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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.
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
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
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?
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
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
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.
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.
என 3 ம் பிரதிவசொதி சதைரிவித்திருந்தைசொர்.
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
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
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.
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
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:
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:
ல் உளள வசொசகங்கதள யேசொர் தைட்டச்சு சசய்து வந்தைசொர்கள என்றசொல் என் கணவர் தையேசொர்
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
"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
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.
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
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
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
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
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
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
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
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.
CB Digitally signed
VEDAGIRI by C B VEDAGIRI
III ADDITIONAL SUBORDINATE JUDGE,
COIMBATORE.