Second appeal by defendants against decree confirming compromise/suit for declaration and possession. Court upheld lower court finding that sale by power-of-attorney holder was without due notice to principal and consideration never passed, dismissing appeal.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 11.06.2018
PRONOUNCED ON : 21.06.2018
CORAM
THE HONOURABLE MR.JUSTICE T.RAVINDRAN
S.A.No.1711 of 2004
Prayer :- Second Appeal has been filed under Section 100 of CPC against the Judgement and Decree dated 10.12.2003 passed in A.S.No.57 of 2002 on the file of the First Additional District Court, Erode, confirming the Judgment and Decree dated 25.01.2002 passed in O.S.No.10 of 2000 on the file of the Second Additional Sub Court, Gobichettipalayam.
For Appellants : Mr.N.Manokaran
Respondent : No appearance (Set exparte vide order dated 11.06.2018)
JUDGMENT
This second appeal is directed against the Judgement and Decree dated 10.12.2003 passed in A.S.No.57 of 2002 on the file of the First Additional District Court, Erode, confirming the Judgment and Decree dated 25.01.2002 passed in O.S.No.10 of 2000 on the file of the Second Additional Subordinate Court, Gobichettipalayam.
“ When the plaintiff appointed the second defendant in the suit as his power agent under a written instrument (Ex.A1) authorising him to deal with his property including the power to negotiate for sale and execute the sale deed by receiving the price, could a sale executed by the power agent in his capacity as such in favour of the first defendant, on the ground of
inadequacy in the sale price could be set aside in law?”
as Ex.A1. On a perusal of the same, it is found that the second defendant has been empowered not only to manage the suit property, but, also entitled him to convey the suit property to the third parties for a valid consideration on behalf of the Principal i.e. the plaintiff. Now, it is found that the second defendant had conveyed the suit property in favour of his only son, the first defendant on 10.07.1998 and the copy of the sale deed has been marked as Ex.A4. It is found that the suit property had been conveyed for a sum of Rs.67,000/-. Now, according to the plaintiff, he has not been put on notice about the abovesaid sale transaction and further, it is stated that the defendants 1 & 2 had colluded together and brought about the sale for a low consideration and according to the plaintiff, the suit property would fetch a more sum and according to the plaintiff, the value of the suit property is more than Rs.2,75,000/- and therefore, according to the plaintiff, the abovesaid sale transaction marked as Ex.A4 is not a valid sale consideration and further, according to the plaintiff, the consideration passed thereunder had not been given to him and therefore, it is contended that with a view to cheat the plaintiff, the abovesaid sale transaction has been cleverly brought about by the defendants and hence, it is stated that the plaintiff has been necessitated to institute the suit for appropriate reliefs.
second defendant and on the other hand, materials placed on record go to show that even after Ex.A4 sale transaction, it is only the second defendant, who has been in the possession and enjoyment of the suit property as such and such being the position, as rightly found by the Courts below, the sale transaction Ex.A4 has been brought about without due intimation to the plaintiff.
Court has made an endeavour to compare the signature found in Ex.B1 with that of the other signatures. However, as rightly determined by the first appellate Court, ignoring the same, on the basis of the materials placed on record considering the inconsistent and contradictory statements projected by DWs1 & 2 with reference to Ex.B1 in toto, it is found that the defendants have failed to establish the receipt of the consideration by the plaintiff as projected by them.
2 issues framed by the court
Whether a sale by power of attorney holder could be set aside on grounds of inadequacy in price when consideration allegedly never passed to the principal?
Whether defendants could prove valid discharge of sale consideration obtained by power of attorney holder under section 100 CPC?
E.Sampath and K.Eswaramoorthy
Nanjappa Gounder
T.RAVINDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
