The Supreme Court has set aside a judgment of the Kerala High Court and decreed a suit for specific performance, ruling that the period of limitation for instituting the suit commenced from the date the defendant executed an affidavit ratifying the acts of her power of attorney holder and agreeing to transfer the property, not from the date of the initial agreement.
A Bench comprising Justice Vikram Nath and Justice Sandeep Mehta allowed the appeal filed by Muslimveetil Chalakkal Ahammed Haji, holding that the lower courts erred in dismissing the suit on the grounds of limitation and lack of readiness and willingness.
Background of the Case
The dispute pertained to a property admeasuring approximately three acres and thirty-five cents, which originally belonged to Seethi Thangal. Upon his death on August 22, 2002, the property, which included a school building, devolved upon his nine children, including the respondent, Sakeena Beevi.
On September 3, 2002, all nine legal heirs executed an unregistered power of attorney (Exhibit A4) in favour of the eldest son, Shri Muhammed Rafi Thangal. However, the next day, on September 4, 2002, the respondent executed a separate registered power of attorney (Exhibit B1) in favour of her son, Shri Rasheeq Ahmed.
Acting on the unregistered power of attorney, the eldest brother executed an agreement for sale (Exhibit A1) on May 14, 2007, in favour of the appellant for a total consideration of Rs. 2.70 crores. An advance of Rs. 25 lakhs was paid. The agreement was extended on three occasions, with the last extension occurring on July 7, 2011.
On November 14, 2012, the respondent published a notice revoking the unregistered power of attorney given to her brother. Subsequently, on April 30, 2013, the respondent executed an affidavit (Exhibit A5) ratifying the power of attorney and expressing consent to transfer her share. While the other eight siblings executed a sale deed for their shares on May 8, 2013, the respondent refused to execute the deed for her 1/11th share.
Proceedings Before Lower Courts
The appellant instituted Original Suit No. 862 of 2013 before the Sub-Judge, Chavakkad, seeking specific performance. The Trial Court dismissed the suit on October 30, 2015, primarily on the ground of limitation.
The High Court of Kerala, in R.F.A. No. 267 of 2016, affirmed the dismissal on October 16, 2020. The High Court held that the unregistered power of attorney stood revoked by the execution of the registered power of attorney in favour of the respondent’s son. Consequently, it ruled that the payments made to the brother were not binding on the respondent. The High Court further held the suit to be barred by limitation under Article 54 of the Schedule to the Limitation Act, 1963, calculating the period from the alleged breach in 2008.
Arguments Before the Supreme Court
Shri Gaurav Agrawal, learned senior counsel for the appellant, relied heavily on the affidavit dated April 30, 2013 (Exhibit A5). He argued that by this affidavit, the respondent had expressly ratified the acts of her brother and conveyed her “no-objection” to the transfer of ownership. He contended that the limitation period should be reckoned from this date.
Ms. Menaka Guruswamy, learned senior counsel for the respondent, argued that the earlier unregistered power of attorney stood automatically revoked upon the execution of the registered power of attorney in favour of the respondent’s son. She submitted that the suit instituted in 2013 was barred by limitation as the original agreement was from 2007.
Court’s Analysis and Observations
The Supreme Court rejected the findings of the High Court regarding the revocation of authority and limitation. The Court observed that the respondent’s theory of revocation in 2002 was “ex facie untenable” because she did not dispute the validity of the 2007 agreement executed by her brother.
The Bench identified the affidavit dated April 30, 2013 (Exhibit A5) as the “most crucial and vital document.” The Court noted that the respondent did not enter the witness box to dispute this document.
Justice Mehta, writing for the Bench, observed:
“A plain reading of the affidavit… clearly establish that the defendant-respondent not only ratified the acts performed by the power of attorney holder, her brother Shri Muhammed Rafi Thangal, but also expressly conveyed her no-objection to the change in management and so also the ownership of the school and the properties appurtenant thereto in favour of the plaintiff-appellant.”
On the issue of limitation, the Court held:
“Once the two facts, i.e., the publication of notice in the year 2012 for revocation of the unregistered power of attorney (Exh. A4) and the affidavit dated 30th April, 2013 are cumulatively taken into account, manifestly, limitation would start running from the later date because it is, at that stage, that the respondent-defendant finally refused execution of sale deed to the extent of her share in the suit property.”
The Court concluded that the suit filed in 2013 was within the prescribed period of limitation reckoned from the date of the affidavit.
Regarding readiness and willingness, the Court noted that the appellant had paid the remaining consideration to the eight other co-sharers and obtained a partial sale deed. Thus, the finding that the appellant lacked readiness and willingness was set aside.
Decision
The Supreme Court allowed Civil Appeal No. 3894 of 2022, setting aside the judgments of the High Court and the Trial Court.
The Court ordered:
- The appellant is entitled to the conveyance of the respondent’s 1/11th share.
- The Trial Court shall determine the balance sale consideration based on the original agreement, with simple interest at the rate of 9%.
- Upon deposit of the amount by the appellant within two months of determination, the sale deed shall be executed.
Consequently, the Court also allowed the connected appeal (Civil Appeal No. 3895 of 2022) regarding the management of the school, noting that with the decree of specific performance, the appellant would possess the requisite 3 acres of land to run the school under the Kerala Education Rules, 2005.
Case Details
- Case Title: Muslimveetil Chalakkal Ahammed Haji v. Sakeena Beevi
- Case Number: Civil Appeal No(s). 3894 of 2022 (with C.A. No. 3895 of 2022)
- Coram: Justice Vikram Nath and Justice Sandeep Mehta
