JILLIARIAN D'CRUZ v. MIRANDA SERENE M. and EDGAR MONSHAL MIRANDA

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: M.N. Krishnan
Judgment Date: 2010-10-26
Court Decision / Holding: Judgment and decree of the trial court are confirmed; the Regular First Appeal is dismissed; the appellant’s contentions are rejected and there is no order as to costs.
Final Disposition: Appeal dismissed; decree confirmed; no costs.

Parties to the Case

Appellants / Petitioners

JILLIARIAN D'CRUZ

Respondents

Miranda Serene M.
Edgar Monshal Miranda

Legal Representation & Advocates

Counsels for Petitioners

• P. Gopalakrishnan Nair

Counsels for Respondents

• R.S. Kalkura

Case Synopsis & Summary

This Regular First Appeal, RFA No. 80 of 2003 (B), arises from O.S. 1251/1995 on the file of the II Addl. Sub Court, Thiruvananthapuram. The plaintiffs, Miranda Serene M. and Edgar Monshal Miranda, permanent residents of Singapore, inherited a property originally belonging to their mother. They executed a power of attorney in favor of the defendant on 24.11.1988 for management of the property; the defendant allegedly mismanaged income and failed to furnish accounts. Consequently, the plaintiffs revoked the POA by a revocation deed dated 9.5.1994, intimated on 12.5.1994, and the management was subsequently entrusted to Smt. Juddy Miranda. The defendant refused to surrender possession, leading to the suit for possession and injunction. The defendant contends the second plaintiff is mentally infirm (schizophrenia) and the POA is sham; he claims to have effected repairs costing Rs. 2 lakhs and to be entitled to the balance of rent, having leased the property. In the trial court, PW1 and DW1 were examined, and Exts. A1–A6 and B1–B2 were marked, resulting in a decree in favor of the plaintiffs. The High Court, while analyzing the RBI requirement for property holding, relied on Piara Singh v. Jagtar Singh to observe that RBI permission affects transfer but does not automatically nullify title; the devolution of title by operation of law is decisive. The court upheld the trial court’s decision, dismissing the appeal with no costs.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the plaintiffs cannot hold the property in India without RBI permission and relies on Piara Singh v. Jagtar Singh to argue that lack of RBI permission does not erase title, as devolution by operation of law sustains ownership; they further contend that the second plaintiff’s schizophrenia invalidates the POA only if proven at the time of execution, and that cancellation by publication effectively nullifies the POA. They also argue the defendant’s claim of Rs. 2 lakhs for repairs is unsupported by evidence and the trial court’s decree should be upheld.

Contentions of Respondents

The respondents argue that the possession suit is valid and that the borrower (second plaintiff) cannot execute a POA if schizophrenia is proven; the defendant acted under a valid POA, performed some repairs, and leased the property; they emphasize mismanagement and non-accounting by the defendant and contend that cancellation of POA does not divest the defendant until proper transfer or revocation is communicated; they seek possession and accountability, and contest the quantum claimed by the appellant.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Piara Singh v. Jagtar Singh	AIR 1987 Punjab and Haryana 93	Positive	Cited and relied upon to support that RBI permission affects transfer but does not extinguish title; devolution by operation of law sustains title.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932** **RFA.No. 80 of 2003(B)** - **------------------------** **OS.1251/1995 of II ADDL.SUB COURT,TRIVANDRUM** - **....................** ## **APPELLANT/DEFENDANT(S):** ## **---------------------------** **JILLIARIAN D'CRUZ, T.C. 12/1707, KUNNUKUZHI, UNIVERSITY ROAD, THIRUVANANTHAPURAM.** ## **BY ADV. SRI.P.GOPALAKRISHNAN NAIR** **RESPONDENT(S)PLAINTIFFS :** **------------------------------------** **1. MIRANDA SERENE.M., CHRISTIAN, RESIDING AT NO.34/HYTHE ROAD, SINGAPORE.** **2. EDGAR MONSHAL MIRANDA, RESIDING AT NO.34/HYTHE ROAD, SINGAPORE.** **(REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER, HUDY MIRANDA, RESIDING AT SERENE, T.C.11/1220, POTTAKUZHI, PATTOM, THIRUVANANTHAPURAM.)** **ADV. SRI.R.S.KALKURA FOR R1** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **M.N. KRISHNAN, J. = = = = = = = = = = = = = = R.F.A. NO. 80 OF 2003 = = = = = = = = = = = = = = = Dated this the 26[th] day of October, 2010.** **==> picture [128 x 15] intentionally omitted <==** This appeal is preferred against the judgment and decree passed by the Addl. Subordinate Judge, Thiruvananthapuram in O.S.1251/95. The suit is for a direction to the defendant to surrender vacant possession of the plaint schedule property and for an injunction. The plaint schedule property originally belonged to the mother of the plaintiffs' and on her death it had devolved upon the plaintiffs. The plaintiffs are permanent residents of Singapore. They have executed a power of attorney in favour of the defendant on 24.11.88 for management of the property and the building therein. The defendant did not look after the property well and started misappropriating the income and did not send any account regarding the income and R.F.A. 80 OF 2003 ## -:2:- expenditure. Therefore the plaintiffs' revoked the power of attorney given to the defendant by revocation deed dated 9.5.94. This was intimated on 12.5.94. Thereafter the power of attorney has been given in the name of one Smt.Juddy Miranda for the management of the plaint schedule property. In spite of her request the defendant refused to hand over possession and therefore the suit. 2. On the contra, the defendant would contend the suit is instituted unauthorizedly as the 2[nd] plaintiff is mentally infirm. She is suffering from Schizophrenia. The power of attorney signed by the said person is sham. The defendant has effected repairs and renovation to the building costing Rs.2 lakhs. He had leased out the property for Rs.300/-. The plaintiffs have only sent Rs.10,000/- and therefore he is entitled to get the balance amount. 3. In the trial Court PW1 and DW1 were examined. Exts.A1 to A6 and B1 and B2 were marked. ## R.F.A. 80 OF 2003 ## -:3:- On an analysis the trial Court granted a decree. It is against that decision the appeal has been filed. 4. Heard the learned counsel for the appellant as well as respondent. The first point agitated before the trial Court is regarding the entitlement of the plaintiffs' to hold the property in India. According to the defendant unless permission is obtained from the Reserve Bank of India it is not valid. The trial Court had considered that point and also the decision of the Punjab and Haryana High Court in _**Piara Singh v. Jagtar Singh (AIR 1987 Punjab and Haryana 93)**_ . Punjab and Haryana High Court held that a person cannot acquire the property without the permission of the Reserve Bank of India but nevertheless held that the title of the property will not be lost and therefore one cannot hold that the plaintiffs are not having title to the property. Further in this case it has to be held that it is not an acquisition but a devolution which has taken by operation of law. So that R.F.A. 80 OF 2003 ## -:4:- will also make the question here that the whole thing is not invalid. Therefore rightly the trial Court rejected that contention. 5. The second contention is to the effect that the 2[nd] plaintiff is a person suffering from Schizophrenia and therefore he cannot execute a valid power of attorney. It is a settled principle that Schizophrenia is an ailment which is not continuous and it is of some time with periodical lucid intervals. So unless and until one is able to establish that this person was Schizophreninic at the time of the alleged execution of the document one cannot invalidate it. Further it has also to be remembered that the power of attorney was cancelled by paper publication making it known to the whole public about the invalidity of the same. Therefore there had been a proper cancellation of the power of attorney and so the defendant's contention that the power of attorney cannot be considered to be as cancelled is also R.F.A. 80 OF 2003 -:5:- not acceptable. His locusstandi is only to hold the property as power of attorney holder and immediately when the power of attorney is revoked he ceased to have interest in the property and therefore he is bound to give back the property to the persons who have entrusted it to him. Therefore the trial Court was absolutely justified in doing that also. 6. Lastly, the learned counsel for the appellant very strongly contends before me that he had effected renovations and repairs in the house and therefore he must be granted an amount of Rs.2 lakhs for the same. It is true that by the provisions of the Power of Attorney an authorization is given to the defendant to effect repairs and maintenance to the house. But when he had put up a case of repair and maintenance it is for him to prove it by satisfactory evidence. There is no evidence tendered in this regard except his mere _ipse dixit_ which would not be sufficient to prove the case when it is ## R.F.A. 80 OF 2003 -:6:- specifically denied by the other side. So that also does not call for any interference. Therefore the judgment and decree are confirmed and the appeal is dismissed but under the circumstances without any order as to costs. **M.N. KRISHNAN, JUDGE.** ul/- ul/- R.F.A. 80 OF 2003 -:7:- **M.N. KRISHNAN, J. = = = = = = = = = = R.F.A. No. 80 OF 2003 = = = = = = = = = = =** **J U D G M E N T 26[th] October, 2010.**