IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 OP(C).No. 3232 of 2011(O) ------------------------- OS.128/2010 of SUB COURT, PALA .................... PETITIONER (S): ------------------------------ LEENA JAIMON, W/O.JAIMON, KORATTIYIL HOUSE, POOVARANY P.O., ELIKKULAM VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT, PIN 686577. BY ADV. SRI.V.PHILIP MATHEWS RESPONDENT(S): --------------- 1. JOSE THOMAS.D., FINANCIER, CHOVVATTUKUNNEL HOUSE,MELAMPARA KARA, THALAPPALAM VILLAGE,MEENACHIL TALUK,KOTTAYAM DT., NOW RESIDING AT CHOVVATTUKUNNEL HOUSE, R.V.JUNCTION,PARALLEL ROAD, VELLAPPAD, PALA, KOTTAYAM DISTRICT, PIN 686575. 2. JAIMON JOSE, S/O.JOSEPH, KORATTIYIL HOUSE, POOVARANY P.O., ELIKKULAM VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT, PIN 686577. ADV. SRI.M.NARENDRA KUMAR FOR R-1 SRI.MANUEL KACHIRAMATTAM FOR R-1 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11/10/2011, ALONG WITH OPC NO.3234 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SU O.P.C.NO.3232/2011 APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE PLAINT IN O.S.NO.128/2010. P2. COPY OF THE I.A.NO.939/2011 FILED BY THE PETITIONER IN O.S.NO.128/10 BEFORE THE SUB COURT, PALA. P3. COPY OF THE COUNTER AFFIDAVIT FILED BY THE FIRST RESPONDENT IN I.A.NO.939/2010. P4. COPY OF THE ORDER DATED 19.07.2011 PASSED BY THE SUB COURT, PALA IN I.A.NO.939/2011 IN O.S.NO.128/2010. RESPONDENTS' EXHIBITS: R1(A). COPY OF THE WRITTEN STATEMENT IN O.S.128 OF 2010 FILED BY THE FIRST RESPONDENT. R1(B). COPY OF THE I.P.NO.3 OF 2008 IN THE COURT OF SUB JUDGE, PALA. / TRUE COPY / P.A. TO JUDGE SU THOMAS P.JOSEPH, J. ==================================== O.P(C) Nos.3232 & 3234 of 2011 ==================================== Dated this the 11th day of October, 2011 J U D G M E N T Exhibit P4, orders passed by the learned Sub Judge, Palakkad in O.S. No.128 of 2010 and 76 of 2010, respectively refusing to send the sale deeds to the Expert for examination of what the petitioner says, her thump impression in the said documents is under challenge in these petitions. The order in O.S. No.128 of 2010 is under challenge in O.P(C) No.3232 of 2011 and order in O.S. No.76 of 2010 is under challenge in O.P(C) No.3234 of 2011. 2. Petitioner-plaintiff is the wife of second respondent. According to the petitioner, she executed a registered Power of Attorney in favour of the second respondent in the circumstances stated in the plaint in both the cases. In short her case is that she was made to believe that to raise a loan for discharging certain other liabilities it is necessary to have her Power of Attorney and believing that version of the second respondent she happened to execute the Power of Attorney. Later petitioner received summons from court in certain other proceedings initiated by the first respondent and learned that misusing the Power of Attorney and O.P(C) No.3232 & 3234 of 2011 -: 2 :- exceeding the power conferred on the second respondent by the said Power of Attorney, second respondent executed sale deeds in favour of the first respondent which according to the petitioner are not valid. Hence she sued the respondents to set aside the said documents and for consequential reliefs. First respondent contended that sale deeds were executed by the second respondent as Power of Attorney holder for and on behalf of petitioner for valid consideration. It is also the contention of first respondent that sale deeds contain the signature and thump impression of the second respondent in his capacity as the Power of Attorney of the petitioner. Second respondent did not appear in either of the suits and raise any contention as to the correctness or otherwise of the contention raised by petitioner in the suits. 3. While so, petitioner filed Ex.P2, applications in the suits to send the sale deeds to the Expert for comparison of the thump impression seen on or adjoining her photographs in the sale deeds. In Ext.P2, petitioner contended that neither she nor her husband, the second respondent has affixed her/his thump impression in the sale deeds and hence Expert opinion in the matter is required. Those applications were resisted by the first O.P(C) No.3232 & 3234 of 2011 -: 3 :- respondent contending that the sale deeds in question did not contain either the signature or thump impression of petitioner but the signature and thump impression found in the sale deeds are that of the second respondent in his capacity as Power of Attorney of petitioner. Certain other contentions were also raised by the first respondent that in some other proceedings petitioner has admitted execution of the sale deeds. Learned Munsiff dismissed Ext.P2, applications by the impugned orders holding that in view of the stand taken by the first respondent as to the authorship of thump impression in the sale deeds and since petitioner has otherwise admitted execution of the said documents it is not necessary to send the documents to the Expert for opinion. 4. Learned counsel for petitioner contends that in view of Section 32A of the Registration Act (for short, the Act”) and Rule 30 of the Registration Rules (for short, “the Rules”) the registering authority could not allow the documents to be registered except with the thump impression of the transferor. According to the learned counsel whatever be the defence pleaded by the first respondent, the thump impressions in question are affixed in such a way as to make it appear that they are of the petitioner. O.P(C) No.3232 & 3234 of 2011 -: 4 :- Learned Sub Judge was not correct in stating that execution of the sale deeds is admitted by petitioner in other proceeding. Learned counsel submitted that to prove the contentions raised by petitioner it is necessary to have the documents sent to the Expert for opinion and placed reliance on the decision in Sreekumar v. Indira Devi (2011 [4] SN 27 (Case No.27) where this Court held that in the matter of disputed thump impression/signature the court cannot base its decision by a naked eye examination alone. 5. Learned counsel for first respondent contended that though in Ext.P2, application there is a vague contention taken by the petitioner that second respondent has also not executed the sale deeds, there is no such whisper in the plaints. On the other hand, petitioner has proceeded in the plaints as if she executed the registered Power of Attorney in favour of the second respondent though according to the petitioner it was on the misrepresentation of second respondent and hence the Power of Attorney is not valid. It is pointed out that in the circumstances there is no dispute that second respondent had executed the sale deeds in favour of first respondent though according to the O.P(C) No.3232 & 3234 of 2011 -: 5 :- petitioner execution of sale deeds was fraudulent and exceeding the power conferred on the second respondent as per the Power of Attorney. It is pointed out that in the written statements as well as the objection (Ext.P3), first respondent has asserted that the sale deeds do not contain the signature or thump impression of petitioner and that it is of the second respondent in his capacity as Power of Attorney of petitioner and hence sending the documents to the Expert to ascertain whether the thump impression is that of the petitioner is a futile exercise which is not called for. 6. May be in Ext.P2, application petitioner has raised a contention that second respondent has not executed the documents. But I am to go by the pleadings and petitioner has no such contention in the plaints. On the other hand what I understand from a reading of the plaints is that according to the petitioner, second respondent got the Power of Attorney executed and registered under misrepresentation and in excess of the authority conferred on him executed the sale deeds in favour of the first respondent. I must also bear in mind that second respondent has not come forward to deny the claim of first respondent that the sale deeds are executed by him and that it O.P(C) No.3232 & 3234 of 2011 -: 6 :- contains the signature and thump impression of the second respondent. In such a situation I am not inclined to think that the documents are to be sent to the Expert for opinion to find whether the thump impression found on the documents are that of the petitioner. For, it is admitted by the first respondent that the thump impression seen on the documents are not of petitioner, but of the second respondent. 7. Other contentions raised by the petitioner as to the validity of registration in view of alleged non-compliance of Sec.32A of the Act or Rule 30 of the Rules and as to the validity of the Power of Attorney and whether second respondent has fraudulently or in excess of the power conferred on him executed the sale deeds are matters which petitioner can urge before the trial court in the course of trial. 8. In the light of above, I do not find reason to interfere with the impugned orders passed by the learned Sub Judge refusing to send the documents for Expert opinion. But I make it clear that the observations made by the learned Sub Judge in the impugned orders that attempt of the petitioner by filing Ext.P2, applications was to prolong the trial was unnecessary and shall not in any way influence the learned Sub Judge in the O.P(C) No.3232 & 3234 of 2011 -: 7 :- decision of the suits. These Original Petitions are disposed of with the above observations. THOMAS P. JOSEPH, JUDGE. vsv