Kerala High Court
Anupama vs A.A.Prakasan on 2 July, 2025
2025:KER:51131
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 2ND DAY OF JULY 2025 / 11TH ASHADHA, 1947
RSA NO. 226 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 21.10.2011 IN
AS NO.44 OF 2009 OF SUB COURT, KOCHI ARISING OUT OF THE
JUDGMENT AND DECREE DATED 09.01.2009 IN OS NO.234 OF 2008
OF MUNSIFF COURT,KOCHI
APPELLANT/APPELLANT/PLAINTIFF:
ANUPAMA
AGED 47 YEARS
D/O.BALACHANDRAN BHAT, W/O.T.G.THYAGARAJAN,
RESIDING AT C IIAIR QUARTERS,RAMAVARMAPURAM,
THRISSUR-680631
BY ADVS.
SRI.K.L.JOSEPH
SHRI.V.NAMADEVA KAMATH
SMT.P.SAREENA GEORGE
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 A.A.PRAKASAN
AGED 53 YEARS
ASTROLEGER, S/O.ANANTHA BHAT,
RESIDING AT C.C.NO.5/1077,NEAR PANDITHAN TEMPLE,
MATTANCHERY VILLAGE, KOCHI TALUK-682002
2 SANTHA BAI PANDIT
AGED 71 YEARS
W/O.BALACHANDRA PANDIT, HOUSE WIFE,
RESIDING AT C.C.NO.5/1073, NEAR PANDITHAN TEMPLE,
MATANCHERRY VILLAGE, KOCHI TALUK-682002
RSA Nos.242/2012
& 226/2012
2
2025:KER:51131
3 ARUNDATHI
AGED 54 YEARS
W/O.NANDAKUMAR, D/O.BALACHANDRA PANDIT, HOUSE
WIFE, RESIDING AT C.C.No.5/1073 , NEAR PANDITHAN
TEMPLE, MATANCHERRY VILLAGE, KOCHI TALUK-682002
4 ARAVIND
S/O.BALACNAHDRA PANDIT,NOW WORKING AT SECTION P-
12, ACCOUNTANT GENERAL OFFICE
(A&E),THIRUVANANTHAPURAM-695039
5 ARUNA R BHAT
AGED 45 YEARS
D/O.BALANCHRAN BHAT, W/O.RAJA R BHAT, NOW
RESIDING AT HOUSE NO.4/66,KUNDALVEEDU, KUNJIBET
P.O.,UDUPI
6 ANAND PANDIT
AGED 39 YEARS
S/O.BALACHANDRA PANDIT, RESIDING AT 1443/26B
SECTION 29,CHANDIGARGH
7 K.RAJESH
AGED 48 YEARS
RESIDING AT C.C.5/1703, MATTANCHERRY, KOCHI
TALUK-682002
BY ADVS.
SRI.G.KEERTHIVAS - R1
SMT.V.S.LIJA - R3 TO R5
SRI.P.R.VENKATESH - R1
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
02.07.2025, ALONG WITH RSA.242/2012, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
RSA Nos.242/2012
& 226/2012
3
2025:KER:51131
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 2ND DAY OF JULY 2025 / 11TH ASHADHA, 1947
RSA NO. 242 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 21.10.2011 IN
AS NO.34 OF 2009 OF SUB COURT, KOCHI ARISING OUT OF THE
JUDGMENT AND DECREE DATED 09.01.2007 IN OS NO.103 OF 2008
OF ADDITIONAL MUNSIFF COURT,KOCHI
APPELLANT/APPELLANT/DEFENDANT:
MRS.SANTHA BAI PANDIT
AGED 73 YEARS,W/O.LATE BALACHANDRA PANDIT,
RESIDING AT CC.5/1073,PANDITHAN TEMPLE ROAD,
MATTANCHERRY.P.O,KOCHI-2.
BY ADVS.
SHRI.G.KRISHNAKUMAR
SRI.K.A.ANI JOSEPH
SMT.PRIYA S.SHENOY
SHRI.TITTO THOMAS
RESPONDENT/RESPONDENT/PLAINTIFF:
A.A.PRAKASAN
AGED 53 YEARS,S/O.ANANTHA BHAT,RESIDING AT
CC.5/1077,PANDITHAN TEMPLE ROAD,
MATTANCHERRY.P.O,KOCHI-2.
BY ADVS.
SRI.G.KEERTHIVAS
SRI.P.R.VENKATESH
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
02.07.2025, ALONG WITH RSA.226/2012, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
RSA Nos.242/2012
& 226/2012
4
2025:KER:51131
EASWARAN S., J.
---------------------------------------------------------
R.S.A Nos.226 & 242 of 2012
---------------------------------------------------------
Dated this the 2nd day of July, 2025
JUDGMENT
The construction of a power-of-attorney, based on which sale deed has been executed, falls for consideration in these appeals.
2. Two suits were tried together. O.S.No.103/2008 was for mandatory injunction and O.S.No.234/2008 was for partition. O.S.No.103/2008 was decreed concurrently, while O.S.No.234/2008 was dismissed. Two appeals were filed by the plaintiff in O.S.No.234/2008 and defendant in O.S.No.103/2008. These appeals were allowed by judgment dated 07.03.2012 by this Court permitting the plaintiff in O.S.No.234/2008 to amend the pleadings and adduce evidence afresh. The said order was challenged by the plaintiff in O.S.No.103/2008 before the Hon'ble Supreme Court by Civil Appeal Nos.4241-4242 of 2016. By order dated 19.04.2016, the judgment of the High Court was set aside and the matter was remanded back to this Court for fresh consideration and hence, these appeals are listed.
3. The brief facts necessary for the disposal of these appeals are as follows:
RSA Nos.242/2012
& 226/2012 5 2025:KER:51131 3.1. Originally, the property belonged to one Padmanabha Pandit, who had two children, Balachandra Pandit and Madhukar Pandit. On the death of Padmanabha Pandit, the property jointly devolved upon his sons. In 1995, vide Partition Deed No.899/1995, the legal heirs of Balachandra Pandit and Madhukar Pandit entered into a partition, whereby 5.900 cents of land was allotted to the legal heirs of Balachandra Pandit and 4.100 cents of land in favour of Madhukar Pandit. While executing the aforesaid partition deed, the legal heirs of Balachandra Pandit, except Smt.Anupama and her sister, Smt.Aruna, relinquished their share in favour of their mother Smt.Santha Bai. Two Power of Attorneys dated 07.11.1994 and 21.11.1994, were executed by the daughters of Balachandra Pandit, in favour of Smt.Santha Bai for execution of the partition deed. When the partition deed was executed, it was mentioned that in the partition deed that the daughters of Balachandra Pandit, i.e. Smt.Anupama and Smt.Aruna relinquished their share in favour of Smt.Santha Bai.
3.2. Later, in the year 2002, Smt.Santha Bai executed a sale deed in favour of Sri.A.A.Prakasan, the plaintiff in O.S.No.103/2008, vide Sale Deed No.1106/2002. Subsequent to the purchase, it appears that Smt.Santha Bai continued to occupy the building in the plaint schedule property presumably based on a permission granted by Sri.A.A.Prakasan. Later, Sri.A.A.Prakasan filed O.S.No.103/2008 RSA Nos.242/2012 & 226/2012 6 2025:KER:51131 seeking for a mandatory injunction directing the defendant Smt.Santha Bai to surrender the possession of plaint B schedule property. Immediately after the said suit, the appellant in R.S.A No.226/2012 filed O.S.No.234/2008 seeking for a partition of 1/6 th share over the plaint schedule property on the ground that she had not authorised Smt.Santha Bai, her mother, to execute the relinquishment deed. According to her, the partition deed, insofar as it divest her right over the property is concerned, is not binding upon her.
3.3. Both the suits were tried together. On behalf of plaintiff in O.S.No.103/2008, Exts.A1 to A12 were marked and PW1 was examined and on behalf of defendants, DW1 and DW2 were examined.
No documentary evidence was adduced by the defendants. The Trial Court, based on the documentary evidence and pleadings, framed the following issues for consideration:
O.S.No.103/2008
1. Is the suit bad for non-joinder of necessary parties?
2. Whether the plaintiff proved absolute title of plaint A schedule property?
3. Whether the plaintiff proved that the defendant is a licensee and license is terminated?
4. Whether the plaintiff is entitled to mandatory injunction as prayed for?RSA Nos.242/2012
& 226/2012 7 2025:KER:51131
5. Relief and costs.
O.S.No.234/2008
1. Is the suit time barred?
2. Whether valid power of attorney is executed by the plaintiff to relinquish her right ?
3. Whether the plaintiff acquiesced execution of partition deed No.899/95 ?
4. Whether the plaint schedule property is partiable ?
5. Whether the cause of action alleged is true and valid ?
6. Whether the plaintiffs are entitled to mandatory injunction as prayed for ?
7. Relief and costs.
3.4. By a common judgment dated 09.01.2009, the Trial Court decreed O.S.No.103/2008 and dismissed O.S.No.234/2008. Aggrieved by the judgment and decree, the plaintiff in O.S.No.234/2008 preferred A.S.No.44/2009 and the defendant in O.S.No.103/2008 filed A.S.No.34/2009 before the Sub Court, Kochi. Both the appeals were considered together and dismissed by common judgment dated 21.10.2011. Hence, the appeals raising the following substantial question of law:
R.S.A.No.226/2012
(i) The plaintiff had executed a power of attorney in favour of the 2nd defendant only to prepare, sign and present the partition document and also to register the partition document before the competent Sub Registrar along with other co-owners and legal RSA Nos.242/2012 & 226/2012 8 2025:KER:51131 heirs. The plaintiff had not authorised the 2 nd defendant to relinquish or release her 1/6th share in the plaint schedule property to the 1st defendant or to anybody else. When the power of attorney does not confer such a right to the power holder, if the power holder exceeds the powers conferred on her and relinquishes the 1/6th right of the executant to the 2 nd defendant, can it be said that the above act of the power holder is binding on the executant of power of attorney. R.S.A.No.242/2012
(i) Are not the findings of the courts below is perverse and based on no evidence ?
(ii) Whether an attorney who is only authorized by the Power of Attorney deed to execute a partition deed can execute release deed relinquishing the right of the Principal donor and thereby can act against the interest of the Principal ?
(iii) Is an act done by a power holder beyond the scope of Power of Attorney is not void and not binding to the Principal ?
(iv) Whether in an act of Power of Attorney holder will estopp the donor from contenting the validity or otherwise of an act done by the power of attorney holder if the act done is beyond the scope of power of attorney granted ?
(v) Is it not necessary in case of release of right by a person to specifically mention regarding in whose favour he is relinquishing ?
(vi) Whether mere putting of signature on a document without knowing its content by a blind, illiterate widow will amount to execution of the document ?
4. Heard, Sri.K.L.Joseph - learned counsel appearing on behalf of the appellant in R.S.A.No.226/2012, Sri.G.Krishna Kumar - learned counsel appearing on behalf of the appellant in R.S.A.No.242/2012 and Sri.G.Keerthivas - learned counsel appearing for the respondent - Sri.A.A.Prakasan.
RSA Nos.242/2012& 226/2012 9 2025:KER:51131
5. Sri.K.L.Joseph - learned counsel appearing on behalf of the appellant in R.S.A.No.226/2012, contended that Ext.A2 Partition Deed No.899/1995 is void insofar as the extent of right of the plaintiff is concerned. With reference to Ext.A11 power-of-attorney, it is further contended that what has been conferred on Smt.Santha Bai is only a right to execute a partition deed and not relinquish the share. Therefore, there is a clear case of misrepresentation as regards the character of the document being made out and even if it assumed that Smt.Santha Bai was aware of the characters of Ext.A2 partition deed, the same is not binding upon the plaintiff. In support of his contention, he relied on the decision of the Hon'ble Supreme Court in Suraj Lamp & Industries Pvt.Ltd. v. State of Haryana and Another [2012 (1) SCC 656].
6. The learned counsel, Sri.G.Krishna Kumar, appearing on behalf of the appellant in R.S.A No.242/2012, supported the arguments of Sri.K.L.Joseph and contended that the power-of- attorney is invalid inasmuch as it does not confer any right on her to execute the relinquishment of the share held by her daughters. He further pointed out that going by Section 32 read with Section 33 of the Registration Act, 1908, unless the power-of-attorney is registered, the same will not have any efficacy of law. It is further pointed out that the specific stand taken by his client before the Trial Court is that RSA Nos.242/2012 & 226/2012 10 2025:KER:51131 Ext.A2 partition deed cannot be construed as one relinquishing the share of her daughters as well as other children. Therefore, if the basic document, namely the partition deed, is construed as a void document, there is no consequential effect on Ext.A1 Sale Deed, which was executed in the year 2002. Therefore, the Trial Court as well as the First Appellate Court, ought not have decreed the suit O.S.No.103/2008 for mandatory injunction.
7. Per contra, Sri.G.Keerthivas - learned counsel appearing for the Sri.A.A.Prakasan raised the following submissions:
a. Section 2 of the Powers-of-Attorney Act, 1882, provides for a grant of power-of-attorney to a person of choice. Once a valid power-of-attorney has come into existence, Section 33 of the Registration Act provides that the document executed by the power-of-attorney is deemed to be the document executed by the person, who is empowered to present the document for registration.
b. The terms of Exts.A11 and A12 would undoubtedly show that Smt.Santha Bai was granted absolute power to execute the partition deed. The said power would also partake all characteristics of a valid document to be executed, which includes the right to relinquish the share in favour of RSA Nos.242/2012 & 226/2012 11 2025:KER:51131 Smt.Santha Bai.
c. The oral testimony of DW1 would undoubtedly show that she was aware of the execution of the power-of-attorney and the consequential partition deed in the year 1995. That be so, the suit instituted in 2008 was clearly a collusive suit. d. No prayer to set aside the partition deed is sought for in the suit. In fact, an attempt was made to seek amendment of the plaint by incorporating a prayer for a declaration, also setting aside the Partition Deed No.899/1995, which was dismissed by the Trial Court.
e. The averments in O.S.No.234/2008 read together would lead to an irresistible conclusion that plaintiff is accepting the existence of Partition Deed No.899/1995 and that be so, there cannot be any piecemeal attack to the document. In other words, it is the specific case of the learned counsel that the plaintiff cannot approbate and reprobate. The plaintiff has sought for partition of 5.900 cents and that shows she is accepting the partition deed. If that be so, the judgments of the courts below does not call for interference. f. It is further contended that in terms of the principles RSA Nos.242/2012 & 226/2012 12 2025:KER:51131 underlying the law of agency, as found under Sections 196 to 199 of the Indian Contract Act, 1872, a case of ratification of the act of the agent by the principal - the plaintiff -
Smt.Anupama is made out. Therefore, even if it is assumed for a moment that the power-of-attorney did not confer absolute power on her mother Smt.Santha Bai to execute the document relinquishing the share in the property, the subsequent act of the plaintiff would dispel any doubt as regards the question of ratification. Thus, according to the learned counsel, a clear case of implied ratification under Section 199 of the Indian Contract Act has been made out.
g. Lastly, it is submitted that the concurrent findings of the Trial Court as well as the First Appellate Court do not call for interference inasmuch as the evidence and point of law has been correctly appreciated by the courts below.
8. I have considered the rival submissions raised across the Bar and have perused the records and also the judgments rendered by the courts below.
9. As far as the question of law raised in R.S.A No.226/2012 is concerned, it is to be noted that the entire case hinges upon the construction of Ext.A11 power-of-attorney. The contents of Ext.A11 RSA Nos.242/2012 & 226/2012 13 2025:KER:51131 power-of-attorney is extracted for reference as under:
"THIS DEED OF POWER OF ATTORNEY executed on this the Seventh day of November Nineteen Ninetyfour by ANUPAMA THYAGARAJAN. Wife of Thyagarajan, aged 25 years, residing at H.No: 42, C.P.Ramaswamy Street, Abhiramapuram, Madras in favour of my mother SHANTHABAI PANDIT, Wife of late Balachandra Pandit.P., aged 55 years, residing at H.No: V/1073, Pandithan Temple Road, Kochi-682 002, Kochi Taluk, Ernakulam District.
WHEREAS I am one of the Co-owners along with others in the properties and building lying in Survey No: 146/1 of Mattancherry Village having an extent of 10 cents of land as the legal heir of my father late Balachandra Pandit.P. Whereas I am having inconvenience to execute and effect the partition of above said property along with other co-owners and legal heirs. In this circumstance it has become expedient to appoint and constitute my mother and one of the co-owners Santhabai Pandit as my lawful attorney to do the following acts, deeds and things namely:-
1. To measure and demarcate the boundaries of the properties and immovable assets lying in Survey No: 146/1 of Mattancherry Village along with co-Owners.
2. To prepare, sign and present the partition document along with other co-owners and legal heirs on my behalf,
3. To Register the partition document along with other co-owners and legel heirs before the competent Registrar or Sub-Registrar having jurisdiction to register the document to effect the full partition on my behalf, AND generally to do all acts, deeds and things in connection with the partition of above said properties.
AND I shall ratify and confirm all acts, deeds and things done my attorney as if I personally present and done.
In witness whereof I affixed my signature on the day, month and year first above mentioned."
10. Since the parties are at serious variance as regards the manner in which the power-of-attorney has to be construed, before RSA Nos.242/2012 & 226/2012 14 2025:KER:51131 going into the contents of the same and deciding as to whether it confers a power on Smt.Santha Bai to relinquish the share in favour of Smt.Anupama and similarly in favour of Smt.Aruna, this Court deems it appropriate to consider the law on this point.
11. In Suraj Lamp & Industries Pvt.Ltd. (supra), the Hon'ble Supreme Court was called upon to examine the scope of an agreement of conveyance executed under Section 54 by a general power-of-attorney holder qua Section 17 of the Registration Act, 1908 and Section 27 of the Indian Stamp Act, 1899. Considering Sections 1A and 2 of the Powers-of-Attorney Act, 1882, the Supreme Court held that a power-of-attorney is not an instrument of transfer of any right, title and interest in an immovable property, it is a creation of agency, whereby the grantor authorises the grantee to do act specified therein on behalf of the grantor, which when executed will be binding on the granter, as if it is done by him.
12. In Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust [2012 8 SCC 706], the Hon'ble Supreme Court was again called upon to decide the impact of Sections 1 and 2 of the Powers-of-Attorney Act, 1882 and it was held that as far as of power-of-attorney is concerned, it should be strictly construed. Paragraph 19 and 21 of the judgment RSA Nos.242/2012 & 226/2012 15 2025:KER:51131 is extracted hereunder:
"19. Next, we have to consider the power of attorney. It is settled that a power of attorney has to be strictly construed. In order to agree to sell or effect a sale by a power of attorney, the power should also expressly authorize the power to agent to execute the sale agreement/sale deed i.e., (a) to present the document before the Registrar; and (b) to admit execution of the document before the Registrar. A perusal of the power of attorney, in the present case, shows that it only authorizes certain specified acts but not any act authorizing entering into an agreement of sale or to execute sale deed or admit execution before the Registrar.
20. In a recent decision of this Court in Suraj Lamp and Industries Pvt. Ltd. vs. State of Haryana and Another (2012) 1 SCC 656, the scope of power of attorney has been explained in the following words: (SCC pp.666-67, paras 20-21) "20. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorises the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee."
21. In State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77) this Court held (SCC pp. 90 & 101, paras 13 & 52) "13. A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
* * *
52. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers of RSA Nos.242/2012 & 226/2012 16 2025:KER:51131 Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."
An attorney-holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor."
13. A similar question came up for consideration before the Bombay High Court in Vikky v. Navbharat Press, Nagpur [2022 (4) MH.L.J. 705]. It was held that a donee is incapable of acting or taking actions for or on behalf of the donor over and above the powers which are contained in the power-of-attorney in his favour. Paragraph 26 of the judgment is extracted hereunder:
"26. Since a power-of-attorney empowers the donee to act for and on behalf of the doner by executing document or doing such acts and things as are permissible under the powers conferred upon the donee under the power-of-attorney, it is a settled position of law that a power-of-attorney has generally speaking to be strictly construed, meaning thereby a donee is incapable of acting or taking actions for and on behalf of the donor, over and above the powers which are contained in the power-of-attorney in his favour [See: Syed Abdul Khader vs. Rami Reddy and others, (1979) 2 SCC 601 which also holds that power-of-attorney is not a document, registration of which is compulsory]."
14. A cumulative reading of the aforesaid decisions would show that as far as a power-of-attorney is concerned, the same has to RSA Nos.242/2012 & 226/2012 17 2025:KER:51131 be construed strictly. When terms of Exts.A11 and A12 are closely scrutinised, it could be seen that, what is granted in favour of Smt.Santha Bai is only a limited power, i.e. a) To measure and demarcate the properties, b) To prepare, sign and present the partition document along with other co-owners and c) To register the partition document along with the other co-owners and legal heirs before the competent Registrar. Following these specific conditions, it is added that "And generally do all acts, deeds and things in connection with the partition of the said properties".
15. Read as may, this Court could not find any specific power in the aforesaid power-of-attorney which conferred the power to Smt.Santha Bai to relinquish the share in favour of herself, which was available to her daughters Smt.Anupama and Smt.Aruna. Though the power-of-attorney contains a clause for ratification, whether the evidence adduced by the parties show such an express or implied ratification is a matter which will be discussed in the preceding paragraphs.
16. Suffice to say, the power-of-attorney does not grant Smt.Santha Bai an absolute right to relinquish share of her daughters in her own favour. Resultantly, the only conclusion possible is that the Ext.A2 partition deed is not binding upon Smt.Anupama and her sister RSA Nos.242/2012 & 226/2012 18 2025:KER:51131 Smt.Aruna. As regards the other co-sharers, it is evident from Ext.A2 that they have affixed their signature voluntarily by relinquishing their share in favour of their mother Smt.Santha Bai.
17. Of course, the learned counsel for Smt.Santha Bai had a different perspective to the aforesaid relinquishment, wherein he contended that such relinquishment will not partake the character of a legally valid document so far as reliquishment, because of Section 25 of the Indian Contract Act, 1872, in the absence of any valid consideration for relinquishment in Ext.A2. The said aspect will be separately dealt by this Court. But as far as the power-of-attorney is concerned, this Court concludes that the same did not confer any power on Smt.Santha Bai as regards the right to relinquish the right of Smt.Anupama and Smt.Aruna.
18. Sri.G.Keerthivas - learned counsel for the plaintiff in O.S.No.103/2008 further contended that, a case of ratification is made out in terms of Section 196 of the Indian Contract Act, 1872. Though it is possible for the principal to ratify the acts of an agent if done without authority, the burden is certainly on the person who alleges that the principal has ratified the unauthorised act of the agent. Under Section 197 of the Contract Act, ratification may be expressed or implied. Section 199 provides for the effect of ratifying the RSA Nos.242/2012 & 226/2012 19 2025:KER:51131 unauthorised act. No doubt, Section 199 of the Contract Act provides that a person ratifying any unauthorised act on his behalf ratifies the whole of the transaction of which such act formed a part. However, it is difficult to hold with the available evidence in the present case that the daughters of Smt.Santha Bai had either expressly or impliedly ratified her mother relinquishing their share over the plaint schedule property.
19. To make out a case for implied ratification, the learned counsel, Sri.G.Keerthivas, relied on the oral testimony of DW1. No doubt, in her oral testimony DW1 had stated that she was aware of the execution of the partition deed Ext.A2. However, the mere knowledge of the execution of the partition deed by itself cannot be construed as a case for implied ratification. The reading of the judgment of the First Appellate Court clearly shows that except Smt.Anupama and Smt.Aruna, all other sharers were present at the time of registration. Though it is observed by the First Appellate Court that Smt.Anupama took active part in the preparation of the partition deed, the evidence adduced by the parties in this case is insufficient to hold such participation on the part of Smt.Anupama. At any rate, this Court having held that the power-of-attorney executed in favour of Smt.Santha Bai is invalid, no consequences would follow from the participation of Smt.Anupama in the preparation of the partition deed. RSA Nos.242/2012 & 226/2012 20 2025:KER:51131 Had Smt.Anupama and Smt.Aruna been present at the time of registration or affixed the document in any capacity as attesting witness or such other capacity, then a possible case of expressed or implied ratification could have been made out. Suffice to say, the evidence adduced in this case does not persuade this Court to hold that a case of expressed or implied ratification is made out as contended by the learned counsel for the respondent - plaintiff.
20. It is next contended by Sri.G.Keerthivas that in terms of Section 32 of the Registration Act, the document executed by Smt.Santha Bai as a power-of-attorney holder has to be construed as document executed by Smt.Anupama and Smt.Aruna as well. No doubt, a combined reading of Sections 32 and 33 shows that when a document is presented and registered for and on behalf of a person by a power-of-attorney holder, it is construed to be as a document presented and registered by the person himself. However, application of Section 32 read with Section 33 of the Registration Act 1908 will arise only if the power-of-attorney is validly executed. It is in this context that this Court should take note of the argument of Sri.G.Krishna Kumar that unless the power-of-attorney is a registered power-of-attorney, the execution cannot partake as a valid execution. However, this Court does not propose to go deep into the said question because this Court has already found that Exts.A11 and A12 RSA Nos.242/2012 & 226/2012 21 2025:KER:51131 power-of-attorneys are not legally sustainable.
21. Next it is contended by the learned counsel, Sri.G.Keerthivas, relying on the decisions of this Court in Dhirajlal Hemchand v. State of Kerala [2004 KHC 1215] and Rajni Tandon v. Dulal Ranjan Ghosh Dastidar [2009 KHC 4483], that the person executing the document through a power-of-attorney has to be construed as a valid document. The propositions canvassed by the learned counsel cannot be disputed for a moment, but the application of the precedents cited across the Bar would depend upon the construction of the power-of-attorney in the particular facts of the case. Having already concluded that the power-of-attorney is invalid inasmuch as it does not confer any power on Smt.Santha Bai to execute the partition deed relinquishing the share on behalf of Smt.Anupama and Smt.Aruna to herself, the precedents cited across the Bar does not have any application to the facts of present case.
22. Before parting with this case, this Court needs to address the argument of Sri.G.Krishna Kumar - learned counsel for the appellant in R.S.A.No.242/2012, that the partition deed is not a valid document inasmuch as the requirements of Section 25 of the Contract Act has not been complied with. It is further contended that if the relinquishment is held to be invalid, then no right, title and interest flows into the hands of the plaintiff in O.S.No.103/2008 and that he is RSA Nos.242/2012 & 226/2012 22 2025:KER:51131 not entitled for any mandatory injunction as sought for. This Court is afraid that the said contention cannot be gone into in these proceedings. It is pertinent to mention that the suit is not for a declaration of title. In other words, the title of the plaintiff in O.S.No.103/2008 was not disputed by the appellant - Smt.Santha Bai. At any rate, having executed the Ext.A1 document, it is beyond one's comprehension as to how Smt.Santha Bai could dispute the title in favour of Sri.A.A.Prakasan. Be that as it may, no separate suit or a counter claim is seen raised by Smt.Santha Bai questioning the title in favour of Sri.A.A.Prakasan. That be so, this Court finds that the question of law raised by the appellant in R.S.A.No.242/2012 deserves to be answered against her. Resultantly, R.S.A No.242/2012 has to fail and the same is dismissed.
23. Coming to R.S.A No.226/2012, in the light of the findings rendered by this Court, the question of law framed by this Court is answered in favour of the appellant. Consequent to the finding that Exts.A11 and A12 did not confer the right on Smt.Santha Bai to execute the partition deed relinquishing the share of Smt.Anupama and Smt.Aruna, the claim for partition has to succeed. Accordingly, R.S.A No.226/2012 is allowed, reversing the findings of the Sub Court, Kochi, in A.S.No.44/2009 and Additional Munsiff Court, Kochi, in O.S.No.234/2008. Accordingly, the suit will stand decreed and a RSA Nos.242/2012 & 226/2012 23 2025:KER:51131 preliminary decree is passed in the following terms:
a. The plaint schedule property is directed to be partitioned by metes and bounds and the plaintiff and the 5 th defendant are entitled to 1/6th share each.
b. Since the other co-sharers have relinquished the share in favour of Smt.Santha Bai and that Smt.Santha Bai has executed Sale Deed No.1106/2002, the 1 st defendant is entitled to 4/6 th share over the plain schedule property.
c. Parties are at liberty to apply for final decree proceedings. d. Equities, if any, shall be worked out during the final decree proceedings.
e. The appellant shall be entitled for cost through out the proceedings.
Sd/-
EASWARAN S. JUDGE ACR