 relinquishment deed. Of course, the co-ownership rightcan be released in favour of another co-owner and it need not beby a sale deed. But then the inadequacy of the consideration asshown in Ext.A5 coupled with the relationship of the partiesleaves no doubt that the release deed, Ext.A5, though purportedto be a sale deed is in fact a gift in favour of the defendant Sonby the father. AFA.No.20/19941512. In this connection, we may refer to twodecisions, Ismail Mussajee Mookerdam v. Hafiz Boo (ILR33 Calcutta 773 PC) and Thomman v. Taluk Land Board, Mukundapuram (1976 KLT 840). In Ismail MussajeeMookerdam v. Hafiz Boo, supra, it was held as follows:-“The fact that the sum of Rs.10,000 ismentioned as the price, a sum which, according to the evidence, was far short ofthe actual value of the property, and thefact that that sum is stated to have beenpaid in advance, whereas in fact it was notpaid at all, are strong to show that thetransaction was not a sale, but a gift, withan imaginary consideration inserted, in amanner common in such transactions inIndia. Their Lordships, therefore, thinkthat, as to this second property also, thecase of benami fails.”13. It is settled that the power of attorney shouldbe strictly construed. That is to say that where an act purportingto be done under a power of attorney is challenged as being inexcess of the authority conferred by the power, it is necessary toshow that on a fair construction of the whole instrument that theauthority in question is to be found within the four corners of the AFA.No.20/199416instrument, either in express terms or by necessary implications.(See Vijithammal v. M.Kadir Sultan and another (AIR1935 Madras 599); Shankar Tukaram Kakade v. Lakshmi BaiShankar Rao Ghadge (AIR 1928 Bombay 225) and alsoBryant Powis & Bryant Ltd. v. La Banque Du People andThe Cuebec Bank Ltd. (1983 AC 170)14. Applying the above principles, we have nodoubt to hold that the purported exercise of power under Ext.A2,the agent has exceeded his power in executing Ext.A5, which canonly be construed as a gift deed in the given circumstances, hence not valid and binding on the plaintiff. It is also found thatthe entries in the diary written by the mother also show that themother who was residing with the son at the relevant time washumiliated and uncomfortable, indicating a strong undueinfluence on the parents to give away right on the property. Further, this appeal is an intra-court appeal, and in the absenceof any valid and cogent grounds warranting interference, there isno reason to unsettle the decision of the learned Single Judge. AFA.No.20/199417 In the circumstances, we see no merit in thisappeal. Accordingly, the appeal is dismissed. The parties aredirected to bear their respective costs. P.R.RAMAN, JUDGEP.BHAVADASAN , JUDGE.nj. P.R.RAMAN & P.BHAVADASAN, JJ.-------------------------------A.F.A.No.20 of 1994 J U D G M E N TDated: September, 2009. -------------------------------