Rajendra Babu @ Rajendran (dead) s/o Chellappan Pillai v. Madhavi Amma and others (RSA No. 543 of 2013)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 26[TH] DAY OF SEPTEMBER 2022 / 4TH ASWINA, 1944** ## **RSA NO. 543 OF 2013** **AGAINST THE JUDGMENT IN OS 571/1999 OF PRINCIPAL MUNSIFF COURT, KOLLAM AS 98/2004 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC) III, KOLLAM** **-----** ## **APPELLANT/APPELLANT/PLAINTIFF:** 1 RAJENDRA BABU @ RAJENDRAN (DIED) S/O.CHELLAPPAN PILLAI, AGED 58 YEARS, RESIDING AT KAILAS (VILAYIL VEEDU), MEENATHU CHERRY, KAVANADU P.O. _**(LHRS ARE IMPLEADED AS ADDL. A2 AND A3)**_ ## * **ADDL. APPELLANTS** 2 JAYASREE S. AGED 55 YEARS, W/O. RAJENDRA BABU @ RAJENDRAN, KAILAS, KAVANAD, KOLLAM. 3 VARUN RAJ, AGED 29 YEARS, S/O. RAJENDRA BABU @ RAJENDRAN, KAILAS, KAVANAD, KOLLAM. * _**(LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 2 AND 3 AS PER THE ORDER DTD. 29/10/2014 IN THE I.A. 2625/2014)**_ BY ADVS. SRI.T.KRISHNAN UNNI (SR.) SRI.K.C.KIRAN SMT.MEENA.A. SRI.SAJU.S.A **RSA NO. 543 OF 2013 -2-** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** |1|MADHAVI AMMA,| |---|---| ||AGED 78 YEARS,| ||D/O.NANI AMMA, RESIDING AT RENVIL APARTMENT, NAVARANGAM| ||LANE,MEDICAL COLLEGE POST, THIRUVANANTHAPURAM - 695 004.| ||**_(RESPONDENTS 2 TO 5 ARE RECORDED AS THE LEGAL_**| ||**_REPRESENTATIVES OF DECEASED 1ST RESPONDENT AS PER ORDER_**| ||**_DATED 30/10/13 IN MEMO BEARING AT 6875/13)_**| |2|JAYACHANDRAN PILLAI,| ||AGED 57 YEARS,| ||S/O.CHELLAPPAN PILLAI, RESIDING AT SIVASYLAM, PADA SOUTH,| ||KARUNAGAPPALLY - 690 518.| |3|JAYASREE,| ||AGED 55 YEARS,| ||D/O.MADHAVI AMMA, RESIDING AT RENVIL APARTMENT, NAVARANGAM| ||LANE,MEDICAL COLLEGE POST, THIRUVANANTHAPURAM - 695 004.| |4|SUJA KUMARI,| ||AGED 38 YEARS,| ||D/O.MADHAVI AMMA, P.B.NO.2727, RIYADH 11461 KSA| |5|PREETHI,| ||AGED 40 YEARS,| ||D/O.MADHAVI AMMA, RESIDING AT POURNAMI, MURUNTHAL, PERINADU| ||POST, KOLLAM - 691 601.| |6|B.K.NAIR AT P.O.B 6854, AGED 46,| ||ABUDHABI, U.A.E| |7|PRABHAKARAN PILLAI,**_(DIED LHRS IMPLEADED)_**| ||AGED 67 YEARS, S/O.PADMANABHA PILLAI, RESIDING AT CHAITHRAM,| ||THIRUVALLOM POST, THIRUVANANTHAPURAM - 695 027.| ## **RSA NO. 543 OF 2013 -3-** ## ADDL. RESPONDENTS 8 & 9** 8 SANTHAKUMARI, AGED 65, W/O.LATE PRABHAKARAN PILLAI, CHAITHRAM,THIRUVALLOM POST, THIRUVANANTHAPURAM-695 027. 9 VAISAKH PRABHA, AGED 28, S/O.LATE PRABHAKARAN PILLAI, CHAITHRAM,THIRUVALLOM POST, THIRUVANANTHAPURAM-695 027. ** _**(LEGAL HEIRS OF DECEASED R7 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 8 AND 9 AS PER ORDER DATED 29.06.2020 IN IA.2/2019).**_ BY ADVS. SRI.P.B.SUBRAMANYAN SMT.M.H.BINDU SRI.M.P.SREEKRISHNAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **SATHISH NINAN, J. = = = = = = = = = = = = = = = = = = RSA No.543 of 2013** **= = = = = = = = = = = = = = = = = = Dated this the 26[th] day of September, 2022** ## **J U D G M E N T** The plaintiff in a suit for declaration, partition and injunction is the appellant. The suit was dismissed concurrently by the courts. 2. The reliefs claimed in the suit reads thus:- _“(a ) declaring that document Nos.2568 and 2569 of 1988, 208 of 1985, 2160 and 2161 of 1996 of Kollam Sub-Registry Office are void and that those documents are not binding on the Plaintiff and the plaint schedule properties, that the Power of Attorney dated 23.07.1988 executed by the Plaintiff in favour of the 7[th] defendant was to create a mortgage over his share of the properties and the Plaintiff and defendants 1 to 5 are the co-owners of the plaint schedule properties._ _(b) partitioning the plaint schedule properties by metes and bounds and allotting plaint 'D' schedule property with the building to the share of the Plaintiff or alternatively in case_ **RSA No.543 of 2013** -: 2 :- _defendants 2 to 5 are found not bound by the agreement executed by the 1[st] defendant allotting 2/6[th] share with the building and road frontage to the Plaintiff and giving separate possession of his share through the process of this Court._ _(c) restraining the defendants from trespassing upon Plaint 'D' schedule property or the share allotted to the plaintiff interfering with the possession of the plaintiff over the said property, making obstructions to the plaintiff and his family for their residence in the property, causing damages and waste in the property and dispossessing the Plaintiff from D Schedule property by a perpetual injunction._ - _(d) allowing the plaintiff to recover the cost of this suit from the defendants and_ _(e) granting such other further reliefs interim or otherwise to the plaintiff as this Honourable Court may deem fit and proper in the circumstances of this case.”_ 3. The plaint schedule consists of four items of properties-plaint 'A', 'B', 'C’ and ‘D’ schedules. **RSA No.543 of 2013** **==> picture [34 x 9] intentionally omitted <==** Plaint 'D' schedule is a part of plaint 'A' schedule. For an easy understanding of the facts, a genealogical tree is given hereunder:- **==> picture [487 x 218] intentionally omitted <==** 4. The first defendant is the daughter of one Naniamma. The first defendant had three brothers Janardhanan Pillai, Chandrasekhara Pillai and Prabhakaran Pillai-the 7[th] defendant in the suit. Sri.Chellappan Nair is the late husband of the first defendant. In the wedlock, five children were born to them viz., the plaintiff and defendants 2 to 5. The husband of the third defendant is arrayed as the 6[th] **RSA No.543 of 2013** -: 4 :- defendant in the suit. 5. According to the plaintiff, plaint ‘A’, ‘B’ and ‘C’ schedule properties belong to the family, and all the members including the plaintiff are entitled for 1/6 shares each. While the plaintiff, 2[nd] defendant, and defendants 3 and 6 were at UAE, the plaintiff and the 2[nd] defendant had executed powers of attorney in favour of the 7[th] defendant. The purpose of the same was to create a mortgage of their shares out of the plaint schedule properties, to secure the financial liability incurred by the 2[nd] defendant to defendants 3 and 6. But in the year 1996, on return from abroad it was realised that, on the strength of the powers of attorney, Ext.A7 Partition Deed was executed in the family, and under Ext.A8 Release Deed the share of the plaintiff was conveyed to the 3[rd] defendant. Subsequently, based on the said documents Exts.A10 Gift Deed and A11 Sale Deed have also been executed. The documents are void, it is **RSA No.543 of 2013** -: 5 :- contended. So also, though the plaint ‘B’ schedule is family property (thavazhy property), the 1[st] defendant executed Ext.A9 Gift Deed in respect of 20 cents therefrom, in favour of the 3[rd] defendant. The said document is also under challenge. 6. The defendants 1, 3 and 7 filed a joint written statement. They denied the claim that plaint 'B' schedule belongs to the family. It was contended that it is the self acquisition of the 3[rd] defendant under Ext.A4 Sale Deed. It was further contended that the powers of attorney were intended to and authorised conveyance of the property, and that the documents are valid. 7. The trial Court found that the powers of attorney (Exts.B2 and B3) are genuine and that it contained due authorisation for execution of Exts.A7 and A8 documents. The claim that the plaint ‘B’ schedule property is family property, was negatived. It was held **RSA No.543 of 2013** -: 6 :- that it is the self acquisition of the 3[rd] defendant. Accordingly, the challenge against Ext.A9 Gift Deed was also negatived. The appeal by the plaintiff was dismissed. It is aggrieved there by that this Regular Second Appeal has been filed. 8. Heard learned senior counsel Sri.T.Krishnanunni on behalf of the appellant-plaintiff and Sri.S.V. Balakrishna Iyer the learned senior counsel on behalf of the contesting respondents-defendants, on the following substantial questions of law:- _(i) Does the pleadings and evidence spell out the purchase under Ext.A4 Sale Deed to be the self acquisition of the 1[st] defendant or as her Thavazhy property?_ _(ii) Were the Courts right in holding that Exts.B2 and B3 powers of attorney contain due authority for execution of Ext.A7 Partition and Ext.A8 Release Deed?_ 9. While delving upon the issue as to whether the plaint 'B' schedule property is a thavazhi property of **RSA No.543 of 2013** -: 7 :- the first defendant or her self acquisition, a reference to the derivation of title of both plaint 'A' and 'B' schedule properties are relevant. This is so because, the basic document relating to both plaint 'A' and 'B' schedule properties are one and the same viz., Partition Deed of the year 1950. 10. Ext.A1 is the Partition Deed dated 11.12.1950, executed between Naniamma and her children. In the said partition, schedule-I thereto, of which we are not concerned, was allotted to Janardhanan Pillai. ScheduleII consisted of two items; item-A therein (not subject matter of the suit) was allotted to Naniamma, and item-B therein was allotted jointly to Naniamma and the first defendant. The said property has a total extent of 27 cents, out of which 25 cents is comprised in Survey No.725 and 2 cents in Survey No.737. Schedule-III to Ext.A1 Partition, is property having an extent of 25 cents consisting of 15 cents in Survey No.735 and 10 **RSA No.543 of 2013** -: 8 :- cents in Survey No.731. It was allotted to the brothersChandrasekhara Pillai and the 7[th] defendant. On 12.02.1957, as per Ext.A2 Partition Deed, Naniamma, the first defendant and her then existing children, partitioned the 27 cents that belonged jointly to them under Ext.A1 Partition. Under Ext.A3 Release Deed of the same date (12.02.1957), Naniamma gifted the property allotted to her under Ext.A2 Partition in favour of the first defendant. Thus, the entire 27 cents included in the second schedule of item 'B' to Ext.A1 Partition, became vested with the first defendant. This is the property included in the plaint 'A' schedule. The property being tharwad property, the plaintiff and defendants 1 to 5 are entitled to 1/6[th] share, is the claim. 11. Coming to the plaint 'B' schedule property, it is described as 23.750 cents, consisting of 13.75 cents in Survey No.735 and 10 cents in Survey No.731. This **RSA No.543 of 2013** -: 9 :- item was purchased by the first defendant from her brothers Chandrasekhara Pillai and the 7[th] defendant on 28.03.1960, as per Ext.A4 Sale Deed. According to the plaintiff, the purchase in the name of the first defendant was utilizing the family funds and hence the acquisition enures to the benefit of the Thavazhi of the first defendant. Therefore, the first defendant and all her children have right over the property. On such contention the plaintiff claims 1/6[th] shares out of the said property. 12. Plaint 'C' schedule has an extent of 12.5 cents. It belonged to late Chellappan Pillai, the husband of the first defendant. As his legal heirs the first defendant and their children including the plaintiff is entitled to 1/6[th] shares, is the claim. 13. It is not in dispute that, at the time of purchase of the plaint 'B' schedule property under Ext.A4 Sale Deed, the first defendant was the **RSA No.543 of 2013** -: 10 :- karanavathi of the thavazhi. According to the plaintiff, the acquisition by the Karanavathi enures to the thavazhi and it constitutes thavazhi property. The learned Senior Counsel Sri.S.V.Balakrishnan Iyer referred to a series of decisions including, _**Thatha Amma v. Thankappa (AIR 1947 Mad. 137)**_ , _**Velumpi Kochupennu v. Sankaran Nilakantan 1951 KLT 670, Gopalan Nayar v. Lakshmi 1955 (2) MLJ 36**_ , _**Emu Amma and Ors. v. Pollekkattil Ammini and Ors. 1957 (2) MLJ 275**_ , _**Achuthan Nair v. Chinnama Amma (AIR 1966 SC 411)**_ , _**Echaran Alias Kunhukuttan Nair v. Devaki Amma (1968 KLT 568)**_ , _**Baikuntha Nath v. Sashi Bhusan (AIR 1972 SC 2531)**_ , _**Subramonian v. Radhakrishnan 2004 (2) KLT 539**_ , _**Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade & Ors. (2007 (1) SCC 521)**_ to contend that, unless it is shown that there existed sufficient family property or nucleus, from which the acquisition could have been made, the mere fact that Ext.A4 Sale Deed was in the name of the Karanavathi does not draw a presumption that it is thavazhi property. In the absence **RSA No.543 of 2013** -: 11 :- of any plea or proof regarding possession of sufficient nucleus by the family, it could not be held that the plaint 'B' schedule is thavazhi property, it is contended. 14. The legal proposition as above, is not disputed by the appellants. Sri.T.Krishnanunni, the learned Senior Counsel for the appellant would, relying on the pleadings and the recitals in Ext.A7 Partition Deed contend that, on the materials, the only conclusion that could be drawn with regard to the nature of acquisition under Ext.A4 Sale Deed is that, it is thavazhi property. 15. Now I proceed to the materials on record. In paragraph 3 of the plaint it is specifically pleaded that, the purchase under Ext.A4 was with the funds received by the first defendant from the land acquisition proceedings of the joint family property. The relevant plea reads thus:- **RSA No.543 of 2013** -: 12 :- _“Plaint 'B' schedule property was purchased in the name of the first defendant with funds received by her for the acquisition of the joint family property earlier. Thus, though plaint 'B' schedule property was purchased in the name of the first defendant, the said property is also a joint family property.”_ 16. The categoric plea in the plaint regarding the source of consideration for purchase of plaint ‘B’ schedule, is not denied or even adverted to in the written statement. Even the claim regarding the nature of the plaint 'B' schedule property is not specifically denied, though paragraph 16 of the written statement could be understood as a denial in relation to the ‘B’ schedule. Paragraph 16 of the written statement reads thus:- _“The plaint averments to the effect that as per marumakkathayee system of inheritance some of the properties are tharavad properties on which the plaintiff has birth right etc. is not true to facts. The registered documents, copies of_ **RSA No.543 of 2013** -: 13 :- _which are produced along with plaint prove the point against the plaintiff. Even if for argument sake it is inferable otherwise, the fact is that the plaintiff has transferred all such rights through unassailable and irreversible documents of transfer. The plaintiff cannot assail or impeach any of the registered documents produced along with the plaint.”_ 17. Rules 3 and Rule 5 of Order VIII of the Code of Civil Procedure mandate that, denial of facts are to be specific. In _**Sheikh Abdul Sathar v. Union of India (1970) 3 SCC 845**_ and _**Raj Bahadur Sharma (dead) by LRs. v. Union of India (1998) 9 SCC 458,**_ the Apex Court held that, if the averments in the plaint are not specifically denied, inference is to be drawn that such statement of fact is accepted. The failure to make specific denial would amount to admission. Referring to various precedents, the principle was reiterated by a Division Bench of this Court in _**State of Kerala and Ors. v. Indira and Ors. (2022 (2) KLT 809).**_ The proviso to sub rule (1) of Rule 5 provides **RSA No.543 of 2013** -: 14 :- that, even in cases where there is no specific denial of a factual allegation, the Court may require the fact to be proved. However, it is only appropriate that such discretion is exercised by the trial Court [See, _**Venkata Reddi and Other v. Muthu Pambulu Naick and Others (AIR 1920 Mad. 588** )_ ]. At the appellate stage a party cannot be faulted for not having proved a fact, the plea of which was not denied by the other side. 18. Here, with regard to the source for acquisition of the plaint 'B' schedule, even though there is a specific, categoric and unambigous plea, there is not even an evasive denial of the averment, much less a specific denial. Referring to the decision of the Apex Court reported in _**Kedar Lal v. Hari Lal AIR (39) 1952 SC 47**_ , the learned Senior Counsel for the respondent would contend that, though denial regarding the plea of consideration may not be happily worded, the substance of the **RSA No.543 of 2013** -: 15 :- contention is available in the written statement. Hyper technical construction of mofussil pleadings is not to be adopted, he submits. As noticed, with regard to the plaint averment regarding the source of consideration, there is not even a reference to the same in the written statement. By no stretch of imagination could it be held that there has been a denial of the plea. 19. Be that as it may, the issue need not be decided solely on the principle on non-traverse. Coupled with the absence of denial of the plea, there are various other materials and circumstances impelling this Court to hold in favour of the plaintiff. The plaintiff as PW1, in his chief examination through proof affidavit, at paragraph 5, has affirmed thus, _“.....Plaint 'B' was purchased in the name of the first defendant_ _with the funds received by her for the acquisition of the joint family property earlier. Thus though plaint 'B' schedule property was purchased in the name of the first defendant, the said_ **RSA No.543 of 2013** -: 16 :- _property is also the joint family property. …..”_ . Conspicuously, there is no cross examination on the said evidence of PW1. Absence of denial in the written statement, of the plaint averment, coupled with the absence of cross-examination on the point, is very material and significant. Ext.A4 Sale Deed does not give any indication with regard to the source of consideration. However, in Ext.A7 Partition Deed it is recited that the purchase under Ext.A4 is related to land acquisition proceedings. This helps the plaintiff in a long way. Here it is to be borne in mind that, Ext.A7 is the making of the defendants. At that time the plaintiff was abroad. Therefore, the recitals therein has much evidentiary value as against the defendants. During the cross examination of DW1-the third defendant, though she has denied the suggestion that the consideration for the purchase under Ext.A4 Sale Deed was utilizing land acquisition compensation amount, she **RSA No.543 of 2013** -: 17 :- would admit that the contents of Ext.A7 are correct. In an attempt to indicate availability of independent source of funds, though she would say that her father was a co-operative inspector and branch manager, on the facts as above, it is hardly sufficient to find that the acquisition under Ext.A4 was utilizing his income. Here it is also to be noticed that, no such case was set up either in the written statement or in the chief examination. Yet another circumstance is, the inclusion of Ext.A4 property (the extent that remained after Ext.A9 conveyance-gift by the first defendant) in the family partition Ext.A7. If it was the first defendant's separate property, normally, it would not have been included therein. So also, there is no recital in Ext.A7 that, though it is the separate property of the first defendant it is being brought into the common hotchpot for partition. It is also pertinent to note that, though the issue involved is regarding the source of **RSA No.543 of 2013** -: 18 :- consideration and the nature of acquisition under Ext.A4 sale deed, the purchaser viz, the first defendant, who was the karanavathi of the thavazhi, has chosen to keep away from the witness box. In the circumstances as above, it could only be held that the acquisition under Ext.A4 Sale Deed was utilizing family funds and that it enured to the thavazhi. The plaint 'B' schedule property is thus, partible. The plaintiff and defendants 1 to 5 have one by six (1/6) shares each. Substantial question of law (i) is answered accordingly. 20. The plaint 'B' schedule property has an extent of 23.750 cents. Out of the same, an extent of 20 cents was conveyed by the first defendant in favour of the third defendant under Ext.A9 Gift Deed. The first defendant was entitled for only 1/6 shares out of the 23.750 cents. Hence the conveyance under Ext.A9 by the first defendant would affect only the 1/6[th] share of the first defendant over the 23.750 cents. Though the first **RSA No.543 of 2013** -: 19 :- appellate court, at paragraph 8 of the judgment had found that the plaint 'B' schedule property is family property, had omitted to consider its consequence on Ext.A9 Gift deed. 21. The plaintiff seeks for a declaration that, Exts.A7 Partition Deed, A8 Release Deed and the subsequent documents A10 and A11 are void. In Ext.A7 and Ext.A8 documents, he was represented through a power of attorney. Photostat copies of the powers of attorney were marked as Exts.B2 and B3 in the suit. Though before the Courts the genuineness of Exts.B2 and B3 were challenged, before this Court, there is no specific challenge urged; still, the appellant does not, at the same time, admit it. 22. The original of the powers of attorney are not forthcoming. The defendants pleaded in the written statement that, the plaintiff, subsequent to his return from abroad, had taken away the originals clandestinely. **RSA No.543 of 2013** -: 20 :- It may not be necessary to delve much into the same in view of the fact that, the photostat copies of the powers of attorney were produced by the defendants, which were admitted and marked in evidence without any objection by the plaintiff. As contended by the learned Senior Counsel for the respondents, the secondary evidence having been admitted in evidence without any objection, it is not open at the second appellate stage to challenge the admissibility of Exts.B2 and B3. In _**R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P.Temple and Anr. [AIR 2003 SC 4548]**_ , the Apex Court held that, if the objection on admissibility of a document relates to the mode of proof, unless it is taken at the time of tendering of the evidence, its admissibility cannot be challenged once it is admitted in evidence without objection. The document in question therein was also a photostat copy. The Apex Court held:- **RSA No.543 of 2013** -: 21 :- _“The objections as to admissibility of documents in evidence may be classified into two classes:-(i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time,_ **RSA No.543 of 2013** -: 22 :- _would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons : firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to he party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to herein above, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity_ **RSA No.543 of 2013** -: 23 :- _for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.”_ The same principle was laid down by this Court also in _**Anandan Nambiar v. Rajalakshmi 1988 (1) KLT 536**_ . I do note that, there is no serious challenge raised before this Court against the admissibility of Exts.B2 and B3 documents. 23. According to the plaintiff, Exts.B2 is not the power of attorney executed by the plaintiff. He had executed a power of attorney solely for the purpose of creation of a mortgage; but Exts.B2 and B3 mentions of executing gift and any other transaction. Therefore, it is not the one executed by the plaintiff, is the contention. It would be relevant to extract the operative part of the power of attorney. It reads thus,:- **RSA No.543 of 2013** -: 24 :- _“(1) To transfer my share in the 44.50 cents of landed property and building thereon, comprised in survey Nos.735, 737 and 731 of Sakthikulangara Village in Quilon Taluk in Quilon Districts in favour of Madhavi Amma Jayasree, wife of Balakrishnan Nair, Tharal House, Near Kurattikkad, Munnar P.O., Alleppey who is my sister, by executing Gift deed, or any other document._ _(2) To present the said conveyance for registration, and to admit execution before the Sub Registrar having authority for and in having the said conveyance registered and to do all note, deeds and things which my said attorney shall consider necessary for conveying the said property to the said Madhavi Amma Jayasree as fully and effectually in all respect as I could do the same as the donor._ _And I hereby agree to ratify and confirm all and whatever other note my said attorney shall lawfully do execute or perform or cause to be done, executed or performed in connection with the said property under and by virtue of this_ **RSA No.543 of 2013** -: 25 :- _deed notwithstanding no express power in that behalf is hereunder provided.”._ A reading of the contents of the power of attorney shows that, it authorises conveyance of property by execution of “a gift deed or any other document”. As per Exts.B5 and B6(b) communications, the Indian Embassy at Abudhabi in UAE has confirmed the execution of powers of attorney by the plaintiff and the second defendant, and that the powers of attorney authorise execution of gift deed or any other document. Ext.B6(b) communication from the Embassy reads thus:- _“The Power of Attorneys executed by Shri Chelappan Pillai Jayachandran Pillai, S/o Shri Chellappan Pillai, holder of Passport No.E-426155 issued at Abu Dhabi on 05.07.1988 and Shri Chellappan Nair Rajendran, S/O Chellappan Nair, holder of Passport No.V-474778 issued at Bangalore on 25.02.1984 were attested in this Mission vide endorsement No.1089/88 dated_ _10.07.88 and 1010/88 dated 23.06.88 respectively. The above_ **RSA No.543 of 2013** -: 26 :- _named individuals have appointed Shri Prabhakaran Pillai, S/O Shri Padmanabhan Pillai as their attorney for executing gift deed or any other documents of 44.50 cents of landed property and building in Survey No.735, 737 and 731 of Sakthikulangara_ _Village of Quilon Taluk in favour of Smt.Madhavi Amma Jayasree, W/o Shri Balakrishnan Nair.”_ Therefore, the challenge against the genuineness of Exts.B2 and B3 powers of attorney is not of any substance. On appreciating the entire evidence, the Courts have concurrently held so. No material has brought to my notice to arrive at a different conclusion. 24. The main ground of challenge by the appellant is that, the power of attorney did not authorise execution of documents in the nature of partition and release. Execution of Exts.A7 and A8 documents were beyond the scope of the authority conferred under the power of attorney; hence the documents are void, it is **RSA No.543 of 2013** -: 27 :- contended. The recitals in the power of attorney have been extracted herein before. Sri.T.Krishnanunni, the learned Senior Counsel would, relying on the judgment of the Apex Court in _**Timblo Irmaos Ltd. v. Jorge Anibal Matos (1977 3 SCC 474)**_ ; _**Abraham KJ & Anr. v. Mariamma Itty & Ors. (ILR 2016 3 Ker. 98)**_ ; _**Umadevi Nambiar v. Thamarasseri Roman Catholic Diocese (AIR 2022 SC 1640)**_ and Bowstead on Agency contend that, a power of attorney is to be strictly construed and that any conveyance beyond the power conferred under the power of attorney is void. The meaning of the terms used and the scope of the power conferred under the power of attorney is to be gathered from the document itself, it is urged. 25. Law is well settled that a power of attorney is to be strictly construed. The power to do particular acts even if followed by general words, the general words could only be understood as power granted to do such things necessary for due performance of the **RSA No.543 of 2013** -: 28 :- particular acts mentioned. In Bowstead on Agency 14[th] Edition, the rules for construction of powers of attorney are stated thus:- _“Powers of attorney must be strictly construed, and are interpreted as giving only such authority as they confer expressly or by necessary implication. The following are the most important rules of construction:_ - _(a) The operative part of a deed is controlled by the recitals_ _where there is ambiguity._ _(b) Where authority is given to do particular acts, followed by general words the general words are restricted to what is necessary for the proper performance of the particular acts._ _(c) General words do not confer general powers, but are limited to the purpose for which the authority is given, and are_ _construed as enlarging the special powers only when necessary for that purpose._ - _(d) The deed must be construed so as to include all incidental_ _powers necessary for its effective execution.”_ **RSA No.543 of 2013** -: 29 :- 26. According to the plaintiff, the circumstance which led to the execution of Exts.B2 and B3 powers of attorney by the plaintiff and his brother, the second defendant is as follows. The second defendant while at UAE incurred huge debts to the third defendant and her husband, the sixth defendant. To secure the debts, the plaintiff and the second defendant agreed to mortgage their shares out of the plaint schedule properties in favour of the third defendant. The mortgage was to be created by them through the 7[th] defendant as their power of attorney holder. It was to create such mortgage that Exts.B2 and B3 powers of attorney were executed. The version of the defendants is that, the plaintiff and the second defendant were doing joint business at UAE, that huge debts were incurred by them; there were discussions in the family which finally lead to execution of Exts.B2 and B3 powers of attorney by the plaintiff and the second defendant respectively, which were followed by **RSA No.543 of 2013** -: 30 :- the execution of Exts.A7 and A8 documents. 27. Ext.B1 is the letter dated 01.05.1988 sent by the plaintiff to defendants 1 to 7. The said letter expresses the intention to convey the property, excluding 15 cents, to the third defendant for an amount of ` 4 lakhs, and that if the said amount with interest is repaid, the property will be re-conveyed. It is also mentioned that, if within three years the amount is not repaid and the property got back, the remaining 15 cents will also be conveyed for a further balance consideration of ` 4 lakhs. The letter mentions the nature of conveyance to be as, a Gift Deed. From the evidence of the plaintiff as PW1(re-examination), it is evident that there was a proposal to convey the property by sale and to re-convey the same on repayment of the amount. That there were discussions in the family with regard to the conveyance is also borne out from his evidence. It is pursuant thereto that Exts.A7 and A8 **RSA No.543 of 2013** -: 31 :- documents were executed by the power of attorney holder. The power conferred under the powers of attorney is for conveying the share of the plaintiff and second defendant to the third defendant. The nature of the conveyance to be executed is stated as, “by executing gift deed, or any other document”. The circumstances which lead to the execution of Exts.B2 and B3 powers of attorney, followed by Exts.A7 and A8 partition and release would indicate that what the parties intended was, conveyance of the rights of the plaintiffs and the second defendant to the third defendant. In _**Timblo Irmaos Ltd.(supra)**_ , the Apex Court held that, the need which led to the execution of the document is a relevant factor that could be taken into consideration while construing the power and the purpose of the power conferred. In paragraph 13 of the judgment it is stated thus:- _“The learned Judicial Commissioner had, in our opinion, overlooked several well-known rules of interpretation firstly,_ **RSA No.543 of 2013** -: 32 :- _that, a word used in a document has to be interpreted as a part of or in the context of the whole, secondly, that, the purpose of the powers conferred by the power of attorney has to be ascertained having regard to the need which gave rise to the execution of the document the practice of the parties and the manner in which the parties themselves understood the purpose of the document; and, thirdly that, powers which are absolutely necessary and incidental to the execution of the ascertained objects of the general powers given must be necessarily implied.”_ In S _**yed Abdul Khader v. Rami Reddy [1979 (2) SCC 601]**_ it was held that, what the power of attorney authorises depends on its terms and the purpose for which it is executed. It was also held that the surrounding circumstances could also be taken into account for ascertaining the intention of the parties. It would be apposite to refer to the relevant portions of the judgment. **RSA No.543 of 2013** -: 33 :- _“11. ….....We are unable to find any force in this argument for_ _what the Power of Attorney authorises depends on its terms and the purpose for which it is executed. …....._ _…... However, it is well established that in considering a contract, it is legitimate to take into account the surrounding circumstances for ascertaining the intention of the parties (vide_ _**Modi & Co. v. Union of India** ).”_ 28. As noticed supra, the circumstances obtaining in this case would indicate that the parties intended conveyance/transfer of the share of the plaintiff and the second defendant to the third defendant. The power of attorney empowered effectuation of such transfer by way of a gift deed or any other document which the power of attorney holder deemed fit in the circumstances obtaining. 29. Incidentally it would be relevant to notice that, though the plaintiff would contend that he had **RSA No.543 of 2013** -: 34 :- executed or had intended to execute a power of attorney only for creating a mortgage of the property, in paragraph 10 of the plaint he would contend that, defendants 3 and 6 dominated the will of the plaintiff and that there was undue influence. The contention of the plaintiff appears to be that, by exercise of undue influence, a power of attorney beyond the scope of what he had contemplated or agreed to, was caused to be executed. The relevant portion of the plaint reads thus:- _“At the time of executing the Power of Attorney, the plaintiff never had in mind any idea to effect a partition. On the contrary, the said power was conferred for the specific purpose of creating a mortgage. Defendants 3 and 6 were in a position to dominate the Will of the Plaintiff on account of the close relationship and the debt incurred by the 2[nd] defendant. Defendants 3 and 6 have used their position to obtain an undue advantage over the Plaintiff. At the particular time, the mental capacity of the_ **RSA No.543 of 2013** -: 35 :- _Plaintiff was affected by reason of mental distress. Further, the Plaintiff was in active confidence to defendants 3 and 6. The intention of defendants 3 and 6 was to deceive the Plaintiff. They never informed the Plaintiff that the purpose of the Power of Attorney is to partition the properties and release the right of the Plaintiff over the properties. It was a case of clear fraud.”_ The second defendant has not challenged the transactions. Though in the plaint it is averred that he came to know about the illegal acts only on 20.03.1998, as PW1, in the cross examination as well as in the reexamination he would admit that he was aware of the transactions even in the year 1996. The suit is filed only on 12.05.1999. It is also relevant to note that, according to the plaintiff he intended only to mortgage the property and he was under the impression that it is only a mortgage deed that has been executed. Going by Ext.B1 letter, the mortgage was to be for a period of three years. He has no case that in spite of the lapse **RSA No.543 of 2013** **==> picture [40 x 9] intentionally omitted <==** of almost 11 years after the execution of the power of attorney, he had offered to repay the amounts and get the mortgage redeemed or had sought re-conveyance of the property. 30. In the circumstances as above, it could only be concluded that, execution of Exts.A7 and A8 documents were under due authority granted under Exts.B2 and B3 powers of attorney. The courts were right in having negatived the challenge against Exts.A7, A8, A10 and A11 documents. Substantial question of law no.(ii) is answered accordingly. Thus, the challenge against Exts.A7, A8, A10 and A11 documents fail. 31. As answered under substantial question of law no.(i), the plaint 'B' schedule is partible. The plaintiff and defendants 1 to 5 are entitled to 1/6[th] shares each over the same. The plaint ‘B’ schedule property has an extent of 23.750 cents. Out of the same, an extent of 20 cents was conveyed by the first **RSA No.543 of 2013** -: 37 :- defendant in favour of the third defendant under Ext.A9 Gift Deed. The first defendant was entitled for only 1/6 shares out of the 23.750 cents. Hence the conveyance under Ext.A9 by the first defendant would affect only the 1/6[th] share of the first defendant over the 23.750 cents. Ext.A9 Gift Deed having been executed as early as in the year 1985 equities may be worked out in the final decree proceedings. 32. Resultantly, the Regular Second Appeal is allowed in part. It is declared that the plaint 'B' schedule property is partible. A preliminary decree for partition is passed declaring that the plaintiff and defendants 1 to 5 are entitled for 1/6 shares out of the plaint 'B' schedule property. Ext.A9 Gift Deed is held valid only to the extent of the 1/6[th] shares of the first defendant over the plaint 'B' schedule property. It is further held that the 1/6 shares of the 1[st] defendant has vested with the 3[rd] defendant by virtue of **RSA No.543 of 2013** -: 38 :- Ext.A9 Gift Deed. The 3[rd] defendant is thus entitled for 2/6 shares out of the plaint ‘B’ schedule property. Equities and reservations are to be worked out in the final decree proceedings. The dismissal of the suit in so far as it relates to the challenge against Exts.A7, A8, A10 and A11 documents is affirmed. Parties to bear their respective costs. Parties to appear before the trial Court on 15.10.2022. The trial Court shall proceed with the final decree proceedings in the light of the judgment of the Apex Court in _**Kattukandi Edathil Krishnan and another v. Kattukandi Edathil Valsan and others (2022 SCC OnLine SC 737)**_ , without waiting for any application in the said regard. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge