IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 WP(C).No. 20268 of 2010(O) -------------------------- I.A.NO.374 OF 2010 IN O.S.NO.64 OF 2006 OF SUBORDINATE JUDGES COURT, KASARAGOD PETITIONERS: --------------- 1. D.JAYAPRAKASH,AGED 50 YEARS, S/O.LATE D.RAMA BHAT, RESIDING AT ASHOK NAGAR, KASARAGOD KASBA VILLAGE, POST KASARAGOD TALUK AND DISTRICT. 2. K.GAYATHRI, W/O.D.D.JAYAPRAKASH AGED 43 YEARS, RESIDING AT ASHOK NAGAR, KASARAGOD KASBA VILLAGE, POST KASARAGOD TALUK AND DISTRICT. BY ADV. SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA RESPONDENTS: --------------- 1. SMT.SHALINI G.SHARMA, W/O.LATE DR.SHANKARANARAYANA SHARMA, AGED 49 YEARS, RESIDING AT 97/39,72ND DRIVE APARTMENT 2, FOREST HILLS, NEW YORK, 11375, NOW HAVING COME OVER TO 'LAXMI KRIPA' EREPADY IN MUTTATHODY VILLAGE, KASARAGOD TALUK AND DISTRICT-671123 2. SMT.SHARADA, W/O.D.GOPALAKRISHNA BHAT, AGED 56 YEARS, RESIDING AT 'LAXMI KRIPA' EREPADY IN MUTTATHODY VILLAGE, KASARAGOD TALUK AND DISTRICT-671123 3. SMT.JAYALAKSHMI N.BHAT, W/O. M.NARAYANA BHAT, AGED 52 YEARS, RESIDING AT "SREE SHAILA", CHINMAYA COLONY, VIDANAGAR, PO.VIDANAGAR,KASARAGOD TALUK AND DISTRICT-671123 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.20268 of 2010 --------------------------------------- Dated this 30th day of June, 2010 JUDGMENT Defendants in O.S.No.64 of 2006 of the court of learned Sub Judge, Kasaragod are the petitioners before me challenging Ext.P7, order allowing amendment of the plaint on I.A.No.374 of 2010. The suit was originally filed by one Sankaranarayana Sharma, elder brother of petitioner No.1/defendant No.1 for a declaration that two assignment deeds executed by petitioner No.1 allegedly in respect of the property belonging to original plaintiff are not genuine documents and that the assignee, petitioner No.2 who is the wife of petitioner No.1 has not derived any interest under the said document. His case is that he, a medical practitioner was residing abroad and used to send large funds to petitioner No.1, his younger brother for purchasing properties in his name. He also executed a power of attorney in respect of properties belonging to him (as per plaint averment, the power of attorney related to the suit property also) for its management. Later, he learned that making use of the funds sent by him petitioner No.1 acquired properties not for his benefit, but in the name of his wife (petitioner No.2) and mother-in-law. He also W.P.C.No.20268 OF 2010 : 2 : learned that in respect of the suit properties which belonged to him petitioner executed the impugned assignment deeds in favour of his wife, petitioner No.2. Hence the suit. Petitioners resisted the suit on various grounds. While so, original plaintiff died and his legal representatives/respondent Nos.1 to 3 were impleaded. They stated in the application (I.A.No.374 of 2010) for amendment of plaint that power of attorney executed by the deceased original plaintiff did not extent to the suit properties. That application was opposed by petitioners on the ground that if allowed it would amount to taking away an admission made by original plaintiff that suit properties were covered by the power of attorney executed by the original plaintiff, amendemnt if allowed would change the nature and character of the suit and that it would result in prejudice to the petitioners. Learned Sub Judge repelled the contentions raised by the petitioners and allowed the applications vide Ext.P7, order. That order is under challenge in this writ petition. Learned counsel for petitioners raised the following contentions: (1) An admission cannot be allowed to be taken away by an amendment. (2) When the maker of the admission is no more and hence if the amendment is allowed and W.P.C.No.20268 OF 2010 : 3 : admission is taken away, petitioners will be deprived of the opportunity to cross examine the maker of the admission. Legal representatives of original plaintiff are not entitled to seek amendment to withdraw the admission by their predecessor-in-interest. (3) Though inconsistent plea can be taken up, in the nature of the amendment sought it ought not be allowed. 2. Learned counsel placed reliance on the decisions in 1998(1) SCC 278 (Heeralal Vs. Kalyan Mal), 2007(5) SCC 602 (Usha Balashaheb Swami Vs. Kiran Appaso Swami), 2008(3) KLT 817 (Gautam Sarup Vs. Leela Jetli) and 2009 (10) SCC 84 (Revajeetoo Builders and Developers Vs. Narayanaswami & Sons). I shall consider the contentions raised by learned counsel. The first question is whether statement made in the plaint as to extension of power of attorney to the suit properties amounted to an admission. 'Admission' is defined in Section 17 of the Evidence Act as a “statement, oral or documentary or contained in electronic form which suggested any interference as to any fact in issue or relevant fact and which is made by any of the persons or, under the circumstances W.P.C.No.20268 OF 2010 : 4 : mentioned herein after mentioned”. 3. Here the so called admission relied on by petitioners is a statement in the plaint that power of attorney executed by the original plaintiff was in relation to the suit properties as well. Learned counsel has invited my attention to page 2 of Ext.P1, copy of the plaint where it is stated that “hence the plaintiff authorized petitioner No.1 to manage undermentioned properties and for the said purpose he executed a power of attorney on 31-12-1986.” Now the amendment sought for is that power of attorney did not extent to the suit properties. But, it is not disputed that there is a written power of attorney executed and attested in the presence of a notary public. If that power of attorney did not relate to the suit properties, no question of admission by the original plaintiff that it did relate to the suit properties would arise. The decisions relied on by learned counsel have no application to the facts of the case. There, what was considered was whether a party could be allowed to resile or wriggle out from the admission it had made by an amendment. The issue was answered in the negative. There is also no question of petitioners being carried away by the so called admission if the power of attorney does not take in the suit properties. Therefore what is required is an interpretation of power of attorney and in the circumstances, the mere statement in W.P.C.No.20268 OF 2010 : 5 : the plaint that power of attorney extended to the suit properties cannot be taken as an admission by the original plaintiff so that his legal representatives cannot seek an amendment as prayed for. 4. Nor am I impressed by the contention that legal representative cannot seek amendment of the plaint to withdraw the statement that the power of attorney extended to the suit properties. In the circumstances stated above, reason being that I stated that what is required to be considered is the written power of attorney and ascertain whether it related to the suit properties as well. I must also bear in mind that even as per the averments in the plaint as originally made, original plaintiff asserted that he had not authorised petitioner No.1 to execute assignment deeds in favour of the suit property. Question which trial court has to consider is whether power of attorney extended to the suit property and assuming so, it conferred power on its holder to execute assignment deeds as done by him. Therefore I am not impressed by the contention that legal representatives could not have asked for an amendment. For the said reason the contention that petitioners are deprived of the opportunity to examine the maker of the statement (on the so called admission) also has to fail. 5. Last argument is concerning taking up any inconsistent W.P.C.No.20268 OF 2010 : 6 : pleas. It is not as if a party is precluded from taking up inconsistent pleas. I have gone through the plaint and the application for amendment. In the affidavit in support of that application it is stated that it is by a mistake that it is stated in the plaint that “undermentioned properties” also came under the power of attorney and the amendment sought for is that undermentioned properties did not come under the power of attorney. Having regard to the facts and circumstances of the case I do not find reason to interfere with the discretionary jurisdiction exercised by learned Sub Judge. It is open to the petitioners to raise appropriate contentions in the additional written statement that they are called upon to file consequent to the amendment of the plaint. Writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-