SA(md)No.209 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.09.2022
CORAM: JUSTICE N.SESHASAYEE
S.A.(MD)No.209 of 2014 and
M.P(MD).No.1 of 2014
1.Poolammal
2.Maheswaran
3.Sudalaivadivu .... Appellants/Respondents 1 & 2/Plaintiffs
[Appellant No.3 is impleaded vide order dated 08.09.2022 made in
C.M.P(MD).No.7640 of 2022 in S.A.(MD).No.209 of 2014]
Vs.
1.R.Krishnan ... 1st Respondent/Appellant/1st Defendant
2.Kombiah Pandian ... 2nd Respondent/3rd Respondent/2nd Defendant
Prayer : Second Appeal is filed under Section 100 of Code of Civil Procedure,
against the judgment and decree 06.09.2013 in A.S.No.98 of 2011 on the file
of the Additional Subordinate Judge, Tirunelveli, reversing the judgement and
decree dated 05.01.2011 in O.S.No.581 of 2008 on the file of the Principal
District Munsif Court, Tirunelveli.
For Appellant : M/s.Janaki Devi
for Mr.TSR.Venkatramana
For Respondents : Mr.S.Parthasarathy
Senior Counsel for
Mr.H.Arumugam for R1
No-appearance for R2
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SA(md)No.209 of 2014
JUDGMENT
The plaintiffs, who represented through their power of agent one Ramachandran, lost their suit for declaration that Ext.A.5 = Ext.B.3 sale deed dated 28.05.2007 executed by the second defendant on the strength of Ext.B.2 power of attorney in favour of the first defendant is null and void. They were successful before the trial court but in an appeal preferred by the first defendant, they suffered reversal in their fortune. Hence, they are before this Court.
2. For narrative convenience, the parties would be referred to as per their rank before the trial court.
3. The facts fall in very narrow compass:
● There are two items of properties and both are wet agricultural lands.
The first item is in S.No.561, Chithar Chathiram Village, and has an extent of 4.58 acres. The second item is in S.No.564 and this has an extent of 8.90 acres.
● These properties originally belonged to Perumal Devar. On his demise, the property devolved on his sons namely Ramachandran and 2/9 https://www.mhc.tn.gov.in/judis SA(md)No.209 of 2014 Subramanian. Vide Ext.A3 dated 27.05.1996, partition deed, the brothers partitioned the properties, in which, Ramachandran was allotted the western 6.74 acres, out of the combined total extent of 13.48 acres. ● Ramachandran is a resident of Malaysia and he died there on 18.01.1997. The first plaintiff is his widow. The second plaintiff is their son. It is their case that Ramachandran alleged to have executed a power of attorney in favour of the second defendant Vide Ext.B.2 dated 13.06.1996, and on the strength of Ext.B.2, the second defendant executed a sale deed Ext.A.5 = Ext.B.3 dated 28.05.2007, some 10 years after the death of the principal to the first defendant. It is hence they have approached the court for a declaration that Ext.A.5 = Ext.B.3 sale deed would not bind them. Both the defendants contested the suit.
4. In their written statement, the second defendant has pleaded that he believed that when he executed Ext.B3 = Ext.A5, Ramachandran was alive and at any rate, he passed on the sale consideration to the first plaintiff.
5. The dispute went to trial in which both sides adduced oral and documentary evidence. For the plaintiffs, their power of attorney entered the box as P.W.1. They produced Ext.A.1 to Ext.A.6, of which reference has already been made 3/9 https://www.mhc.tn.gov.in/judis SA(md)No.209 of 2014 to Ext.A.5. Ext.A.4 is the translation of Death Certificate of Ramachandran. For the defendants both the defendants examined themselves as D.W.1 and D.W.3. In between they examined a certain Udayar Dhas as D.W.2 and he did not enter the box for cross-examination and his evidence came to be eschewed.
6. On appreciating the evidence, the trial court decreed the suit. As outlined earlier, the First Appellate Court reversed it. The First Appellate Court's line of reasoning is twin fold:
a) The original Death Certificate of Ramachandran has not been produced;
b) that only the power of attorney of the plaintiff had entered the witness box and not the plaintiff based on the ratio in Janki Vashdeo Bhojwanti and another Vs. Indusind Bank Ltd and others [2005(3) CTC 128].
Hence, the Second Appeal.
7. This Second Appeal is admitted for considering the following questions of law:
i) Whether the First Appellate Court is right in not deciding the issue, whether Ext.B.2/power deed was indeed executed by late.Ramachandran?
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ii) When admittedly 2nd appellant/2nd plaintiff is a Hindu son of late.Ramachandran, can the father sell the entire Hindu Undivided Family (HUF) property?'
8. The learned counsel for the appellants submitted that the line of reasoning of the First Appellate Court that P.W.1 was incompetent to speak the facts that he had spoken based on the judgment in Janki Vashdeo's is not appropriate. Janki Vashdeo's case, on facts, arises in the following circumstances:-
i. In that case, in the proceedings before the Debt Recovery Tribunal, the wife preferred a claim petition but for the wife, the husband tendered evidence. When the matter ultimately reached the Hon'ble Supreme Court, it directed the matter be heard again and specifically directed that the husband of the claimant, who is a judgment debtor, should not tender evidence for the wife. But despite that, he entered the box as the power of attorney of his wife. It is, in this circumstance, the Hon'ble Supreme Court has held that the power of attorney is not competent to speak for the Principal.
ii. So far as the application of this ratio is concerned, a judgment is a precedent for what it actually decides and unless the facts are identical, 5/9 https://www.mhc.tn.gov.in/judis SA(md)No.209 of 2014 the value of the precedent cannot be mechanically telescoped into the situations which are not parallel to the one dealt with under a judgment constituting a precedent.
iii. Secondly, the case of the plaintiff is all about when Ramachandran, the Principal, had passed away and it does not require any other facts. That Ramachandran had passed away could be proved only by his Death Certificate and that has already been done vide Ext.A.4. When the best evidence is before the Court, it does not require the witness of any special competency to speak about the death of Ramachandran. Therefore, even if the ratio in Janki Vashdeo's case is considered as applicable, then given the facts of the present case, it may not affect the cause of action of the plaintiff nor it affects the competency of the power of attorney of the plaintiff since the death certificate is before the Court. iv. Thirdly, since the first Appellate Court has taken a view that original Death certificate issued by the Authorities in Malaysia has not been produced, the same is now produced with due authentication by the Consular Officer of the Ministry of Foreign Affairs, Malaysia vide M.P(MD).No.1 of 2015 filed under Order XLI Rule 27 of C.P.C. This Court chose to peruse the same and allow this document as additional document and the same is marked as Ext.A7.
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9. Mr.S.Parthasarathy, the learned Senior Counsel submitted that Ext.A7, the Death Certificate produced by the plaintiffs does not satisfy the criteria under Section 78(6) of the Indian Evidence Act for this Court to act on it. He added that inasmuch as the original Death Certificate has been introduced in evidence only now, the defendants must be given the opportunity to rebut it under Order XLI Rule 28 of C.P.C.
10. This Court having admitted the Death Certificate signed by the Consular Officer of the Ministry of Foreign Affairs, Malaysia as Ex.A7, necessarily the defendants may have to lead in their rebuttal evidence. In the context of the doubt/objection raised by the learned counsel appearing for the defendants that Ext.A7 does not satisfy the requirements of Section 78(6) of the Evidence Act, this Court considers it necessary to grant the plaintiffs an opportunity to produce the Death Certificate satisfying the requirements of Section 78(6) of the Evidence Act, if it is found that Ext.A7 does not satisfy the requirements of Section 78(6) of the Evidence Act.
11. This Second Appeal is allowed and the matter is remanded back to the Additional Subordinate Court, Tirunelveli, for considering the aspects which are specifically indicated herein and no other. Both sides will have right to 7/9 https://www.mhc.tn.gov.in/judis SA(md)No.209 of 2014 adduce evidence only on a limited fact as to the date of death of Ramachandran and no more. The learned Additional Subordinate Judge, Tirunelveli, is required to dispose the matter latest by 31.01.2023. The parties or the Agents are directed to appear before the learned Additional Subordinate Judge, Tirunelveli on 10.10.2022. There shall be an order of injunction not to disturb the possession of the defendants till the disposal of the matter by the Additional Subordinate Court, Tirunelveli. No costs.
23.09.2022 ssb/CM Note: Issue Order Copy on 26.09.2022 To
1.The Principal District Munsif Court, Tirunelveli.
2. The Additional Subordinate Judge, Tirunelveli 8/9 https://www.mhc.tn.gov.in/judis SA(md)No.209 of 2014 N.SESHASAYEE., J.
ssb/CM SA(MD)No.209 of 2014 23.09.2022 9/9 https://www.mhc.tn.gov.in/judis