Kerala High Court
Mandoth Dinesan vs Prakasan on 5 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 5TH DAY OF JUNE 2024 / 15TH JYAISHTA, 1946
RSA NO. 38 OF 2019
AGAINST THE JUDGMENT AND DECREE DATED 25.07.2018 IN AS
NO.57 OF 2016 OF ADDITIONAL DISTRICT JUDGE'S COURT-IV,
KOZHIKODE, ARISING OUT OF THE JUDGMENT AND DECREE DATED
30.11.2015 IN OS NO.515 OF 2011 OF ADDITIONAL MUNSIFF
COURT-1, KOZHIKODE
APPELLANT/APPELLANT/PLAINTIFF:
MANDOTH DINESAN
AGED 58 YEARS
S/O.MANDOTH KUMARAN, MANDOTH HOUSE, MAKKADA
AMSOM, DESOM, MAKKADA (P.O.), KOZHIKODE TALUK,
KOZHIKODE DISTRICT, REPRESENTED BY POWER OF
HOLDER, WIFE, SUDHEERA, AGED 48, MANDOTH HOUSE,
MAKKADA AMSOM, DESOM, MAKKADA (P.O.),
KOZHIKODE TALUK, KOZHIKODE DISTRICT.
BY ADVS.
R.BINDU (SASTHAMANGALAM)
SRI.PRASANTH M.P
RESPONDENTS/RESPONDENTS 1 TO 6 & 8 TO 11/DEFENDANTS 1 TO 6
& 8 TO 11:
1 PRAKASAN
AGED 67, S/O.MANDOTH KUMARAN, MAKKDA AMSOM,
DESOM, MAKKADA (P.O.), KOZHIKODE TALUK,
KOZHIKODE DISTRICT, PIN - 673 611.
2 RAMESHAN
AGED 63, S/O.MANDOTH KUMARAN, MAKKADA AMSOM,
DESOM, MAKKADA (P.O.), KOZHIKODE TALUK,
KOZHIKODE DISTRICT, PIN- 673 611.
3 PUSHPA
AGED 73, D/O.MANDOTH KUMARAN, MAKKADA, AMSOM,
DESOM, MAKKADA (P.O.), KOZHIKODE TALUK,
KOZHIKODE DISTRICT, PIN- 673 611.
4 SNEHASLATHA
AGED 69, D/O.MANDOTH KUMARAN, MAKKADA AMSOM,
DESOM, MAKKADA (P.O.), KOZHIKODE TALUK,
KOZHIKODE DISTRICT, PIN - 673 611.
R.S.A.No.38 of 2019
2
5 PRAKASINI
AGED 65, D/O.MANDOTH KUMARAN, MAKKADA AMSOM,
DESOM, MAKKADA (P.O.), KOZHIKODE TALUK,
KOZHIKODE DISTRICT, PIN - 673 611.
6 HEMA
AGED 63, D/O.MANDOTH KUMARAN, MAKKADA AMSOM,
DESOM, MAKKADA (P.O.), KOZHIKODE TALUK,
KOZHIKODE DISTRICT, PIN - 673 611.
7 K.VINOD KUMAR
AGED 48, S/O.RAVUNNIKUTTY NAIR, KODASSERY
PARAMBIL, RESIDING AT KAVYAM VEETTIL,
PUTHIYANGADI VILLAGE, EDAKKAD DESOM, WEST HILL
(P.O.), KOZHIKODE TALUK, KOZHIKODE DISTRICT,
PIN -673 005.
8 K.SANTHOSH KUMAR
AGED 48, S/O.BALAKRISHNAN NAIR, ARCODE APARTMENT,
PUTHIYANGADI VILLAGE, EDAKKAD DESOM, WEST HILL
(P.O.), KOZHIKODE TALUK, KOZHIKODE DISTRICT,
PIN 673 005.
9 SOMASUNDARAN
AGED 58, S/O.PACHUKUTTY, EDAVALATH PARAMBIL,
NOBLE HOUSE, EDAKKAD AMSOM, DESOM, KOZHIKODE
TALUK, KOZHIKODE DISTRICT, PIN - 673 005.
10 UOORATH PALLIYALIL NARAYANAN NAIR
AGED 76, S/O.KUTTAPPAN, ANAKKARA VILLAGE,
PERUMBATH DESOM, OTTAPALAM TALUK, PALAKKAD
DISTRICT, PIN - 679 551.
BY ADVS. SRI.B.KRISHNAN, R1 TO R6
SRI.R.PARTHASARATHY, R1 TO R6
SRI.RAJESH V.NAIR, R7 TO R10
THIS REGULAR SECOND APPEAL HAVING COME UP FOR FINAL
HEARING ON 31.05.2024, THE COURT ON THE 5.6.2024 DELIVERED
THE FOLLOWING:
R.S.A.No.38 of 2019
3
C.S.SUDHA, J.
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R.S.A.No. 38 of 2019
---------------------------------------------
Dated this the 5th June 2024
JUDGMENT
This second appeal under Section 100 read with Order
XLII Rule 1 CPC filed by the plaintiff/appellant is against the
judgment and decree dated 25/07/2018 in A.S.No.57/2016 on the
file of the Additional District Judge's Court-IV, Kozhikkode,
which appeal in turn is against the judgment and decree dated
30/11/2015 in O.S.No.515/2011 on the file of the Additional
Munsiff Court-I, Kozhikode. The parties and the documents will
be referred to as described in O.S.No.515/2011.
2. According to the plaintiff, the plaint schedule property
is a portion of the property by name, 'Mandoth Meethal Paramba'
which belonged to Kumaran, the father of the plaintiff; defendants
1 to 6 and the husband of the seventh defendant. Kumaran during
his life time executed Ext.X1 Will regarding all his properties
except the plaint schedule property. The Will has come into force
on his death. After Kumaran's death, the plaint schedule property
has devolved on the plaintiff and defendants and hence the suit for
partition claiming the plaintiff's 1/8 share in the property.
3. The first and the second defendants filed written
statement contending that the suit has been filed by the wife of the
plaintiff. However, she has no authority or right to represent her
husband, the plaintiff, as no power of attorney has been executed
by the latter in her favour. The allegation that the entire 'Mandoth
Meethal Paramba' belonged to Kumaran, the father of the parties
is admitted. However, he executed Will No.255/74 in favour of
defendants 3 to 5. After the death of Kumaran, the property has
devolved on defendants 3 to 5 who are in possession and
enjoyment of the property. When Ext.X1 Will was executed, no
property was left out by Kumaran. The plaint schedule property is
the imagination of the plaintiff. There is no such property and
hence the plaintiff is not entitled to any such relief.
4. The remaining defendants filed separate written
statements reiterating the stand taken by defendants 1 and 2.
5. Additional defendants 8 to 11, the assignees of
defendants 3 to 5, also support the case of the other defendants.
6. Necessary issues were framed by the trial court and the
parties went to trial on the basis of the aforesaid pleadings. PW1
was examined and Exts.A1 and X1 were marked on the side of the
plaintiff. No oral evidence was adduced by the defendants.
Exts.B1 to B10 were marked on behalf of the defendants. The
reports and plan of the Advocate Commissioner has been marked
as Exst.C1 and C2(a).
7. The trial court on an appreciation of the oral and
documentary evidence found that the power of attorney produced
along with I.A.No.2796/2011 did not authorise the wife to sue on
behalf of the plaintiff. It was seen that the power of attorney was
given to proceed with O.S.No.213/2010 filed by the plaintiff
before the Court. Therefore, the trial court concluded that as the
plaintiff had not given any authority to his wife to file the suit,
held the suit to be not maintainable on the said ground. The trial
court also considered the remaining allegations of the plaintiff and
found that no property remained or was excluded while Ext.X1
was executed by Kumaran. The entire property known as
'Mandoth Meethal Paramba' had been included in Ext.X1 Will
and therefore nothing remained to be partitioned among the legal
heirs of late Kumaran and hence finding that the plaintiff had no
further right in the property, dismissed the suit.
8. The first appellate court did not go into the merits of
the case. On the other hand, it held that no fresh power of attorney
had been produced by the wife of the plaintiff when the appeal
was filed and so proceeded to dismiss the appeal. Aggrieved, the
plaintiff has come up in appeal.
9. The appeal was admitted on the following substantial
questions of law -
1. Whether the findings of the courts below that
the appellant was not properly authorised to file the
suit as well as the appeal is legal and proper?
2. Whether the findings of the courts below that
the appellant has not produced the power of attorney
authorizing her to file the suit as well as the appeal is
factually and legally correct?
10. Heard both sides.
11. It was vehemently and strenuously argued by the
learned counsel for the plaintiff/appellant that the first appellate
court has grossly erred in finding/concluding that a fresh power of
attorney was required to be filed when the appeal was filed. The
appeal is only a continuation of the suit and hence there was
absolutely no necessity for the wife to file a fresh power of
attorney to show that she had been authorised to file the appeal. It
was also pointed out that the wife is in a fiduciary capacity in
relation to her husband and hence even without a power of
attorney, she was quite competent to file the suit and appeal on
behalf of her spouse and therefore the findings of the first
appellate court as well as the trial court are erroneous.
12. It is true that the finding of the first appellate court that
a fresh power of attorney was required to be produced when the
appeal was filed, is apparently wrong. The appeal being a
continuation of the suit, if a valid and proper power of attorney
has been filed before the trial court, there is no necessity for filing
a fresh power of attorney when the plaintiff aggrieved by the
judgment and decree of the trial court, files an appeal. Therefore,
to that extent, the finding of the first appellate court needs to be
reversed.
13. It is true as pointed out by the learned counsel for the
plaintiff/appellant that the first appellate court ought to have
considered the other points that arose in the appeal and ought not
to have dismissed the appeal on the sole ground of non production
of a fresh power of attorney. Therefore, a request was made for
remanding the matter for directing the first appellate court to
decide the matter on merits. Therefore, let me consider whether
the said prayer for remand is tenable/allowable. The suit is stated
to have been filed by the wife on behalf of her husband along with
I.A.No.2796 of 2011 seeking permission to permit the power of
attorney of the plaintiff to file and conduct the suit on behalf of the
plaintiff. As noticed earlier, all the defendants have specifically
contended in their written statement that no power of attorney had
been executed by the plaintiff in favour of his wife authorising her
to file the suit. It is true that no separate issue was framed by the
trial court regarding the said aspect. When parties go to trial fully
understanding the pleadings of the opposite party and also adduce
evidence in support of the same, merely because an issue was not
framed by the trial court, is no ground to reverse the entire decree.
It is pertinent to note that it is not one defendant alone who had
raised such a contention. All the defendants had raised a
contention in their respective written statements that the plaintiff
had not executed a power of attorney in favour of his wife. It is to
be noticed that the defendants have filed separate written
statement. Defendants 1 and 2 filed a joint written statement.
Defendants 3 to 5 and 7 filed separate written statement. Likewise
sixth defendant also filed separate written statement. In all these
written statements, they have taken up a specific contention that
the plaintiff had not authorised his wife to file the present suit.
Therefore, the plaintiff cannot contend that he was unaware of
such a challenge being raised by the defendants. Here it is also
quite pertinent to take note of the fact that neither the plaintiff nor
his wife had mounted the box. Only the attesting witness of
Ext.X1 Will was examined to prove the Will, which Will is also
admitted.
14. As per Order III Rule 1 CPC, any appearance,
application or act in or to any Court, required or authorized by law
to be made or done by a party in such Court, may, except where
otherwise expressly provided by any law for the time being in
force, be made or done by the party in person, or by his recognised
agent, or by a pleader on his behalf. Rule 2 says that the
recognised agents of parties by whom such appearances,
applications and acts may be made or done are - (a) persons
holding powers-of-attorney, authorizing them to make and do such
appearances, applications and acts on behalf of such parties; (b)
persons carrying on trade or business for and in the names of
parties not resident within the local limits of the jurisdiction of the
Court within which limits the appearance, application or act is
made or done, in matters connected with such trade or business
only, where no other agent is expressly authorized to make and do
such appearances, applications and acts. Further, coming to
Section 120 of the Evidence Act says that in all civil proceedings
the parties to the suit, and the husband or wife of any party to the
suit, shall be competent witnesses. This Section only says that the
husband or wife is a competent witness on behalf of the other.
That would not enable a spouse to file a suit or other proceedings
on behalf of the other without a valid power of attorney in
contravention of the provisions contained in Order III C.P.C.
15. It is true that a power of attorney has been produced
along with I.A.No.2796/2011. But on a perusal of the power of
attorney produced along with the application, the wife has been
specifically authorised to do all what was necessary in the conduct
of O.S.No.213/2010, a different suit.
16. The learned counsel for the plaintiff/appellant
submitted that a technical and a pedantic approach or a technical
interpretation of the recitals in the power of attorney may not be
given and that the plaintiff should not be non suited merely on the
ground that the power of attorney does not authorise the wife to
file the suit, resulting in gross injustice to the plaintiff. This
apparently is not so. The trial court had not dismissed the suit on
the said sole ground. On the other hand, the trial court considered
the other claims/allegations of the plaintiff and found no reason to
grant a decree in his favour. Ext.X1 Will is admitted by both
sides. In compliance with the legal formalities, the plaintiff
examined PW1, one of the attesting witness in Ext.X1 Will to
prove the same. The trial court on an appreciation of the oral and
documentary evidence found no property to have been excluded
by Kumaran from Ext.X1 Will and so concluded that no property
remained to be partitioned as prayed for by the plaintiff. On going
through the materials on record and the judgment of trial court, I
find no perversity or infirmity in its findings.
17. As noticed earlier, it is true that the first appellate court
ought to have considered the appeal on merits also. However,
absolutely no purpose would be served by remanding the matter to
the first appellate court and directing it to consider the appeal on
merits or to remand the matter to afford the plaintiff an
opportunity to file a fresh power of attorney as requested by the
learned counsel because I find no perversity or infirmity on the
findings of the trial court. On the basis of the materials on record,
there is absolutely nothing to substantiate the case of the plaintiff.
Therefore, it would be a sheer waste of time as well as an abuse of
the process of the court to remand the matter to the first appellate
court.
18. Hence I answer the substantial questions of law raised
against the plaintiff as I find that the finding that no power of
attorney had been filed authorising the wife of the plaintiff to file
the suit to be factually and legally correct. No ground(s) for
interference is/are made out. Hence, the second appeal is
dismissed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
ami/
