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2026 DAILYLAW 563 (KER)

Gopalakrishna Pillai, S/o. Narayana Pillai v. Sadasivan Achary, S/o. Damodharan Achary

2026-05-18

Easwaran S

body2026
JUDGMENT : EASWARAN S., J. This appeal is preferred by the 3 rd defendant, being aggrieved by the concurrent findings rendered against him by the Munsiff Court, Adoor in O.S. No.377 of 2003, as well as the District Court, Pathanamthitta, in A.S. No.151 of 2006, which is for cancellation of the power of attorney. 2. The brief facts necessary for the disposal of this appeal are as follows: The plaintiff is the owner of the property having an extent of 38 cents, which he purchased from the 1 st defendant and his brother, Raghunathan, as per sale deed No.1131 of 1997. With the 1 st defendant in the party array, O.S. No.24 of 2001 was instituted by one Sudheesh, one of the associates of the 1 st defendant, seeking an injunction against the plaintiff and the 1 st defendant from trespassing into the plaint schedule property by claiming tenancy right over the said property. Later, the plaintiff also filed O.S. No.59 of 2001 against them. Those suits were compromised at the initiative of the 4 th defendant. In O.S. No.59 of 2001, a compromise petition was filed, and the defendants themselves had admitted the title of the plaintiff. During the compromise, the defendants 1 to 4 had introduced the 5 th defendant as a real estate broker who agreed to arrange a purchaser to the plaint schedule property, and thereafter the defendants 1,4 and 5 contacted the plaintiff and informed him that the 5 th defendant had arranged a purchaser for the plaint schedule property. It was further informed that the said purchaser had insisted that the property be registered before the Sub Registrar's Office at Punalur, and, for that, the plaintiff had to submit an application. Believing the words of defendants 1, 4, and 5, the plaintiffs executed certain documents by affixing his signature in blank papers and later it was revealed that a power of attorney was executed in favour of the 1st defendant which was adjudicated before the R.D.O., Adoor and sale deed No.684 of 2003 was executed by the 1 st defendant with the SRO, Enadimangalam in favour of the 2 nd defendant. Later, the 2 nd defendant executed sale deed No.970 of 2003 of SRO, Enadimangalam, in favour of the 3 rd defendant. All such transactions are void and cannot be binding upon the plaintiff because the power of attorney itself is invalid. Later, the 2 nd defendant executed sale deed No.970 of 2003 of SRO, Enadimangalam, in favour of the 3 rd defendant. All such transactions are void and cannot be binding upon the plaintiff because the power of attorney itself is invalid. The plaintiff thus traced the cause of action to the date on which document No.970 of 2003 was executed on 7.8.2003 and later 23.8.2003 when he came to know about the transaction. In the suit, the plaintiff sought for a declaration that the power of attorney dated 20.1.2003 adjudicated by the R.D.O., Adoor, and the subsequent sale deeds are null and void and have no force of law. The 3 rd defendant contested the suit, contending that there is no relationship between defendants 1 and 3, and the plaint schedule property is not in possession of the defendant. The plaintiff had sold the property to the 2nd defendant, and the 2 nd defendant had sold the property to the 3 rd defendant; therefore, the plaintiff had no cause of action to file the suit. The 3 rd defendant had effected mutation of the plaint schedule property in his favour by paying tax thereon. The defendants 1,2,4 and 5 remained exparte, though defendants 1 and 2 filed written statements contesting the case. On behalf of the plaintiff Exts.A1 to A7 documents were produced, and PW1 to PW3 were examined. On behalf of the defendants, Exts.B1 to B5 documents were produced, and DW1 to DW3 were examined. The trial court framed the following issues for consideration. 1. Whether the plaintiff has executed the Power of Attorney in favour of the first defendant? If so, whether the execution of the Power of Attorney is vitiated by fraud and misrepresentation? 2. Whether the 1 st defendant is competent to execute the sale deed in favour of the 2 nd defendant on the basis of the Power of Attorney? 3. Whether the sale deed executed by the first defendant in favour of the 2 nd defendant and the sale deed executed by the 2 nd defendant in favour of the 3 rd defendant are valid? 4. Whether the plaintiff has title over the plaint schedule property? 5. Whether the plaintiff has possession over the plaint schedule property? 6. Whether the declaration prayed for is allowable? 7. Whether the injunction prayed for is allowable? 8. Reliefs and costs? 2.1. 4. Whether the plaintiff has title over the plaint schedule property? 5. Whether the plaintiff has possession over the plaint schedule property? 6. Whether the declaration prayed for is allowable? 7. Whether the injunction prayed for is allowable? 8. Reliefs and costs? 2.1. After appreciating the oral and documentary evidence, the trial court concluded that the alleged power of attorney was not produced by the defendants and that the power of attorney requires registration under Section 32 of the Registration Act, 1908 . Since the disputed power of attorney was not produced, the plaintiff is entitled to succeed and accordingly decreed the suit by declaring the title and possession of the plaintiff over the plaint schedule property on the basis of the sale deed No.1131 of 1997 of SRO, Pathanapuram, by holding that the sale deed Nos.684 of 2003 and 970 of 2003 are void. Consequential injunction was also issued restraining the defendants from trespassing into the plaint schedule property. Aggrieved, the 3 rd defendant alone preferred A.S. No.151 of 2006, which was also dismissed on 28.7.2011. In the meantime, the 1 st defendant filed an application for setting aside the ex parte order passed against him, which was dismissed, and against which C.M.A. No.108 of 2008 was filed, which was also dismissed on 28.7.2011. Aggrieved by the dismissal of C.M.A. No.108 of 2008, the 1 st defendant preferred O.P.(C) No.3991 of 2011, which is tagged along with the appeal. 3. Heard Sri. K.S. Bharathan, the learned counsel appearing for the appellant, and Sri. A.N. Rajan Babu, the learned counsel appearing for the 1st respondent/plaintiff. 4. Though this appeal is of the year 2013, the same was lying without being admitted. On 1.4.2026, this Court, with the consent, admitted the appeal on the substantial questions of law framed in the memorandum of appeal and proceeded to take up the appeal for final hearing. The substantial questions of law framed in the memorandum of appeal are as follows: (1) Is it not incorrect to hold that a power of attorney authorizing the donee to execute documents of transfer of immovable property is compulsorily registerable? (2) Did not the courts below err in finding that execution of Ext. B1 was not proved? (3) Were not the courts below incorrect in finding that Exts. Al and A2 are void?. (2) Did not the courts below err in finding that execution of Ext. B1 was not proved? (3) Were not the courts below incorrect in finding that Exts. Al and A2 are void?. (4) Is not the factum of actual possession a matter to be proved for a plaintiff to get the relief of injunction?. 5. The primary question to be considered by this Court is as to whether the suit is maintainable or not. Based on the cause of action pleaded in the suit, it is evident that the plaintiff got knowledge about the execution of the power of attorney and the consequential sale deed on 23.8.2003, whereas the suit was filed only on 29.8.2003. Moreover, when two registered documents were executed respectively on 28.5.2003 and 7.8.2003, it constitutes as a constructive notice to the plaintiff in terms of Section 3 of the Transfer of Property Act. 6. In Dharmrao Sharanappa Shabadi Vs Syeda Arifa Parveen [ (2026) 3 SCC 460 ] the Supreme Court considered the impact of Section 3 of the Transfer of Property Act, 1882 , and held that execution of a registered sale deed operates as a constructive notice while seeking relief in a suit for declaration. 7. In the present case, the plaintiff appears to have gone on a wrong tangent altogether. No doubt the power of attorney is not a registered power of attorney. However, the power of attorney holder transferred the property on 28-5-2003 and later, the said purchaser transferred the property to the appellant on 7.8.2003. Both the transfers operate as constructive notice. Hence, if the plaintiff wants to seek a declaration, necessarily, he ought to have filed the suit within three (3) years from the date of execution of sale deed, which he did not do. 8. A further question may also arise in this case. No issues were framed by the trial court on the question of limitation. Therefore, should this Court remand the matter for fresh consideration or can non suit the plaintiff on the ground of limitation?. 9. In R.Nagaraj (dead) through LR’s Vs Rajmani and others [2025 SCC Online 762], the Supreme Court held that the trial court can dismiss the suit under Section 3 of the Limitation Act, 1963 without framing an issue. Therefore, should this Court remand the matter for fresh consideration or can non suit the plaintiff on the ground of limitation?. 9. In R.Nagaraj (dead) through LR’s Vs Rajmani and others [2025 SCC Online 762], the Supreme Court held that the trial court can dismiss the suit under Section 3 of the Limitation Act, 1963 without framing an issue. Therefore, this Court is of the view that the courts below were in error in not dismissing the suit since it is exfacie barred by limitation. 10. That apart, the trial court proceeded on the mistaken assumption that the impugned power of attorney dated 7.8.2003 is not produced by the defendant. In fact, this statement of fact is completely wrong, and that Ext.B1 shows that the power of attorney dated 18.1.2003, executed by the plaintiff, which is also seen adjudicated by the Sub Collector, Adoor, was produced and marked before the court. In fact, the trial court found that the burden is on the plaintiff to show that he happened to put his signature on the power of attorney. Having concluded so, the trial court still proceeded to hold that it is up to the defendants to prove that the signature in Ext.B1 power of attorney is that of the plaintiff. However, no further deliberation happened at the hands of the trial court because it concluded that the power of attorney was not produced. 11. As regards the reasoning of the trial court that the plaintiff is entitled to the relief sought for is that the power of attorney is an unregistered one and that Section 32 of the Registration Act requires registration of the power of attorney, this Court is of the view that it cannot subscribe to the aforesaid view. 12. Section 32 of the Registration Act reads as follows: 32. Persons to present documents for registration. 12. Section 32 of the Registration Act reads as follows: 32. Persons to present documents for registration. Except in the cases mentioned in Sections 31, 88 and 89 [Substituted by Act 39 of 1948, for “section 31 and section 89"], every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office, (a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or (b) by the representative or assign of such person, or (c) by the agent of such person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned. 13. Section 32 of the Registration Act deals with the presentation of the documents for registration. Section 33 of the Registration Act deals with the power of attorney for the purpose of . It is incorrect to say that when a document is presented by the power of attorney holder himself for registration in terms of , the power of attorney must be registered one. Therefore, in a situation where the power of attorney holder himself presents the documents of sale for registration, he will be construed as a principal for the purpose of , and therefore, there is no requirement for registration of the power of attorney based on which he is executing the sale deed. Therefore, the finding to the contrary cannot be sustained. 14. It must be borne in mind that, at the relevant time, there was no requirement of law that a power of attorney must necessarily be registered in order to effect a sale deed. Moreover, the power of attorney is not a compulsory registerable document in terms of Section 17 of the Registration Act, 1908 15. As regards the findings of the first appellate court is concerned, this Court cannot but conclude that the first appellate court failed to decipher the distinction under Section 32 and Section 33 of the Registration Act, 1908 , and thus rendered the judgment liable for interdiction at the hands of this Court in exercise of the powers under Section 100 of the Code of Civil Procedure . 16. In the light of the above discussion, this Court is of the view that the substantial questions of law must be answered in favour of the appellant. 16. In the light of the above discussion, this Court is of the view that the substantial questions of law must be answered in favour of the appellant. 17. Resultantly, this appeal is allowed by reversing the judgment and decree in A.S. No.151 of 2006, which in turn affirmed the judgment and decree in O.S. No.377 of 2003 on the files of the Munsiff Court, Adoor, and O.S. No.377 of 2003 will stand dismissed. No Costs.