IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931 AS.No. 895 of 1997(A) --------------------- OS.669/1997 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT/PLAINTIFF: ----------------- ALPHONSA, D/O.MOOKKEN ANTHONH, EAST FORT, THRISSUR VILLAGE AND TALUK. BY ADV. SRI.K.GEORGE VARGHESE KANNANTHANAM SRI TONY GEORGE KANNANTHANAM RESPONDENTS/DEFENDANTS 1 TO 6: --------------------- 1. BABY, S/O. MOOKKEN ANTHONY, EAST FORT, THRISSUR VILLAGE AND TALUK, THRISSUR. (DIED) 2. JOLLY, S/O.MOOKKEN ANTHONY, -DO- -DO- 3. YESUDAS, S/O. MOOKKEN ANTHONY, -DO- -DO- 4. XAVIER, S/O.MOOKKEN ANTHONY, -DO- -DO- 5. THOMAS, S/O. MOOKKEN ANTHONY, -DO- -DO- 6. JACK, S/O. MOOKKEN ANTHONY, -DO- -do Addl. 7. SMT. THRESSIAMMA BABY, W./O.LATE BABY, MOOKKEN HOUSE, 1ST AVENUE, THRISSUR. '' 8. SRI TONY MOOKKEN, S/O. LATE BABY, - MOOKKEN HOUSE, IST AVENUE, THRISSUR. (Additional respondents 7 and 8 are impleaded as the L.Rs. of deceased 1st respondent vide order dated 26/11/2003 on CMP.NO.1663/2000) ADV. SRI.M.UNNIKRISHNA MENON FOR R3 AND R4 SRI.C.CHANDRASEKHARAN FOR SRI.P.N.PURUSHOTHAMA KAIMAL FOR R5 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 05/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NOS.6652 & 6813 OF 1997 IN A.S.NO.895 OF 1997. ---------------------- DISMISSED 5/2/2010 Sd/- HARUN-UL-RASHID, JUDGE. True Copy HARUN-UL-RASHID,J. -------------------------- A.S.NO.895 OF 1997 -------------------------- DATED THIS THE 5TH DAY OF FEBRUARY, 2010 JUDGMENT Plaintiff in O.S. No. 669/87 on the file of the Sub Court, Thrissur is the appellant. The suit was filed for partition. The trial court dismissed the suit finding that the the plaintiff is not entitled for any share in the property. Aggrieved by the decree and judgment passed by the court below, the plaintiff has preferred this appeal. The parties hereinafter referred are the plaintiff and defendants as arrayed in the suit. 2. Plaintiff and defendants are the children of late Anthony. Plaintiff is his daughter and defendants are his sons. Plaint schedule properties 5 in number were obtained by the father-Anthony as per registered document Nos.4363 and 4364/1957. It is the plaintiff's case that the whereabouts of the father are not known to -2- A.S.No.895/97 anybody since 1977 and therefore, it is presumed that he is dead. At the time when the father left the house, the plaintiff was an unmarried girl. Plaintiff claimed partition and allotment of 1/8th share. 3. Defendants 1, 4, 5 and 6 filed written statement. According to them, the plaint schedule properties were not available for partition, that the father left home in September, 1978 and thereafter his whereabouts are not known and that the father and defendants have executed a registered partition deed No.3276/74 dividing the properties in between the father and the defendants. It it contend that on the date of execution of the document an extent of 30 cents of land in Sy.No.706/4 of Aranattukara Village was gifted to the plaintiff as per document No.3275/74. It is further contended that certain properties were kept undivided and excluded as on the date of execution of document No.3276/74. The said properties were entrusted with the 2nd -3- A.S.No.895/97 defendant by all other sharers for management. The father executed a power of attorney in favour of the 2nd defendant in the year 1976. On the strength of the power of attorney, the 2nd defendant executed a release deed on 7/12/1984 conveying the right of the father in favour of the defendants. According to the defendants, since the properties were already divided among the sharers, there is no necessity for a further partition. The properties scheduled in the plaint are not partible and therefore, the plaintiff is not entitled to any relief claimed in the plaint. 4. In support of the case of the respective parties, Pws.1 to 4 and Dws.1 to 4 were examined and Exts.A1 to A4, B1 to B4, X1 and X2 are marked. The court below examined the question as to whether the father of the plaintiff can be presumed to be dead. The plaintiff tendered evidence before the court below stating that her father is missing ever since 1977. DW4 is the cousin of Anthony, who is a -4- A.S.No.895/97 Bishop. He also testified before the court below that he had occasion to attend the functions in the house of Anthony. He participated in the marriage ceremony of the 2nd defendant in 1977 and that of the plaintiff in 1979. The Bishop testified before the court below that he did not know about the whereabouts of Anthony since 1976 and that Anthony was not seen present in the house on the occasion of the marriage of the 2nd defendant and the plaintiff. In the written statement the defendants contended that the whereabouts of their father were not known since September, 1978. In the written statement they have no case that their farther was known to be alive since 1978. At the same time, they attempted to prove that their father was alive during 1987. Dws.1, 2 and 3 were examined. On a reading of their testimonies, it can be seen that they are not trustworthy witnesses and the evidence tendered by them does not inspire confidence of the court. -5- A.S.No.895/97 The witnesses were taken by the defendants to the court below. They have testified certain facts which were not found pleaded by the plaintiff. Therefore, the finding of the court below that the father of the plaintiff can be presumed to be dead, does not require interference. 5. Exts.A1 and A2 are the title deeds, which stand in the name of the father. Ext.B1 is the registered partition deed executed by Anthony and his sons. The daughter alone was not a party. By Ext. B1 partition deed some items of properties belonged to the father were set apart in favour of his sons. The properties scheduled as A in the partition deed were allotted to the father and other shares were allotted to his sons. Items 4 and 5 in the plaint schedule are the properties allotted to the father by virtue of Ext.B1 partition deed. Item Nos. 1 to 3 are the properties not included in Ext.B1 partition deed. It is not disputed by the plaintiff before this Court that item No.2 property is not -6- A.S.No.895/97 available for partition. So, it can be held that item No.2 is not available for partition. It cannot be disputed that item Nos.1 and 3 are the properties left out of partition. Items. 1, 3, 4 and 5 are the properties which stand in the name of the father. According to the plaintiff, item Nos. 1, 3, 4 and 5 are the properties. which are available for partition and therefore the dismissal of the suit without passing a decree for partition is unsustainable in law. 6. The learned counsel for the defendants 3 to 5 relied on Ext.B3 power of attorney executed by the father-Anthony in favour of some of the defendants. Ext.B3 is dated 17/1/1976. The contesting defendants contended that the power of attorney holders on the strength of Ext.B3, executed Ext.B4 release deed dated 7-12-1984 releasing the properties belonging to the father in their capacity as the power of attorney holders of the father. Ext.B4 relates to item No.3 of the plaint -7- A.S.No.895/97 schedule. The defendants contended that since the property was transferred on the strength of Ext.B3 power of attorney, the transferee has got right over item No.3 and therefore, the said item is not available for partition. 7. It is not disputed that item No.1 is left out property at the time of execution of Ext.B1 partition deed dated 26/10/1974. Similarly, items 4 and 5 are the properties allotted to the father as per Ext.B1 partition deed. Said items are A schedule in Ext.B1 partition deed. On an appreciation of the contention of the parties it is clear that item Nos.1, 4 and 5 still stand in the name of the father and therefore, the properties are available for partition. 8. The contention of the defendants is that item No.3 is not available for partition. I have examined the contention in detail. The father executed a power of attorney on 17/1/1976. I have perused Ext. -8- A.S.No.895/97 B3 power of attorney. Ext.B3 is not a general power of attorney empowering the power of attorney holder to deal with the property of Anthony. A limited right is conferred to the power of attorney holder. The power attorney holder was asked to take the document to the Sub Registrar's Office and to carry out the procedures prescribed for registration. For that purpose, he was authorised to put his signatures in the official records, registers, documents etc. The power of attorney was intended only for registration of documents on behalf of Anthony. The other formalities to be followed in the Sub Registrar's office shall be done by the power of attorney holder. It is specifically stated that the documents, if any, shall be taken to the Sub Registrar's office for execution. So, the document does not give any authority to the power of attorney holder to convey the right of Anthony to any other person. Therefore, the contention of the defendants that in exercise of the -9- A.S.No.895/97 power conferred on the power of attorney holders, they had released the right of Anthony in favour of the 2nd defendant, cannot stand. Another aspect is that Ext.B3 was executed on 17/1/1976 and during l976-77 Anthony left the house. Thereafter, his whereabouts are not known. Assuming that Ext.B3 empowers the power of attorney holders to execute documents for and on behalf of Anthony, I do not think that the power of attorney holders can exercise such right for and on behalf of a person, whose whereabouts were unknown for a period of more than 7 years. The power of attorney shall not be used for the purpose of conveying the rights of the executor at such a distance of time. Even if the execution was within three years, I do not think that the documents have any validity for the reason that the executor never instructed or intended to act upon such a document by a man, who left the house several years back. Therefore, the contention of the -10- A.S.No.895/97 defendants that item No.3 is not partible on the strength of Ext.B4 release deed dated 7/12/1984, cannot stand. In view of the above facts and circumstances, I have no hesitation to hold that item Nos. 1, 3, 4 and 5 are available for partition. Therefore, the plaintiff is entitled to a decree for partition. 9. In the result, the judgment and decree passed by the court below is set aside. A decree is passed declaring that the plaintiff is entitled to 1/8th share in plaint items 1, 3, 4 and 5 with mean profits. The plaintiff shall apply for passing a final decree within two months. The mean profits claimed by the plaintiff shall be assessed in the final decree proceedings. Costs shall come out of the estate. Appeal is partly allowed. HARUN-UL-RASHID, JUDGE. kcv. -11- A.S.No.895/97 HARUN-UL-RASHID,J. -------------------------- A.S.NO.895 OF 1997 -------------------------- JUDGMENT 5th February,2010