Dismissed

P.S.Shekkuppa v. C.M.Mohammed Kutty

Kerala HC23 May 2012RSA/417/2012

Case brief

AI extract

What is this about?

In a second appeal, this Court dismissed the appellant's challenge to assignment deeds executed by a son-in-law under a registered power of attorney. The Court held that since the appellant admitted the signature but alleged fraud and impersonation, while the appellant was not illiterate, he failed to prove fraudulent execution. The appeal was dismissed.

What the court decided

AI extract

P.S.Shekkuppa Vs C.M.Mohammed Kutty — Property and Title | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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WEDNESDAY, THE 23RD DAY OF MAY 2012/2ND JYAISHTA 1934

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RSA.No. 417 of 2012 (G)

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AS.379/2008 of II ADDL.DISTRICT COURT,PALAKKAD OS.300/2006 OF ADDL. MUNSIFF COURT, PALAKKAD

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APPELLANT/APPELLANT/PLAINTIFF:

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P.S.SHEKKUPPA

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AGED 69 YEARS, S/O.P.SAITHAL, PADINJARAKATH PEZHUMKARA, VADAKKANTHARA AMSOM, VADAKANTHARA DESOM PALAKKAD TALUK, PALAKKAD DISTRICT.

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BY ADV. SRI.JACOB SEBASTIAN

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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C.M.MOHAMMED KUTTY

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AGED 48 YEARS, S/O.MUTHAN RAWTHER, CHALIRKKAD VEEDU

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MUNDUR P.O.AMSOM DESOM, PALAKKAD TALUK

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PALAKKAD DISTRICT, PIN-678 592.

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HYDROSE

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AGED 42 YEARS, S/O.MUTHAN RAWTHER, CHALIRKKAD VEEDU

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MUNDUR PO, AMSOM DESOM, PALAKKAD TALUK

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PALAKKAD DISTRICT, PIN-678 592.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P. JOSEPH, J.

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R.S.A.No.417 of 2012

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Dated this 23^rd day of May, 2012

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JUDGMENT

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This appeal was brought by the plaintiff in O.S.No.300 of 2006 of the Court of learned Additional Munsiff, Palakkad against dismissal of that suit as confirmed by the learned second Additional District Judge, Palakkad in A.S.No.379 of 2008.

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Appellant filed the suit to set aside the power of attorney (allegedly) executed by him, for a declaration that sale deeds executed on the strength of that power of attorney are null and void and for other reliefs. He claimed that he owns the suit property as per sale deed No.198 of 1978, a copy of which is marked as Ext.A1 and is in possession of the said property. He is engaged in whole sale business in fish. First respondent who is his son-in-law used to assist him in that business. First respondent had subscribed to a kurry and priced it. Appellant stood as surety for the said transaction. In connection with that transaction he handed over his documents of title to the first respondent apart from giving him signed blank stamp papers. It is the case of appellant that first respondent misused the signed blank stamp papers and converted it into a power of attorney and

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R.S.A.No.417 of 2012

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got it registered with the Sub Registrar. On the strength of that power of attorney first respondent created assignment deed Nos.1773 of 2002 and 2820 of 2002 in favour of the second respondent regarding 15 cents and 5 cents, respectively. Hence the suit with prayers as above stated.

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First respondent/first defendant, the son-in-law of appellant remained absent. Second respondent denied the allegations and contended that appellant executed and registered the power of attorney in favour of first respondent and on the strength of that power of attorney, first respondent executed the impugned assignment deeds in his favour. He also contended that he was given possession of the suit property on the date of the assignment deeds but he allowed the appellant to occupy the building in the suit property as a tenant.

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Trial court though observed that second respondent is not a bonafide purchaser for the reason that evidence revealed that he did not get custody of the prior document, finally refused to grant relief to the appellant on the ground that he has failed to prove that the power of attorney was fraudulently executed as claimed by him. The first appellate court held that appellant failed to establish that the impugned power of attorney was

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R.S.A.No.417 of 2012

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created by fraud and impersonation, that as per the recital in the power of attorney first respondent is clothed with power to execute the assignment deeds and accordingly first respondent has executed the assignment deeds in favour of the second respondent. So holding, the appeal was dismissed.

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Learned counsel for appellant has contended that since appellant is an illiterate person, burden was heavy on the second respondent to show that the power of attorney was duly executed and registered. Learned counsel has placed reliance on the decisions in A.Venkappa Bhatta and Ors. Vs. Gangamma and Ors. (1988 KHC 757) and Rabiya Vs. Ali Hussain and Ors. (2009 KHC 7142) . It is the further contention of learned counsel that the trial court found fault with the appellant for not sending the impugned power of attorney to the expert for opinion notwithstanding that appellant had not disputed the signature in that document. It is pointed out by the learned counsel that trial court rightly held that second respondent is not a bonafide purchaser but that was not taken into account by the first appellate court.

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It is the version of appellant that he is engaged in wholesale business in fish. He cannot be described as an

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R.S.A.No.417 of 2012

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'illiterate' person so that the burden was squarely on second respondent to prove that there was due execution and registration of the power of attorney. I must also notice that it is not a case of plea of non-est factum but a plea that signed, blank stamp papers given by the appellant was (allegedly) misused by the first respondent. Ext.A9 is the certified copy of the power of attorney, the original of which was summoned and marked as Ext.X1. Concededly the signature in that document is of the appellant. He contends that the document was got registered by impersonation. The power of attorney was registered as document No.189 of 2000. Though, the plea of impersonation is raised, what is available in that regard is only the evidence of appellant as PW1. I cannot also forget that the first respondent who conveniently remains absent is the son-in-law of the appellant and hence he may have his own reasons not to contest the suit. The silence on the part of first respondent notwithstanding that serious allegations are made against him which are even of a criminal nature is eloquent. I must notice that when a document is registered, the formality which the Registrar is to comply is that he must ensure that the document is executed by the person it is purported to be. The Registrar

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R.S.A.No.417 of 2012

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must comply with his legal obligations. A registered document cannot be ignored merely for saying so. There is a presumption attached to a registered document (See Premsingh Vs. Birbal (2006(2) KLT 863) and Vimal Chand Ghevarchand Jain & Ors. Vs. Ramakanth Eknath Jadoo (2009(3) Supreme 460)

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Trial court observed that second respondent had availed a loan from M/s.Gokulam Chits and Funds with the appellant as a co-applicant and executed demand promissory notes (for short, "the DPN”). Those DPNs were summoned from the said finance company and verified by the learned Munsiff with the signature of the appellant in the power of attorney. Learned Munsiff observed that the signatures resembled. Learned counsel points out that the power of attorney is dated 20.07.2000 while the DPNs were executed in favour of the finance company on 09.01.2001 and sale deeds executed by the first respondent on the strength of the power of attorney in favour of the second respondent are in the year 2002 and hence it cannot be inferred that appellant was aware of the sale deeds in favour of the first respondent.

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Assuming so, it was the obligation of the appellant to show that the power of attorney was got executed and registered

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R.S.A.No.417 of 2012

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fraudulently and by impersonation. The decisions relied by the learned counsel relate to persons who are illiterate and unable to understand the recitals of the document. As aforesaid, appellant is engaged in wholesale business in fish and cannot be said to be 'illiterate'. It is difficult to accept the contention that the impugned power of attorney was fraudulently got executed and that it was got registered by impersonation. When the signature in the document is admitted, it goes a long way in proving its due execution. In such a circumstance it was the appellant who had to adduce sufficient evidence to show that document was got executed fraudulently and got registered by impersonation. In the above circumstances the contention that responsibility was on the second respondent cannot be accepted.

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My attention is drawn to the observation made by the learned Munsiff that second respondent is not a bonafide purchaser. That finding is entered for the mere reason that the prior document of the appellant was not handed over to the second respondent at the time of sale and evidence revealed that appellant had pledged the prior document with Amaravathy Chits and Funds from where the first respondent had joined the kury.

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R.S.A.No.417 of 2012

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Merely for the reason of the prior document of the appellant being not obtained by the second respondent, it cannot be said that second respondent is not a bonafide purchaser.

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Yet another contention appellant has advanced is that though the second respondent claimed that appellant remained in the building in the suit property as a tenant, that contention is not proved. Second respondent has not raised a contention that there was any written rental agreement between the appellant and second respondent. He only claimed that appellant was allowed to stay in the building in the suit property as a tenant. In that regard second respondent has given evidence as DW1. No doubt it is disputed by the appellant as PW1.

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Once it is found that title and possession of the suit property is with the second respondent pursuant to the sale deeds first respondent has executed on the strength of the power of attorney and so far as appellant has no case that he is a trespasser in the building in question, plea of the second respondent that appellant remains in the building as a tenant can be accepted.

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Having regard to the facts and circumstances of the case, finding of the courts below that appellant failed to show

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R.S.A.No.417 of 2012

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that the power of attorney was got executed fraudulently and got registered by impersonation has to stand. If that be so, appellant cannot assail the assignment deeds in favour of the second respondent. The decision of the courts below is based on the facts and evidence.

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On hearing learned counsel and going through the judgments under challenge, I do not find any substantial question of law involved in this appeal requiring its admission.

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The second appeal is dismissed.

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(THOMAS P. JOSEPH, JUDGE)

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Sbna/-

P.S.Shekkuppa v. C.M.Mohammed Kutty

Case brief

What is this about?

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P.S.Shekkuppa v. C.M.Mohammed Kutty

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