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TMI Blog2013 (4) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the suit was the sister's husband of the first plaintiff. Due to the close relationship, the first plaintiff had executed the power of attorney on 16.09.2002 in favour of him and he had also registered the said power of attorney. Consequently, the plaintiffs had handed over all the documents. 3. While the matter stood thus, since, the appellant herein acted against the interests to the plaintiffs/ respondents, by virtue of a document, dated 10.11.2005, the first respondent cancelled the said power of attorney. The same was also intimated by way of 'certificate of posting' to the first defendant/appellant, on 17.11.2005 itself. According to him, it was received by the first defendant. Thereafter, on 03.06.2006, he made a publication also in 'dinamalar' in this regard . 4. Inspite of the fact that the power of attorney was cancelled, the first defendant had executed the sale deed in his favour, on 05.05.2006, as if it has been sold for a consideration of ₹ 3,36,000/-. Such document is not legally sustainable. Therefore, he issued a lawyer's notice on 29.06.2006. Though it was received by the first defendant, he has not replied the same. With this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. The appellate Court also had taken into consideration Ex.B.4 an un- registered sale deed, dated 14.09.2002, and held that it was a fabricated one. It was further held that with the power of attorney, he had fraudulently created the registered sale deed and ultimately, dismissed the appeal confirming the judgment of the Courts below. Aggrieved against the same, the present Second Appeal has been filed. 9. The main point which is canvassed by the appellant/defendant is that both the Courts below have failed to take into consideration that even at the time of execution of power of attorney, possession of land was handed over to him. Apart from that, all the original documents relating to the suit property in question have been handed over to him. This power of attorney has been executed only because of the earlier transaction between the parties. Ex.B.4 dated 14.09.2002 is the document, which is the sale deed executed in favour of the first defendant by the first plaintiff. The first plaintiff is not an ordinary person. He is working as a Village Administrative Officer. He had executed the sale deed receiving full sale consideration. Thereafter, he executed the unregistered sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2 is the copy of the power of attorney given to the first defendant/appellant. 13. According to the appellant, the entire sale consideration has been paid and possession has been handed over and he had executed the sale deed dated 14.09.2002 in his name. There is no embargo in it. In fact, under Section 202 Indian Contract Act, the power of attorney coupled with interest cannot be cancelled because the date of power of attorney is on 16.09.2002, however, on 14.09.2002 itself, the sale consideration had been passed. That has been proved by the examination of the expert witness by way of marking the signatures of the plaintiffs and found it, it was all one and the same. But, curiously, the publication has been made in one issue of Dinamalar only on 03.06.2006, which is marked as Ex.A.6. 14. When this Court analyse this publication, nothing is mentioned about the cancellation of the power of attorney at all. What it says that somebody is trying to sell the property of his client without any right or interest and it will not bind his client. The publication is not for the purpose of intimating about the cancellation of the power of attorney, Ex.A.2. Further, the publication does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttorney. Therefore, normally, when a power of attorney is executed, nobody will hand over the possession or the original title deeds, coupled with the fact that the parties are close relatives and the first plaintiff/ the first respondent is not an ordinary person that he is a Village Administrative Officer and wordly-wise. This vital aspect has not been considered by the both the Courts below. 19. The Courts below should have taken into consideration that unless there is power of attorney with coupled interest, the handing over of the document and the handing over of the possession will not arise at all. Therefore, in the admission of the plaintiff, it is very clear that he handed over the possession. He also handed over the title deeds. Therefore, definitely, this has to be construed as the power of attorney with coupled interest. It is further clearly proved that the entire sale consideration has been received under Ex.B.4. The signature in that exhibit is admitted. 20. The next important aspect is the circumstances, under which, the power of attorney was cancelled. As stated supra, no reason is stated excepting to state the first defendant acted against the interests of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is only too well known that certificate of posting can be caught hold of without actually putting letters in the post. In that case, it is also stated that we have not felt safe to decide the controversy at hand on the basis of the certificates produced before us, as it is not difficult to get such postal seals at any point of time. The relevant portion found in the said judgment reads as follows:- "In vain, therefore, have we heard so much in the course of the address on behalf of the appellants of notices of the meetings having been sent through certificate of posting, as if these certificates are clothed with sacrosanctity. No doubt, under illustration (e) to Section 114 of the Evidence Act the Court may presume that an official act has been regularly performed. But such a presumption is optional. But not that the court is bound to presume so in every case... That apart, how much of a letter sent with a certificate of posting is an official act? No officer of the Post Office guarantees even the address on the letter and the address on the certificate being the same. All that is guaranteed is the postal seal by the menial of the Post Office without any manner of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o is a Village Administrative Officer. He is worldly wise. Especially, the cancellation of power of attorney is done, he should have taken necessary steps to send it by registered post immediately. No explanation is given in this regard. It is not known to this court why he sent the cancellation of power of attorney by certificate of posting and why he sent the Lawyer's notice by registered post?. 26. Under those circumstances and also taking into consideration the cumulative effect when he has gone to the extent of denying his own signature found in Ex.B.4, the original sale document, wherein the consideration has been passed, it cannot be out of place to mention that he has not sent the certificate of posting in time and it is only an eye wash to overcome the hurdles. It is also to be taken into account that he has made paper publication, after the sale deed executed. Even when this Court read the paper publication, it is only in respect of future transaction and no mention is made insofar as cancellation of the power of attorney. This vital aspect is taken into consideration, the factum of proof of cancellation of deed has not been intimated at all to this appellant. 27. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strued as a document as such it could only be considered as evidence for payment. In this aspect alone, it can be considered. Therefore, this question of law is answered in favour of the appellant only to treat that in Ex.B.4 the signature has been proved for the purpose that the transaction, which took place between the parties and the sale consideration has been passed. When the sale consideration is passed and also when the power of attorney is proved coupled with interest, definitely, the same cannot be cancelled. Unfortunately, the trial Court including the appellate Court has totally failed to consider this aspect and was swayed away by the document, namely, Ex.B.4 being an unregistered sale deed. 30. Before I part with this judgment, the learned counsel for the respondent has relied upon a judgment of this Court reported in (2006) 4 MLJ 924, Siddha Construction (P) Ltd Vs. M.Shanmugam for the proposition that when the plaintiff are not parties to the impugned sale deeds they need not pay court fees under Section 40(1) of the Tamil Nadu Court fees and Suits Valuation Act (14 of 1955) and the payment of Court-fees under Section 25(d) is proper. 31. The said case relied upo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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