IN THE COURT OF THE III ADDITIONAL SUBORDINATE JUDGE

COIMBATORE.
PRESENT: THIRU.C.B.VEDAGIRI, B.PHARM, MS-IT(AUS), L.L.M.,
III ADDITIONAL SUBORDINATE JUDGE,
COIMBATORE
THURSDAY THE 31th DAY OF AUGUST 2023
O.S.NO.1108/2014
CNR.No.TNCB08001979/2014
A.Maheshwari … Plaintiff
-- vs --
1.R.Bhuvaneshwari
2. R.Gopalakrishnan
3.Dr.C.V.Krishnasamy …Defendants

This suit is coming on 31.08.2023 for final hearing before me in the presence
of Thiru.G.Alagarraja, learned counsel for the Plaintiff and Thiru.G.Senthilkumar,
learned counsel for the 1st and 2nd Defendant and Thiru.V.Elangovan, learned
counsel for the 3rd Defendant and upon perusing the written argument of Plaintiff
side counsel and upon perusing the oral and documentary evidence and having stood
over for consideration till this date, this court passing the following

JUDGMENT
The Suit is Declaration the plaintiff is the owner of the suit property by way of
the Sale Deed executed dated 09.06.2011 in favour of her by the 3 rd Defendant on
behalf of the 2nd defendant and subsequently restraining the defendant, 1st and 2nd
defendant from any way distrub the peaceful possession and enjoyment of the suit
properties by way of permanent injunction and for cost of the suit.

OS No.1108/2014 III ASJ,CBE 1

2. Gist of the plaint:-

The plaintiff is the absolute owner of the schedule mentioned property more
fully described under plaint and the property hereafter shall be referred as suit
property is the plaint. The 1 st defendant is the wife of 2nd defendant. The 2nd
defendant is the vendor of the suit property and the 3 rd defendant is the recognized
power agent when the suit property was sold to the plaintiff on 09.06.2011 by the
virtual of the Registered Sale Deed dated 09.06.2011 as a Document No.6432/2011.
The 3rd defendant herein had approached the plaintiff for sale on the suit property in
capacity of the power agent of the 2nd defendant. On perusal of the Title Deed and
other documents the plaintiff found that the 3 rd defendant was the recognized power
agent by virtual of General Power of Attorney dated 07.12.2005. Document
No.735/2005 as such the plain reading of power of attorney in Page No 2 in para 2
there is specifically recited, stipulated clause, which empowers the 3 rd defendant to
act on behalf of 2nd defendant for entering into sale agreement for the suit property
executed the registered sale deed after received sale consideration and duly complete
the sale proceeding. The power of attorney deed dated 07.12.2005.
The 3rd defendant and the plaintiff had entered into the sale agreement on
31.03.2011 for the suit property and subsequently on 09.06.2011 the 3 rd defendant had
executed on Registered Sale Deed in favour of the plaintiff and there after the
plaintiff had become the absolute owner of the suit property right from the date of
purchase she in absolute physical possession and peaceful enjoyment of the suit
property. While the matter has been standing such state affairs suddenly on
31.07.2014 the 1st defendant had come to the suit property and made an attempt to
interfere with the actual physical possession suit property. On an enquiry with the 1 st
defendant stated that she arrived title right to the suit property by way of Settlement
Deed executed by her husband dated 10.08.2011 registered as a Document
No.8965/2011. The plaintiff had explained to the 1 st defendant that the suit property
has been sold by the 1st defendant husband through his power agent as earlier on

OS No.1108/2014 III ASJ,CBE 2

09.06.2011 and the plaintiff continuous to be the absolute owner of suit property. The
plaintiff came to know that the 2 nd defendant had cancelled the power of Attorney on
07.06.2011 but the virtual pertinent note that the cancellation of the power of attorney
deed not noticed to the general publication by way of paper publication. Hence the
plaintiff was not put to notice and the plaintiff is the bonafide purchaser of the suit
property for value without notice of the dispute between the 2 nd and 3rd defendants.
The Settlement Deed dated 10.08.2011 does not bind the plaintiff and shame and
nominal document, the Settlement Deed dated 10.08.2011. As such the Settlement
Deed executed in 2nd defendant in favour of the 1 st defendant is a manipulated
document to defeat the interest of plaintiff. Since the 2 nd defendant has created cloud
over the suit property by executing a Settlement Deed without any right on the date of
execution now it has became an incompact duty plaintiff too seeking relief of
declaration to declare the plaintiff as the absolute owner of the suit property by virtual
of the registered sale deed dated 09.06.2011 executed in favour of plaintiff by the 3 rd
defendant on behalf of the 3rd defendant as legally and valid. Since the input disturb
the 1st defendant may at any time interfere with the physical possession by the
plaintiff in respect of the suit property it is highly necessary that the 1 st defendant has
to be permanently restricted by the way of injunction. The plaintiff has got an
overwhelming prima facie case the balance of convenience is in their favour and
there is perception of threat from 1st and 2nd defendants hence she has got no other
effective or efficacious remedy except to come before. Hence the suit.

3. Gist of the Written statement filed by the 1st Defendant and Adopted by the
2nd Defendant:-

1. The suit is false, firvolous vexatious and unsustainable both in law ans on
the facts of the above case. The 1 st defendant that the entire allegations made in para
1 of the plaint is totally false and misleading except the relationship between the 1 st
defendant and the 2nd defendant. Originally the 2nd defendant was the owner of the
suit property by virtue of sale deed bearing document No 937 of 1996 dated

OS No.1108/2014 III ASJ,CBE 3

12.02.1996. Ever since the date of purchase of the suit property he was in peaceful
possession and enjoyment of the same. While so the 2nd defendant is in urgent need of
money. Therefore I have approached the 3rd defendant to sell the suit property since
he is an influential person in that locality. The 3rd defendant also assured the second
defendant to help him. Therefore the 3rd defendant requested the 2nd defendant to
execute a power of attorney in favour of him. Immediately the 2 nd defendant executed
a registered power of attorney in favour of the 3 rd defendant by document
no.730/2005 dated 07.12.2005 and the same has been registered before the Sub
registrar office, Mettupalayam. But the 3rd defendant did not act in accordance with
the recitals of the power of attorney and he did not sell the suit property in time as
expected by the second defendant. Therefore on 18.05.2011 the 2 nd defendant gave a
legal notice to the 3rd defendant, through his lawyer and thereby intimated that the
aforesaid power of attorney was cancelled from the date of receipt of this notice. The
3rd defendant acknowledged the said notice and he did not sent any reply. Therefore
the second defendant cancel the power of attorney given to the 3 rd defendant before
the Sub Registrar Office Mettupalayam vide document No.1317/2011 dated
07.06.2011. The 2nd defendant has also informed the 3rd defendant in person that he
cancelled the power of attorney given to him. After the cancellation of the said power
of attorney the 3rd defendant has no right, title and interest over the suit property.
After the cancellation of the said power of attorney the second defendant executed a
settlement deed regarding the suit property in favour of his wife the 1 st defendant on
10.08.2011 vide document no.2602/2013. Therefore the allegation that the 3 rd
defendant is the reconginzed power agent when the suit property was sold to the
plaintiff on 09.06.2011 by virtue of the registered sale deed No.6432/2011 dated
09.06.2011 are all totally false and misleadings. The allegations in para 3 to 6 of the
plaint is totally false and misleading. The defendants submit that the 2 nd defendant
gave the legal notice on 18.05.2011 to the third defendant and also to the Sub
Registrar, Mettupalayam. The 3rd defendant received the legal notice on 20.05.2011
and the Sub Registrar recived the legaln otice on 23.05.2011. After the receiving of

OS No.1108/2014 III ASJ,CBE 4

the legal notice the 3rd defendant does not given any reply to the 2nd defendant and
being silent for about 17 dayes. Only thereafter the 2nd defendant on 07.06.2011
cancelled the power of attorney given to the 3rd defendant. The defendant further state
that the 3rd defendant knowing fully well that the power given to him was already
cancelled and purposely executed a sale deed in favour of the plaintiff. The plaintiff
also well aware that the 3rd defendant has no legal right to act as on agent to execute
the sale deed in her favour after the second defendant has already cancelled the power
given to the 3rd defendant. Further the Sub Registrar, Mettupalayam also very well
that the power of attorney registered as document no730/2005 dated 07.02.2005
registered before the Sub Registrar ofice Mettupalayam was cancelled by a
cancellation deed on 1317 of 2011 dated 07.06.2011. Therefore the plaintiff, third
defendant and Sub Registrar, Mettupalayam have been colluding together and created
a forgery document so as to grab my legal right over the suit property. They are not
entitled to do so. Their act are illegal and unlawful. The 1st Defendant that she is the
absolute owner of the suit property and she is in peaceful possession and enjoyment
of the suit property, since the date of settlement deed dated 10.08.2011 executed by
her husband of second defendant. The 1st defendant after the execution of the
settlement deed in her favour she has constructed a godown by spending a sum of
Rs.2 lakhs. She also got electricity service connection in her name. She also regularly
paying the property tax for the suit property to the Sirumugai Special grade Town
panchayath. The 1st defendant has also leased out the godown to a tenant and
receiving the rent from her tenant.
The 1st Defendant that the plaintiff has not come to the court with clean hands.
She has suppressed several material and true facts. The plaintiff and the 3 rd defendant
have colluded together and with the knowledge that the power was already cancelled
ad created a forgery sale deed so as to illegally grab my property with out any
consideration. The plaintiff has no means to purchase the said property. The plaintiff
is not entitled to seek the indulgence of this Hon'ble court. The plaintiff has not made
out the prima facie case. The balance of convenience is not in her favour. The

OS No.1108/2014 III ASJ,CBE 5

plaintiff has no cause of action to file this suit. The court fees paid by the plaintiff is
insufficient. The plaintiff have no right seeking declaration merely by paying the
court fees under section 27(c) and (d). The plaintiff has to pay the court fees based
on the market value mentioned in her sale deed. This defendant reserves her right to
file additional written statement if necessarily arose in future.

4. Gist of the Written Statement filed by the 3rd Defendant :-

The averments made in para 3 of the plaint is that on 31.03.2011, this

defendant had entered into an agreement with the plaintiff for a valuable
consideration and based on that agreement on 09.06.2011 the Sale Deed is executed
in favour of the plaintiff is admitted herein. It is submitted that the 2 nd Defendant had
received the full consideration and he had given a receipt for receiving the entire
sale consideration I respect of the property. He had executed the receipt on the date of
Power of Attorney executed by him in favour of this defendant. The plaintiff was put
into possession and enjoyment over the suit properties from the date of executing the
sale deed. The 2nd defendant was informed about the Sale Agreement entered in
between the plaintiff and this defendant and he had agreed the agreement entered in
between the plaintiff and the 3rd defendant. This defendant is not a necessary party in
respect of this case.

5. Upon consideration of the above pleadings, this Court has framed the
following issues for trial:
1. Whether the sale deed dated 09.06.2011 executed by the 3 rd defendants as the
power agent of the 2nd defendant infavour of the plaintiff is valid?
2. Whether the plaintiff is the owner of the suit property?
3. Whether the plaintiff is entitled to the relief of Declaration and permanent
injunction as prayed for ?
4.To what other relief the plaintiff is entitled to?

OS No.1108/2014 III ASJ,CBE 6

5. On the side of the plaintiff, plaintiff has been examined as PW1. Through PW1,
Ex.A1 to Ex.A4 have been marked. On the side of the defendant, 2 nd Defendant has
been examined as DW1 and one Thangaraj was examined as DW2. Through DW1,
Ex.B1 to Ex.B17 were marked during the cross examination of the DW1. Through
DW2, X1 were marked during the cross examination of the DW2.

6. Issue 1 to 3:

It is the case of the plaintiff that she is the absolute owner of the suit property. The 1 st
defendant is the wife of 2nd defendant. The 2nd defendant is the vendor of the suit
property and the 3rd defendant is the recognized power agent when the suit property
was sold to the plaintiff on 09.06.2011 vide Ex.A1.
7. It is also the case of the plaintiff that the 3 rd defendant, being the power agent of
2nd defendant vide registered power of attorney document dated 07.12.02005, Ex.A3
had approached the plaintiff for sale of the suit property. On perusal of the Title Deed
and other documents and having found that the 3rd defendant is authorised to act on
behalf of the 2nd defendant as per the recitals of Ex.A3, the plaintiff entered in to an
unregistered sale agreement dated 31.03.2011,Ex.A4 with 3rd defendant and
subsequently on 09.06.2011 the 3rd defendant had executed on Registered Sale Deed
in favour of the plaintiff. Thus the plaintiff had become the absolute owner of the suit
property right from the date of purchase and that she is in absolute physical
possession and peaceful enjoyment of the suit property. On 31.07.2014 the 1 st
defendant had attempted to interfere with the actual physical possession suit property
of the plaintiff and she came to know about the execution of settlement deed on
10.08.2011 by the 2nd defendant in favour of his wife with respect to the suit
property.
8. It is also the case of the plaintiff that she came to know that the 2 nd defendant had
cancelled the power of Attorney given to 3rd defendant on 07.06.2011, but she was
not put to notice and that there was no paper publication to that effect and that she is

OS No.1108/2014 III ASJ,CBE 7

the bonafide purchaser of the suit property for value without notice of the dispute
between the 2nd and 3rd defendants. Since the Settlement Deed dated 10.08.2011 does
not bind the plaintiff and is a sham and nominal document, having made an attempt
to create cloud over the suit property, the plaintiff is before this court for relief of
declaration and injunction.

9. The Plaintiff counsel stated that the original title deed, General Power of Attorney
are still in the possession of the plaintiff. Without the possession of the original deed,
the 2nd defendant has executed the settlement deed in favour of the 1st defendant.

10. The very averments of the Power of attorney would go to show that the 2nd
defendant being the Principal has given power to mortgage, sell the property and
other acts to the 3rd defendant herein and to act on behalf of the 2nd defendant with
respect to the suit property.

11. The 1st and 2nd defendants has pleaded in their written statement in para 3
regarding the reason for execution of the General Power of Attorney. It is clear that
the power of attorney was executed by the 2nd defendant in favour of 3rd defendant,
as 2nd defendant is in urgent need of money.
12. The plaintiff counsel also stated that the recitals of Ex.B3 Letter dated
18.05.2011would also clarify the reason for execution of the power of attorney by
2nd defendant in favour of the 3rd defendant. A portion of Ex.B3 is reproduced
below:
மமேற்படி பதிவு பத்திரப்படி நீங்கள

“ கீழ்க்கண்ட சசசொத்து விபரத்தில் விவரிக்கப்பட்டுளள சசசொத்ததைப் சபசொறுத்து,

தைசொங்கமயே மேற்றவர்களுக்கு விதலை மபசவும் வசொங்க விரும்பும் நபர்கதள மமேற்படி
சசசொத்ததை பசொர்தவயிட அதழைத்து வரவும் தைசொங்கமள விதலைமபசவும் அட்வசொன்ஸ
மபசொன்ற சதைசொதககதள சபற்று ஒரு கிரயேமேசொகமவசொ அல்லைது பலை கிதரயேங்களசொகமவசொ

OS No.1108/2014 III ASJ,CBE 8

கிரயேம் சபற்றுக்சகசொளபவர் சிலைவில் சபற்றுக்சகசொண்டு பதிவு சசய்தை பத்திரங்களில்
தகசயேழுத்து சசய்தைல் முதைலியேதவ சசய்யே மவண்டியேது.
ஆனசொல், ,இது நசொள வதரயிலும் தைசொங்கள எந்தைவிதைமேசொன நடவடிக்தக
எடுக்கவில்தலை என்று சதைரியே வருகிறது.

சசசொத்து சம்பந்தைமேசொக எந்தைவிதைமேசொன நடவடிக்தகக் குறிப்புகள தைஸதைசொமவஜஜுகள

அளிக்கப்படவில்தலை. யேசொசதைசொரு பதிவுகள பற்றியே குறிப்புகள இல்தலை.

ஆதகயேசொல் நீங்கள சபசொது அதிகசொரப்பத்திரப்படி சசயேல்பட விரும்பவில்தலை

என்றும், மமேலும் இது நசொள வதர எந்தைவிதைமேசொன நடவடிக்தக எடுக்கவில்தலை
என்றும், சதைளளத் சதைளிவசொக சதைரியேவந்துளளது.

ஆதகயேசொல் இந்தை அறிவிப்பு மூலைம் சதைரியேப்படுத்துவது என்னசவன்றசொல்,

1) நீங்கள இன்தறயே மதைதியிலிருந்து சபசொது அதிகசொரம் சபற்றவர் அல்லை.

2) சபசொது அதிகசொரப்பத்திரம் 730/2005-படி நீங்கள எந்தைவிதைமேசொன

நடவடிக்தககளிலும் ஈடுபடக்கூடசொது.
3) இதுநசொள தர என் கட்சிக்கசொரருக்கத் சதைரிவிக்கசொமேல் எந்தைவிதைமேசொன
நடவடிக்தக ஏற்படுத்தி இருந்தைசொலும் அதவகளில் என் கட்சிக்கசொரர் மீது அல்லைது
அவரது சசசொத்தின் மூலைம் முகசொந்திரம் கசொட்டி கட்டுப்படுத்தைமவசொ அல்லைது
நிர்பந்திக்மவசொ அல்லைது கட்டசொயேப்படுத்தைமவசொ முடியேசொது.
4) ஆதைனசொல் ஏற்படு சகலை கஷ்டநஷ்டங்களுக்கும் நீங்கமள சபசொறுப்பசொளி
ஆவீர்கள.
5) பவர் மகன்சல் சசய்யும் சசலைவுகள முழுவதும் உங்கதளமயே மசர்ந்தைது என்று
அறியேவும்.
6) அசல் பவர் அதிகசொரப்பத்திரத்ததை எந்தைவிதைமேசொன முகசொந்திரமுமின்றி திருப்பித்
தைந்துவிட மவண்டியேது.

ஆதகயேசொல் நீங்கள சசசொத்ததைக் குறித்து எந்தைவிதைமேசொன நடவடிக்தககள

ஏற்படுத்தைசொமேல் விலைகி இருக்க மவண்டியேது.

OS No.1108/2014 III ASJ,CBE 9

13. The defendants 1 and 2 has pleaded in their para 3 of written statement as:
"While so, the second defendant is in urgent need of money. Therefore I have
approached the third defendant to sell the suit property since he is n influential
person in that locality. The third defendant also assured the second defendant to help
him. Therefore the third defendant requested the second defendant to execute a power
of attorney in favour of him. Immediately the second defendant executed a registered
power of attorney in favour of the third defendant by Document No.730/2005 dated
07.12.2005"and the same has been registered before the Sub registrar Office,
Mettupalayam. But the third defendant did not act in accordance with the recitals of
the power of attorney and he did not sell the suit property in time as expected by the
second defendant."

14. The plaintiff counsel has urged that fact being so, the 1st and 2nd defendant has
taken a different defense in their Proof Affidavit which contradicts their pleading and
also their letter Ex.B3 dated 18.05.2011 with respect to the reason for execution of
Ex.A3, Power document. The plaintiff counsel has urged that the 1st and 2nd
defendant in their proof affidavit has stated that the General Power of Attorney was
executed only for security reason and that the 3rd defendant is attempting to purchase
the same.

15. A portion of their evidence in chief examination is extracted hereunder:

என்னுதடயே மேதனவி சவளிநசொடு சசன்று மவதலை சசய்யேமவண்டி தைசொவசொ

சசசொத்திதன சபசொருத்து 3 ம் பிரதிவசொதி சபயேரில் 07.12.2005 மதைதியிட்ட பதிவு

சசய்யேப்பட்ட சபசொது அதிகசொர பத்திரம் எழுதிக்சகசொடுத்மதைன் என்றசொல் சரிதைசொன்.

07.12.2005 மதைதியேன்மற தைசொவசொ சசசொத்திதன சபசொருத்து என் சபயேரில் இருந்தை அசல்

கிதரயே பத்திரத்ததை 3 ம் பிரதிவசொதி வசம் ஒப்பதடத்துவிட்மடன் என்றசொல் சரிதைசொன்.

OS No.1108/2014 III ASJ,CBE 10

சசொட்சியிடம் 08.02.2006 மதைதியிட்ட பணம் சபற்றுக்சகசொண்டதைற்கசொன ரசீது ஆவணம்

கசொட்டப்பட்டு அதிலுளள அவருதடயே தகசயேசொப்பங்கதள சபசொருத்து வினவியேமபசொது

சசொட்சி மமேற்படி ஆவணத்தில் உளளது அவருதடயே தகசயேசொப்பம் என

ஒப்புக்சகசொண்டசொர், சசொட்சி ஒப்புக்சகசொண்டதைன் சபயேரில் அவருதடயே

தகசயேசொப்பங்கள 2 பி.தை.சசொ.ஆ.17 (3 ம் பிரதிவசொதி தைரப்பு) ஆக குறியீடு

சசய்யேப்பட்டன. 08.02.2006 மதைதியில் தைசொவசொ சசசொத்திற்கசொன முழு கிதரயே

சதைசொதகயேசொக நசொன் ர.55,200/- 3 ம் பிரதிவசொதியிடமிருந்து சபற்றுக்சகசொண்டு ரசீது

எழுதிக்சகசொடுத்துளமளன் ஏன்றசொல் சரியேல்லை.

16. It is also the contention of the plaintiff that the 1st defendant was in need of
money to go to Dubai for work and that she has left to Dubai on 05.12.2005, wherein
the General Power of Attorney was executed a month prior to this date and that the
1st defendant has returned from Dubai on 23.03.2008. It is the argued that after
returning from Dubai in 2008, revocation of power of attorney was done only in
2011. The plaintiff has also stated that the 2 nd defendant has given the consideration
for the suit property and that he has issued receipt for the same.

17. A portion of DW1 Cross examination of is extracted hereunder for reference:

என்னுதடயே மேதனவி சவளிநசொடு சசன்று மவதலை சசய்யேமவண்டி தைசொவசொ

சசசொத்திதன சபசொருத்து 3 ம் பிரதிவசொதி சபயேரில் 07.12.2005 மதைதியிட்ட பதிவு

சசய்யேப்பட்ட சபசொது அதிகசொர பத்திரம் எழுதிக்சகசொடுத்மதைன் என்றசொல் சரிதைசொன்.

07.12.2005 மதைதியேன்மற தைசொவசொ சசசொத்திதன சபசொருத்து என் சபயேரில் இருந்தை அசல்

கிதரயே பத்திரத்ததை 3 ம் பிரதிவசொதி வசம் ஒப்பதடத்துவிட்மடன் என்றசொல் சரிதைசொன்.

OS No.1108/2014 III ASJ,CBE 11

சசொட்சியிடம் 08.02.2006 மதைதியிட்ட பணம் சபற்றுக்சகசொண்டதைற்கசொன ரசீது ஆவணம்

கசொட்டப்பட்டு அதிலுளள அவருதடயே தகசயேசொப்பங்கதள சபசொருத்து வினவியேமபசொது

சசொட்சி மமேற்படி ஆவணத்தில் உளளது அவருதடயே தகசயேசொப்பம் என

ஒப்புக்சகசொண்டசொர், சசொட்சி ஒப்புக்சகசொண்டதைன் சபயேரில் அவருதடயே

தகசயேசொப்பங்கள 2 பி.தை.சசொ.ஆ.17 (3 ம் பிரதிவசொதி தைரப்பு) ஆக குறியீடு

சசய்யேப்பட்டன. 08.02.2006 மதைதியில் தைசொவசொ சசசொத்திற்கசொன முழு கிதரயே

சதைசொதகயேசொக நசொன் ர.55,200/- 3 ம் பிரதிவசொதியிடமிருந்து சபற்றுக்சகசொண்டு ரசீது

எழுதிக்சகசொடுத்துளமளன் ஏன்றசொல் சரியேல்லை.

தைசொவசொ சசசொத்திற்கசொன முழு கிதரயே சதைசொதகயும் 3 ம் பிரதிவசொதியிடம்

சபற்றுக்சகசொண்டு அதைற்கு ரசீது எழுதிக்சகசொடுத்து அத்சதைசொதகதயே சகசொண்டுதைசொன்

என்னுதடயே மேதனவி துபசொய்க்கு சசன்றசொல் என்றசொல் சரியேல்லை. 07.12.2005

மதைதியிட்ட பி.தை.சசொ.ஆ.2 சபசொது அதிகசொர பத்திரத்தில் தைசொவசொ சசசொத்ததை விற்பதைற்கும்,

அடமேசொனம் தவப்பதைற்கும் கிதரயே ஒப்பந்தைங்கள ஏற்படுத்துவதைற்கும் அதிகசொரம்

சகசொடுக்கப்பட்டுளளது என்றசொல் சரிதைசொன். 3 ம் பிரதிவசொதி எங்களிடம் சசசொல்லியேவசொறு

நடந்துசகசொளளவில்தலை என எனது பிரமேசொன வசொக்குமுலைத்தில் குறிப்பிட்டுளமளன்

என்றும் அவ்வசொறு என்ன வசொக்குறுதிதயே 3 ம் பிரதிவசொதி அளித்தைசொர் என்றசொல் என்

மேதனவி துபசொய் சசன்று திரும்பியே பிறகு சசசொத்ததை மீண்டு எங்களிடம்

ஒப்பதடத்துவிடுவதைசொகவும், வங்கியில் வசூலிக்கும் வட்டிதயே சகசொடுத்தைசொல் மபசொதும்

என 3 ம் பிரதிவசொதி சதைரிவித்திருந்தைசொர்.

OS No.1108/2014 III ASJ,CBE 12

18. It was also argued by the plaintiff counsel that the 1st and 2nd defendant does not
possess the original document and that the same is in possession with plaintiff. The
plaintiff counsel has stated that except the Tenancy agreement and that too with the
alleged previous tenant, there is no documentary proof before this court to
substantiate that DW2 is under rent with 1st defendant. A portion of cross
examination of DW1 in this aspect is hereunder:
பி.தைசசொஆ.16 ஆவணத்தில் தைசொவசொ சசசொத்திலுளள சஷெட்டில் கட்டுமேசொன

சபசொருட்கள தவப்பதைற்கு வசொடதகக்கு விடப்பட்டுளளதைசொக குறிப்பு உளளது என்றசொல்

சரிதைசொன். பிதைசசொஆ.16 ஆவணத்தில் 4 மேசொதை கசொலைத்தில் ஒப்பந்தைம் முடிவதடவதைசொக

எழுதைப்பட்டுளளது என்றசொல் சரிதைசொன். பி.தைசசொ.ஆ.16 ஆவணத்தில் வசொடதகக்கசொலைம்

நீட்டிக்கப்பட்டதைசொக வசொசகம் இல்தலை என்றசொல் சரிதைசொன். நசொன் மவறு ஒரு நபருக்கு

வசொடதகக்கு விட்டுவிட்மடன். நசொன் மவறு நபருக்கு வசொடதக விட்டுளளதைசொக

குறிப்பிடுவதைற்கு ஆதைரவசொக ஆவணம் தைசொக்கல் சசய்யேவில்தலை என்றசொல் சரியேல்லை.

என்னுதடயே அசல் ஆவணங்கதள திரும்ப மகட்டு நசொன் அறிவிப்ப

அனுப்பிளயுளமளனசொ என்றசொல் நசொன் அனுப்பியே அறிவிப்பில் மகட்டுளமளன். நசொன்

குறிப்பிடுவது மபசொல் பி.தை.சசொ.ஆ 3 மேற்றும் 5 ல் அவ்வசொறு மகட்கவில்தலை என்றசொல்

சரியேல்லை.

19. The plaintiff counsel has finally stated that she is the bonafide purchaser of the
suit property without notice and that she is not aware of the transactions between the
defendants and more particularly all the original documents are in her possession.
The 1st and 2nd defendant has taken contradictory stand with respect to their Written
statement and Ex.B3 letter and a totally different version in Proof affidavit which
goes to the root of the case. Having acted in a prudent manner, having verified the
title deeds and originals, having possession of the documents, having entered in to

OS No.1108/2014 III ASJ,CBE 13

sale agreement with the 3rd defendant with the intention to purchase the suit property
on the strength of the General Power of Attorney executed by the 2nd defendant in
favour of the 3rd defendant, having paid the entire sale consideration and 3rd
defendant acted for the principal,2nd defendant herein, being not aware of
cancellation of the power of attorney by the 2nd defendant and unaware about the
transaction between the defendants, settlement deed executed by the 2nd defendant in
favour of the 1st defendant is sham and nominal and asserted that the plaintiff is the
bonafide purchaser of the suit property without notice and that she is in absolute
possession and enjoyment of the suit property and that she is entitled to the relief of
declaration and injunction.
20. A portion of cross examination of DW1 is culled out:

நசொன் சபசொய்யேசொக வழைக்கசொடி வருகிமறன் என்றும் வசொதி உரியே மேறுபயேனுக்கு 3 ம்

பிரதிவசொதியிடமிருந்து முதறயேசொக கிதரயேம் சபற்றுளளசொர் என்றும் வசொதை Bonafide

purchaser என்றசொல் சரியேல்லை. தைசொவசொ சசசொத்து வசொதிக்கு பசொத்தியேப்பட்டு அவருதடயே

அனுபவத்தில் உளளது என்றசொல் சரியேல்லை.

21. Countering the argument advanced by the plaintiff's counsel, the 1st and 2nd
defendant counsel has contended that that the 2nd defendant was the owner of the suit
property vide Ex.B1,sale deed dated 12.02.1996 and that ever since the date of
purchase of the suit property, the 2nd defendant was in peaceful possession and
enjoyment of the same. It was contended that since the 2 nd defendant is in urgent need
of money, he has approached the 3 rd defendant to sell the suit property and upon
assurance executed a power of attorney dated 07.12.2005, Ex.B2/ExA3 in favour of
3rd defendant before Sub Registrar Office, Mettupalayam.

22. The learned counsel for the defendant 1 and 2 has argued that since the 3rd
defendant did not act in accordance with the terms and sell the property in time, the
2nd defendant has sent a legal notice to the 3rd defendant vide Ex.B5 dated

OS No.1108/2014 III ASJ,CBE 14

18.05.2011 intimating that the aforesaid power of attorney was cancelled from the
date of receipt of the notice. The 3rd defendant acknowledged the said notice and he
did not sent any reply. The second defendant after due intimation to the 3rd defendant
has cancelled the power of attorney,Ex.B2/Ex.A3 given to the 3 rd defendant. The 2nd
defendant has also informed the 3rd defendant in person that he cancelled the power of
attorney given to him. After the cancellation of the said power of attorney dated
07.06.2011 vide Ex B7, the 3 rd defendant has no right, title and interest over the suit
property.

23. The 1st and 2nd defendant counsel also stated that upon cancellation of the power
of attorney executed by the 2nd defendant and after due intimation to the 3rd
defendant, the second defendant executed a settlement deed regarding the suit
property in favour of his wife the 1st defendant on 10.08.2011 vide Ex.B8.

24. The defendants counsel also putforth his submission that the 2nd defendant issued
legal notice on 18.05.2011 to the third defendant and also to the Sub Registrar,
Mettupalayam. The 3rd defendant received the legal notice on 20.05.2011 vide Ex.B4
and the Sub Registrar received the legal notice on 23.05.2011 vide Ex.B6. In spite of
receiving of the legal notice, the 3rd defendant does not given any reply to the 2nd
defendant and was kept silent for about 17 days. The 2 nd defendant on 07.06.2011
cancelled the power of attorney given to the 3 rd defendant. Knowing very well about
the cancellation of the power document given in his favour, the 3 rd defendant
purposely executed a sale deed in favour of the plaintiff on 09.06.2011 vide Ex.A1.

25. The learned counsel for the 1st and 2nd Defendant has argued that she is the
absolute owner of the suit property and that she is in peaceful possession and
enjoyment of the suit property since the date of settlement deed dated 10.08.2011
executed by her husband of second defendant vide Ex.B8.

OS No.1108/2014 III ASJ,CBE 15

26. The 1st and 2nd defendant counsel has stated that after the execution of the
settlement deed in her favour, the 1st defendant has constructed a godown upon due
sanction vide Ex.B10. The learned defendant counsel has also argued that Patta,
Sanction Sketch, Property Tax Book and Receipts, Electricity Bill Receipts and Card
vide Ex.B9 to Ex.B15 would go to show that the 1st defendant is in absolute
possession and enjoyment of the suit property. The 1st defendant has leased out the
godown to a tenant and has been receiving the rent which would go to show that the
suit property is in her absolute possession and enjoyment and that she is the absolute
owner and that the plaintiff with ill intention to grab the property of the 1st defendant
has created a sham and nominal sale deed in favour of the plaintiff knowing well that
the 3rd defendant has no right to alienate the suit property.

27. The 3rd defendant after having notice of the legal notice addressed to him, has
executed the sale deed in favour of plaintiff. The power of attorney was cancelled
after due notice to the 3rd defendant and a copy was sent to Sub Registrar,
Mettupalayam. Thus 3rd defendant has no locus to execute sale deed in favour of
plaintiff and that too after the registration of cancellation of the power of attorney.

28. The defendant counsel urged that after executing a valid cancellation of power of
attorney, the 2nd defendant has settled the suit property in favour of his wife, the 1st
defendant herein and that construction has been carried out in the suit property. In
view of valid title to the suit property, revenue records were mutated and that Patta
stands in the name of 1st defendant. The Building plan approval, Property tax,
Electricity Connection, EB Receipts vide Ex.B9 to Ex.B15 goes to show that
possession of the suit property absolutely vest with D1.

29. The 1st and 2nd defendant counsel has argued that Ex.B16, Lease Deed entered
between 1st defendant and one S.R.Subramaniam to substantiate that the suit property
vest with the 1st defendant herein,. The present tenant DW2 was examined before

OS No.1108/2014 III ASJ,CBE 16

this court and he has categorically deposed that he is in rent under 1st defendant.
Since all revenue and officials records standing in the name of the 1st defendant, 1st
defendant having constructed shed/building in the suit property and 1st defendant
having allowed DW2 for being in rent under 1st defendant would also goes to show
that the property being vested absolutely with the 1st defendant.

30. The defendant counsel contended that the plaintiff has miserably failed to produce
any documents to show that she is in possession of the suit property and that the
plaintiff in collusion with the 3rd defendant and her son in law have created the sale
deed in favour of the plaintiff inspite of the alleged power of attorney being cancelled
upon due notice to the 3rd defendant.

31. The defendant counsel has stated that plaintiff is related to family members of 3rd
defendant which would also go to show that the very sale deed executed by the 3rd
defendant in favour of plaintiff is nothing but to grab the property of the 1st
defendant.
A portion of cross examination of PW1 is reproduced below:

திருமேணத்திற்கு பின்னிட்டு 2005-2006 ம் ஆண்டுகளில் துபசொயில் Nutition ல்

பணியேசொற்றி வந்மதைன். 3 ம் பிரதிவசொவாி கிருஷ்ணசசொமி மூலைமேசொகத்தைசொன் துபசொயில் மவதலை

பசொர்க்க சசன்மறன் என்றசொல் சரியேல்லை அவருதடயே மேகள சசொந்தி மூலைமேசொக அங்கு

மவதலைக்கு சசன்மறன். நசொன் மவதலைக்கு சசன்ற கசொலைகட்டத்தில் 3 ம்

பிரதிவசொதியின் மேகள துபசொயில் வசித்து வந்தைசொர் என்றசொல் சரிதைசொன். நசொன் குறிப்பிடுவது

சபசொய் என்றும், 3 ம் பிரதிவசொதியின் மேகதள எனக்கு மநரிட்டு சதைரியேசொது என்றும், 3 ம்

பிரதிவசொதி மூலைமேசொகத்தைசொன் துபசொக்கு சசன்மறன் என்றசொல் சரியேல்லை. நசொன் துபசொய்க்கு

சசன்றது அங்கு இருந்தை கசொலைகட்டத்தில் 3 ம் பிரதிவசொதியின் மேருமேகன் ரசொமஜந்திரன்

OS No.1108/2014 III ASJ,CBE 17

என்ற மகசொவிந்தைரசொஜ் கசொப்பசொளரசொக சசயேல்பட்டசொர் என்றசொல் சரிதைசொன்.

3 ம் பிரதிவசொதி மேகள சசொந்தி என்றும், சசொந்தியின் கணவர் ரசொமஜந்திரன் என்றும்

மமேற்படியேசொளர்கள என் கணவர் பிரபசொகரனுக்கு உறவுமுதற என்றசொல் சரிதைசொன்.

32. The defendant counsel argued that the plaintiff doesnot know about the sale
agreement dated 31.03.2011. The defendant counsel also urged that none of the
witnesses to the alleged unregistered sale agreement, Ex.A4 was examined. It was
elicited in the cross examination of the plaintiff that she doesnot know the Advocate
who prepared the sale agreement and that he was not examined.
33. A portion of PW1 Cross examination is culled out hereunder:

தைசொவசொ சசசொத்ததை சபசொறுத்து எந்தை மதைதி கிதரயே ஒப்பந்தைம் சசய்துசகசொண்மடன்

என்றசொல் 31.03.2011 மதைதியில் கிதரயே ஒப்பந்தைம் சசய்துசகசொண்மடன். வசொ.தை.சசொ.ஆ 4

கிதரயே ஒப்பந்தை பத்திரத்திற்கசொன முத்திதரத்தைசொளகள என் சபயேரில்

வசொங்கப்பட்டுளளது என்றசொல் சரிதைசொன். வசொ.தைசசொ.ஆ.4 முத்திதரத்தைசொள 25.3.2011

மதைதியில் புளியேம்பட்டியில் வசொங்கியுளமளன். புளியேம்பட்டியில் யேசொரிடம்

முத்திதரத்தைசொளகள வசொங்கிமனன் என்றசொல் அது பற்றி நியேசொபகமில்தலை. வசொ.தை.சசொஆ.4

ல் உளள வசொசகங்கதள யேசொர் தைட்டச்சு சசய்து வந்தைசொர்கள என்றசொல் என் கணவர் தையேசொர்

சசய்துசகசொண்டுவந்தைசொர். அவ்விரங்கள அவருக்குத் சதைரியும், வசொ.தை.சசொ.ஆ.4 ல் உளள

சங்கதிகள பற்றி எனக்கு சதைரியும், வசொ.தை.சசொ.ஆ.4 யேசொர் தையேசொரித்து தகசயேசொப்பம்

சசய்துளளசொர் என்றசொல் அது பற்றி எனக்கு சதைரியேசொது என் கணவருக்குத்தைசொன்

சதைரியும். வசொ.தை.சசொ.ஆ.4 ஆவணத்தில் யேசொர் யேசொர் தகசயேசொப்பம் சசய்துளளசொர்கள

என்றசொல் நசொன், கிருஷ்ணசசொமி ஆகிமயேசொர் தகசயேசொப்பம் சசய்துளமளசொம் மேற்றவர்கள

OS No.1108/2014 III ASJ,CBE 18

பற்றி எனக்கு சதைரியேசொது. வசொ.தைசசொ.ஆ.4 பத்திரத்ததை தையேசொர் சசய்தை பின்னிட்டு அதில்

நசொனும், 3 ம் பிரதிவசொதியும் தகசயேசொப்பம் சசய்துளமளசொம் என்றசொல் சரிதைசொன்.

வசொ.தை.சசொ.ஆ.4 பத்திரத்தில் மேற்றவர்கள எங்குதவத்து தகசயேசொப்பம் சசய்தைசொர்கள

என்றசொல் அதுபற்றி எனக்கு சதைரியேசொது என் கணவருக்குத்தைசொன் சதைரியும்.

34. The learned counsel for the defendant also stated that the Power of attorney was
executed by the 2nd defendant in favour of 3rd defendant in the year 2005. It was
until 2011, there was no activity being carried out by the 3rd defendant in pursuance
of the said power document. Having not acted in pursuant to the alleged power by 3rd
defendant, the 2nd defendant upon due notice to the 3rd defendant, upon due
intimation to the concerned Sub Registrar Office, the 2nd defendant had executed a
registered cancellation of power of attorney document dated 07.06.2011. Thus the 3rd
defendant has no locus to execute the sale deed in favour of plaintiff on 09.06.2011
and the same is not binding on the 2nd defendant as the 3rd defendant has no
authority to act on behalf of the 2nd defendant on the said date of sale deed in favour
of plaintiff.

35. Inorder to appreciate the concept of the Agency coupled with interest this court
thought it fit to place reliance on the decision of the Hon'ble High Court in
S.Subramanian & Ors Vs R.Dayananthan and Ors wherein it was held that:

" 6. To appreciate the plaint allegations, we will have to see the contents of the power
of attorney executed by the revision petitioners in favour of the first respondent on
29.8.2003. A reading of the said power document makes it clear that the first respon-
dent/first plaintiff was appointed as agent of the revision petitioners to maintain and
look after their property and to let out the property and collect rent and to execute gift
settlement or release deed or enter into sale agreement and to execute sale deed in re-
spect of the property belonging to the revision petitioners. In short, it is an absolute
power giving all the rights to the power agent to deal with the property belonging to

OS No.1108/2014 III ASJ,CBE 19

the revision petitioners. As per section 201 of the Contract Act, an agency is termi-
nated by the principal revoking the authority and as per section 202, where the agent
has any interest in the property which forms the subject matter of the agency, the
agency cannot in the absence of any express contract, be terminated to the breach of
such interest. Therefore, as per section 202 of the Contract Act, agency coupled with
interest cannot be terminated to the breach of such interest and the agency must have
an interest in the property which forms the subject matter of the agency. Only in such
cases, the agency becomes agency coupled with interest and such agency cannot be
revoked to the breach of such interest. In this case, a reading of the power of attorney
executed by the revision petitioners appointing the first respondent/first plaintiff as an
agent cannot be termed as agency coupled with interest. As stated supra, the agent
viz., the first respondent/first plaintiff was given absolute power to deal with the
property in the manner he likes and no interest in the subject matter of the agency
was given to the agent to make the agency coupled with interest. As per the power
granted in favour of the first respondent under the power of attorney, the first respon-
dent entered into a lease agreement with Indian Oil Corporation and delivered posses-
sion of the property to the lessee and thereafter, the second respondent was appointed
as dealer of Indian Oil Corporation to operate the retail outlet of their products and
none of these facts can be construed as conferring of interest in the subject matter of
the agency on the agent. This has been made clear in the Illustration (a) to Section
202 and it is as follows:-

"A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the
debts due to him from A. A cannot revoke this authority, nor can it be terminated by
his insanity or death."

36. Further, the entering into an agreement by the first respondent with the second
respondent before termination of agency also cannot be construed as an interest ac-
crued under the agency and that is only a power given to the agent to enter into an
agreement of sale or to sell the property and that cannot be construed as an interest in

OS No.1108/2014 III ASJ,CBE 20

the subject matter of agency. Therefore, when the agency is a power and a simple one
and not coupled with interest as per section 202 of the Indian Contract Act, such
agency can be revoked by the principal and as per section 205, even in case where the
agency should be continued for any period of time and the agency is revoked by the
principal before expiry of that time, the remedy available to the agent is to apply for
compensation for the earlier revocation of the agency without sufficient cause and as
per section 206 of the Indian Contract Act, reasonable notice must be given of such
revocation failing which damages can be claimed by the affected party."

37. The Hon'ble Apex Court in Ghanshyam vs Yogendra Rathi 2023 Live Law SC
479 while dealing with the aspect of transfer of property through an agreement to sell
combined with a power of attorney and a will stated that neither an agreement to sell
nor a power of attorney can be construed as a document of titles and will not confer
title of the suit property on the buyer or the power of attorney holder. It was held that:
" Legally an agreement to sell may not be regarded as a transaction of sale or a
document transferring the proprietary rights in an immovable property but the
prospective purchaser having performed his part of the contract and lawfully in
possession acquires possessory title which is liable to be protected in view of Section
53A of the Transfer of Property Act, 1882. The said possessory rights of the
prospective purchaser cannot be invaded by the transferer or any person claiming
under him."

38. It could be seen that the Hon'ble Supreme Court has deprecated the practice of
transferring property through a power of attorney holding them to be in violation of
the statutory law. Thus the Power of Attorney coupled with interest cannot be
interpreted as complete transfer of interest in an immoveable property in favour of the
agent and it is not an instrument of transfer of rights in an immoveable property in
entirety.

OS No.1108/2014 III ASJ,CBE 21

39. This court feels that it would be apt to the context to refer to the celebrated
judgment of the Hon'ble Supreme Court in Suraj Lamps and Industries Pvt. Ltd vs
State of Haryana and Another 2012 1 SCC 656 which recognised the widespread
use of such practices and deprecated them holding that such transactions will not
convey any title or create any interest in the immoveable property and hence the same
cannot be recognized as a valid mode of transfer with respect to the immoveable
property. It is fairly settled and as per law, immoveable property can only be
transferred through a registered deed of conveyance. It was held in Suraj Lamp
supra that:
"...13. A power of attorney is not an instrument of transfer in regard to any right, title
or interest in an immovable property. The power of attorney is creation of an agency
whereby the grantor authorizes the grantee to do the acts specified therein, on behalf
of grantor, which when executed will be binding on the grantor as if done by him (see
section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or
terminable at any time unless it is made irrevocable in a manner known to law. Even
an irrevocable attorney does not have the effect of transferring title to the grantee. In
State of Rajasthan vs. Basant Nehata 2005 12 SCC 77, this Court held :
"A grant of power of attorney is essentially governed by Chapter X of the Contract
Act. By reason of a deed of power of attorney, an agent is formally appointed to act
for the principal in one transaction or a series of transactions or to manage the affairs
of the principal generally conferring necessary authority upon another person. A deed
of power of attorney is executed by the principal in favour of the agent. The agent
derives a right to use his name and all acts, deeds and things done by him and subject
to the limitations contained in the said deed, the same shall be read as if done by the
donor. A power of attorney is, as is well known, a document of convenience.
40. Execution of a power of attorney in terms of the provisions of the Contract Act as
also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed
hereinbefore, is executed by the donor so as to enable the donee to act on his behalf.
Except in cases where power of attorney is coupled with interest, it is revocable. The

OS No.1108/2014 III ASJ,CBE 22

donee in exercise of his power under such power of attorney only acts in place of the
donor subject of course to the powers granted to him by reason thereof. He cannot
use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act
of infidelity or breach of trust is a matter between the donor and the donee."

41. The Supreme Court in Shiv Kumar and Anr, vs Union of India and Ors further
held that a power of attorney does not create interest in the immoveable property and
hence no right can be claimed by way of a transfer of property through a power of
attorney.

42. In Seth Loon Karan Sethiya and Ors vs Mr Ivan E. John and Ors AIR 1969
SC 73 the principal had executed a power of attorney in favour of the bank, to which
it owed money, for execution of a decree passed in favour of the principal and
recover the amounts due from the principal. The Hon'ble Supreme Court has held that
such a power of attorney is coupled with interest and stated that "where the agency is
created for valuable consideration and authority is given for effectuating a security
interest or to secure the interest of the agent, then such power is 'coupled with
interest'."

43. It was argued by the plaintiff's counsel that the 2nd defendant has admitted the
receiving of consideration amount from the 3r defendant vide Ex. B17 and that since
the agency is coupled with interest the 2nd defendant has no authority to revoke the
Power of attorney and the very cancellation is not valid and that having received the
consideration vide Ex.B17, the 3rd defendant has every right to execute sale deed in
favour of the plaintiff.

44. This court feels that the argument advanced by the plaintiff's counsel in this
regard doesnot have strength and ground. In the case on hand, the alleged sale
agreement is not registered, the alleged payment of consideration by the 3rd

OS No.1108/2014 III ASJ,CBE 23

defendant to the 2nd defendant vide Ex.B17 is neither stamped nor registered. The
very document which purported to have been executed by 2nd defendant in favour of
3rd defendant could not be relied upon and it ought not to have been received as
evidence.

45. This court place reliance on the recent decision of the Hon'ble Supreme court in
R.Hemalatha Vs Kashthuri decided on 10.04.2023 wherein the moot question of
the civil appeal is the effect of Section 17 (1) (g) of the Registration Act applicable to
the State of Tamil Nadu by which Section 17 (1) (g) of the Registration Act has been
inserted and instruments of agreement relating to sale of immovable property of the
value of Rs.100/ and upwards is made compulsorily registrable and whether such
unregistered agreement relating to sale of immovable property can be received in
evidence in a suit for specific performance AND it was held that:
"...6. While answering the aforesaid issues and appreciating the submissions made by
learned counsel appearing on behalf of the respective parties, Section 17 of the
Registration Act, 1908, as applicable prior to the Registration (Tamil Nadu
Amendment) Act, 2012 and Section 17 post Amendment Act, 2012, are required to be
referred to which are as under.
46. Section 17 of the Registration Act, 1908, post Tamil Nadu Amendment Act,
2012 reads as under :
“17. Documents of which registration is compulsory.—(1) The following documents
shall be registered, if the property to which they relate is situate in a district in which,
and if they have been executed on or after the date on which, Act No. XVI of 1864, or
the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian
Registration Act, 1877, or this Act came or comes into force, namely:—
(a) instruments of gift of immovable property;
(b) other nontestamentary instruments which purport or operate to create, declare,
assign, limit or extinguish, whether in present or in future, any right, title or interest,
whether vested or contingent, of the value of one hundred rupees and upwards, to or

OS No.1108/2014 III ASJ,CBE 24

in immovable property;
(c) nontestamentary instruments which acknowledge the receipt or payment of any
consideration on account of the creation, declaration, assignment, limitation or
extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one
year, or reserving a yearly rent;
[(e) nontestamentary instruments transferring or assigning any decree or order of a
Court or any award when such decree or order or award purports or operates to
create, declare, assign, limit or extinguish, whether in present or in future, any right,
title or interest, whether vested or contingent, of the value of one hundred rupees and
upwards, to or in immovable property:] Provided that the [State Government] may,
by order published in the [Official Gazette], exempt from the operation of this
subsection any lease executed in any district, or part of a district, the terms granted by
which do not exceed five years and the annual rents reserved by which do not exceed
fifty rupees. [(1A) The documents containing contracts to transfer for consideration,
any immovable property for the purpose of section 53A of the Transfer of Property
Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the
commencement of the Registration and Other Related laws (Amendment) Act, 2001
(48 of 2001) and if such documents are not registered on or after such
commencement, then, they shall have no effect for the purposes of the said section
53A.] (2) Nothing in clauses (b) and (c) of subsection (1) applies to—
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock Company, notwithstanding that
the assets of such Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring,
assigning, limiting or extinguishing any right, title or interest, to or in immovable
property except in so far as it entitles the holder to the security afforded by a
registered instrument whereby the Company has mortgaged, conveyed or otherwise
transferred the whole or part of its immovable property or any interest therein to

OS No.1108/2014 III ASJ,CBE 25

trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company;
or
(v) [any document other than the documents specified in subsection (1A)] not itself
creating, declaring, assigning, limiting or extinguishing any right, title or interest of
the value of one hundred rupees and upwards to or in immovable property, but merely
creating a right to obtain another document which will, when executed, create,
declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court [except a decree or order expressed to be made on
a compromise and comprising immovable property other than that which is the
subjectmatter of the suit or proceeding]; or
(vii) any grant of immovable property by [Government]; or
(viii) any instrument of partition made by a RevenueOfficer; or
(ix) any order granting a loan or instrument of collateral security granted under the
Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument
for securing the repayment of a loan made under that Act; or [(xa) any order made
under the Charitable Endowments Act, 1890 (6 of 1890), vesting any property in a
Treasurer of Charitable Endowments or divesting any such Treasurer of any property;
or]
(xi) any endorsement on a mortgagedeed acknowledging the payment of the whole or
any part of the mortgagemoney, and any other receipt for payment of money due
under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public
auction by a Civil or RevenueOfficer.
[Explanation.—A document purporting or operating to effect a contract for the sale of
immovable property shall not be deemed to require or ever to have required
registration by reason only of the fact that such document contains a recital of the
payment of any earnest money or of the whole or any part of the purchase money.]”

OS No.1108/2014 III ASJ,CBE 26

47. By Tamil Nadu Amendment Act, 2012, Section 17(1)(g) has been inserted and
“explanation” to Section 17(2) has been omitted. Section 17(1)
(g) as inserted by Tamil Nadu Amendment Act, 2012, reads as under :
“17(1)(g) instruments of agreement relating to sale of immovable property of the
value of one hundred rupees and upwards.”

48. Thus, on and after the Tamil Nadu Amendment Act, 2012, as per Section 17(1)
(g), instrument of agreement relating to sale of immovable property of the value of
Rs.100/ and upwards is required to be registered compulsorily. However, despite the
same and despite the “explanation” to sub section (2) of Section 17 has been omitted,
there is no corresponding amendment made to Section 49 of the Registration Act.
Section 49 of the Registration Act is as under :
“49. Effect of non registration of documents required to be registered.—No
document required by section 17 [or by any provision of the Transfer of Property Act,
1882 (4 of 1882)], to be registered shall—
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring
such power, unless it has been registered:
[Provided that an unregistered document affecting immovable property and required
by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be
received as evidence of a contract in a suit for specific performance under Chapter II
of the Specific Relief Act, 1877 (3 of 1877) , *** or as evidence of any collateral
transaction not required to be effected by registered instrument.]”

49. Thus, as per proviso to Section 49, an unregistered document affecting the
immovable property and required by Registration Act to be registered may be

OS No.1108/2014 III ASJ,CBE 27

received as evidence of a contract in a suit for specific performance under ChapterII
of the Specific Relief Act, 1877, or as evidence of any collateral transaction not
required to be effected by registered document.
50. At this stage, the primary statement of objects and reasons to the Tamil Nadu
Amendment Act, 2012, is also required to be referred to and considered. The primary
statement of objects and reasons seem to suggest that amendment has been
introduced by the State of Tamil Nadu bearing in mind the loss to the exchequer as
public were executing the documents relating to sale of immovable property etc. on
white paper or on stamp paper of nominal value.

51. At this stage, it is required to be noted that the proviso to Section 49 came to be
inserted vide Act No.21 of 1929 and thereafter, Section 17(1A) came to be inserted
by Act No. 48 of 2001 with effect from 24.09.2001 by which the documents
containing contracts to transfer or consideration any immovable property for the
purpose of Section 53 of the Transfer of Properties Act is made compulsorily to be
registered if they have been executed on or after 2001 and if such documents are not
registered on or after such commencement, then there shall have no effect for the
purposes of said Section 53A. So, the exception to the proviso to Section 49 is
provided under Section 17(1A) of the Registration Act. Otherwise, the proviso to
Section 49 with respect to the documents other than referred to in Section 17(1A)
shall be applicable.

52. Under the circumstances, as per proviso to Section 49 of the Registration Act, an
unregistered document affecting immovable property and required by Registration
Act or the Transfer of Property Act to be registered, may be received as evidence of a
contract in a suit for specific performance under Chapter II of the Specific Relief Act,
1877, or as evidence of any collateral transaction not required to be effected by
registered instrument, however, subject to Section 17(1A) of the Registration Act. It
is not the case on behalf of either of the parties that the document/ Agreement to Sell

OS No.1108/2014 III ASJ,CBE 28

in question would fall under the category of document as per Section 17(1A) of the
Registration Act. Therefore, in the facts and circumstances of the case, the High
Court has rightly observed and held relying upon proviso to Section 49 of the
Registration Act that the unregistered document in question namely unregistered
Agreement to Sell in question shall be admissible in evidence in a suit for specific
performance and the proviso is exception to the first part of Section 49."

53. This court feels that as per proviso to Section 49, an unregistered document
affecting the immovable property and required by Registration Act to be registered
may be received as evidence of a contract in a suit for specific performance under
Chapter-II of the Specific Relief Act, 1877, or as evidence of any collateral
transaction not required to be effected by registered document. In the considerate
view of the primary statement of objects and reasons of the Amendment Act, 2012,
this court feels that it seems to suggest that the State amendment has been introduced
bearing in mind the loss to the exchequer, as public were executing the documents
relating to sale of immovable property etc. on white paper or on stamp paper of
nominal value.

54. By the proviso to Section 49 and Section 17(1A) of Registration Act the
documents containing contracts to transfer or consideration of any immovable
property for the purpose of Section 53 of the Transfer of Properties Act is made
compulsorily to be registered if they have been executed on or after 2001 and if such
documents are not registered on or after such commencement, then there shall have
no effect for the purposes of said Section 53A. So, the exception to the proviso to
Section 49 is provided under Section 17(1A) of the Registration Act. Otherwise, the
proviso to Section 49 with respect to the documents other than referred to in Section
17(1A) shall be applicable. As per proviso to Section 49 of the Registration Act, an
unregistered document affecting immovable property and required by Registration
Act or the Transfer of Property Act, 1882 to be registered, may be received as
evidence of a contract in a suit for specific performance under Chapter-II of the

OS No.1108/2014 III ASJ,CBE 29

Specific Relief Act, 1877, or as evidence of any collateral transaction not required to
be effected by registered instrument, subject to Section 17(1A) of the Registration
Act."
This court feels that as per the above dictum, Ex.A4 and Ex B17 could not be
relied by the Plaintiff to say that they have paid the consideration for the suit property
as the same is not registered and the very evidentiary value of the document is put to
test as stated supra.

55. This court also feels that since the suit property was settled by the 2 nd defendant in
favour of the 1st defendant upon due notice of cancellation of power in favour
executed by the 2nd defendant to the 3rd defendant, the 3rd defendant has no better title
than 2nd defendant and that h cannot convey the property to the plaintiff. The
protection of property means that no one can give better title than he himself
possesses which is enshrined in legal maxim “nemo dat quod non habet” where as
protection of commercial transaction indicates that person who purchases anything in
good faith and for value without notice should get a good title. The main purpose of
transferring the right of ownership, not merely the possession of goods. Since the 3rd
defendant himself does not had title and he not being the owner cannot transfer the
possession and ownership to suit property to the plaintiff.

56. This court also places reliance on the recent decision of the Hon’ble Supreme
Court of India in Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, 2022 SCC
OnLine SC 258, wherein it was held that:
“...Applying the said principles to the case at hand, the Court observed that once the
defendant was held to be the true and absolute owner pursuant to the registered sale
deed executed in his favour and the plaintiff was unsuccessful so far as the
declaratory relief is concerned, thereafter, it cannot be said that there was a cloud
over the title of the plaintiff and/or even the defendant. Therefore, the only relief
which survived before the trial court was the consideration of relief of permanent

OS No.1108/2014 III ASJ,CBE 30

injunction and having been unsuccessful in getting the relief of cancellation of the
registered sale deed and the declaration thereof, the relief of permanent injunction
could not have been granted by the trial court as well as by the first Appellate Court.
The Court observed that the Gujarat High Court lost sight of this aspect in the second
appeal.
..If that be so, in the present case, the relief for permanent injunction can be
said to be a consequential relief and not a substantive relief as observed and held by
the High Court. Therefore, once the plaintiff has failed to get any substantive relief of
cancellation of the sale deed and failed to get any declaratory relief, and as observed
herein above, relief of injunction can be said to be a consequential relief.”

57. From the overall discussion and the decisions stated supra, the very recitals of the
General Power of attorney this court comes to an irresistible conclusion that the
alleged power of attorney document is only a General Power of attorney document
executed by the 2nd defendant in favour of the 3rd defendant and that it is not
coupled with interest, and as per the provisions of contract of agency, the 2nd
defendant is well within the ambit of law in giving due notice to the 3rd defendant
and the Sub Registrar Office for cancellation of the Power of attorney given in favour
opf the 3rd defedant. This court also feels that the document relied by plaintiff that the
2nd defendant has issued receipt of sale consideration would loses its significance as
per the dictum discussed supra. Having cancelled the Power of attorney on
07.06.2011, having notice of cancellation, the transfer made by the 3 rd defendant in
the capacity of the Power Agent of 2 nd defendant doesnot hold good and accordingly
the plaintiff is not entitled to the relief of declaration as sought for.

58. The plaintiff has failed to get any substantive relief of declaring that she is the
absolute owner of the suit property and having no title to the suit property, having
failed to get any declaratory relief, suit property being in possession with the 1st
defendant the plaintiff cannot claim the consequential relief of permanent injunction

OS No.1108/2014 III ASJ,CBE 31

against the 1st and 2nd defendant.
Thus the above issues are answered in negative and are against the plaintiff.

59. Issue No.4:

In view of the findings and discussions deliberated supra, this issue is answered to the
effect that the parties are not entitled to other reliefs.

In the result, the suit is dismissed with cost.

Dictated to Steno-Typist, taken down by her in short-hand, transcribed and

computerized by her and corrected by me in my Laptop and pronounced by me in the
Open Court on this the 31th day of August 2023.

C B VEDAGIRI Digitally signed

by C B VEDAGIRI
III ADDITIONAL SUBORDINATE JUDGE,
COIMBATORE.

List of witnesses examined on the side of the plaintiff:

PW1 - Maheswari - Plaintiff
List of Documents marked on the side of the plaintiff:
Ex A1 09.06.2011 Sale Deed (Computerized copy)
Ex A2 12.02.1996 Sale Deed (Computerized copy)
Ex A3 07.12.2005 Power of Attorney executed by the
2nd Defendant in favour of the 3rd Defendant (Original)
Ex A4 31.03.2011 Sale Deed executed by the 2nd defendant in
favour of the 1st defendant. (Original)

List of witnesses examined on the side of the Defendant:

DW1 - Gopalakrishhan (2nd Defendant)

OS No.1108/2014 III ASJ,CBE 32

DW 2 – Thangaraj
List of witnesses and documents on the side of the Defendant:
Ex B1 12.02.1996 Sale Deed (Certified copy)
Ex B2 07.12.2005 Power of Attorney (Certified copy)
Ex B3 18.05.2011 Legal Notice (Office copy)
Ex B4 Acknowledgement Card (Original)
Ex B5 21.05.2011 Legal Notice (Office copy)
Ex B6 Acknowledgement Card (Original)
Ex B7 07.06.2011 Reject of Power of Attorney (Certified copy)
Ex B8 10.08.2011 Thana Settlement Deed (Computerized copy)
Ex B9 Patta no.39 (Online copy)
Ex B10 15.06.2012 Sanction Sketch
Ex B11 Property Tax Book (Original)
Ex B12 Property tax receipt (no.7) (Original)
Ex B13 17.04.2013 Electric Bill Receipt (Original)
Ex B14 Electric Card No.144-016-837 (Original)
Ex B15 Electric Bill Receipt Paid (Original)
Ex B16 30.05.2014 Unregistered Lease Deed (Original)
Ex B17 2nd Defendant Signature
Ex X1 Aadhar Card

CB Digitally signed
VEDAGIRI by C B VEDAGIRI
III ADDITIONAL SUBORDINATE JUDGE,
COIMBATORE.

OS No.1108/2014 III ASJ,CBE 33

 Draft/ Fair Judgment
O.S.No.1108/2014
Date:31.08.2023

OS No.1108/2014 III ASJ,CBE 34