# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
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THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
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## **`MONDAY, THE 7[TH] DAY OF MARCH 2022 / 16TH PHALGUNA, 1943 OP(C) NO. 438 OF 2022 AGAINST THE ORDER/JUDGMENT IN OS 41/2019 OF ADDITIONAL SUB COURT,`**
# **`PALAKKAD`**
## **`PETITIONERS/RESPONDENTS 2 & 3/DEFENDANTS 2 &3:`**
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1A.V. MANAF
AGED 56 YEARS
RESIDING AT ‘SMRITHY’, KALLIKKAD,
PIRAYIRI AMSOM DESOM, PALAKKAD TALUK,
PALAKKAD DISTRICT., PIN - 678004
2A.V. SATHAR
AGED 54 YEARS
RESIDING AT ‘SMRITHY’, KALLIKKAD,
PIRAYIRI AMSOM DESOM, PALAKKAD TALUK,
PALAKKAD DISTRICT., PIN - 678004
BY ADVS.
JACOB SEBASTIAN
K.V.WINSTON
ANU JACOB
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## **`RESPONDENTS/PETITIONER & 1ST RESPONDENT/PLAINTIFF & 1ST DEFENDANT:`**
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1DR.P.RAGHUSANKAR
AGED 56 YEARS
RESIDING AT RANJINI, LIONS SCHOOL ROAD, KOPPAM,
PALAKKAD DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY
HOLDER MR.K.R.JAYAPRAKASH, AGED 73 YEARS, RESIDING AT SAJNA,
HARISHAKAR ROAD, THAREKKAD, PALAKKAD TALUK,
PALAKKAD DISTRICT., PIN - 678001
2DR.SUDHAKAR
AGED 57 YEARS
W/O.JANARDHANAN NAIR
RESIDING AT ASWATHY VIDHUTH NAGAR,
PUTHUR AMSOM DESOM, PALAKKAD DISTRICT., PIN - 678001
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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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O.P.(C).No.438 of 2022
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## **JUDGMENT**
Dated this the 7[th] day of March, 2022
Order in I.A.No.2113/2021 in O.S.No.41/2019 dated 22.02.2022 passed by the Sub Judge, Palakkad is under challenge in this Original Petition filed under Article 227 of the Constitution of India, as opted by the defendants 2 and 3 in the above suit.
2. Heard the learned counsel for the petitioners on admission.
3. The subject matter in dispute herein is the outcome of a suit for partition of the plaint schedule property filed by one Dr.P.Raghusankar through a Power of Attorney. In the said suit, the defendants/petitioners herein challenged the maintainability of the suit, on the ground that the Power of Attorney is not properly stamped and therefore, they filed a petition to hear the maintainability of the suit itself, filed on the strength of the said power of attorney. However, the court below, after keeping the said petition for hearing the maintainability of the suit and also the petition filed with prayer to impound the Power of Attorney and without deciding the maintainability of the suit, allowed this
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O.P.(C).No.438 of 2022
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petition and thereafter Commission was appointed for the purposes of identifying the property and also to ascertain the income from the plaint schedule property.
4. The learned counsel for the petitioners argued that when the maintainability of the suit itself is in dispute, the court should have enquired into the question of maintainability and before that, an order of appointment of a Commissioner is unsustainable in law. In this connection, the decision reported in
**Kathirukunju Vs. Mohammed Kunju** (1992 KHC 474) has been placed.
5. Here, originally this suit for partition was filed by a person, who alleged to be an heir of the plaint schedule property. It is conceded by the learned counsel for the petitioners that, if the suit is one filed by the plaintiff directly, the same is perfectly maintainable. However, the suit was filed through a Power of Attorney. According to the learned counsel for the petitioners, petitioners filed petition to impound the power of attorney. If so, after having found that the power of attorney is not liable to be impounded, then the power of attorney can very well continue the suit. If the power of attorney found to be impounded, then also, after paying the stamp duty
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O.P.(C).No.438 of 2022
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and penalty as a result of impounding the power of attorney can proceed with the suit. That is to say, a defect in the Power of Attorney shall not by itself is not a reason to non-suit the plaintiff since the same is a curable irregularity. If the plaintiff fails to pay the stamp duty and penalty, then also, the plaintiff shall be permitted either to proceed with the suit personally or by appointing another Power of Attorney as per law. Therefore, the ratio of the said ruling has no relevance in this case.
6. Another contention raised by the petitioners is that, in a suit for partition, the rights of the parties alone need to be decided first and the identity, separation and assessment of profits etc.are matters to be dealt in a final decree proceeding. In view of the matter, the learned Sub Judge went wrong in appointing a commission at this stage and therefore, the order impugned is liable to be set aside. Decision reported in **Shub karan Bubna @ Shub Karan Prasad Bubna Vs. Sita Saran Bubna & Ors (** 2009 KHC 5075) also is placed in this regard.
7. I have perused the order impugned. In this case, as per the order impugned, the learned Sub Judge considered the rival claims and finally allowed the application as observed in paragraph No.8 of the order. In paragraph No.8, it was observed
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O.P.(C).No.438 of 2022
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that Advocate Commissioner is appointed to preserve the evidence available in the matter of assessment of the profit at present derived from the plaint schedule property.
8. Here, the plaintiff would allege that the property is having a huge income and therefore, an assessment of the same before partition is necessary and therefore, the court below appointed a Commissioner to do the said exercise. The legal position is not in dispute to the effect that, in a suit for partition, assessment of income from the plaint schedule property would arise not only during the final decree stage and it can be during trial stage as well, to assess the profit for granting mesne profits. Therefore, appointment of a Commission to assess the profit during trial stage is not barred at all. Therefore, this challenge is also found to be not sustainable.
9. Thirdly, it is argued by the learned counsel for the petitioners that when the authenticity of a document is disputed, the court is bound to address the same and impound the document, if the contention is found sustainable. Further for payment of sufficient stamp duty and penalty also must be ordered. In this connection, the decision of this Hon’ble Court reported in **Ramachandran K.P. v. District Registrar**
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O.P.(C).No.438 of 2022
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**(General) and Others** (2019(3) KHC 136) also has been placed. I do agree with the legal proposition. However, whether it is to be impounded or not is a matter to be decided by the trial court, after hearing both sides and in the present case, the plaintiff, who alleged to be a sharer of the property can continue the suit either personally or by appointing another Power of Attorney in the event the Power of Attorney is found to be defective or on failure on the part of the plaintiff to pay the insufficient stamp duty and penalty even after impounding a document.
In such view of the matter, this challenge also is of no much significance to non-suit the plaintiff or to find irregularity or illegality in the order of appointment of a Commission in the context, I have already discussed.
Therefore, this Original Petition found to be meritless and the same is dismissed without being admitted.
## **Sd/-**
## **A. BADHARUDEEN JUDGE**
nkr
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O.P.(C).No.438 of 2022
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## **`APPENDIX OF OP(C) 438/2022`**
|**`PETITIONER EXHIBITS`**||
|---|---|
|**`Exhibit-P1`**|**`A TRUE COPY OF THE PLAINT IN O.S.`**|
||**`NO.41/2019 OF THE COURT OF THE ADDITIONAL`**|
||**`SUBORDINATE JUDGE OF PALAKKAD.`**|
|**`Exhibit-P2`**|**`A TRUE COPY OF THE POWER OF ATTORNEY`**|
||**`EXECUTED ON 06.03.2019 .`**|
|**`Exhibit-P3`**|**`A TRUE COPY OF THE WRITTEN STATEMENT OF THE`**|
||**`DEFENDANTS TWO AND THREE IN O.S.NO.41/2019`**|
||**`OF THE COURT OF THE ADDITIONAL SUBORDINATE`**|
||**`JUDGE OF PALAKKAD DATE 30.09.2019.`**|
|**`Exhibit-P4`**|**`A TRUE COPY OF I.A NO. 1682/2019 IN O.S.NO.`**|
||**`41/2019 OF THE COURT OF THE ADDITIONAL`**|
||**`SUBORDINATE JUDGE OF PALAKKAD DATED`**|
||**`24.06.2019 .`**|
|**`Exhibit-P5`**|**`A TRUE COPY OF THE COUNTER STATEMENT BY THE`**|
||**`PLAINTIFF IN I.A.NO. 1682/2019 IN O.S.NO.`**|
||**`41/2019 OF THE COURT OF THE ADDITIONAL`**|
||**`SUBORDINATE JUDGE OF PALAKKAD 08.07.2019.`**|
|**`Exhibit-P6`**|**`A TRUE COPY OF I.A NO.1697/2019 IN O.S.`**|
||**`NO.41/2019 OF THE COURT OF THE ADDITIONAL`**|
||**`SUBORDINATE JUDGE OF PALAKKAD DATED`**|
||**`28.06.2019.`**|
|**`Exhibit-P7`**|**`A TRUE COPY OF THE POWER OF ATTORNEY DATED`**|
||**`28.06.2019.`**|
|**`Exhibit-P8`**|**`A TRUE COPY OF THE COUNTER STATEMENT FILED`**|
||**`BY DEFENDANTS 2 AND 3 IN I.A NO.1697/2019`**|
||**`IN O.S NO.41/2019 OF THE COURT OF THE`**|
||**`ADDITIONAL SUBORDINATE JUDGE OF PALAKKAD`**|
||**`DATED 05.07.2019.`**|
|**`Exhibit-P9`**|**`A TRUE COPY OF I.A NO.1698/2019 IN`**|
||**`O.S.NO.41/2019 OF THE COURT OF THE`**|
||**`ADDITIONAL SUBORDINATE JUDGE OF PALAKKAD.`**|
|**`Exhibit-P10`**|**`A TRUE COPY OF I.A NO.950/2021 IN O.S.`**|
||**`NO.41/2019 OF THE COURT OF THE ADDITIONAL`**|
||**`SUBORDINATE JUDGE OF PALAKKAD.`**|
|**`Exhibit-P11`**|**`A TRUE COPY OF THE COUNTER STATEMENT FILED`**|
||**`BY DEFENDANTS 2 AND 3 IN I.A NO.950/2021 IN`**|
||**`O.S. NO. 41/2019 OF THE COURT OF THE`**|
||**`ADDITIONAL SUBORDINATE JUDGE OF PALAKKAD`**|
||**`DATED 10.09.2021.`**|
|**`Exhibit-P12`**|**`A TRUE COPY OF I.A NO.2113/2021 IN`**|
||**`O.S.NO.41/2019 OF THE COURT OF THE`**|
||**`ADDITIONAL SUBORDINATE JUDGE OF PALAKKAD`**|
||**`DATED 20.12.2021.`**|
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## **`O.P.(C).No.438 of 2022`**
## **`Exhibit-P13`**
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A TRUE COPY OF THE COUNTER STATEMENT FILED
BY DEFENDANTS 2 AND 3 IN I.A NO.2113/2021
IN O.S.NO.41/2019 OF THE COURT OF THE
ADDITIONAL SUBORDINATE JUDGE OF PALAKKAD
DATED 31.12.2021 .
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Exhibit-P14A TRUE COPY OF THE NOTES OF ARGUMENT BY
DEFENDANTS TWO AND THREE DATED 11.01.2022 .
Exhibit-P15A TRUE COPY OF THE ORDER DATED 22.02.2022
IN I.A NO.2113/2021 IN O.S NO.41/2019 OF
THE COURT OF THE ADDITIONAL SUBORDINATE
JUDGE OF PALAKKAD .
```
