Kerala High Court
Panchamy vs The Sree Narayana Trust on 21 August, 2012
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
THURSDAY, THE 13TH DAY OF MARCH 2014/22ND PHALGUNA, 1935
RSA.No. 633 of 2013
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AGAINST THE JUDGMENT IN AS 2/2010 of SUB COURT, MAVELIKKARA,
DATED 21-08-2012
AGAINST THE JUDGMENT IN OS 360/2006 of MUNSIFF COURT,
CHENGANNUR, DATED 24-07-2009
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APPELLANT(S)/APPELLANTS/DEFENDANTS:
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1. PANCHAMY, AGED 70 YEARS,
KUZHIKKALAYIL HOUSE, CHERIYANAD EAST, THURUTHIMEL MURI,
CHERIYANAD VILLAGE,
CHENGANNUR TALUK. (NEDUVARAMCODE P.O.
PIN CODE 689508, ALAPPUZHA).
2. MOHAN, AGED 48 YEARS,
S/O.LATE GOPALAN, KUZHIKKALAYIL HOUSE, CHERIYANAD EAST,
THURUTHIMEL MURI, CHERIYANAD VILLAGE,
CHENGANNUR TALUK (NEDUVARAMCODE P.O.
PIN CODE 689508, ALAPPUZHA).
3. USHA, AGED 44 YEARS,
W/O.MOHAN, KUZHIKKALAYIL HOUSE, CHERIYANAD EAST,
THURUTHIMEL MURI, CHERIYANAD VILLAGE,
CHENGANNUR TALUK (NEDUVARAMCODE P.O.,
PIN CODE 689508, ALAPPUZHA).
BY ADV. SRI.V.PHILIP MATHEW
RESPONDENT(S)/RESPONDENTS/PLAINTIFFS:
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1. THE SREE NARAYANA TRUST, KOLLAM,
REG.NO.4232/52 BY ITS SECRETARY
VELLAPPALLY NATESAN, VELLAPPALLYHOUSE,
NEAR KANICHUKULANGARA POST, CHERTHALA TALUK, PIN 688582.
2. VELLAPPALLYNATESAN, AGED 69 YEARS
VELLAPPALLY HOUSE, NEAR KANICHIKULANGARA POST,
CHERTHALA TALUK, PIN 688582, (THE SECRETARY
THE SREE NARAYANA TRUST, KOLLAM).
BY ADV. SRI.A.N.RAJAN BABU
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 25/02/2014 THE COURT ON 13-03-2014, DELIVERED THE
FOLLOWING:
PJ
P.BHAVADASAN, J.
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Regular Second Appeal No.633 OF 2013
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Dated this the 13th day of March, 2014.
J U D G M E N T
Faced with the concurrent order of eviction, the defendants in O.S.No.360/2006 before the Munsiff Court, Chengannur have come up in appeal.
2. According to the plaintiffs, the 1st plaintiff is a trust. The plaint schedule property belonged to one Gopalan. The defendants are the legal heirs of the said Gopalan. The Trust would claim that Gopalan had sold the plaint schedule property to them as per Ext.A1 dated 02.07.1981 for the purpose of starting a college. The plaintiffs would allege that even though the property was sold to the Trust, Gopalan and his family members were allowed to continue their residence in the property on condition that they would vacate the premises as and when required. Consequent on the death of Gopalan, on the basis of R.S.A No.633/2013 2 the permission granted by the Trust, his legal heirs continued their residence in the property. Since the 1st plaintiff-Trust has decided to put up a college in the property, they demanded the defendants to vacate the premises. That annoyed the defendants who tried to commit waste in the property. On the basis of these allegations, suit for recovery of possession and prohibitory injunction was laid.
3. The defendants resisted the suit. They pointed out that the Trust was in need of the property to put up a college. In fact, according to them, additional extent of property was required to procure affiliation for the S.N. College which was already functioning in the area. The office bearers of the college approached Gopalan and represented to him that if he willingly gave the property to the Trust, one of the members of the family of Gopalan will be given employment in the college and they would be provided with alternate suitable site. It was also promised that Trust would put up a house for them in the alternate site. The Trust did not honour its promise. Therefore, Gopalan and his family took up residence in the plaint schedule R.S.A No.633/2013 3 property in 1982. Consequent on the death of Gopalan, the continued residence of the members of the family of Gopalan was as a result of the permission granted by the Trust. According to the defendants, they are bound to shift from the property only on the Trust fulfilling its part of contract and it was also contended that due to their continued long uninterrupted possession, the right of the plaintiffs over the property has been lost by adverse possession. On the above grounds, they prayed for dismissal of the suit. It appears that a counter claim has also raised by the defendants.
4. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of PW1 and the documents marked as Exts.A1 to A8 from the side of the plaintiffs. The defendants examined DW1 and had Ext.B1 marked.
5. The trial court, on appreciation of the evidence in the case, decreed the suit and dismissed the counter claim. The defeated defendants carried the matter in appeal as A.S.2/2010. The lower appellate court, after independent evaluation, R.S.A No.633/2013 4 concurred with the trial court and dismissed the appeal. The following substantial questions of law have seen formulated in the appeal.
i. Whether the suit was maintainable before Munsiff's Court, Chengannur?
ii. Whether respondents were competent to file the suit?
iii. Was not the suit liable to be dismissed due to absence of the Trustees or Board of Trustees of S.N. Trust in the party array?
iv. Whether suit was maintainable without leave of court under Section 92 of the Code of Civil Procedure, 1908?
v. Whether plaintiffs/respondents had properly complied with provisions of Order I, Rule 8 of the Code of Civil Procedure, 1908 and Rule 20 of the Civil Rules of Practice?
vi. Was not the suit liable to be dismissed due to
absence of paper publication and proper
application as per Rule 20 of the Civil Rules of Practice?
R.S.A No.633/2013 5
vii. Whether Exhibit A1 was supported by
consideration?
viii. Whether respondents were entitled to claim any relief based on Exhibit A1?
ix. Was not the suit barred by limitation?
x. Was not the suit liable to be dismissed due to
non incorporation of prayer for recovery of possession?
xi. What is the effect of non examination of the second respondents and whether PW1 was a competent witness?
6. Learned counsel appearing for the appellants contended that the suit itself is not maintainable. According to the learned counsel, suit is instituted by a Trust. If that be so, it is essential that one of the trustees is on the party array and in the case on hand, that requirement has not been complied with. In a suit filed by or on behalf of a Trust, presence of the trustee is essential. Learned counsel went on to point out that even assuming that there is an authorisation to somebody else to institute the proceedings, that does not dispense with the R.S.A No.633/2013 6 necessity for one of the trustees being present on the party array. In support of his contention, learned counsel relied on the decisions in Sheikh Abdul Kayum and others vs. Mulla Alibhai and others (AIR 1963 Supreme Court 309), Homi Nariman Bhiwandiwala vs. The Zoroastrian Co-operative Credit Bank Ltd. and another (AIR 2001 Bombay 267), Nagar Wachan Mandir, Pandharpur through its Chairman, President and another vs. M/s. Akabaralli Abdulhusen & Sons and others (1994 (2) Bom.C.R. 251), J.P. Srivastava & Sons (P) Ltd. and others vs. Gwalior Sugar Co. Ltd and others [(2005) 1 Supreme Court Cases 172], Vaidyaratanam P.S. Varier's Arya Vaidyasala, Kottakal vs. K.C. Vijai Kumar (1991 (1) R.C.R 86), L.Janakirama Iyer and others vs. P.M. Nilakanta Iyer and others (AIR 1962 Supreme Court 633), Ettiyat Ahmed Kutty and others vs. Vayalikath Ayithraman Kutty and others (AIR 1937 Madras 819), Adiraju Arasu Kannikke Ballala vs. Pattu alias Lakshminarayana and others (AIR 1922 Madras 405(1)) and Vedakannu Nadar & others vs. Nanguneri Taluk Singikulam Annadana Chatram R.S.A No.633/2013 7 & others (AIR 1938 Madras 982).
7. Learned counsel for the appellants drew the attention of this Court to the fact that the principles applicable to private trust are applicable to public trust also. Reliance was placed on the decision in State of Uttar Pradesh vs. Bansi Dhar and others (AIR 1974 Supreme Court 1084) for the above proposition.
8. Relying on the decision in Corporation of Trivandrum vs. K. Narayana Pillai (1968 KLT 285), it is contended by the learned counsel for the appellants that even if authorised by a resolution of the Corporation or the Municipality as the case may be, Secretary cannot institute a suit. Learned counsel also pointed out that the President cannot represent a society and for the said proposition, he relied on the decision in Narayanan Nambudiri vs. Kurichithanam Educational Society (AIR 1959 Kerala 379). Learned counsel then contended that when a procedure is laid down as per the statute for doing a particular thing, that thing can be done only in the manner prescribed and in no other way. For the said proposition, learned counsel relied on the decisions in Sinnamani and another vs. G.Vettivel and R.S.A No.633/2013 8 others (2012 KHC 4280), Janardhanan vs. Joint Registrar (1990 KHC 124) and in Uday Shankar Triyar vs. Ram Kalewar Prasad Singh and Anr. (AIR 2006 Supreme Court 269).
9. Learned counsel appearing for the appellants then pointed out that the requirement that one of the trustees must be on the party array is a statutory requirement and that cannot be bypassed by incorporating provisions in the bylaws. In support of the said contention, learned counsel relied on the decision in Veena Kumari Tandon vs. Neelam Bhalla and others (2007 KHC 4139). Reliance was also placed on the decision in Cooperative Central Bank Ltd. and others vs. Additional Industrial Tribunal, Andhra Pradesh, Hyderabad and others (1969 KHC 483).
10. Learned counsel appearing for the appellants then pointed out that the suit was filed in a representative capacity. When the Order I Rule 8 CPC publication effected does not meet the requirements of law, it does not disclose as to what is the nature of the suit that is instituted and what are the issues that arise for consideration in the suit. Drawing attention of this Court R.S.A No.633/2013 9 to the publication under Order I Rule 8 CPC, learned counsel contended that there is nothing in the publication to show that what was the nature of the suit that was being agitated and whether it was likely to affect any of the beneficiaries or trustees of the Trust.
11. Relying on the decision in Kusasan Samal and others vs. Chandramani Pradhan (dead) after him Panchel Bewa and others (AIR 2003 Orissa 157), it was contended by the learned counsel for the appellants that publication under Order I Rule 8 CPC is a notice to a person who is interested to contest the suit and it should necessarily disclose the nature of the suit and the relief sought for.
12. Learned counsel appearing for the appellants then contended that in the case on hand, the plaintiffs have not given evidence in support of their case. It is a power of attorney holder of the 2nd plaintiff who has given evidence on behalf of the Trust. As regards the matters which are personal between the parties, learned counsel for the appellants pointed out that those are matters could not be spoken to by the power of attorney holder R.S.A No.633/2013 10 and the evidence that could be given by the power of attorney holder is considerably limited. It is well settled that a power of attorney holder cannot speak on behalf of the principal and he can only depose as to what is within his direct knowledge. For the said proposition, learned counsel relied on the decisions in Janki Vashdeo vs. Indusind Bank [(2005) 2 SCC 217], Man Kaur (Dead) by Lrs. vs. Hartar Singh Sandha (2010 KHC 4741) and in M/s. JCR Trading Pvt. Ltd vs. A.J. Varghese and others (2009 KHC 245). It is lastly contended that in the nature of the contentions taken by the defendants asserting possession as a matter of right and on an independent right claimed by them disputing permissive occupation, a mere suit for mandatory injunction will not be sufficient. The plaintiffs will have to seek for recovery of possession on the strength of title. For the said proposition, learned counsel relied on the decision in Anathula Sudhakar vs. P. Buchi Reddy (dead) by lrs and others (2008 KHC 6249).
13. Learned counsel appearing for the respondents, on the other hand, contended that it is not necessary in a suit by Trust R.S.A No.633/2013 11 that all the trustees or every trustee must be on the party array. Even going by the decisions relied on by the learned counsel for the appellants, it was pointed out that it could be seen that the bylaws could authorise a particular person to represent the Trust and that would be sufficient. Apart from the above fact, learned counsel also pointed out that the 2nd plaintiff in the suit is a trustee and if it is mandatory that a trustee should be on the party array, that is also satisfied by the presence of the 2nd plaintiff. As regards the contention regarding Order I Rule 8 CPC is concerned, such a contention could only be taken in the court below and it is too late for the defendants now to say that the publication effected under Order I Rule 8 CPC is defective. By not raising objections at the proper time, they have waived their right. It is pointed out that had they pointed out the defect at the appropriate time, the plaintiffs could have taken remedial measures. After having kept quite, raising this issue at the second appellate stage should not be encouraged.
14. Learned counsel for the respondents then went on to point out that it is not the law that power of attorney holder R.S.A No.633/2013 12 cannot give evidence on behalf of the principal. Probably, there can be some restrictions. But matters within the knowledge of the power of attorney holder, he could give evidence. In the case on hand, power of attorney holder was an office bearer of the Trust and he was in the know of things. Therefore, according to the learned counsel, the contention that power of attorney holder's evidence is of no value cannot be accepted. Finally, it is contended that the argument that recovery of possession is necessary in the facts and circumstances of the case cannot stand. The necessity to include the prayer for recovery of possession arises only when there is dispute regarding title or when right to possession is disputed. In the case on hand, the plaintiffs have asserted that Gopalan and his successors in interest had been allowed to continue in the premises on permissive basis and that amounts to nothing more than a licence. If that be so, on termination of the licence, licencees are bound to vacate. Viewed from that angle, the suit is not defective.
15. Learned counsel for the respondents went on to point R.S.A No.633/2013 13 out that all the aspects have been considered by the courts below and they have concurrently found that the plaintiffs are entitled to the relief sought for in the plaint. Being essentially a question of fact, there is no substantial question of law which arises for consideration and the second appeal is only to be dismissed.
16. It is not in dispute now that as per Ext.A1 document, Gopalan had assigned property to the Trust. While the plaintiffs would say that after the assignment, Gopalan and his successors in interest were allowed to reside in the property on permissive basis, the defendants would say that they continued residence in the property under certain circumstances which entitled them to be continued to be in possession of the property. According to them, the authorities of the college for which the property was acquired had promised alternate site to Gopalan and also that a house will be constructed in the site for him. The family was also promised that one of the members of the family would be given employment in the college. The defendants would say that none of the undertakings were honoured and therefore, they continued their residence in the property as a matter of right. R.S.A No.633/2013 14
17. The contention that the Secretary of the trust cannot institute proceedings independently and that there has to be a trustee on the party array has necessarily to fail. First of all, the bylaws authorises Secretary to institute proceedings for and on behalf of the society. Again it is pointed out that the 2nd plaintiff is a trustee though not mentioned as such in the cause title and if that be so, this requirement as put forward by the defendants is met.
18. However, learned counsel appearing for the appellants pointed out that the vakkalath is seen to have been filed only for the 1st plaintiff and there is no vakkalath seen filed for the 2nd plaintiff in his character as a trustee of the Trust. According to the learned counsel, the plaint ought to have been received on file. On perusal of the vakkalath, the defect seems to be a curable one. It does not affect the maintainability of the suit. One can have no quarrel with the proposition that if a procedure is laid down in law for doing a particular thing, that procedure is necessarily to be followed and doing such things in any other manner is not acceptable.
R.S.A No.633/2013 15
19. In the decision in Sheikh Abdul Kayum and others vs. Mulla Alibhai and others (AIR 1963 Supreme Court 309), the principle laid down is that the trustees cannot transfer their duties and functions in other words, trustees cannot delegate their duties and powers. In paragraph 16 of the said decision, it is observed as follows:
"16. There cannot, in our opinion, be any doubt about the correctness of the legal position that trustees cannot transfer their duties, functions and powers to some other body of men and create them trustees in their own place unless this is clearly permitted by the trust deed, or agreed to by the entire body of beneficiaries........."
20. True in the decision in Homi Nariman Bhiwandiwala vs. The Zoroastrian Co-operative Credit Bank Ltd. and another (AIR 2001 Bombay 267), it was held that in the said case the defendant-Trust was not a separate legal entity. If that be the position, all the trustees should be joined if a legal action is initiated against the trust. What was considered in the decision in Nagar Wachan Mandir, Pandharpur through its Chairman, President and another vs. M/s. Akabaralli R.S.A No.633/2013 16 Abdulhusen & Sons and others (1994 (2) Bom.C.R. 251) was that unless instrument of Trust provides that someone would be authorised to act on behalf of the Trust, suit filed by the Chairman and Secretary of the Trust, even if it is registered under the Societies Registration Act, is not maintainable. What is significant is that the decision recognises the fact that the body of trustees can authorise through bylaws any person to represent the Trust.
21. In the decision in J.P. Srivastava & Sons (P) Ltd. and others vs. Gwalior Sugar Co. Ltd and others [(2005) 1 Supreme Court Cases 172], it was held in paragraph 29 as follows:
"29. Therefore although as a rule, trustees must execute the duties of their office jointly, this general principle is subject to the following exceptions when one trustee may act for all (1) where the trust deed allows the trusts to be executed by one or more or by a majority of trustees; (2) where there is express sanction or approval of the act by the co-trustees; (3) where the delegation of power is necessary; (4) where the beneficiaries competent to contract consent to the delegation; (5) where the delegation to a co-trustee is in the regular R.S.A No.633/2013 17 course of the business; (6) where the co-trustee merely gives effect to a decision taken by the trustees jointly".
22. In the decision in Vaidyaratanam P.S. Varier's Arya Vaidyasala, Kottakal vs. K.C. Vijai Kumar (1991 (1) R.C.R
86), the view taken was that the trustees are in the position of co-owners and one co-owner cannot represent the other co- owner. In the decision in L.Janakirama Iyer and others vs. P.M. Nilakanta Iyer and others (AIR 1962 Supreme Court
633), it was held as follows:
"18. Section 48 of the Trusts Act provides that when there are more trustees than one,all must join in the execution of the trust, except where the instrument of trust otherwise provides. It is thus clear that all acts which the trustees intend to take for executing the trust must be taken by all of them acting together.Therefore, there can be no doubt that if the validity of the alienations effected by the trustees falls to be considered only in the light of S. 48 the fact that out of the three trustees only two have executed the sale deeds would by itself make the transactions invalid and would not convey title to the alienees. This position is not in doubt. R.S.A No.633/2013 18
19. Lewin on "Trusts" has observed that "in the case of co-trustees the office is a joint one. Where the administration of the trust is vested in co- trustees they all form as it were but one collective trustee, and therefore must execute the duties of the office in their joint capacity. It is not uncommon to hear one of several trustees spoken of as the acting trustee but the Court knows no such distinction; all who accept the office are in the eye of the law acting trustees. If anyone refuses or be incapable to join, it is not competent for the others to proceed without him, but the administration of the trust must in that case devolve upon the Court. However, the act of one trustee done with the sanction and approval of a co-trustee may be regarded as the act of both. But such sanction or approval must be strictly proved".
(Lewin on Trusts, 15th ed., P. 190.) If one of the trustees refuses to join in the execution of the trust, under the Indian law S. 34 of the Trusts Act provides for the remedy. The other trustees can apply to the Court as contemplated by S. 34 and the trust may accordingly be executed.
20. As we have seen S. 48 contemplates that its provisions will not apply where the instrument of trust otherwise provides. In other words, if a trust deed under which more trustees than one are appointed expressly provides that the execution of the trust may be carried out not by all but by one or R.S.A No.633/2013 19 more, then of course the matter would be governed by the special provision of the trust deed. The argument urged by the learned Attorney-General is that cl. 23 of the trust deed in suit makes such a provision. Both the Courts below have rejected this plea but it is urged that the said conclusion is based on a misconstruction of the relevant clause".
23. In the decision in Vedakannu Nadar & others vs. Nanguneri Taluk Singikulam Annadana Chatram & others (AIR 1938 Madras 982), it was held that the de facto trustee cannot independently sue and all trustees will have to be parties to the proceedings. Such a contingency does not arise in the case.
24. It is not shown that the Trust in the case on hand is a separate legal entity. But, however, the bylaws indicate that the Secretary has been authorised to represent the Trust in litigations and that would be sufficient in law. If it is insisted that at least one of the trustees has to be on the party array, that requirement is satisfied in the case on hand by the presence of the 2nd plaintiff who, according to the plaintiffs, is a trustee of the Trust to which no objection is taken by the defendants. The only R.S.A No.633/2013 20 infirmity pointed out is that the 2nd plaintiff has not signed the plaint in his capacity as a trustee and also in the vakkalath and therefore, they are defective. These are only curable defects and that need not be taken as a ground to non suit the plaintiffs.
25. The contention based on Order I Rule 8 of CPC though may look attractive cannot be taken as a ground to non suit the plaintiffs. True, the publication under Order I Rule 8 CPC has a purpose to serve. It should at least contain the minimum necessary details. In the case on hand, as rightly pointed out by the learned counsel for the appellants, it is general and vague. But, the defendants cannot be take aid of it now. No one has come forward to complaint about the absence of details of publication. Having not urged it at the earliest point of time and no prejudice having been caused by the defendants, it is of no consequence. This contention therefore does not merit consideration.
26. However, the contention that the evidence given by the power of attorney cannot be accepted seems to be a formidable one. Power of attorney can be authorised to file objections and R.S.A No.633/2013 21 even to file a suit also. But how far he is competent to depose on behalf of the principal is open to serious doubt. Of course, the power of attorney holder can give evidence regarding the matters done by him in furtherance of the power of attorney given to him. But as to matters which were personal to the principal or the transaction which had taken place between a person and the principal about which the power of attorney has only hearsay knowledge, his evidence is insufficient and is of no help to the plaintiffs.
27. In the decision in Ummer Farooque vs. Naseema (2005 KHC 1791), it was held in paragraph 4 as follows:
"......The appellant was not examined in court. The question still arises as to how far the evidence of the power of attorney can be relied on and can be treated as a substitute for the evidence of the appellant himself. As held by the Supreme Court in M.P. Rural Agrl. E.O.Assn. v. State of M.P. (2004 (2) KLT 265 (SC), the power of attorney can give evidence only in respect of acts done by him in the exercise of powers granted by the instrument, but he cannot depose for the principal in respect of the matter on which the principal alone can have personal knowledge.....".
R.S.A No.633/2013 22
28. In the decision in Janki Vashdeo vs. Indusind Bank [(2005) 2 SCC 217], it was held in paragraph 13 as follows:
"13. O.3 R.1 and 2 CPC empower the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in O.3 R.1 and 2 CPC confines only to in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross examined".
29. In the decision in Man Kaur (Dead) by Lrs. vs. Hartar Singh Sandha (2010 KHC 4741), it was held in paragraph 12 as follows:
"12. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge: R.S.A No.633/2013 23
(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing R.S.A No.633/2013 24 abroad managing their affairs through their attorney holders.
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.
(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if the evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his 'state of mind' or 'conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his 'bona fide' need and a purchaser seeking specific performance who has to show his 'readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. Examples of such R.S.A No.633/2013 25 attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm patient, a father/mother exclusively managing the affairs of a son/daughter living abroad".
30. In the decision in S. Kesari Hanuman Goud vs. Anjum Jehan & Ors. (AIR 2014 SC (Civil) 153), it was held in paragraph 13 as follows:
"13. It is a settled legal proposition that the power of attorney holder cannot depose in place of the principal. Provisions of Order III, Rules 1 and 2, CPC empower the holder of the power of attorney to "act" on behalf of the principal. The word "acts"
employed therein is confined only to "acts" done by the power of attorney holder, in exercise of the power granted to him by virtue of the instrument. The term "acts", would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has preferred any "acts" in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal R.S.A No.633/2013 26 knowledge and in respect of which, the principal is entitled to be cross examined".
31. In the case on hand, there is considerable dispute regarding the arrangement under which Gopalan and the defendants continued their residence in the property. Obviously, power of attorney holder examined as PW1 has no personal knowledge about the said transaction nor was he the then office bearer who is competent to speak out the arrangement. His evidence therefore regarding these matters can be of no help to the plaintiffs. The court below was in gross error in accepting the evidence of the power of attorney holder to come to the conclusion that the plaintiffs have established their case.
32. Faced with the above situation, learned counsel appearing for the respondents pointed out that if the power of attorney holder's evidence cannot be accepted, it is only appropriate that the plaintiffs be given an opportunity to examine the proper person and that the mere fact that the power of attorney alone has been examined may not be taken as a ground to dismiss the suit. Learned counsel also pointed out that it is significant to notice that no such ground was taken before the R.S.A No.633/2013 27 lower appellate court.
33. It is true that the power of attorney holder alone has been examined which is insufficient in law. Since the contention regarding acceptability of the power of attorney holder's evidence is not seen agitated at the earliest point of time i.e. before the courts below, it is felt that the request made by the learned counsel for the respondents is a reasonable one and the respondents should be given an opportunity to have the defect cured. It is seen from the records that there was a counter claim filed by the respondents. But, no arguments were advanced before this Court with reference to the counter claim. The impact of the dismissal of the counter claim is not seen discussed by the lower appellate court also.
34. The question as to whether recovery of possession is necessary in the facts and circumstances of the case to a considerable extent depends upon the evidence adduced by the plaintiffs. It cannot be readily said that the claim made by the plaintiffs that the defendants are in permissive occupation can be accepted. The defendants have categorically stated that they R.S.A No.633/2013 28 have been residing in the property for a long time and that they are in possession of the property in their own independent right. There is no specific finding by either of the courts below that the possession of the defendants is a permissive one. That had to be so in the absence of proper evidence from the side of the plaintiffs.
35. True, the defendants do not in fact dispute the title of the plaintiffs. But, however, they dispute the possession claimed by the plaintiffs. In the light of the specific stand taken by the defendants, the question as to whether a suit for mere injunction alone will lie will have to be considered. In the decision in Anathula Sudhakar vs. P. Buchi Reddy (dead) by lrs and others (2008 KHC 6249), it was held as follows:
"11.c) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff R.S.A No.633/2013 29 will have to file a suit for declaration, possession and injunction".
36. The contention taken that the suit is only for injunction does not appear to be correct. A reading of the judgments of the courts below clearly show that there was a prayer for recovery of possession also.
37. In the facts and circumstances of the case, it is felt that a re-consideration of the matter is required at the hands of the trial court in view of the fact that oral evidence has been given by the power of attorney holder and that the real arrangement between the plaintiffs and the defendants cannot as of now be ascertained. While confirming the finding of the court below that the suit is maintainable even though vakkalath in the plaint is defective and since it is curable, the contention that because of want of proper publication under Order I Rule 8 CPC, the suit should be dismissed cannot be accepted so also for want of present of a trustee. However, since the oral evidence now before this Court is not acceptable, it is felt that it is only appropriate that the plaintiffs are given an opportunity to adduce proper evidence in that regard.
R.S.A No.633/2013 30
In the result, this appeal is allowed and the judgment and decrees of the courts below except to the extent mentioned above are set aside and the matter is remanded to the trial court for disposal in accordance with law and in the light of what has been stated above. The remand shall remain confined to the nature of the right which the defendants enjoyed over the property and also whether suit for injunction simplicitor would be sufficient in case there is no prayer for recovery of possession. The parties shall appear before the trial court on 03.04.2014. The plaintiffs will be at liberty to seek appropriate amendments to plaint if felt necessary and in case amendments are allowed, the defendants will have the right to file additional written statement. Both sides are at liberty to adduce further evidence. The court below may dispose of the suit within a period of four months from the date of re-opening of the courts after summer vacation.
Sd/-
P.BHAVADASAN JUDGE smp