Allowed

K.Subramannyan v. Seetha

Kerala HC12 Mar 2024RFA/245/2016

Case brief

AI extract

What is this about?

Appeal against dismissal of a suit seeking declaration that sale deeds executed after cancellation of a power of attorney were void and for recovery of possession. The High Court held the mortgagee Bank a necessary party and remanded the suit to the trial court with liberty to implead necessary parties.

What did the court decide?

Judgment and decree set aside; suit remanded to trial court for fresh disposal with opportunity to implead necessary parties.

K.Subramannyan Vs Seetha — Property and Title | Kerala HC (2024)

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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 SATHISH NINAN

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TUESDAY, THE 12^TH DAY OF MARCH 2024 / 22ND PHALGUNA, 1945

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RFA NO. 245 OF 2016

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AGAINST THE JUDGMENT AND DECREE DATED 29.11.2014 IN

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O.S.NO.185 OF 2013 OF THE ADDITIONAL SUB COURT,

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NORTH PARAVUR

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APPELLANT/PLAINTIFF:

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K.SUBRAMANIAN

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S/O.LATE APPUNNI, SREE VALSAM, MUPPATHADOM P O, ELOOKARA, KADUNGALOOR VILLAGE, PARAVUR TALUK, NOW RESIDING AT HOUSE NO 148, 4TH MAIN ROAD, NANDAGOKULA, GOKULAM 3RD STAGE, MYSORE, KARNATAKA STATE

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BY ADVS. SRI.ROJO J.THURUTHIPARA SMT.BLOSSOM MATHEW SRI.MOHAN PULIKKAL

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RESPONDENTS/DEFENDANTS:

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1 SEETHA, W/O.SREEDHARAN, KATTITHARA NEDUMBILLI VEETTIL, SAHAKARANA ROAD, MARADU KARA, MARADU VILLAGE, KANAYANNUR TALUK, PIN 682304, ERNAKULAM DISTRICT

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2 VALLABHAN PILLAI S/O.GOPALAN NAIR, VEKKADA HOUSE, (PEKKADA)MUPPATHADOM P.O., PIN 683110, ELOOKARA, KADUNGALLOOR VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT

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3 MATHAI, S/O.THOMAS, AREECKAL HOUSE, MUPPATHADOM P O, MUPPATHADOM P O, PIN 683110, ELOOKARA, KADUNGALLOOR VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT

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RFA No.245 of 2016

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-: 2 :-

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4 THE ALUVA CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD, NO.E87, ALWAYE, PIN 683101, REPRESENTED BY ITS SECRETARY. BY ADVS. SRI.SAM ISAAC POTHIYIL SMT.JAYASREE MANOJ SRI.N.MANOJ KUMAR SRI.A.S.SREEJAN

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 12.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = R.F.A.No.245 of 2016

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= = = = = = = = = = = = = = = = = = Dated this the 12^th day of March, 2024

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JUDGMENT

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The suit for declaration, recovery of possession

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and injunction was dismissed by the trial court, against which the plaintiff is in appeal.

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The plaint schedule property is 5 cents with residential building thereon.

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The necessary facts in a nutshell is that, the plaint schedule property belongs to the plaintiff as per Ext.A1 Sale Deed dated 04.03.1989. The plaintiff was residing at Coimbatore. On 31.01.2006, he executed Ext.A4 power of attorney in favour of the 1^st defendant with respect to the plaint schedule property. The power of attorney was subsequently cancelled on 22.04.2006 as

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per Ext.A5 cancellation deed. In spite of the cancellation, on 07.08.2006 the 1^st defendant, on the strength of power attorney, executed Ext.A8 Sale Deed in

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R.F.A.No.245 of 2016 -: 2 :-

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favour of the 2^nd defendant. The 2^nd defendant transferred the property in favour of the 3^rd defendant. Since the power of attorney was cancelled, the sale deeds are void. The suit is filed seeking a declaration to the said effect and for recovery of possession on the strength of title.

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Before the trial court it was contended that the 3^rd defendant had mortgaged the property to Ernakulam District Co-operative Bank and that the Bank is a necessary party. The plaintiff failed to implead the Bank. The trial court held that the suit is bad for non-joinder of necessary parties. The trial court also held that, there is no material to point out that the cancellation of power of attorney was intimated to the power attorney holder. Accordingly, the suit was dismissed.

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I have heard the learned counsel on either

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side.

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R.F.A.No.245 of 2016 -: 3 :-

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The learned counsel for the appellant would

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contend that, in terms of Section 3 of the Transfer of

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Property Act, registration amounts to constructive notice. Ext.A4 is a registered power of attorney. It was cancelled under Ext.A5 cancellation deed which is also a registered deed. On the face of such registered document, it is not open for the defendants to contend that they were unaware of cancellation of the power of attorney prior to the execution of Ext.A8 conveyance. He would also contend that, the suit being one for recovery of possession on the strength of title, it is Article 65 of the Limitation Act that applies and hence the suit is well within limitation. Ext.A8 Sale Deed executed after cancellation of the power of attorney is void. Unless the defendants prove that the right of the plaintiff is lost by adverse possession, the plaintiff is entitled for a decree, it is argued.

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R.F.A.No.245 of 2016 -: 4 :-

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Firstly it is necessary to consider the plea

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of non-joinder of necessary parties. The 3^rd defendant

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has contended that the property has been mortgaged in favour of a Bank. It is not in dispute that the creation of such mortgage was prior to the institution of the suit. The challenge in the suit is against Ext.A8 Sale Deed executed on the strength of the cancelled power of attorney. Ultimately if the contention is accepted and Ext.A8 Sale Deed is held to be void, that will in turn affect the title of the 3^rd defendant and the mortgage with the Bank. Therefore the decree that may be passed in the suit will affect the rights of the Bank also. The Bank is accordingly a necessary party to the present suit. It is found accordingly.

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During the course of arguments, the learned counsel for the appellant made a fervent plea that an opportunity may be granted to the plaintiff to implead

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the necessary parties and to have the lis decided on its

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R.F.A.No.245 of 2016 -: 5 :-

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merits.

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Taking note of the contentions of the

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plaintiff-appellant supra, and also the fact that the suit is one on title, it is only deemed appropriate that

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the plaintiff be granted an opportunity to implead the necessary parties and to get the suit tried and disposed of on its merits. To enable the same, the suit needs to

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be sent back to the trial court.

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In the result, the appeal is allowed. The decree and judgment of the trial court are set aside. The suit is remanded back to the trial court for fresh disposal. The plaintiff shall be afforded opportunity to implead the necessary parties. The parties shall appear before

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the trial court on 04.04.2024 .

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Sd/-

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SATHISH NINAN, JUDGE

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K.Subramannyan v. Seetha

Case brief

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K.Subramannyan v. Seetha

Case brief

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