IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 Mat.Appeal.No. 291 of 2009() ---------------------------- OP.424/2005 of FAMILY COURT, KOTTAYAM .................... PETITIONER(S): APPELLANT/1ST RESPONDENT --------------------------------------- K.M.MATHEW @ DAYEE, KANDARAPPALLIYILAYA KALARICKAL HOUSE, MEMURI P.O., MANJOOR VILLAGE, VAIKOM TALUK, NOW RESIDING AT KANDARAPPALLIL, 3820 NORTH, CENTRAL AVE CHICAGO III-60633, USA, REP. BY P/A HOLDER ROSHAN LUKOSE. BY ADV. SRI.M.P.ASHOK KUMAR RESPONDENT(S): PETITIONER/2ND RESPONDENT ---------------------------------------- 1. JIJI MATHEW @ JIJI M.S. @ DALI, AGED 39 YEARS, W/O. K.M.MATHEW, KANDARAPPALLIYILAYA, KALARICKAL HOUSE, MEMURI PO., MANJOOR VILLAGE, VAIKOM TALUK. 2. JOHN K.J., AGED 42 YEARS, S/O. JOHN, BUSINESS, KARUPLATHADATHIL HOUSE, MEMURI P.O., VAIKOM TALUK. ADV. SRI.M.J.THOMAS FOR R1 ADV. SMT. LALITHA NAIR (MEDIATOR0) THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M. JOSEPH & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ Mat. Appeal 291 of 2009 ------------------------------------------------------ Dated: JANUARY 5, 2010 JUDGMENT Joseph, J. The appellant is the 1st defendant in OP 424/2005 on the file of the Family Court, Kottayam. The 1st respondent, his wife, filed the suit seeking declaration and injunction. The case of the 1st respondent in brief is as follows:- She is the wife of the appellant and their marriage was solemnized on 1.11.1987 and three children are born. It is contended that Ext.A1 is the settlement deed No.1799/99 executed by the appellant in favour of the 1st respondent. In order to save the stamp duty the document was executed as a gift deed and after the execution of the document, the property is in her possession. It is further contended that when she approached the Revenue Authorities to pay the basic tax, she learnt that another person has paid the tax and effected mutation. On further enquiry it is learnt that the 2nd respondent, on the strength of a power-of-attorney alleged to have been executed by her, the above acts were done. It is her case that the power-of-attorney dated 25.5.2002, a copy of which is produced as Ext.A3, was not executed by her. The signature therein was not put by her. It is her case that though she was in America, she had never gone to the Notary Public and executed any document and the power- MA 291/09 2 of-attorney is fabricated by the appellant and respondent No. 2. The 2nd respondent is the person in whose favour the power-of-attorney was executed. It is using the power-of-attorney that Ext.A2 was executed by the 2nd respondent. Ext.A2 purports to be a gift executed by the power-of-attorney holder in favour of the appellant. She prayed that the power-of-attorney is liable to be set aside. She sought declaration of title and to set aside the gift deed (Ext.A2). She also sought for an injunction restraining the appellant and the 2nd respondent from alienating the plaint schedule property and trespassing into the same. 2. The 1st respondent denied the case in respect of the power- of-attorney. The appellant filed objection contending as follows : The marriage is admitted. The entrustment of Rs. 25,000/- at the time of marriage is also admitted. The petitioner was wearing 25 sovereigns of gold ornaments but the statement that 10 sovereigns of gold ornaments given to the children and household items were entrusted is not correct. The entire gold ornaments of the petitioner and 16 sovereigns of gold ornaments given by the first respondent was with the petitioner. The 1st respondent has not appropriated any amount or gold ornaments of the petitioner as alleged. The 1st respondent is working from 1984 onwards in America and his entire earnings has been appropriated by the petitioner and her present MA 291/09 3 attempt is to avoid the 1st respondent. The petitioner also accompanied the 1st respondent in 1989 to America and returned from there in 1991. The 1st respondent was giving Rs. 25,000/- to the petitioner for savings. The allegation that the 1st respondent made attempt to alienate the petition schedule property in 1999 and that property has been purchased with the fund of the petitioner's brother and the petitioner was in possession of the property is absolutely false. The petitioner was living with the 1st respondent in America and she gave birth to the elder child on 22-09-1990 at America and she returned to the native place for her second delivery. She gave birth to the 2nd child on 15-10-1991 and 3rd child on 20-11-1992 at native place. The petitioner executed a power of attorney at America in favour of the 2nd respondent with intention to transfer the property to the 1st respondent. The reason stated is that her brother will not allow her to go to the Registry office and execute the document. The 2nd respondent is the family friend and the power of attorney has been attested before a Notary Public at America. When the petitioner came to India her brother insisted to sell the property. At that time the petitioner told the brother that he has already transferred the property to the 1st respondent. When the 2nd respondent approached the Registry Office in 2004 July he came to know that the property is still in the name of the petitioner. The 2nd respondent has MA 291/09 4 transferred the property on the strength of the power of attorney executed by the petitioner and after that the 2nd respondent has entrusted the deed of power of attorney and prior document, the settlement deed with the petitioner. In December 2007 the petitioner scolded the 1st respondent through telephone on the ill-advice of her brother due to the reason that the property has not been given to him for pledging for his business purpose. The allegation that the petitioner has not executed the power of attorney and the signature therein is not put by her etc. is absolutely false. The declaration and injunction prayed for is not allowable. 3. The 2nd respondent also filed objection wherein it is inter alia contended that the 1st respondent had sent a power-of-attorney in his favour while the 1st respondent was in America. The evidence consisted of PW.1 viz. the 1st respondent herein and RW.1 viz. the 2nd respondent. Ext.A1 is the settlement deed executed by the appellant in favour of his wife dated 29.7.1999. Ext.A2 is produced as gift deed executed by the 2nd respondent in favour of the appellant on the strength of the power-of-attorney. Ext.A3 is the copy of the power- of-attorney. Ext.A4 is the marriage certificate and Ext.A5 is the passport. 4. The Family Court proceeded to pose the question as to whether the power-of-attorney could be relied on and inter alia found MA 291/09 5 as follows:- The property is in the enjoyment of the wife and children. Though the document is typewritten, the address of the petitioner was added subsequently as handwritten. Thirdly it is noted that the document is seen sealed and signed by a Notary Public, but the specific address of the above attester is not mentioned. Fourthly it is mentioned that it is not registered. Fifthly it is stated that it is not signed through the Consulate. It is further stated that the cover is not produced. Further it is stated that the original of Ext.A3 is not produced. It is noted that the 1st respondent had filed an application seeking production of the original and it is not produced. Finally it is noted that no evidence is adduced by the appellant. 5. We heard the learned counsel for the appellant and the learned counsel appearing on behalf of the 1st respondent. He would essentially contend that the appellant was arrayed through his power- of-attorney and this a matter where it is necessary for the court to consider his evidence. He would point out that the property in question was the ancestral property of the appellant. He pointed out that unless an opportunity is given for the appellant to adduce evidence, it may not produce a just result as the entire facts may not be brought out. Per contra, learned counsel for the 1st respondent Sri M.J. Thomas pointed out that there are circumstances which rightly led the court to disbelieve the case of the appellant based on Ext.A3 MA 291/09 6 power-of-attorney. He would further point out that under sec.33 of the Registration Act, when a power-of-attorney is executed by a person residing abroad, it must be registered and that the name and address of the Notary Public is not specifically mentioned. He would also submit that the appellant was set ex parte and the petition was decreed originally and once set aside. 6. As far as the question relating to whether there should be registration, based on sec.33 of the Registration Act, we notice that the court below may not be justified in not acting on Ext.A3 power-of- attorney for the reason that it is not registered. It is true that it is not registered. Sec.33 sub-sec.(1) clause ( c ) reads as follows:- “33. Powers-of-attorney recognisable for purposes of Section 32.- (1) For the purposes of Section 32, the following powers-of-attorney shall alone be recognised, namely:- xx xx xx ( c) if the principal at the time aforesaid does not reside in India, a power-of-attorney executed before the authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Counsul, or representative of the Central Government.” 7. Therefore all that is required under law is that in respect of the person who is not residing in India, a power-of-attorney must be executed and authenticated before a Notary Public or any Court, Judge, Magistrate, Indian Consul or Vice-Consul or a representative of the Central Government. If there is execution and authentication before MA 291/09 7 the Notary Public, then it is sufficient and the provision does not require registration of the power-of-attorney within the meaning of sec.33 (1)( c ) of the Indian Registration Act, 1908. Of course, this should not be understood as our pronouncement that there was authentication before the Notary Public, in view of the order that we propose to pass viz. accept the request for a remand by the appellant. It is true that the appellant was set ex parte once. We would, however, feel that interest of justice requires that the appellant be afforded an opportunity to adduce evidence so that the entire facts can be considered by the court. But such a decision cannot be an unconditional one in view of the fact that the appellant was set ex parte once and that at his instance the decree was set aside. In view of the fact that it has been pending for some time, we feel that there must also be a direction to consider the matter and take a decision within a stipulated time. We also make the remand conditional on the appellant paying Rs.10,000/- as costs to the 1st respondent. 8. Accordingly the appeal is allowed and the judgment and decree of the court below is set aside on condition that the appellant pays a sum of Rs.10,000/- as costs to the counsel for the 1st respondent and produce a memo to that effect in this court within a period of three weeks from today. The Family Court will consider and take a decision in the matter within a period of three months from the MA 291/09 8 date of receipt of the records by it. We further direct that the injunction which was obtained by the plaintiff/1st respondent restraining the appellant and respondent No. 2 from trespassing into the petition schedule property and alienating the same will continue till the disposal of the case by the Family Court. The appeal is allowed as above. K.M.JOSEPH, JUDGE P.Q. BARKATH ALI, JUDGE mt/-