IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 RSA.No. 416 of 2008 ----------------------- AS.115/2003 of PRINCIPAL SUB COURT,PARAVUR OS.58/2000 of MUNSIFF COURT,ALUVA .................... APPELLANTS: DEFENDANTS 1 & 2 -------------------------------------- 1. DEVASSYKUTTY, S/O PAULO, AGED 43 YEARS, MENACHERRY HOUSE, CHENGAL, KALADY. 2. JOSE S/O PAULO, AGED 55 YEARS, MENACHERRY HOUSE,KANJOOR, THURAVUNGARA. BY ADV. SRI.K.J.SAJI ISAAC DR.ELIZABETH VARKEY RESPONDENTS: PLAINTIFFS & RESPONDENTS 3 TO 9 ------------------------------------------------------------ 1. D.URUMEESE, S/O DEVASSY AGED ABOUT 65, VALLCORAN HOUSE, PUTHOORVAYAL, MARTHOMA NAGAR, GOODALLOOR, TAMILNADU. 2. VARIYATHU, S/O KUNJU VARATHU, AGED ABOUT 63 YEARS, ARAKKAL HOUSE, PANDEKKAL, EDAKKUNNU, KARUKUTTY. 3. DEVASSY, S/O ESTHAPPAN, AGED ABOUT 43 YEARS, PUTHOORVAYAL, MARTHOMA NAGAR, GOODALLOOR, TAMILNADU. 4. THOMAS, S/O ESTHAPPAN, AGED ABOUT 42 YRS PUTHOORVAYAL,MARTHOMA NAGAR, GOODALLOOR, TAMILNADU. 5. KUNJIPOULO, S/O KUNJUVARIATHU, AGED ABOUT 63 YEARS, ARAKKAL HOUSE, PANTHAKKAL, EDAKKUNNU, KARUKUTTY. 6. ROSY, W/O OUSEPH, AGED ABOUT 60 YEARS, NAMBRAMMAN HOUSE, AMBAZHAKKADU, ANNAMANADA. 7. ROSY, W/O KOCHU DEVASSY, AGED 65 YEARS, MADAN HOUSE, VADAKKAMBHAGAM KARA, MANJAPRA. 8. MARIYAMMA, W/O VARATHU, AGED ABOUT 62 YEARS, MOORELY HOUSE, KUTTIKKADU, CHALAKKUDY. 9. ANNIE, W/O LONAPPAN, AGED 58 YEARS, KALAN HOUSE, NELLAI, TRICHUR. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. --------------------------------------------------- R.S.A. No 416 of 2008 --------------------------------------------------- Dated this the 23rd May 2008 JUDGMENT This Second Appeal is filed by defendants 1 and 2 in O.S. No 58 of 2000 on the file of the Munsiff's Court, Aluva assailing the concurrent decree and judgment passed against them by both the courts below. O.S. No 58 of 2000 was filed by respondents 1 and 2 against the appellants as also against respondents 3 to 9 seeking for a decree for partition of the schedule properties setting aside the sale deed executed by the second defendant in favour of the first defendant inter alia, on the following allegations:- 2. Plaintiffs are the brother and sister's son of Mariam to whom the schedule property originally belonged. She died on 30.01.2000 at the age of 80 years. She obtained the schedule property by virtue of land assignment certificate number 935/78 issued by Deputy Collector, Land Tribunal, Ernakulam and she was in exclusive possession and in residential occupation of the schedule property till her death. The husband and all the four children of the said Mariam pre-deceased her and she died without leaving any child or children of any pre-deceased children so as to inherit the schedule property. She had two brothers and two sisters including the first plaintiff and all of them except the first plaintiff have passed away. Defendants 3 and 4 are children RSA 416/08 2 of deceased brother Esthappan, defendants 7 to 9 are the children of deceased sister Thressiamma and defendants 5 and 6 and the second plaintiff are the children of deceased sister Annamma. Annamma had one more son who was imbecile and he is also no more. Thus plaintiffs and defendnts 3 to 9 are the only legal heirs of deceased Mariam to inherit her properties. Parties are Christians governed by the provisions of the Indian Succession Act. Defendants 1 and 2 are the children of brother of the husband of deceased Mariam who was living alone in the schedule property after the death of her husband and children. She was bed-ridden for a long time in her last days and was unable to understand things. She was discharged from St James Hospital, Chalakudy on 24.10.1999 by the doctor on the advice that she would not survive longer. Second plaintiff was attending to all the affairs of Mariam who was unconscious also during her last days. Taking advantage of the situation defendants 1 and 2 somehow or other managed to create some documents. On 31.12.1999 they fraudulently obtained signatures of Mariam on a stamp paper which was converted into general power of attorney with the connivance of a notary. Soon thereafter on 13.01.2000 the second defendant on the strength of the power of attorney so created executed Ext A1 sale deed in favour of the first defendant transferring the schedule property in his favour. The said sale RSA 416/08 3 deed was created without any consideration and is liable to be set aside. If at all Mariam had any intention to sell away the property she would have executed sale deed by herself. Mariam was not conscious and was unable to execute power of attorney on 31.12.1999. Existence of building in the schedule property was omitted to be described in Ext A1 which was executed in a hurry and consideration shown in the sale deed was also inadequate and no consideration at all was paid to Mariam and the sale was not even informed to the plaintiffs who were regular visitors of the building in the schedule property where Mariam was having her residence. Mariam died on 30.1.2000. She had no intimacy towards defendants 1 and 2 to execute power of attorney or sale deed. Plaintiffs came to know about the sale deed only after the death of Mariam. On the above allegations they prayed for setting aside Ext A1 sale deed and for the schedule property being partitioned and separate possession of their shares being given. 3. Defendants 3 to 9 remained ex parte. Defendants 1 and 2 resisted the suit denying the plaint allegations and denying that the plaintiffs and defendants 3 to 9 alone are the legal heirs entitled to share in the schedule property. According to them, Mariam was capable of making decisions and had executed power of attorney voluntarily in favour of the second defendnt. It is incorrect to say that Ext A 1 sale deed was executed RSA 416/08 4 fraudulently and without adequate consideration. The first defendant has effected mutation and has been remitting basic tax for the property and being a bonafide purchaser the first defendant is legally entitled for statutory protection. There are other efficacious remedies and the suit for declaration is not maintainable. Late Mariam was residing with her niece Thressiamma at Prasannapuram and second defendant was looking after the affairs of Mariam. Dedication and commitment of the second defendant who was looking after the affairs of Mariam resulted in strong bond being developed between them. Mariam had confidence and trust in the second defendant and that culminated in the execution of the power of attorney. It is incorrect to say that second plaintiff was looking after the affairs of Mariam and that signature of Mariam was secured fraudulently on the stamp paper and that was later converted into a power of attorney. Mariam was ready and willing to sell the property to first defendant directly. The power of attorney was created by way of abundant caution apprehending attack from plaintiffs and defendants 3 to 9. It is incorrect to say that the power of attorney was granted without the consent of Mariam. The entire sale consideration was paid to Mariam who had used a portion of the said consideration for clearing the liabilities and for her own purposes not known to the defendants. Ext A1 was registered by the Sub Registrar RSA 416/08 5 repelling the objections raised by the plaintiffs. Plaintiffs and defendants 3 to 9 approached Mariam to cancel the power of attorney but she refused to do the same. The schedule property is not partible and it is in the possession and enjoyment of the first defendant as a bonafide purchaser. The suit for partition without prayer for recovery of possession is not maintainable. First defendant is in absolute possession and enjoyment of the schedule property covered by Ext A1 sale deed and he is at liberty to alienate the same as he likes. On the above contentions defendants 1 and 2 prayed for dismissal of the suit with their costs. 4. The trial court raised necessary issues and after considering the evidence which consisted of the oral evidence of P. Ws 1 to 3 and D.W.1 and documentary evidence, Exts A1 to A4 and C1 and C1(a), decreed the suit, setting aside the sale deed Ext A1 and allowing partition as claimed. Defendants 1 and 2 filed A.S. No 115 of 2003 before the Sub Court, N. Parur assailing the said decree and judgment impleading plaintiffs as respondents 1 and 2 and defendants 3 to 9 as respondents 3 to 9. The said appeal was dismissed by the lower appellate court confirming the correctness of the judgment and decree passed by the trial court. Hence this R.S.A by defendants 1 and 2 assailing the concurrent judgment and decree passed by the courts below. RSA 416/08 6 5. It is vehemently contended before me by the learned counsel for the appellant that the alleged power of attorney has not been caused to be produced before the trial court by the plaintiff on the basis of which Ext A1 assailed in the suit was executed and that therefore the plaintiffs' case should not have been accepted by the courts below. 6. It is worthy to note that the first defendant claimed title over the schedule property on the basis of Ext A1 executed by the second defendant. Admittedly the property belonged to Mariam and the second defendant who is son of the brother of husband of Mariam had no authority to execute Ext A1 sale deed in favour of first defendant on 13.01.2000 while Mariam was alive, but for the existence of alleged power of attorney executed by Mariam in favour of the second defendant. The burden was heavy therefore on the appellants/defendants to establish that the power of attorney had been executed by Mariam and that the said power of attorney has been executed validly and that it is genuine and not one brought into existence under suspicious circumstances and without the knowledge of Mariam. It is to be borne in mind that for execution of a document on the basis of a power of attorney there need not be a registered power of attorney for the reason that in the absence of proof of power of attorney no right can be fastened over the property under the document executed on the strength of the alleged RSA 416/08 7 power of attorney. It was therefore incumbent on the part of defendants 1 and 2 who want Ext A1 to be accepted as valid to produce the original power of attorney but they have not cared to produce the same. In the circumstances the courts below were right in holding that Ext A1 is not valid so as to operate on the rights of Mariam. There is no question of law and much less any substantial question of law arising for consideration in this Second Appeal. In the result, I dismiss this R.S.A in limine refusing admission. Sd/- K.P. BALACHANDRAN Judge 23/05/08 en Order on I.A. No 1021 of 2008 ------------------------------------- Dismissed. Id./- K.P. Balachandran, Judge 23/05/08 [true copy]