RSA No. 2394 of 2009 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2394 of 2009 Date of Decision: 3.7.2009 Chhinder Kaur ......Appellant Versus Balwinder Singh and others .......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri S.S. Rangi, Advocate, for the appellants. HEMANT GUPTA, J. (Oral). Defendant-Chhinder Kaur, alleged wife of Darshan Singh, is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the estate of Darshan Singh was found to be inherited by his mother-Karnail Kaur and not the appellant. Both the Courts have recorded concurrent finding of fact that the appellant was legally married wife of Mewa Singh and without obtaining any decree of divorce under the Hindu Marriage Act, 1955, she could not have solemnised marriage with Darshan Singh and such marriage is void. Since the marriage of the appellant with Darshan Singh was found to be void, therefore, the plaintiff Karnail Kaur was found to be the sole legal heir of Darshan Singh as mother of the deceased. Learned counsel for the appellant has argued that the document RSA No. 2394 of 2009 (2) Exhibit P.3 is in respect of dissolution of marriage of the appellant with Mewa Singh. The document Exhibit P.3 is an agreement and not a decree of divorce granted by any competent Court. Therefore, on the basis of Exhibit P.3, it cannot be said that the appellant could solemnise her marriage with Darshan Singh in the presence of living spouse. Learned counsel for the appellant has then argued that Darshan Singh has entered into an agreement with the appellant on 22.12.1999 Exhibit D.3 and the said agreement can be treated as a Will and, therefore, the appellant would be entitled to succeed to the estate of deceased Darshan Singh. The said argument is without any merit, in as much as, no such plea was raised before the Courts below. Even otherwise, a perusal of Exhibit D.3 would show that it records that the appellant would have rights in the property of Darshan Singh as his wife. There is no stipulation in the said agreement that the appellant will inherit his property after his demise. Therefore, the aforesaid agreement Exhibit D.3 cannot be treated to be a Will. Learned counsel for the appellant has then argued that the plaintiff or her legal heir has not appeared as a witness. In fact, Succha Singh, General Attorney of the legal heir of the plaintiff has appeared as a witness and the testimony of an attorney cannot be taken into consideration for holding that the appellant is not a legally wedded wife of Darshan Singh. The aforesaid issue has been examined by this Court in Satnam Channan v. Darshan Singh, 2006(2) RCR (Civil) 614, wherein after considering the judgments of the Hon'ble Supreme Court reported as Syed Abdul Khader v. Rami Reddy, AIR 1979 Supreme Court 553; P. Punnaiah v. Jeypore Sugar Co. Ltd., AIR 1994 Supreme Court 2258, T.C. Mathai v. RSA No. 2394 of 2009 (3) District & Sessions Judge, Thiruvanathapuram, AIR 1999 Supreme Court 1385, Chairman, Life Insurance Corporation and others v. Rajiv Kumar Bhaskar, (2005)6 Supreme Court Cases 188, State of Rajasthasn v. Basant Nahata, 2005(12) SCC 77 and the provisions of the Indian Contract Act, 1872, Evidence Act, 1872 and the Power of Attorney Act, 1882, it was held to the following effect:- “18. A perusal of the aforesaid judgments would show that normal Rule is that whatever a person can do himself, he can do through his agent but for certain functions which may be personal in nature or otherwise do not admit of such delegation. The argument that the statement of Power of Attorney cannot be read as a statement of a party to the lis is fraught with danger. A party may be ill, infirm, old or incapable of attending the Court personally. Does it mean that inspite of all the disabilities, the parties to the lis is to appear before the Court? Obviously no. The appointment of attorney contemplated under the Contract Act as well as under the Powers of Attorney Act, cannot be set to a naught by such interpretation sought to be put forward by the learned counsel for the petitioner. 19. The judgment in Janki Vashdeo Bhojwani's case (supra) relied upon by the learned counsel for the petitioner, infact, does not support the case set up by the petitioner. The reference in the said judgment has been made to Order 3 Rules 1 and 2 of the CPC. It has been held that the cases within the meaning of Order 3 Rules 1 and 2 of the CPC would not include deposing in place and instead of principal. It has been held that if the Power of Attorney renders some acts in pursuance of Power of Attorney, he may depose for principal in respect of such acts but he cannot depose for the principal for the acts done by the principal and not by RSA No. 2394 of 2009 (4) him. It has been further held that he cannot depose for the principal in respect of the matters for which only the principal can have a personal knowledge in respect of which the principal is entitled to be cross-examined. The said judgment does not lay down a principle in absolute terms that an Attorney cannot depose on behalf of the principal even though the facts deposed are not facts of the personal knowledge of the principal. 20. Keeping in view the principles of law laid down in the judgments referred to by the learned counsel for the respondent, I am of the opinion that an Attorney is competent to depose in respect of all matters except, the matters which are required to be done personally by the principal. It can safely be concluded that normal rule is that whatever a person could do through himself, he can do through his agent except certain functions which may be personal in nature or otherwise do not admit of such delegation. In the present case, the statement of the Attorney is not such which could not be given by the Attorney. Therefore, I am of the opinion that no fault can be found with the statement of the Attorney who is none else but the son of the landlord.” Consequently, I do not find any patent illegality or material irregularity in the finding recorded or that the finding recorded gives rise to any substantial question of law in the present second appeal. Hence, the present appeal is dismissed. (HEMANT GUPTA) JUDGE 3.7.2009 ds