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IN THE COURT OF I ADDITIONAL DISTRICT MUNSIF, SALEM

Present: Thiru. R. Satheeskumar, B.A., B.L.,
I Additional District Munsif, Salem
Monday, the 11th day of November, 2024

O.S.No.98 of 2014
CNR NO:TNSA060005762014

1. Rajammal
2. Dharmalingam
... Plaintiffs
/Vs./
1. K. Chandran
2. C. Vijayakumar
3. G. Shankar
4. (*) Sudha (*)
(The 4th defendant was impleaded as per order in I.A.No.3/2022, dated
16.02.2023 and amended as per order in I.A.No.4/2023, dated 04.07.2023)
... Defendants

The suit came up for final hearing before me, on this day, in the presence of
Mrs.B.Mangai, Advocate appearing for the Plaintiffs and Mr.R.M.Udayakumar,
Advocate for the defendants 1 & 2 and Mr.M.Viswanathan, Advocate appearing for
the 3rd defendant and Mr.K.Tamilarasan, Advocate appearing for the 4th defendant and
upon hearing plaintiffs side arguments and inspite several opportunities given to
defendants side and no arguments advanced on his side and hence defendants side
arguments was closed and upon perusal of entire case records and having stood over
for consideration till this day, this Court delivered the following;

JUDGMENT

1. The suit has been filed by the plaintiffs, for the relief of declaration, declaring
the general power of attorney deed, dated 01.06.2010 in favour of 1 st defendant and
registered as Doc.No.608/2010 of Book 4 of Veerapandi Sub Registrar Office as null
and void, declaring the sale agreement deed created among the defendants 1 and 2,
dated 10.04.2010 and registered as Doc.No.1464/2012 of Veerapandi Sub Registrar
Office as null and void, declaring the sale deed, dated 28.11.2012 created by 1 st
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defendant as power agent in favour of 3 rd defendant and registered as

Doc.No.4183/2012 of Veerapandi Sub Registrar office as null and void, (*) declaring
the Sale deed, dated 26.02.2014 executed by 3 rd defendant in favour of 4th defendant
as null and void (*), restraining the defendants, their men, agents, servants or anyone
on their behalf from in any manner disturbing the plaintiffs' peaceful possession and
enjoyment in the suit properties, either by committing illegal trespass into it or by any
other means, restraining the 3rd defendant from in any manner alienating or
encumbering any portion of the suit properties to any third parties, under the guise of
false and fraudulent document in his favour and awarding costs of the suit.
(*) Amended as per order in I.A.No.4/2023, dated 04.07.2023.

2. Gist of the amended plaint:

a) The 1st plaintiff is the mother of the 2nd plaintiff. The plaintiffs are the
wife and son i.e., legal heirs of one Chinnathambi, who is no more now. The suit
properties and other properties originally belonged to the said Chinnathambi's mother
Panchalai, by self acquisition. The said Panchalai, out of love and affection on her
son namely the said Chinnathambi, gifted the suit properties as vacant house site to
him through a reg. Gift settlement deed, dated 13.02.1999 under Doc.No.283/1999.
On and from the date of gift settlement, the said Chinnathambi was in possession and
enjoyment of the suit properties.
b) The plaintiffs have constructed residential house in the suit properties,
which is assessed to house tax in the name of 2 nd plaintiff and equipped with electric
service connection in the name of 1st plaintiff. The plaintiffs have been regularly
paying the house taxes and electricity consumption charges to the concerned
authorities, without fail. The plaintiffs are alone in peaceful and exclusive possession
and enjoyment of the suit properties as absolute owners and exercising all acts of
ownership in it. Except the plaintiffs, nobody has got any manner of right, title,
interest or possession over any single portion of the suit properties.
c) While so, during May 2010, the plaintiffs approached the 1st defendant
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and asked him to lend money of Rs.2,20,000/- for interest. At that time, the 1 st
defendant demanded the plaintiffs to execute a document towards security for the
amount to be lend by him. The plaintiffs, who are poor and illiterate persons went to
the concerned registrar office on 01.06.2010 and put their thumb impression and
signature in the document preparted by the 1st defendant with bonafide belief that
they had executed a mortgage deed alone. The plaintiffs were paid Rs.20,000/-
another time, totally Rs.60,000/- by the 1st defendant.
d) It being the real fact of affairs, during last week of June 2012, the
plaintiffs have approached the 1st defendant and told that they are ready to discharge
the remaining principal amount and requested him to get the amount and to come to
the concerned registrar office for cancelling the mortgage deed obtained by him while
lending the money to him. At that time only the 1 st defendant openly told that he had
not obtained mortgage deed from the plaintiffs and he obtained power of attorney
deed on that day in his name. The plaintiffs got much shock and have taken certified
copies of the documents created in respect of the suit properties. On going through
the same, the plaintiffs came to know that, on 01.06.2010, the 1 st defendant has
cunningly and fraudulently obtained a general power of attorney deed in respect of
the land alone from them and under the guise of the same, the 1 st defendant has
entered into a sale agreement with the 2nd defendant who is none other than his own
son, on 10.04.2012, under Doc.No.1464/2012 of Veerapandi Sub Registrar Office.
The 1st defendant has cunningly and fraudulently obtained general power of attorney
deed in respect of land but created a sale agreement with the 2 nd defendant in respect
of the land and house, by mentioning the house as R.C.C. terraced house even though
there is only tiled house, which was constructed by the plaintiffs.
e) The plaintiffs have never intended to sell the suit properties and they
have never given power either to the 1st defendant or anybody else. The plaintiffs
were cheated by the 1st defendant. On coming to know the false document created
among the defendants 1 and 2, the plaintiffs caused legal notice to the 1st defendant
on 16.07.2012 and called upon him not to create any false alientation or encumbrance
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over the suit properties. The plaintiffs have thereafter sent so many petitions to C.M.
Cell, Judiciary Department Higher Officials, Police Department officials etc., for
taking immediate actions as against the defendants 1 and 2 but it did not yield any
fruit. On the other hand, the 1 st defendant has influenced the police and due to his
influence the police did not take any actions as against the defendants 1 and 2.
f) The suit properties consist of a tiled house with three portions. The
plaintiffs have been residing in one portion and rented out the other two portions to
third parties. But the defendants 1 and 2 have received the rents of the two portions
for the house for all these years and thus the entire amounts due to the 1 st defendant
from the plaintiffs were fully discharged. Hence the plaintiffs have so many times
approached the defendants 1 and 2 in person and through mediators, for cancellation
of the false documents.
g) While so, on 10.02.2013, all of a sudden the defendants came to the suit
properties and threatened the plaintiffs and tenants to vacate the house and to
handover the possession of the same to them. The plaintiffs got much shock and
whey they enquired with the 3rd defendant, he told that he has purcahsed the suit
properties from the 1st defendant. After thwarting their illegal attempt, the plaintiffs
have taken certified copy of the document and came to know that by misusing the
false power of attorney deed, the 1st defendant created false and fraudulent sale deed
in favour of the 3rd defendant on 28.11.2012 itself, inspite of so many steps taken by
the plaintiffs and registered the same. The 1 st defendant, under the guise of false
power of attorney deed, created a sale agreement with his son namely 2 nd defendant
and as the plaintiffs have issued legal notice and have been taking actions as against
the defendants 1 and 2 before all department authorities, the 1 st defendant created a
sale deedin favour of 3rd defendant. There is a tiled house alone in the suit properties.
The 1st defendant, who has created a false and fraudulent power of attorney deed in
respect of the land alone, created a sale agreement in respect of the land along with
the house but mentioned the house as R.C.C terraced house. The sale deed was
created for the land and the house i.e., for the suit properties. This itself shows that all
 5

the said documents are false and fraudulent documents. Even though such documents
were created, they are not acted upon. The possession of the suit properties has not
been transferred to the defendants and it still lies in the hands of the plaintiffs alone.
The sale deeds are fraudulent transactions and the documents have no evidentiary
value at all.
h) Again on 23.01.2014, the defendants came to the suit properties and tried
to dispossess the plaintiffs from the suit properties and to grab it by using force. In
fact, the defendants are utter strangers and third parties to the suit properties and they
have no manner of right, title, interest or possession over any single portion of the
same. The defendants are no way connected to the suit properties and nothing to do
with the same. Purely to grab the suit properties from the plaintiffs, the defendants are
indulging in all illegal activities. The plaintiffs also now come to know from the
reliable source of evidence that the 3 rd defendant who is having false document in his
hand, is now trying to alienate the properties to third parties, to attain illegal gain.
Unless the defendants are restrained by permanent injunction of this court, the
plaintiffs cannot enjoy the suit properties peacefully and any false alienations and
encumbrances over the suit properties will lead to so many complications and
multiplicity of proceedings. Hence the plaintiffs are left with no other option except
to file this suit for proper remedies.
(Plaint amended as per orders in I.A.Nos.2/2022, dt.05.09.2022 and I.A.No.4/2023,
dated 04.07.2023)

3. Gist of the written statement filed by the 1 st defendant and adopted by the 2nd
defendant:

a) The suit is false, frivolous, vexatious and unsustainable in law and on

facts. This defendant denies all the allegations except those that are specifically
admitted hereunder.
b) It is true that after the death of Chinnathambi, the plaintiffs succeeded
the suit property.
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c) It is true that the plaintiffs issued a legal notice for which this defendant
issued a reply containing true facts.
d) The plaintiffs want to sell their property and to that effect, the plaintiffs
on 01.06.2010 have executed a reg. General Power of Attorney deed in favour of the
1st defendant authorizing him to sell the property of the plaintiffs and the possession
was also handed over with the 1st defendant and the plaintiffs have also received the
entire sale consideration for the property from the 1 st defendant and they have also
issued a receipt to the 1st defendant.
e) Based upon the above said power of attorney deed, the 1 st defendant has
enterd into a reg. Sale agreement deed, dated 10.04.2012 with the 3rd defendant to sell
the property for a sum of Rs.1,00,000/- and the 1 st defendant has received a sum of
Rs.10,000/- as advance. The plaintiffs had received the entire sale consideration from
the 1st defendant as per the power of attorney deed and also surrendered possession of
the property with the 1st defendant and in turn, the 1st defendant has executed the sale
agreement which is valid. The plaintiffs have no locus standi about the execution of
the sale agreement by the 1st defendant because they have no manner of any title,
right, interest or possession over the property.
f) Now taking advantage of the increase of land price, the plaintiffs with
intention to have some more money from the 1st defendant have issued a legal notice
and filed this suit containing false and untenable allegations. The 1 st defendant
reiterates that the plaintiffs have no manner of any right over the petition mentioned
property because they had already received the entire sale consideration from the 1 st
defendant. The 1st defendant being the lawful owner of the property has got each and
every right to deal with the property as per his wishes and whims and the plaintiffs
being the third parties have no locus standi to question about the lawful act of the
lawful owner.
g) The suit is hopelessly barred by limitation. Since the plaintiffs have
executed the power of attorney deed in favour of this defendant, the suit valued under
Sec.25(d) of C.F Act is not corect and the suit is not maintainable.
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h) The suit is not properly valued for the purpose of court fees and
jurisdiction. The possession of the suit property is with this defendant and the
plaintiffs are not in possession as alleged. There is no cause of action for the suit
arose and the alleged ones are false. Hence the suit must be dismissed.

4. Gist of the written statement filed by the 3rd defendant:

(Memo filed by the 4th defendant stating that she adopted the written statement
filed by the 3rd defendant)
a) The suit is false, frivolous, vexatious and unsustainable in law and on
facts. This defendant denies all the allegations except those that are specifically
admitted hereunder.
b) The property originally belongs to Chinnathambi through her mother
Panchallai through Doc.No.283/1999, dated 13.02.1999 registered through the
Register Officer of Veerapandi Sub Register Office and said document is a gift
settlement deed.
c) One Sudha is the original owner of property of this house and she is only
original owner who has got sale deed from the 3 rd defendant is enjoying the property
along with all title and interest of the suit property. She is paying all the property and
electricity charges in her own name. The plaintiff's has given power of attorney to
first defendant is the name of 1st defendant & 1st defendant has given sale deed to 2nd
defendant & it has been transfer of the sale deed is in the name of the Sudha and she
is in the legal possession. The plaintiff has filed this case with unclean hands. They
have created a power of attorney in the name of 1 st defendant and now the property is
in the peaceful possession and enjoyment of the name of Sudha. The plaintiffs are
never in the possession of suit property after the sale deed created in the name of one
Sudha.
d) The 3rd defendant got the suit property through proper sale deed with
proper consideration with 2nd defendant. These facts are well known by the plaintiffs
but they are filed this suit with suppressing all these facts.
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e) The plaintiffs has got the consideration for the suit property property and
now filed this vexatious suit without any proper reasons and suppressing all the facts.
This 3rd defendant is got the property through proper consideration and registered
with sale deed and transferred to one Sudha in proper office.
f) The Police find out the documents are registered and correct, that is why
they didn't take any action against them.
g) All these years the said one Sudha is in the peaceful possession and
enjoyment of the suit property.
h) It is a conconted story only for the purpose of the suit. The plaintiff has
received the consideration from the 1st defendant and now there are saying false
allegations against all of the defendants. The 2nd defendant has the sale deed through
the 1st defendant and then 3rd defendant got the sale deed through proper manner. The
3rd defendant has got patta, house tax receipt and EB connection for the suit property
in the proper manner as per the government procedure and then only sold the suit
property to one Sudha.
i) The suit is not at all maintainable because the one Sudha has not been
added as party in this suit and this suit is not at all maintainable because of non-
joinder of necessary parties. The court fee paid by the plaintiff is not proper and not
liable. The cause of action mentioned in the plaintiff is not true. The plaintiffs have
filed this suit only to harass the defendants and to grab illegal money. The suit is itself
is misconceived and liable to be dismissed.

5. Gist of the additional written statement filed by the defendants 1 & 2:

This amendment of plaint is filed after the trial of the suit in O.S.No.98/2014
is over, knowing all the facts and details of the case, deliberately delaying it for 9
years to make a profit and disprove the true nature of the case. The said amended
plaint has been filed by these plaintiffs with malicious intent to cause unnecessary
nuisance and mental agony to the defendants 1 and 2.
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6. On perusal of plaint, written statement and case records the following issues
were framed on 25.08.2014.
ISSUES:
1. Whether the plaintiffs are entitled to get declaration against the general power
of attorney, dated 01.06.2010 registered at Veerapandi Sub Registration Office as
Doc.No.608/10 as null and void? If yes,
2. Whether the plaintiffs are entitled to get declaration against the sale agreement,
dated 10.04.2012 registered at Veerapandi Sub Registration Office as
Doc.No.1464/12 as null and void? If yes,
3. Whether the plaintiffs are entitled to get declaration against the sale deed, dated
28.11.2012 registered at Veerapandi Sub Registration Office as Doc.No.4183/12 as
null and void? If yes,
4. Whether the plaintiffs are entitled to get permanent injunction over the suit
property? If yes,
5. What are the further and other reliefs the plaintiffs are entitled for?

7. On perusal of plaint, amended plaint, written statement, additional written

statement and case records, the following additional issues were framed on
14.12.2023.

ADDITIONAL ISSUES:
1. Whether the sale deed, dated 26.02.2014 executed by 3 rd defendant in favour of
4th defendant as null and void?

8. On the side of Plaintiffs, the 1st plaintiff examined herself as P.W.1 and Ex.A1
to Ex.A11 were marked. The Ex.A1 is the Gift Settlement Deed, dated 17.02.1999
executed by Panchalai in favour of Chinnathambi. The Ex.A2 is the General Power of
Attorney Deed, dated 01.06.2010, executed by Plaintiffs in favour of 1 st defendant.
The Ex.A3 is the Sale agreement, dated 10.04.2012, executed by 1 st defendant in
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favour of 2nd defendant. The Ex.A4 is the Legal notice, dated 16.07.2012, issued by
the Plaintiffs to the 1st defendant along with acknowledgment card. The Ex.A5 is the
Reply notice, dated 19.07.2012, issued by the 1st defendant. The Ex.A6 is the Petition
given by Plaintiffs to the Chief Minister Cell, Chennai. The Ex.A7 is the Computer
patta stands in the name of Panchalai with regard to S.No.47/4A11. The Ex.A8 is the
House tax receipts (2 Nos.). The Ex.A9 is the E.B receipts (3 Nos.). The Ex.A10 is
the Sale deed, dated 28.11.2012, executed by 1st defendant in favour of 3rd defendant.
The Ex.A11 is the Sale deed, dated 26.02.2014, executed by 3 rd defendant in favour
of 4th defendant.

9. On the side of defendants, the 1st defendant examined as D.W.1 and one 3rd
party examined as D.W.2 and no documents were marked by them.

10. With regard to issue Nos.1 to 3 and additional issue No.1:

(i) Since the issue nos.1 to 3 and additional issue No.1 are interconnected,
interwovned, the same were taken up together for consideration and determination for
the shake of convenience.

(ii) The learned counsel for the plaintiffs would ubmitted their arguments in
line with plaint and other materials on records as follows.
a) The plaintiffs are the wife and son of Chinnathambi. The Panchalai is the
mother of Chinnathambi, owned the suit property by way of self acquisition and she
executed a gift settlement deed in favour of Chinnathambi on 13.02.1999 bequeathing
suit property. Since then he was in possession and enjoyment. The Chinnathambi died
13 years back. The plaintiffs have constructed a house in the suit property. The
plaintiffs approached the 1st defendant in the year of 2010, for borrowing an amount
to the tune of Rs.2,20,000/- for interest. At that time, the 1 st defendant demanded the
plaintiffs to execute a document towards security for the amount to be lend by him.
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Eventually, the plaintiffs who are the illiterate persons put their thumb impression and
signature in the document prepared by the 1 st defendant to the Sub Register Office on
01.06.2010 believing that they executed a mortgage deed alone. The plaintiffs were
paid Rs.20,000/- and another time, totally Rs.60,000/- to the 1st defendant.
b) In the last week of June 2012, the plaintiffs have approached the 1 st
defendant and expressed that they are ready to discharge their remaining principal
amount and requested him to get the amount and to come to the registration office to
cancel the security document obtained by him while lending money to them. At that
time only, the 1st defendant told that he obtained power of attorney deed and not the
mortgage deed. On verification with the Sub Registrar Office, the plaintiffs came to
know about that on 01.06.2010, the defendant got general power of attorney with
respect to suit property and on the strength of the same the 1 st defendant entered a
sale agreement with the 2nd defendant on 10.04.2012 (Ex.A3). The plaintiffs never
intended to sell the suit property and they have never given power to 1 st defendant.
The plaintiffs issued a legal notice on 16.07.2012 called upon him not to create any
further alienations.
c) The plaintiffs are residing one portion and rented out other two portions.
But the defendants have received the rents of the two portions of the house for all
these years and thus the entire amounts due to the 1 st defendant from the plaintiffs
were fully discharged. The plaintiffs are now not at all liability to the 1 st defendant.
The plaintiffs effort to have a cancellation of document is doomed. On 10.02.2013,
the defendants came to the suit property and threatened the plaintiffs to vacate the
house and handover the possession. The plaintiffs enquired with the 3 rd defendant, he
told that he has purchased the suit property from the 1 st defendant. Thereafter the
plaintiffs came to know about that the 1st defendant created a false sale deed in favour
of 3rd defendant on 28.11.2012 itself with the help of fraudulent power of attorney
deed. The alleged sale agreement, power of attorney deed, Sale deed is not acted
upon. During the pendency of the suit, the 4 th defendant purchased the suit property
through the sale deed, dated 26.02.2014. Hence the suit.
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(iii) The learned counsel for the defendants would submit their arguments in
line with the written statement and other materials on records as follows.
The plaintiffs wanted to sell their property, so they have executed a power of
attorney deed on 01.06.2010 authorising 1st defendant to sell the property of plaintiff
and possession was also handed over to the 1st defendant and the plaintiffs have been
given with entire sale consideration in the property from the 1 st defendant and they
have issued a receipt with the 1st defendant. Based on the power of attorney deed
(Ex.A2) the 1st defendant executed a sale agreement on 10.04.2012 with the 3 rd
defendant to sell the property for a sum of Rs.1,00,000/- and the 1 st defendant has
received the sum of Rs.10,000/- as advance. The plaintiffs have received the entire
consideration from the 1st defendant as per the power of attorney deed and handover
the possession of property with the 1 st defendant and in turn the 1st defendant
executed a sale agreement which is valid. Now taking advantage of the increase of
land price, the plaintiffs issued a legal notice as though he executed a loan agreement
in spite of power of attorney. Hence the suit must be dismissed.

(iv) The learned counsel for the 3rd defendant would submit his arguments in
line with the written statement and other materials on records as follows.The 3 rd
defendant is the purchaser of the property from the 1st defendant based on the valid
power of attorney executed by the plaintiff in favour of 1 st defendant. Now the 2nd
defendant sold the property to the 4 th defendant by name Sudha. Hence the suit must
be dismissed.

(v) Before going into the contentious issues involved in this suit, it is
essential to sum up the admitted facts as under. One Chinnathambi is the husband of
1st plaintiff. The Chinnathambi-Rajammal begotten the 2nd plaintiff by name
Dharmalingam. One Panchalai is the mother of Chinnathambi. The Panchalai owns
the suit property by way of self acquisition. The Panchalai executed a gift settlement
deed on 13.02.1999 (Ex.A1) bequeathing suit property in favour of Chinnathambi.
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The Chinnathambi is no more now, since he died 10 years back. The Ex.A2-power of
attorney, dated 01.06.2010 had been executed by the plaintiffs in favour of 1 st
defendant to sell away the suit property. The 1 st defendant executed a sale agreement
on 10.04.2012 in favour of 2nd defendant and subsequently executed a sale deed in
favour of 3rd defendant on 28.11.2012. The 3rd defendant executed a sale deed on
26.02.2014 in favour of 4th defendant.

(vi) The acrimony of the dispute may be seen thus. According to the
plaintiffs, they have approached the 1st defendant during the month of may 2010 to
bail out their financial crisis and borrowed the money to the tune of Rs.2,20,000/- for
interest; that at the time of borrowal, as demanded by the 1 st defendant, the plaintiff
executed a document purpoting to be a mortgage deed as a security for the above said
loan transaction; that the plaintiffs have so far repaid the sum of Rs.60,000/-; that the
defendants fraudulently obtained the thumb impression and signature of plaintiffs in
the power of attorney-Ex.A2 as though it intends and implies only the mortgage deed;
that the plaintiffs came to know about the existence of alleged power of attorney only
at the time of disturbance of possession by the defendants to the suit property.
On the otherhand, it is vyed by the defendants that they have purchased the suit
property under the Ex.A2-power of attorney coupled with interest through receipt
evidencing the payment of consideration to the plaintiffs by the defendants. Therefore
the suit is not at all maintainable by questioning the validity of Ex.A1-power of
attorney.

(vii) The fulcrum and focal point of suit is; as to whether the Ex.A2-power of
attorney really had been executed by the plaintiffs in favour of 1st defendant to sell
away the suit property after receipt of consideration as stated by the defendants
through the receipt or it is only intended as mortgage deed for the alleged loan
advanced by the plaintiffs to the defendants.

(viii) Now let us look into the pleadings of plaintiffs to cullout the alleged
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fraud said to be played in executing the Ex.A2-power of attorney. The para No.6 of
plaint would narrates the perpetration of fraud, specifically it is stated by the plaintiff
that he approached the defendants for the borrowal of sum of Rs.2,20,000/- in the
month of May 2010 and they have executed a mortgage deed on 01.06.2010 as
security for the repayment. Absolutely, there is dearth of pleadings to the effect that
any specific amount is borrowed having execution of Ex.A2-power of attorney.
Moreover, para No.6 of plaint have two lines with regard to repayment. The relevant
lines are “The plaintiffs were paid Rs.20,000/- another time, totally Rs.60,000 by the
1st defendant”. The literal meaning of these lines are that the plaintiffs were given
Rs.20,000/- in one point of time and totally they have been provided with Rs.60,000/-
by the 1st defendant. So, it connotes that only Rs.60,000/- was borrowed by the
plaintiff from the 1st defendant. Paradoxically, the chief examination of PW1 would
states that the plaintiff borrowed a sum of Rs.2,20,000/- from the 1st defendant and
repaid the interest a sum of Rs.20,000/- at one installment and principal amount the
sum of Rs.60,000/- at two installments. This vague averment would itself seems to be
vacillating one because PW1 narrates as though he borrowed Rs.2,20,000/- but repaid
the Rs.60,000/- treating it as whole debt.

(ix) Does the plaintiff borrowed a sum of Rs.2,20,000/- as stated in the para
No.6 of plaint coupled with para No.5 of chief examination of PW1 or did he only
obtained the sum of Rs.60,000/- as a debt from the 1 st defendant as stated in the para
No.5 of PW1 chief examination is not at all clearly spelled out. In fact, the plaint
gives unfathomable accounts of borrowal dehors the PW1 chief examination. The
above incompatiability of accounts of borrowal would throw coherent improbability
that either of which is true. As such, it may be stated that the PW1 chief examination
is not overlapping and emulating of plaint as regards the payment of debt nor plaint is
not cohesive interms of payment of debt. Any amount of evidence without backup of
pleadings cannot be looked into, as such what remains to consider for this court with
regard to para No.6 of plaint, wherein it is averred that Ex.A2-power of attorney was
 15

executed believing as though it is a mortgage deed for the security of borrowal. The
above inconsistencies may not assume significance because the 1 st defendant have
been refutted intoto of above stating that the Ex.A2 is the power of attorney intended
as a sale transaction. Thus, this court need not give much weightage to the flaws
fastened to the accounts of borrowal in the light of denial of total version of plaintiff
for execution of Ex.A2-power of attorney. In such scenario, what this court ought to
grope and garner the material from pleadings is that particulars of fraud alone and not
any more in view of the mandate imposed by the Order VI Rule 4 of C.P.C., The
Order VI Rule 4 of CPC dictates that the party who set up a plea of fraud has to
provide the necessary particulars. The instant plaintiff categorically pleaded that he
was illiterate and taken to the Sub Registrar office where he was made to subscribe
thumb impression and signature in the document prepared by the 1 st defendant with
the bonafide belief that they had executed the mortgage deed. So, this court is of the
considered opinion that the plea of fraud employed by the plaintiff is suffice to
comply the mandatory stipulation of Order VI Rule 4 of C.P.C. Since the plea of
fraud is pleaded this court would gloss over the infirmities and inaccuracies with
regard to details of debt because the fraud will ravels the truth which must be dealt
independently of other esposing factors, like amount of borrowal etc., The corollary
would be the investigation of difference of accounts of borrowal is immaterial for the
onus of proof on the part of plaintiff and no laverage of presumption in favour of
defendant can be shown. Typically, the person who pleads the fraud must to prove
with respect to registered documents since those documents are having sanctity of
execution under Section 60 of Registration Act.

(x) Supposedly, the above proposition would be extended to the defendant if

the document sought to be questioned is other than the power of attorney because the
fraud in execution of document must be proved by person who alleges the same.
Startingly to the plaintiff and dismal of the defendant, the said proposition will not
apply to the case on hand for the reason that the document executed through Ex.A2-
 16

power of attorney is comes under the ambit of presumption enumerated under section
111 of Indian Evidence Act (Section 124 of BLSA). For better appreciation, section
111 of Indian Evidence Act is extracted as hereunder.
111. Proof of good faith in transactions where one party is in relation of active
confidence.
Where there is a question as to the good faith of a transaction between parties,
one of whom stands to the other in a position of active confidence, the burden of
proving the good faith of the transaction is on the party who is in a position of
active confidence.
Illustrations(a)The good faith of a sale by a client to an attorney is in question in a
suit brought by the client. The burden of proving the good faith of the transaction
is on the attorney.(b)The good faith of a sale by a son just come of age to a father
is in question in a suit brought by the son. The burden of proving the good faith
of the transaction is on the father.
The cursory reading of the above section would dicate the burden of proving of a
good faith in transaction is on a party who is in active confidence of another. The
biparties to the Ex.A2 are the principal and agent. Needless to say, agent is in the
active confidence of principal. Therefore whenever any question with regard to good
faith in transaction is arose and involves, the law requires the agent to prove that the
transactions carried on by him are the bonafide one. No qualm of doubt that the
plaintiff is the principal and the 1st defendant is the agent as per tone and tenor of
Ex.A2-power of attorney.

(xi) The substratum of the plaint is that plaintiff executed the document
believing that it is a mortgage deed. Quite contrarirly, the defence would pleads that
that the Ex.A2-power of attorney was intended as sale. The intreguing question now
sprout out is ad – idem consensus for sale, however for the sake of convenience,
reserved discussion for this aspect in succeeding paragraphs. Although the 1st
defendant have pleaded that the Ex.A2-power of attorney was executed by the
plaintiff intending as sale it still has to be looked into only as a power of attorney and
no way it can be seen as sale deed because the alleged receipt said to be executed by
the plaintiff in favour of defendant as asserted by the defendant is not forthcome. As
long as, such receipt is not forthcome on the side of defendant, irrespective of laxity
 17

of plaintiff to elucidate and non questioning the alleged receipt in the cross
examination of DW1 and apathy of plaintiff to rebut the such receipt in the cross
examination, this court cannot satisfy itself that there was receipt executed by the
plaintiff in favour of defendant at the time of execution of Ex.A2-power of attorney
treating as Sale Deed. So it is suffice to say that so long as the receipt said to be
executed by the plaintiff in favour of defendant at the time of execution of Ex.A2-
power of attorney is not forthcome, this Ex.A2 cannot partake the character of sale
deed or par excellence of Deed of conveyance. The natural corollary would be that
Ex.A2 deed is only a power of attorney and not having any characteristic of sale.

(xii) When the Ex.A2-power of attorney is only a power of attorney as

discussed above, the Section 111 of Indian Evidence Act come into play which is
exception to the general rules of burden of proof. Therefore, the 1 st defendant qua
agent is given and imposed with greater onus to prove the genuiness of all the
transactions. Perhaps, the defendant may suggest that questioning of execution of
power of attorney as not a power of attorney, cannot be equated and qualified as a
fairness of transaction. Certainly this may not be a proper proposition because when
the very authority of agency itself is disputed and put into the turmoil, the agent must
prove that he was real agent based on proper authority followed by execution of
transaction whatsoever. To put it differently, proving of good faith to the transactions
between the principal and agent as contemplated under section 111 of Indian
Evidence Act would insunates that agent must prove the impugned document itself is
a power of attorney constituting agency. Thus, now it can be safely stated that 1 st
defendant has to prove in what circumstances and what manner the Ex.A2-power of
attorney came to be executed which otherwise would disprove the plea of plaintiff
that it is only a mortgage.

(xiii) Now turning into the episode of execution of Ex.A2-power of attorney in

the eye of 1st defendant. In para No.11 a of written statement it is categorically stated
 18

by the 1st defendant that the plaintiff executed a power of attorney on 01.06.2010 after
receipt of sale consideration from the 1 st defendant under the receipt. So, what could
be able to percipitate from above pleadings is, (a) that the power of attorney-Ex.A2
was executed (b) that this document was executed to sell away the suit property, (c)
that the possession was handed over (d) that there was receipt was issued by the
plaintiff to the defendant evidencing the Sale. The above accounts furnishes and
demonstrate the infirmities of definition of Sale in the absence of coherent and valid
sale deed. First of all, what is the consideration for the alleged sale was fixed and
passed is not explained. Secondly, if the Ex.A2-power of attorney is intended only to
sell away the land means how it could be treated on par with the sale deed is not
explained. Thirdly, if the possession has to be handed over means, certainly sale
agreement has to be executed as per Section 53 A of Transfer of Property Act and
fourthly, if at all really there was an receipt executed by the defendant in favour of
plaintiff to consitute the agency is coupled with interest, the receipt must be
registered one as per Section 17 (3) of Registration Act, to fulfill the Sale, however
the receipt is also not forthcome. Therefore all the above accounts surrounding to the
execution of Ex.A2-power of attorney is not plausibly explained and proved by the
defendants. As such, this court forms opinion that agency is not constituted as seen
through in Ex.A2-power of attorney nor Sale was executed with ad idem conses. It is
not out of place to mention that the plaintiff did not elicitated vital facts and law
points in his favour in the cross examination of Dws or through the reply statement.
This court was expected from the plaintiff to controvert the defendant as regards non
production of receipt, particulars of consideration passed under the Ex.A2 and the
particulars of furnishing of accounts of transaction carried out by the agent as stated
in the Ex.A2-power of attorney but the plaintiff is lackluster and ignorant of above
aspects of facts while conducting his case. But the weekness of plaintiff in
conducting his case certainly will not desist this court from expecting above vague
and inconsistency aspects revolves around the Ex.A2-power of attorney in view of
the Section 111 of Indian Evidence Act. Further this court will not swayed away by
 19

the non endeavour of plaintiff to conduct his case properly because the defendant is
not able to disprove the statutory burden shifted to him. Therefore this court is of the
considered opinion that the defendant failed to establish that he was an agent under
the Ex.A2-power of attorney. Consequently, this court has to infer that power of
attorney has been executed by the defendant coaxing the plaintiff to execute the
document under the garb of mortgage deed as asserted by the plaintiff. It is further to
note down that the whatever consideration passed to the said deed of mortgage
executed by the plaintiff is immaterial for the discussion because it is superflouous
and obscurity in the light of the void document namely power of attorney-Ex.A2.
Accordingly this court is of the considered opinion that Ex.A2-power of attorney is
declared as null and void. Eventually, what remains followed by the Ex.A2-power of
attorney is nothing but an abyss. Concomitantly, this court is of the considered
opinion that sale agreement executed by the 1st defendant in favour of the 2nd
defendant on 10.04.2012-Ex.A3 is non-est in the eye of law because of scanty
authority to pass the title embodied therein. In short, this court is of the considered
opinion that the plaintiff has satisfactorily proved his case that the Ex.A2-power of
attorney was not a real power of attorney. Hence in issue Nos.1 to 3 and additional
issue No.1 are answered in favour of plaintiffs.

11. With regard to issue No.4:

In so far as the relief of permanent injunction is concerned, it is the categorical
averments of plaintiffs that they are in occupation of one portion and another two
portions were occupied by the defendants with permission to collect rent having a
right to adjust it against the principal debt covered under the mortgage deed. Though
the claim of mortgage is raised, it is not proved except the plea of fraud as seen
above. At the same time, this court have to keep in mind that the Ex.A2-power of
attorney is declared as null and void as per the findings above which discard the
semblance of possession allegedly held by the defendants based on the defunct
Ex.A2-power of attorney. The sequal of which would be in the absence of disproof on
 20

the part of the defendants about the possession held by the plaintiffs, this court has to
presume the fact that plaintiffs are in possession of the suit property in which two
portions has been occupied by the defendants without any authority in the guise of
permission of plaintiffs for collection of rent to satisfy the debt. It is also further
stated by the plaintiffs that debt was discharged however there is no clear
emunication about the alleged payment of debt. Certainly this aspect may not
assumes significance since the power of attorney is void ab-initio which implies the
plaintiffs are in possession and enjoyment of suit property constructively and the
defendants are no right to continue further in the possession as a permissive occupier
for collection of rent. Therefore the plaintiffs possession has to be protected.
Accordingly, this court is inclined to grant the discretionary relief of permanent
injunction to the plaintiff. Hence the issue No.4 is answered in favour of the
plaintiffs.

12. With regard to issue No.5:

Since the above issues are answered in favour of the Plaintiffs, this issue is not
necessary to the plaintiffs.

In the result, the suit is decreed by declaring the general power of attorney
deed, dated 01.06.2010, sale agreement deed, dated 10.04.2010, sale deed, dated
28.11.2012, Sale deed, dated 26.02.2014 are null and void and Permanent Injunction
is granted in favour of the Plaintiffs as prayed for. No costs.

Directly dictated to the Steno-typist and typed by her in the computer,

corrected and pronounced by me in open court this the 11th day of November, 2024.

Digitally signed by
R
R SATHEESKUMAR
SATHEESKUMAR
Date: 2024.11.11
17:44:55 +0530

I ADDITIONAL DISTRICT MUNSIF,

SALEM.
 21

List of plaintiffs side witness:

P.W.1 – Rajammal – 1st plaintiff
(Ex.A1 to Ex.A11 marked)
List of plaintiffs side documents:
Ex.A1 17.02.1999 Gift Settlement Deed executed by Sub Registrar
Panchalai in favour of Chinnathambi office copy
Ex.A2 01.06.2010 General Power of Attorney Deed executed Sub Registrar
st
by Plaintiffs in favour of 1 defendant office copy
Ex.A3 10.04.2012 Sale agreement executed by 1st defendant in Sub Registrar
nd
favour of 2 defendant office copy
Ex.A4 16.07.2012 Legal notice issued by the Plaintiffs to the Office copy
1st defendant along with acknowledgment
card
Ex.A5 19.07.2012 Reply notice issued by the 1st defendant Original
Ex.A6 05.08.2012 Petition given by Plaintiffs to the Chief Office copy
Minister Cell, Chennai
Ex.A7 22.06.2012 Computer patta stands in the name of Original
Panchalai with regard to S.No.47/4A11
Ex.A8 31.03.2012 House tax receipts (2 Nos.) Originals
&
14.05.2012
Ex.A9 --- E.B receipts (3 Nos.) Originals
Ex.A10 28.11.2012 Sale deed executed by 1st defendant in Sub Registrar
rd
favour of 3 defendant office copy
Ex.A11 26.02.2014 Sale deed executed by 3rd defendant in Sub Registrar
th
favour of 4 defendant office copy
List of defendants side witnesses:
D.W.1 – Chandran – 1st defendant
(No documents marked)
D.W.2 – Sudha – 3rd party Digitally signed
by R
(No documents marked) R SATHEESKUMAR
SATHEESKUMAR
Date: 2024.11.11
List of defendants side documents: Nil. 17:45:11 +0530

I ADDITIONAL DISTRICT MUNSIF,

SALEM.