1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.281 OF 2011 Shri Heriberto Francisco Maria D'Cunha alias Heriberto D'Cunha, Bachelor, S/o Joaquim, A.M.R.D. D'Cunha, landlord, resident of H.No.363, Ankur Luis Ward, Carmona, Salcete-Goa, since deceased through his legal representatives : 1a. Josce Luis, alias Josce Domenio Luis, Advocate, resident of H.No.363, Ankur Luis Ward, Carmona, Salcete-Goa. 1b. Niceta Luis Linhares, alias Niceta Luis e Linhares, resident of H.No.363, Ankur Luis Ward, Carmona, Salcete -Goa, 1c. Eufrida Luis, resident of H.No.363, Ankur Luis Ward, Carmona, Salcete-Goa .. Petitioners. (Orig. plaintiffs) V e r s u s 1. Shri Victor Luis Monteiro, son of Joaquim Monteiro, aged about 38 years, bachelor, businessman, resident of H.No.70, Cuelim, Cansaulim, Goa 2. Shri Francisco Alberto Lourenco D'Cunha, bachelor, landlord, resident of H.No.40, Costa Ward, Cuelim, Cansaulim, Goa 3. M/s. Sociedade de Fomento Industrial Ltd., 2 a Company incorporated under the Indian Companies Act, 1956 having registered office at Erasmo Carvalho Street, Margao, Goa. 4. Smt. Ida Berta dos Remedios Cunha e Gomes, since deceased by her legal representatives Respondent Nos.5 and 6 below, 5. William Gomes and his wife 6. Smt. Zaria Dias Gomes, both residents of Gomes Bldg., First Floor, Dr. D. N. Shah J.S.S. Road, Chira Bazaar, Mumbai 400 002. 7. Smt. Julia Francisco R. Cunha Costa, and her husband 8. Shri Ramiro Abreu Costa, Both residents of Opposite Roof top Hotel, Maddel, Margao-Goa. N.B. Respondents nos. 9 to 15 shown in the cause title of the impugned order have been dropped in view of order dated 14/2/08 passed in WP 46/08. Respondent no.4 having expired the respondents nos.5 and 6 are shown as her legal representatives. They being already on record before the trial Court. .. Respondents (Orig. Defendants) Mr. A.F. Diniz, Advocate for the petitioners. Mrs. A. A. Agni, Advocate for respondent No.1. Ms. A. A. Razaq, Advocate for respondent no.3. Mr. V. P. Thali, Advocate for respondent nos.5 and 6. 3 Mr. I. Agha, Advocate for respondent nos.2, 7 and 8. CORAM : A. P. LAVANDE, J. Reserved on : 22 nd July, 2011. Dictated on : 24 th August, 2011. ORAL JUDGMENT : Heard the learned Counsel for the parties. 2. Rule. By consent heard forthwith. 3. By this petition under Article 227 of the Constitution of India, the petitioners take exception to the order dated 19th April, 2011 passed by the Civil Judge, Senior Division, Vasco-da-Gama in Special Civil Suit No.65/1997/B by which the application dated 20th October, 2010 filed by respondent no.3 under Order XIV, Rule 5 of C.P.C. for framing additional issues has been allowed. 4. The petitioners are the legal representatives of the original plaintiff in the above suit filed against the respondents/ defendants seeking reliefs of declaration and permanent injunction. The original plaintiff claimed title to the suit property on the basis of the gift deed dated 24th November, 1975 executed in his favour pursuant to power of 4 attorney dated 22nd November, 1975 executed by his mother Ana Maria. The suit has been contested by the defendants by filing the written statements. 5. On the basis of the pleadings, the learned Judge framed nine issues on 10th December, 2002. Thereafter, six additional issues were framed by the learned Judge on 17th February, 2007. On 20th October, 2010, defendant no.3 filed an application under Order XIV, Rule 5 of C.P.C. for framing the following additional issues : “a) Whether the plaintiff proves that the Donor late Shri Ana Maria had executed the purported Power of Attorney dated 22/11/1975 in favour of Augusto Antonio Francisco Maria De Rosario Rodrigues to execute the said purported gift deed dated 24/11/1975. b) Whether the plaintiff proves that the Donor late Shri Ana Maria had executed the purported gift deed dated 24/11/1975 in favour of the plaintiff ? c) Whether the plaintiff proves that the purported gift deed dated 24/11/1975 is duly attested in accordance with Section 123 of the Transfer of Property Act, 1882 ?” 6. The application was opposed by the plaintiffs. By 5 the impugned order dated 19th April, 2011, the learned Judge framed the following three additional issues : “a) Whether the plaintiff proves that the Donor late Shri Ana Maria had executed the purported Power of Attorney dated 22/11/1975 in favour of Augusto Antonio Francisco Maria De Rosario Rodrigues to execute the said purported gift deed dated 24/11/1975. b) Whether the plaintiff proves that the Donor late Shri Ana Maria had executed the purported gift deed dated 24/11/1975 in favour of the plaintiff ? c) Whether the plaintiff proves that the purported gift deed dated 24/11/1975 is duly attested in accordance with Section 123 of the Transfer of Property Act, 1882 ?” 7. Mr. Diniz, learned Counsel for the petitioners, after inviting my attention to the pleadings of the parties, submitted that the additional issues do not arise in the present matter in as much as the defendants have not disputed the execution of the power of attorney dated 22nd November, 1975 nor the execution of deed of gift and as such, the additional issues do not arise. According to the learned Counsel by framing the additional issues, the learned 6 Judge has erred in casting burden on the plaintiffs to prove execution of the power of attorney dated 22nd November, 1975 by late Ana Maria in favour of the original plaintiff. Learned Counsel further submitted that the additional issue (b) does not arise in as much as the gift deed was not executed by late Ana Maria, but executed by the plaintiffs pursuant to the power of attorney dated 22nd November, 1975. In support of his submissions, Mr. Diniz relied upon the following judgments : i) Surendra Kumar Vs. Nathulal; 2001 DGLS (Softw.) 786. ii) Ishwar Dass Jain (Dead) Lrs. Vs. Sohan Lal; 1999 DGLS (Soft). 1278. (iii) Sakhubai w/o Wasudeo Kongre Vs. Bapurao s/o Wasudeo Kongre; 2002(1) BCR 349. 8. Per contra, Mrs. Agni appearing on behalf of respondent no.1 supported the impugned order and submitted that no interference is warranted with the impugned order. Learned Counsel placed reliance upon the following judgments : (i) Brij Raj Singh (dead) By Lrs. and others Vs. 7 Sewak Ram and another; 1999(4)SCC33. (ii) Thiruvengada Pillai V. Navaneethammal and Anr.;AIR 2008 SC 154. (iii) Lachman Singh and others vs. Surendra Bahadur Singha and others; AIR 1932 Allahabad 527. (iv) Thiruvengadam Pillai Vs. Navaneethammal and another; (2008)4 SCC 530. 9. Mr. Agha, learned Counsel appearing for respondent nos.2, 7 and 8 submitted that no interference is warranted with the impugned order in as much as the learned trial Judge has correctly framed the additional issues arising out of the pleadings of the parties. 10. Ms. Razaq, learned Counsel for respondent no.3 after taking me through the relevant pleadings submitted that no interference is warranted with the impugned order in as much as the learned Judge has correctly framed the additional issues on the basis of the pleadings of the parties. In support of her submission, Ms. Razaq relied upon the judgment in the case of K. Laxmanan Vs. Thekkayil Padmini and others; (2009)1 SCC 354. 11. Mr. Thali, learned Counsel appearing for 8 respondent nos.5 and 6 submitted that certain additional issues are required to be framed in the suit. 12. I have carefully considered the rival submissions, perused the record and the judgments relied upon. 13. The only question which arises for consideration in the present petition is whether the learned Judge was justified in framing the additional issues (a), (b) and (c) mentioned hereinabove. 14. Perusal of the plaint discloses that the plaintiffs in paragraph 4 of the plaint has stated that by the gift deed dated 24th November,1975 registered at Vasco-da-Gama the mother of the plaintiff, inter alia, gifted the half right to the suit property in favour of the plaintiff. There is no reference in the entire plaint to the execution of the power of attorney nor a copy of the power of attorney was produced along with the plaint. But a copy of the gift deed was filed before framing of the issues by the trial Court. 15. In paragraph nos.8 and 9 of the written statement, defendant no.1 stated that at the time of execution of purported gift deed, late Ana Maria was 75 years of age 9 and was convalescing at Rajadhyaksha Hospital upon having been operated for a cataract in the left eye. Defendant no.1 has also stated that Ana Maria was discharged from Hospital on 27th November, 1975 and he learnt from defendant no.2 that after the operation for a week or thereabout, both the eyes of the mother of defendant no.2 were kept closed. In paragraph no.10, defendant no.1 stated that prior to the execution of power of attorney dated 22nd November, 1975 Ana Maria had executed another power of attorney dated 3rd May, 1947 in favour of defendant no.2 for the purpose of transfer and sale of her properties including the suit properties. In the written statement filed by defendant no.2, defendant no.2 has stated on similar lines as defendant no.1 and further stated that Ana Maria appears to have been made to sign the power of attorney when she was in the Hospital and she could not see the document which she was signing at that time since her eyes were covered due to the operation. It has been further stated that after cataract operation, both the eyes of Ana Maria were closed with dressing for about one week. Defendant no.2 further stated that the plaintiff had never pleaded that gift deed was executed on the basis of power of attorney given by his mother dated 22nd November, 1975. In the written statement filed by defendant no.3, defendant no.3 has challenged the gift deed on several 10 grounds. Defendant no.3 has also challenged the power of attorney on the ground that the Sub-Registrar was not entitled to authenticate such a power of attorney for the purpose of execution of a document in terms of Section 31 of the Registration Act and further pleaded that Sections 32 and 33 of the Registration Act are mandatory in nature. Defendant no.3 also pleaded that there was no attestation as required in terms of Section 123 of Transfer of Property Act. In the written statement filed by defendant nos.7 and 8, it has been stated that gift deed dated 24th November, 1975 is invalid in law since Ana Maria had undergone the operation of eyes and bandage was applied in front of them. She was unable to see. 16. Thus, from the above pleadings on behalf of the defendants and more particularly, defendant nos.1,2, 7 and 8, it is evident that the said defendants have not admitted execution of the power of attorney dated 22nd November, 1975 by late Ana Maria in favour of the original plaintiff, but on the contrary, their pleadings are to the effect that late Ana Maria was not in a position to sign the power of attorney dated 22nd November, 1975. This being the position, in my considered view, the additional issue no.(a) framed by the learned Judge cannot be said to be wrongly framed casting 11 burden on the plaintiffs. I am unable to accept the submission of Mr. Diniz, learned Counsel appearing for the petitioners/ plaintiffs that the defendants having not denied the execution of power of attorney by late Ana Maria, the burden to prove that the power of attorney is void is on defendant nos.1, 2 and 3. In so far as the the gift deed dated 24th November, 1975 is concerned, there is no dispute that the gift deed itself discloses that it was executed by the plaintiff as power of attorney holder of late Ana Maria. Obviously, therefore, the validity of gift deed would depend upon whether the power of attorney dated 22nd November, 1975 was executed by late Ana Maria in favour of the plaintiff. However, the fact remains that in so far as the execution of gift deed dated 24th November, 1975 is concerned, there is no challenge to its execution although its validity has been challenged on several grounds. Therefore, I am unable to hold that issue no.(b) is correctly framed by the trial Court. In any case the issue no. (b) is not correctly framed because it is nobody's case that gift deed was executed by Ana Maria herself. Even the plaintiff claims that it was executed by the plaintiff as the duly constituted attorney of Ana Maria. Therefore, in my considered opinion, issue No.(b) does not arise, but on the basis of the pleadings of the parties, the following issue arises : 12 “Whether defendant nos.1 to 3, 7 and 8 prove that the gift deed dated 24th November, 1975 executed by the plaintiff as the power of attorney holder of Ana Maria is void ?” 17. In so far as the issue no. (c) is concerned, the same arises in view of the pleadings of defendant no.3. 18. In view of the above, the impugned order in so far as it orders framing of additional issue nos.(a) and (c) is concerned, is maintained. However, issue no.(b) is deleted and following additional issue is framed : “Whether defendant nos.1 to 3, 7 and 8 prove that the gift deed dated 24th November, 1975 executed by the plaintiff as the power of attorney holder of Ana Maria is void ?” 19. I do not deem it necessary to refer to the various authorities relied upon by the learned Counsel appearing for the parties. However, I have taken into consideration the ratio laid down in the said judgments while considering the legality of the impugned order. 13 20. In view of the above, Writ Petition stands disposed of in aforesaid terms with no order as to costs. A. P. LAVANDE, J. SMA