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P. Krishnamoorthy & Another v/s Dhanabakkiyam Marimuthu, Rep. by her Legal Power of Attorney Agent, Salem


Company & Directors' Information:- K SALEM LIMITED [Dissolved] CIN = U99999MH1947PTC005530

    S.A. No. 730 of 2008 & M.P. No. 1 of 2008

    Decided On, 11 March 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE G.K. ILANTHIRAIYAN

    For the Appellants: T.R. Rajagopalan, Senior Counsel, G. Vetrivel Rajan, Advocate. For the Respondent: T. Murugamanickam Senior Counsel for M/s. Zeenath Begum, Advocate.



Judgment Text

(Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code to expunge the remarks regarding Ex.B1 in the judgment dated 06.06.2006 in AS.No.100 of 2005 on the file of the I Additional District Court, Salem, so faras it relates to the findings that Ex.B1 power of attorney deed is a forged document and to expunge the direction to initiate prosecution against the first petitioner herein.)1. This second appeal is filed to expunge the remarks regarding Ex.B1 in the judgment dated 06.06.2006 in AS.No.100 of 2005 on the file of the I Additional District Court, Salem, so faras it relates to the findings that Ex.B1 power of attorney deed is a forged document and to expunge the direction to initiate prosecution against the first appellant herein.2. For the sake of convenience, the parties are referred to as per their ranking in the trial Court.3. The case of the plaintiff in brief is as follows:-3.1. The suit is filed for declaration and permanent injunction. The plaintiff had purchased house site at New Fairlands, Salem town vide registered sale deed dated 15.12.1978. Thereafter she raised funds from house loan and also with the help of her husband, she has constructed a terraced building, which is the suit property. She also had purchased another house site at Alagapuram Kattur, Salem. Her sister Lakshmi was given in marriage to one, Palanivelu who is the brother of the plaintiff's husband Marimuthu. Since plaintiff's brother was settled at USA, the plaintiff's sister and her husband went to USA during the year 1980. While being so, her sister and her husband used to send their savings to the plaintiff, in which the plaintiff has purchased the house at Narasothipatti Village, Salem-4 in the name of her sister's husband namely Palanivelu. Thereafter, the plaintiff also shifted her family to USA. There was misunderstanding between the plaintiff and her sister's family and as such her sister's husband demanded accounts for the amount sent to the plaintiff. On compulsion, the plaintiff agreed to part her valuable house site at Alagapuram Kattur to her sister's husband, namely Palanivelu. The said Palanivelu also purchased vacant house site at New Fairlands and he proposed to put up construction over there. Therefore the plaintiff was insisted to give power of attorney to his sister's son namely the first defendant. Thereafter the said Palanivelu also had given power of attorney in favour of the first defendant to sell his house site which was purchased by the plaintiff in the name of Palanivelu. Accordingly, the first defendant sold out both the house sites and constructed building at New Fairlands for the said Palanivelu. Thereafter, the plaintiff went to USA and settled there. In order to maintain the suit property, she had executed power of attorney in favour of one, R.Palanisami. While being so, on 25.08.1995, the said Palanivelu and his men threatened the plaintiff and by threat he obtained few signatures on the blank papers in order to knock away the suit property. In fact, the plaintiff also reported the matter to the Police. Thereafter, again the plaintiff executed power of attorney in favour of the said K.Palanisami in respect of the suit property on 26.06.1996. Thereafter, the first defendant with the hands of the Palanivelu fabricated power of attorney in his favour and executed sale deed in favour of the second defendant, who is none other than a close relative of the first defendant and the said Palanivelu. When the power of attorney of the plaintiff was verified with the encumbrance certificate, she came to understand that on the strength of the power of attorney, the suit property was sold out in favour of the second defendant. Hence, the suit.4. Resisting the plaintiff's case, the first defendant filed written statement and stated that the first defendant had absolutely no knowledge about the dispute between the plaintiff and the said Palanivelu. The plaintiff purchased the suit property by the sale deed dated 15.12.1978. The said Palanivelu never gave any power to the first defendant. The plaintiff executed power of attorney in favour of the first defendant and thereafter he sold out the property and the entire sale consideration was duly paid to the plaintiff through her father in law. She executed power of attorney dated 09.09.1995 and duly instructed the first defendant to sell the suit property. It was validated before the authority concerned by paying necessary stamp duty on 02.04.1996. Thereafter, the suit property was sold out in favour of the second defendant for the total sale consideration of Rs.3 lakhs. All the parent documents and also possession of the suit property were handed over to the second defendant and he is in possession and enjoyment of the suit property. The principal or power holder of the plaintiff was never in possession of the suit property.4.1 The second defendant separately filed written statement and stated that he agreed to purchase the suit property from the first defendant for valid sale consideration on the strength of the power of attorney executed by the plaintiff. Accordingly, the first defendant entered into an agreement for sale on 21.04.1996 and paid a sum of Rs.1 lakh as advance. After payment of the balance sale consideration, sale deed was executed in his favour and he was put in possession in the suit property. Therefore, the plaintiff is not entitled to seek any relief as prayed for and sought for dismissal of the suit.5. In support of the plaintiff's case, P.W.1 was examined and eight documents were marked as Ex.A.1 to Ex.A.8. On the side of the defendants D.W.1 and D.W.2 were examined and Ex.D.1 to Ex.D.9 were marked. On considering the oral and documentary evidences adduced by the respective parties and the submission made by the learned counsel, the trial Court dismissed the suit. Aggrieved over the judgment and decree of the trial Court, the plaintiff preferred an appeal suit in AS.No.100 of 2005 before the I Additional District Court, Salem. The first appellate Court on appreciating the materials placed on records, reversed the findings of the trial court and also dismissed the appeal suit. Aggrieved against the findings of the first appellate court, the present second appeal is preferred.6. At the time of admission of the second appeal, on 14.05.2008, the following substantial questions of law in respect of the findings rendered by the first appellate court were framed:-a) When the entire case of the plaintiff is on the basis of allegation that Ex.B1 Power of Attorney Deed, executed by her in favour of the first defendant is forged, in the absence of any evidence by the plaintiff herself to support the said pleading, is the Lower Appellate Court correct in law in holding that Ex.B1 Power of Attorney Deed is forged?b) When Ex.B1 Power of Attorney is executed in USA in the presence of a Notary Public in USA and validated in India according to law, is the Lower Appellate Court correct in law in holding that Ex.B1 Power of Attorney Deed is forged, without any evidence from the plaintiff to rebut presumption as to power of attorney under Section 85 of the Indian Evidence Act?c) When the first defendant, as the Power of attorney of the Plaintiff executed, the Ex.B4 Sale deed in favour of the second defendant and by handing over the original title deeds to the 2nd defendant conveying a clear title, is not the judgment by the lower appellate court perverse in holding that the Ex.B4 sale deed dated 28.06.1996 in favour of the 2nd defendant is not valid, particularly when the trial court rightly held so?7. Mr.T.R.Rajagopalan, Senior Counsel appearing for the defendants / appellants submitted that the first appellate court reversed the entire findings of the trial court and also dismissed the appeal suit. Though the first appellate court dismissed the appeal suit, reverse findings revealed that power of attorney executed by the plaintiff in favour of the first defendant and on the strength of the power of attorney the first defendant executed sale deed in favour of the second defendant are void. The first appellate court went on one step ahead and directed the jurisdictional Magistrate to laid a complaint under Section 340 of Cr.P.C. for production of forged and fabricated power of attorney before the trial court which is marked as Ex.B1. He further submitted that those documents were not sent for any handwriting expert opinion and the first appellate court itself came to conclusion that signature in Ex.B1 is completely different one from the signature in the Ex.A1. Therefore concluded that the plaintiff's signature was forged and the Palanivelu and the first defendant fabricated the power of attorney. In fact, the first appellate court accepted the validation to the Ex.B1 by the authorities concerned and at the same time directed to lodge complaint as if it was forged one. The plaintiff herself has never taken a plea that she has not signed in Ex.B1, power of attorney. Whereas she stated that she was compelled to sign in the blank papers. When the plaintiff only had knowledge about her signature and Ex.B1 is forged one, she has to examine his witness. In the absence of oral evidence of plaintiff in respect of core allegation about Ex.B1 which are within her exclusive knowledge, the appellate court should not have concluded that Ex.B1 is forged one, that too without referring the document for handwriting expert opinion.7.1 He further submitted that on the strength of the Ex.B1, the first defendant executed sale deed in favour of the second defendant and handed over all the original parent deed of the suit property to the second defendant. If at all the power of attorney is forged one, the parent document of the suit property would not have handed over to the first defendant by the plaintiff. Insofar as the direction to lodge private complaint under Section 340 of Cr.P.C. is concerned, admittedly the defendants did not commit any offence before the court. Even according to the plaintiff, Ex.B1 was produced before the court and no forgery committed in the court. Ex.B1 was duly validated by the authorities concerned and in fact the first appellate court could not have sit as appellate court on the validation of the Ex.B1 and concluded that it is forged one. When the Ex.B1 was validated by the authorities concerned, the first appellate court had no say about the validation unless validation itself is questioned before the appropriate forum. The judgment of the first appellate court is nothing but operation success but patient died since all the findings rendered against the defendants and finally dismissed the appeal against the plaintiff.7.2. In support of his submissions, he relied upon the following judgments:(i) Sachida Nand Singh and another Vs. State of Bihar and another reported in (1998) 2 SCC 493(ii) Vidhyadhar Vs. Manikrao and another reported in (1999) 3 SCC 573(iii) Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and others reported in 2005 (3) CTC 128 (SC)(iv) Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another reported in (2005) 4 SCC 370(v) T.Dhinakaran(minor) rep. by next friend and grandmother Mrs.Vijaya and another Vs. V.Ranganathan and others reported in (2017) 8 Mad LJ 606(vi) Mohinder Kaur Vs. Sant Paul Singh reported in 2019 (6) CTC 348(vii) M/s.Bandekar Brothers Pvt Ltd. & Another Vs. Prasad Vassudev Keni & Others reported in CDJ 2020 SC 7048. Per contra, Mr.T.Murugamanickam, Senior Counsel appearing for the plaintiff / respondent contended that the plaintiff never executed any power of attorney i.e. Ex.B1 in favour of the first defendant since she had only suit property on her own. In respect of other property purchased by her was already given to her sister's husband, Palanivelu.Further she had no necessity to sell the property. In fact, just prior to Ex.B1, the plaintiff executed power of attorney in favour of the first defendant in respect of the property situated at Alagapuram Kattur and as such if at all the plaintiff intended to sell the suit property, definitely she would have added the suit property also in the first power of attorney, which is marked as Ex.B2 dated 03.08.1995. The bare look with the naked eyes of the signature of the plaintiff in Ex.A1 and Ex.B1 revealed that the signature of the plaintiff was forged by the defendants. Therefore, the said forged document was produced before the trial court and thereby defendants committed grave offence under Sections 193, 465 and 471 of IPC. Therefore, the first appellate court rightly directed the jurisdictional Magistrate to lodge complaint under Section 340 of Cr.P.C. In fact, the charges were framed and the same was taken cognizance in CC.No.350 of 2006 on the file of the Judicial Magistrate No.3, Salem and it is pending for trial. The prosecution also examined four witnesses and the matter is posted for further evidence. He further submitted that the defendants filed appeal in Crl.A.No.1061 of 2006 as against the direction issued by the first appellate court in the appeal suit and subsequently it was dismissed as withdrawn. The plaintiff already executed power of attorney in favour of Palanisamy in respect of the suit property to maintain the same. Therefore, the plaintiff had no occasion to execute power of attorney in favour of the first defendant. The first defendant fabricated and forged the signature of the plaintiff and created power of attorney. The same was validated after period of seven months from the date of its execution. There is no proof for receipt of the same in India. When it being so, the power of attorney itself is not a valid one and on the strength of the same, the first defendant executed sham and nominal sale deed in favour of the second defendant. The plaintiff also filed suit in OS.No.513 of 2010 on the file of the II Additional Sub Court, Salem for recovery of the suit property as against the defendants and the same is pending. Therefore, he prayed for dismissal of the second appeal.9. Heard Mr.T.R.Rajagopalan, Senior Counsel appearing for the defendants / appellants and Mr.T.Murugamanickam, Senior Counsel appearing for the plaintiff / respondent.10. After hearing the arguments, this Court framed additional substantial question of law, whether the suit is bad for non joinder of necessary party, when the plaintiff averred serious allegations as against one, Palanivelu in respect of fabrication of power of attorney, Ex.B1?.11. The plaintiff filed suit for declaration and injunction in respect of the suit property. Originally, the suit property was purchased by the plaintiff by the registered sale deed dated 15.12.1978. She also purchased the house site at Narasothipatti Village, Salem in the name of Palanivelu, who is none other than own sister's husband. When the said Palanivelu and his wife settled at USA, they had sent their small savings to the plaintiff on various deeds. Thereafter, there was dispute between them and the said Palanivelu demanded accounts for the amount sent to the plaintiff. The plaintiff also agreed to settle another part of the property which was purchased in her name situated at Alagapuram Kattur. In view of the same, she executed power of attorney in favour of the first defendant. In fact, the said Palanivelu also executed power of attorney in respect of the property purchased in his name by the plaintiff in favour of the first defendant. Thereafter, the first defendant sold out both the properties and handed over the sale consideration to the said Palanivelu. While being so, the said Palanivelu and his men demanded more property from the plaintiff. It is alleged that on coercion and threatening, he obtained signatures in the blank papers in order to knock away the suit property. Though the plaintiff lodged complaint, no piece of evidence produced before the trial court and she failed to get into box to depose about the said compulsion and coercion by the said Palanivelu. Even assuming that the signature obtained by the said Palanivelu on threatening and compulsion, he was not added as party in the suit. When all along in the plaint the plaintiff made specific allegation as against the said Palanivelu, the plaintiff should have impleaded him as a party, since, he is necessary party to the suit. Therefore, the suit itself is bad for non joinder of necessary party. Accordingly, the additional substantial question of law is answered in favour of the defendants.12. Insofar as Ex.B1 is concerned, even according to the plaintiff, her signature was obtained by the said Palanivelu on compulsion and coercion and the plaintiff nowhere denied the signature in the power of attorney Ex.B1. Further alleged that on the strength of the signatures obtained in the blank papers, they forged power of attorney. On perusal of Ex.B1, signature found in the top of the paper and it was duly attested by the notary public in USA on 09.09.1995. The same has been validated by the authorities concerned on 02.04.1996. On the strength of the power of attorney, the first defendant executed sale deed in favour of the second defendant for valid sale consideration. Admittedly, Ex.B1 was not subjected to handwriting expert opinion. The first appellate court though accepted the contention of the defendants that Section 85 of the Indian Evidence Act, under which due execution can be presumed in respect of a power of attorney which has been authorised by notary public and the same was duly validated by the authorities concerned, concluded that the signature found in the Ex.B1 is completely different from the signature found in the Ex.A1. Further held that Ex.B1 is forged one for the reason so far as the signature of the plaintiff is concerned. It is true that power of attorney executed in a foreign country has to be validated in India within three months from the date of receipt of the same. Though no proof produced by the defendants in respect of receipt of Ex.B1, Registration Authority satisfied and validated Ex.B1 by proper adjudication. As such it has to be presumed that the authority validated under Section 32 of Stamp Act Ex.B1, power of attorney has satisfied himself as to date of receipt of instrument and then made endorsement. As against validation of Ex.B1, no appeal was filed and became final. Therefore, Ex.B1 is not a forged one.13. On the strength of the Ex.B1, the first defendant executed sale deed in favour of the second defendant. As such sale deed which was marked as Ex.B4 is valid one. In fact, the entire parent documents were handed over on the date of execution of the sale deed to the second defendant and he is in very much possession and enjoyment of the suit property. All the revenue records also mutated in his name and he is paying all revenue dues in his name which were marked as Ex.B6 to Ex.B9. It is curious to note that the first appellate court rendered findings as Ex.B1 is forged one and Ex.B4 is not a valid one. Even then, dismissed the appeal suit prayed for declaration of title in favour of the plaintiff. It is very unfortunate to state that the first appellate court without applying mind, passed the judgment. It is nothing but operation success, patient died. That apart, the first appellate court concluded that there is a prima facie evidence to prosecute the defendants for producing the forged power of attorney Ex.B1 before the trial court by the first defendant. As stated supra, even according to the plaintiff, her sister's husband obtained signature on compulsion and coercion from the plaintiff and colluded with the first defendant fabricated the power of attorney Ex.B1. When it being so, complaint ought to have been lodged against the said Palanivelu and the first defendant. On perusal of the complaint in CC.No.350 of 2006, the first appellate court lodged complaint only as against the first defendant.14. The question is whether the first appellate court is right in issuance of direction to initiate proceedings under Section 340 of Cr.P.C. against the first defendant. To make out prima facie under Section 195 of Indian Penal Code so as to initiate proceedings under Section 340 Cr.P.C., it should be shown that the first defendant had fabricated false evidence or used the same in evidence knowing that it is forged document. Whereas as discussed supra and also materials available on record, this Court do not find prima facie case satisfying any one of the ingredients of Section 195 of IPC.15. The learned Senior Counsel appearing for the defendants / appellants relied upon the judgment in the case of Sachinda Nand Singh Vs. State of Bihar reported in 1998 SCC (Cri) 660, wherein it is held as follows:10. The sub-section puts the condition that before the Court makes a complaint of any offence referred to in clause (b) of Section 195(1) the Court has to follow the p

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rocedure laid down in section 340. In other words, no complaint can be made by a Court regarding any offence falling within the ambit of section 195(1)(b) of the Code without first adopting those procedural requirements. It has to be noted that section 340 falls within chapter XXVI of the Code which contains a fasciculus of Provisions as to offences affecting the administration of justice. So the offences envisaged in Section 195(1) (b) of the Code must involve acts which have affected the administration of justice.11. The scope of the preliminary enquiry envisaged in Section 340(1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in Court or given in evidence in a proceeding in that Court. In other words, the offence should have been committed during the time when the document was in Custodia Legis.12. It would be a strained thinking that any offence involving forgery of a document if committed far outside the precincts of the Court and long before its production in the Court could also be treated as a criterion affecting administration of justice merely because that document later reached the Court records.16. The above judgment is squarely applicable to the case on hand since in pursuant to the power of attorney Ex.B1, the first defendant executed sale deed in favour of the second defendant Ex.B4. Thereafter, revenue documents mutated in his name and he was put in possession of the suit property. There is no evidence to conclude that Ex.B1 is fabricated one. Even assuming that it is a fabricated one, then who fabricated the same and where it was fabricated, there is no iota of evidence produced by plaintiff.17. In view of the above discussion, all the substantial questions of law are answered in favour of the defendants. Therefore, the findings rendered by the first appellate court against the defendants are perverse and are liable to be set aside. Accordingly, the findings in AS.No.100 of 2005 on the file of the I Additional District Court, Salem are set aside. In view of the same, the proceedings initiated under Section 340 Cr.P.C. in CC.No.350 of 2006 is void.18. Accordingly, this Second Appeal stands allowed. Consequently, connected miscellaneous petition is closed. No order as to costs.
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