Kerala High Court
Jayaprasad B.,(Died) Lhrs Impleaded vs Vaisalini,(Died) Legal ... on 2 November, 2024
RSA NO.1109 of 2015
1
2024:KER:81246
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
SATURDAY, THE 2ND DAY OF NOVEMBER 2024 / 11TH KARTHIKA, 1946
RSA NO. 1109 OF 2015
AGAINST THE JUDGMENT & DECREE DATED 12.08.2015 IN AS NO.40 OF
2011,41OF 2011 & 42 OF 2011 OF SUB COURT KASARAGOD ARISING OUT OF THE
JUDGMENT & DECREE DATED 31.03.2011 IN OS NO.356 OF 2009 OF ADDITIONAL
MUNSIFF COURT, KASARAGOD
APPELLANT/1ST RESPONDENT/PLAINTIFF:
1 JAYAPRASAD B.,(DIED)
AGED 52 YEARS, S/O.LATE B.RAMADAS,HOLYCROSS
VIEW,THARAITHOTA,BAJJODI, MAROLI VILLAGE,KULASHEKHARA
POST,MANGALORE-575005.
ADDL.A2 SAMITHA, AGED 53 YEARS
W/O. LATE JAYAPRASAD B, 3-72/3, FLOYL BAJJODI, MAROLI, NEAR
GOVT. COCONUT GARDEN, KULSHEKAR POST, MANGALURU -575005.
ADDL.A3 ISHA BEKAL,AGED 25 YEARS
D/O. LATE JAYAPRASAD B, 3-72/3, FLOYL BAJJODI, MAROLI, NEAR
GOVT. COCONUT GARDEN, KULSHEKAR POST, MANGALURU-575005.
(LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS
ADDL.A2 & A3 AS PER ORDER DATED 02.08.2024 IN IA.NO.4/2024)
BY ADVS.
T.K.SREEKALA
S.PARVATHI
ATHIRA PRASAD
RSA NO.1109 of 2015
2
2024:KER:81246
RESPONDENTS/RESPONDENTS IN AS 40,41, 42/2011:
1 VAISALINI,(DIED)
AGED 72 YEARS,
W/O.LATE B.RAMADAS,SATHYA DEEP,PANDESHWAR NEW ROAD,
ATTAWARA VILLAGE,MANGALORE-575-001. (APPELLANT & RESPONDENT
NOS.2 TO 4 ARE RECORDED AS LEGAL HEIRS OF DECEASED
RESPONDENT NO.1 AS PER ORDER DATED 03.06.2024 IN MEMO DATED
26.02.2024)
2 SOORYA PRASAD.B,
AGED 55 YEARS
S/O.LATE B.RAMADAS,86/7,NARASAPPA BUILDING,OPP.MUNISHWARA
TEMPLE,3RD CROSS,4TH MAIN, GANGAPPA BLOCK,GANGA
NAGAR,R.T.NAGAR POST,BANGALORE-32.
3 RANJINI RAO,
AGED 54 YEARS
W/O.UDAYA RAO,FLAT NO.504,BLOCK C,POCKET 3,AWHO COLONY,
VIDHYA NAGAR,NEW AIR PORT ROAD,BANGALORE-562157.
4 SONA,
AGED 36 YEARS
W/O/VISHWANATH P.NAIK,KENWOOD APARTMENTS,102,DR.AMBEDKAR
ROAD,OPP.STATE BANK OF INDIA,BANDRA(WEST),MUMBAI-400 050.
5 P.MOHAMMED,(DIED)
AGED 73 YEARS
S/O.ANDUNNI,NAYAMMARAMOOLE,KASARAGODE KASABA VILLAGE,
P.O.VIDYA NAGAR,KASARAGODE-671123.
6 M.AHMMED,
AGED 51 YEARS
S/O.MOHAMMED,MALAMKAI,NAKARAJE,KASARAGODE-671541.
7 ZOHRABI.P.K,
AGED 45 YEARS
D/O.HUSSAIN PADINJATH,VIDYANAGAR,KASARAGODE KASBA
VILLAGE,P.O.VIDYANAGAR,KASARAGODE-671123.
8 SAFIYA BASHEER, AGED 45 YEARS
D/O.P.MUHAMMED,VIDYANAGAR,KASRAGODE KASBA VILLAGE,
P.O.VIDYANAGAR,KASARAGODE-671123.
9 SHAMSHAD,
AGED 36 YEARS
W/O.MOHAMMED,EDANEER HOUSE,
RSA NO.1109 of 2015
3
2024:KER:81246
ETHIRTHODU POST, PADI VILLAGE,KASARAGODE-671541.
10 ADDL.SAFIYA,
W/O. P. MOHAMMED, NAYAMMARAMOOLE, KASARAGODE CUSBA VILLAGE,
VIDYANAGAR P.O,KASARAGODE-671123.
ADDL.R11 ABDUL KHADER,
S/O. P. MOHAMMED, NAYAMMARAMOOLE, KASARAGODE CUSBA VILLAGE,
VIDYANAGAR P.O, KASARAGODE-671123.
ADDL. R12 FATHIMA
D/O. P. MOHAMMED, NAYAMMARAMOOLE, KASARAGODE CUSBA VILLAGE,
VIDYANAGAR P.O, KASARAGODE-671123.
ADDL.R13 HAJIRA,
D/O. P. MOHAMMED, NAYAMMARAMOOLE, KASARAGODE CUSBA VILLAGE,
VIDYANAGAR P.O,KASARAGODE-671123.
ADDL.R14 ABDULLA,
S/O. P. MOHAMMED, NAYAMMARAMOOLE, KASARAGODE CUSBA VILLAGE,
VIDYANAGAR P.O,KASARAGODE-671123.
ADDL.R15 MISRIYA,
D/O. P. MOHAMMED, NAYAMMARAMOOLE, KASARAGODE CUSBA VILLAGE,
VIDYANAGAR P.O, KASARAGODE-671123.
ADDL.R16 SAKEENA,
D/O. P. MOHAMMED, NAYAMMARAMOOLE, KASARAGODE CUSBA VILLAGE,
VIDYANAGAR P.O, KASARAGODE-671123.
ADDL.R17 IRSHAD,
S/O. P. MOHAMMED, NAYAMMARAMOOLE, KASARAGODE CUSBA VILLAGE,
VIDYANAGAR P.O, KASARAGODE-671123. (LEGAL REPRESENTATIVES OF
DECEASED RESPONDENT NO.5 ARE IMPLEADED AS ADDL.RESPONDENTS
10 TO 17 AS PER ORDER DATED 02.08.2024 IN IA.NO.2/2024)
BY ADVS.
R1 BY NARAYANI HARIKRISHNAN
R2 AND R3 BY VINEETH KOMALACHANDRAN
R4 BY N.A.SHAJI.
R5 TO R8 BY ADVS. D.KRISHNA PRASAD
MINI V.MENON
P.VISHNU PRASAD
R9 BY ADVS. P.B.KRISHNAN (SR.)
P.M.NEELAKANDAN
RSA NO.1109 of 2015
4
2024:KER:81246
R9 AND R10 BY ADV. P.B.SUBRAMANYAN
R9 AND R10 TO R17 BY ADV. SABU GEORGE
R10 TO R17 BY ADV.MANU VYASAN PETER(K/000652/2013)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17.10.2024,
THE COURT ON 02.11.2024,DELIVERED THE FOLLOWING:
RSA NO.1109 of 2015
5
2024:KER:81246
CR
JUDGMENT
1. The plaintiff in O.S.No.356/2009 is the appellant. The plaintiff filed the suit for partition of plaint A Schedule Property into five equal shares and for allotment of 1/5 share to the plaintiff. According to the plaintiff, the plaint A schedule property belonged to his father Ramdas and on the death of Ramdas in the year 1990, the plaint schedule property devolved upon the first defendant wife and the plaintiff & defendants 2 to 4 who are his children. The plaint schedule property is 3.02 Acres of land comprised in Re.Sy. No.258/3 of Paddy Village in Kasaragod Taluk.
2. In the Written Statement filed by the 1st defendant, the 1st defendant contended that she sold the Plaint A schedule property. RSA NO.1109 of 2015 6 2024:KER:81246 Thereupon the plaintiff impleaded the defendants 5 to 9 in the suit. The 5th defendant is the buyer of the Plaint A Schedule Property in Ext.B7 Sale Deed dated 19/07/1993 executed by the 1st defendant for herself, for the plaintiff and the defendants 2 & 3 as their Power of Attorney holder and for the 4th defendant as her guardian on account of her minority. The defendants 6 to 9 are the assignees from the 5th defendant as per Exts.B1,B2,B3 & B6. The plaintiff amended the plaint and included a pleading that Ext.B7 Sale Deed executed by the 1st defendant in favour of the 5th defendant is illegal and void and hence subsequent sale deeds executed by the 5th defendant in favour of the defendants 6 to 9 are also void and liable to be ignored.
3. The defendants 2 to 4 supported the plaintiff and they also sought for partition and separate allotment of the shares.
4. The 5th defendant filed a Written Statement contending, inter alia, that the suit has been filed in collusion with defendants 1 to 4 to dupe and defraud other defendants; that the plaint A schedule RSA NO.1109 of 2015 7 2024:KER:81246 property originally belonged to the father of the plaintiff and on his death it devolved upon the plaintiff and defendants 1 to 4; the plaintiff and the 2nd & 3rd defendants executed Ext.X1 Power of Attorney dt. 25.05.1992 in favour of the 1st defendant authorizing her to deal with and sell their properties including plaint A schedule property; that since the 4th defendant was a minor the 1st defendant sold the right of the 4th defendant for valid consideration as guardian of the 4th defendant; that the Plaint A schedule property situated in a group village consisting of Paddy and Nekraje village; that both the villages are set up in the same Village Office; that there is only one Village Officer; that taking undue advantage of non mentioning of Paddy village in the general power of attorney executed by plaintiff and defendant 2 and 3,the suit has been filed to dupe and defraud the defendants 5 to 9; that the 5th defendant is a bona fide purchaser from the 1st defendant; that the relief claimed by the plaintiff and supporting defendants are barred by limitation and ouster; that the suit is barred by acquiescence since RSA NO.1109 of 2015 8 2024:KER:81246 the plaintiff and defendants 1 to 4 have been seeing the improvements affected by the defendants 5 to 9; that the defendants 5 to 9 have paid valid consideration to their vendors and thereafter they have effected vast and valuable improvements in their respective properties by investing huge amounts; that from the documents it is clear that there is no property for Ramdas in Nekraje Village and that it appears that the reference of Nekraje Village instead of Paddy Village is a mutual mistake.
5. The defendants 6 to 8 also filed joint Written Statement and the 9th respondent filed separate Written Statement with more or less same contentions as those raised by the 5th respondent.
6. The plaintiff amended the plaint by substituting R.S No.258/2 with R.S 258/3 in the Plaint A schedule. Some of the defendants filed additional Written Statements also.
7. The plaintiff and the defendant 1 to 4 who supported the plaintiff did not adduce any evidence. The counsel for the 1st defendant RSA NO.1109 of 2015 9 2024:KER:81246 filed Memo reporting no instructions and the 1st defendant remained ex parte.
8. On the side of the contesting defendants 5 to 9, the husband of 8th defendant was examined as DW1, 9th defendant as DW2, Village Officer of Nekraje-Paddy Village was examined as DW3. At the instance of the 5th defendant, Sub Registrar Kasaragod produced registration copy of the registered Power of Attorney No. 133/1993 dt 25.05.1993 and it was marked as Ext.X1 subject to objection.
9. The Trial Court passed a Preliminary Decree ordering to divide plaint A schedule property into five equal shares, allotting one share to the plaintiff, one share to defendants 2 and 3 each, and declaring that the defendants 6 to 9 shall be entitled to two shares. The Trial Court granted decree finding that Plaint A schedule property is not included in Ext.X1 Power of Attorney and hence the plaintiff and the defendants 2 and 3 have not authorized the 1st defendant to sell their undivided joint right in the plaint A schedule property and to execute Ext.B7 sale deed with respect to their joint RSA NO.1109 of 2015 10 2024:KER:81246 right in A schedule property on the basis of Ext.X1. The Trial Court held that Ext.B7 sale deed is not binding on the plaintiff and defendants 2 and 3 and it will not affect their right in plaint A schedule property. With respect to the share of 4th defendant minor, the Trial Court found that the 1st defendant can act as guardian of the 4th defendant and hence the 1st defendant can validly execute Ext.B7 Sale deed with respect to the share of the 4th defendant. The said transaction is only voidable and if the 4th defendant wanted to avoid the said transaction, the suit should have been filed within a period of three years from the date on which he attained majority in view of Article 60 of the Limitation Act. Since he has not filed any suit within 3 years, Ext.B7 is valid so far it relates to the share of the 4th defendant. With respect to the plea of ouster and limitation the Trial Court found that the claim of the plaintiff and defendants 2 to 4 over plaint A schedule property is not barred by limitation and ouster. RSA NO.1109 of 2015 11 2024:KER:81246
10. The defendant No.6 filed A.S.No.40/2011, the defendant No.9 filed A.S.No.41/2011 and defendants 5, 7 and 8 filed A.S.No. 42/2011 before the First Appellate Court and the First Appellate Court allowed the Appeals setting aside the judgment and decree passed by the Trial Court and dismissing the suit finding that the plaintiff is not entitled to get partition of the plaint schedule property since the village name Nekraje was included instead of Paddy by mistake in Ext.X1 Power of Attorney and that Ext.B7 Sale is ratified by the plaintiff and the defendants 2 & 3 by long silence.
11. This Appeal is filed challenging the common judgment of the First Appellate Court in A.S.No.40/2011, A.S.No.41/2011 and A.S.No. 42/2011. This Court admitted the Appeal on 14.10.2015 on the following substantial questions law framed in the Memorandum of Appeal.
A. Whether the Lower Appellate Court is right in law in sustaining Ext. B7- Sale Deed executed by a Power Holder- 1st defendant on the strength of the power of attorney (Ext. X1) which concededly did not confer right to sell RSA NO.1109 of 2015 12 2024:KER:81246 the subject property, solely on the reasoning that there was ratification by the power givers by silence?
B. Whether ratification of a void document can be inferred by mere silence on the part of the affected parties? Is this proposition laid by the Lower Appellate Court sustainable in law?
C. Whether the Lower Appellate Court is right in law in sustaining the power exercised by the power holder in the matter of executing a sale deed, when there is nothing in the power of attorney to infer that a power had given by the power givers to the power holder to alienate the subject property by any reference?
D. Is not the execution and registration of Ext. B7 - sale deed hit by reason of non compliance of the mandate contained in Sections 32 and 33 of the Registration Act?
E. Is not the lower appellate court exceeded its appellate jurisdiction in the matter of interfering with the well considered judgment of the trial court under the facts and circumstances of the case? RSA NO.1109 of 2015 13 2024:KER:81246
12. I heard the learned counsel for the appellant Smt.Nikitha Susan Paulson and the learned counsel for the respondents 5 to 8 Sri.Vishnu Prasad and the learned Senior Counsel for the 9th respondent Sri.S.V.Balakrishna Iyer, instructed by Advocate Sri.P.B.Subramaniam.
13. The learned Counsel for the appellant argued that the First Appellate Court ought not to have allowed the Appeals dismissing the suit when admittedly plaint A schedule property situated in Paddy Village is not included in Ext.X1 Power of Attorney executed by the plaintiff and the defendants 2 & 3 in favour of the first defendant. The Trial Court correctly appreciated the evidence on record and the law on the point and decreed the suit passing preliminary decree for partition. There was no valid ground or reason for the First Appellate Court to interfere with the judgment and decree passed by the Trial Court. The First Appellate Court illegally entered a finding that the name of the village is mistakenly stated in Ext.X1 Power of Attorney as Nekraje instead of Paddy. It RSA NO.1109 of 2015 14 2024:KER:81246 is well settled that Power of Attorney has to be construed strictly. Evidence of DW3 shows that both villages are distinct and different. The First Appellate Court acted illegally in holding that the plaintiff and the defendants 2 to 4 ratified the sale conducted by their mother, first defendant on their behalf by their long silence. Ext.B7 sale Deed being a void one it could not be ratified. Even assuming that there is a mistake in Ext.X1 the contesting defendants ought to have filed a suit under Section 26 of the Specific Relief Act.
14. The learned counsel for the appellant cited the decision of the Hon'ble Supreme Court in Swarn Singh v. Madan Singh [(1995) Suppl. 1 SCC 306] in which it is held that when a document is unambiguous there is no need to travel beyond the document and look at the attended circumstances together with the intention of the parties. Learned counsel contended that when the terms of Ext.X1 Power of Attorney is clear and specific it could not be assumed that the recital therein is made by mistake. RSA NO.1109 of 2015 15 2024:KER:81246
15. The learned counsel cited the decision of the Hon'ble Supreme Court in Umadevi Nambiar v. Thamarassery Roman Catholic Diocese [(2022) 7 SCC 90] to substantiate that power of attorney is to be construed strictly by the court.
16. The learned counsel cited the decision of the High Court of the Punjab and Haryana in Islam and Ors v. Sunder Singh & Ors. [2022 : PHHC : 078731] to substantiate the point that though ratification can be inferred either expressed or implied acts, it has to be specific. In the present case, there is no specific ratification from the plaintiff and the defendants 1 to 4.
17. The learned counsel cited the decision of this Court in Saidu v. Amina & Ors. [1970 KLT 430] to substantiate the point that a void transaction cannot be ratified.
18. The learned Counsel invited my attention to Illustration (g) of Section 23 of the Indian Contract Act and contended that the said Illustration is squarely applicable to the facts and circumstances of the case. It indicates that when a sale is executed without the RSA NO.1109 of 2015 16 2024:KER:81246 knowledge of the principal with another person, the sale is void as it implies fraud by concealment by the seller on his principal.
19. The learned counsel cited the decision of the Andhra Pradesh High Court in Pramoda A. v. D. Komaraiah [AIR 2010 AP 1981] which is relied on by the First Appellate Court and contended that the said decision is clearly distinguishable as in the said decision itself it is held that ratification can never be resorted to for adding legality to a transaction which does not exist or the one which has not taken in accordance with law. It is also held that a sale can take place only with the participation of vendor either personally or through agent and there could not be any ex post facto approval of sale. In the present case, when there was no authorization to the first defendant from the plaintiff and the defendants 2 & 3 to execute sale deed with respect to the property in paddy village, Ext.B7 document executed by the first defendant for and on behalf of the plaintiff and the defendants 2 & 3 is a transaction which has RSA NO.1109 of 2015 17 2024:KER:81246 not taken in accordance with law and hence there could not be any ex post facto of approval of Ext.B7.
20. The learned counsel relied on the decision of the Madras High Court in S.R.M.A.R. Ramaswamy Chetty v. ALKAR Alagappa Chetty & Anr. [AIR 1915 Madras 859(2)] which is relied on by the First Appellate Court to substantiate a point in her favour that there could not be any ratification when the person against whom the ratification is claimed had no knowledge of the transaction.
21. The learned counsel cited the decision of this Court in Mammu Haji & Co. (M/s.) v. Vasanthalakshmi [2014 (3) KHC 213] to substantiate the point that non-examination of the party is not fatal. It is held that when the burden is on the defendant to adduce evidence non-examination of the plaintiff is not fatal.
22. The learned counsel cited the decision of the Hon'ble Supreme Court in Union of India & Ors. v. Vasavi Cooperative Housing Society Ltd & Ors. [(2014) 2 SCC 269] to substantiate the point that revenue records are not documents of title. RSA NO.1109 of 2015 18 2024:KER:81246
23. On the other hand, the learned Senior Counsel for the 9th respondent contended that the deceased Ramdas did not have any property in Nekraje village. The name of the village happened to be written as Paddy village instead of Nekraje since Paddy and Nekraje villages belonged to a Group village which are having a common village office. The plaintiff does not have a case that Ramdas is having property in Nekraje village. Even though it is not the burden of the contesting defendants to prove a negative fact that deceased Ramdas did not have property in Nekraje village, the contesting defendants took pain to produce Ext.B15 voluminous document which is the certified copy of the entire KR Book maintained in the Paddy Group of villages in respect of Nekraje village to prove that Ramdas did not have any property in Nekraje village. Ext.B7 document was executed by the first defendant on the strength of Ext.X1 power of attorney for and on behalf of the plaintiff and the defendants 2 and 3 as they are power of attorney holder on 19.07.1993 selling the plaint A schedule RSA NO.1109 of 2015 19 2024:KER:81246 property to the 5 defendant. The suit was filed in the year 2009 th for partition of the property covered by Ext.B7 no prayer was made to challenge Ext.B7. The suit is barred by limitation, ouster, and acquiescence.
24. The learned Senior Counsel relied on the decision of the Punjab High Court in Shankar Das Rup Lal v. Governor in Council [AIR 1952 Punjab 234] in which it is held that ratification need not be any express act or declaration and might be implied from the conduct and that it might be inferred from mere acquiescence or silence or inaction on the part of the parties.
25. The learned Senior Counsel cited the decisions of the Hon'ble Supreme Court in Iqbal Basith & Ors. v. N. Subbalakshmi & Ors [(2021) 2 SCC 718] and Iswar Bhai C. Patel @ Bachu Bhai Patel v. Harihar Bahera & Anr. [(1999) 3 SCC 457] to substantiate the point that in case of failure to adduce evidence, adverse presumption has to be drawn against such party. RSA NO.1109 of 2015 20 2024:KER:81246
26. The learned Senior Counsel cited the decision of this Court in Fathima Beevi v. Abdul Rahman ]2023 (4) KLT 1172] to substantiate the point that when there is a sale deed if the executant wants to annul the same he has to seek cancellation of the said deed or the relief to set aside the deed and that when non- executant wants to annul the deed he has to seek a declaration that the deed is invalid or non est or illegal or that the deed is not binding upon him. Without seeking the aforesaid relief a suit for partition could not be maintained with respect to the property covered by the said deed.
27. The learned Counsel for respondents 5 to 8 also made submissions similar to that of the learned Senior Counsel for the 9th respondent.
28. The questions involved in this appeal are whether the inclusion of Nekraje village and non inclusion of Paddy village in Ext.X1 Power of Attorney is a mistake and whether Ext.B7 Sale deed could be RSA NO.1109 of 2015 21 2024:KER:81246 treated as ratified impliedly by the plaintiff and the defendants 2 & 3 in view of their long silence.
29. The parties to the suit are not in dispute with respect to certain facts: The plaint A schedule property originally belonged to the Ramdas who is the father of the plaintiff & the defendants 2 to 4 and husband of the 1st defendant. Ramdas died in the year 1990. The plaintiff & the defendants 2 to 4 executed Ext.X1 Power of Attorney in favour the 1st defendant. The village name Paddy is not included while describing three properties of Ramdas in Ext.X1 with respect to which power is given to the 1st defendant. Plaint A Schedule property is situated in Paddy village. The 1st defendant sold the Plaint A schedule property to the 5th defendant in the capacity as the Power of Attorney Holder of the plaintiff and the 2nd & 3rd defendants on the strength of Ext.X1 Power of Attorney. The defendants 6 to 9 are the assignees of the Plaint A Schedule property from the 5th defendant.
RSA NO.1109 of 2015 22 2024:KER:81246
30. In view of the aforesaid admitted facts, it is the contentions of the contesting defendants which are to be answered.
31. The first contention is that the Village name Nekraje is written instead of Paddy in Ext.X1 by mistake. Since the contesting defendants are asserting that the name of the village Nekraje mentioned in Ext.X1 is by mistake and the actual village name is Paddy, the burden is on the contesting defendants to prove that the mentioning of the name Nekraje in Ext.X1 instead of Paddy is by way of mistake. On the side of the defendants, the husband of the 8th defendant was examined as DW1, the 9th defendant was examined as DW2, and the Village Officer of Paddy group villages was examined as DW3, and they produced documents. The evidence of the contesting defendants would prove that Ramdas did not have any property in Nekraje village. Even after the amendment in the plaint, the plaintiff does not have case that Ramdas is having property in Nekraje village and Ext.X1 relates to that property. The purpose of executing the Power of Attorney is RSA NO.1109 of 2015 23 2024:KER:81246 revealed from the recitals in Ext.X1. It is executed consequent to the death of Ramdas to give power in favour of the 1st defendant by the plaintiff and the defendants 2 & 3. This is evidenced by the recital in Ext.X1 that 'WHEREAS after the death of the above said B.Ramdas, we along with you and younger sister, have jointly inherited the landed properties which are situated in.....'. Thereafter three items of properties are included with reference to their village name. Item No.2 is the property in Nekraje village. The 5th defendant filed I.A No. 1696/2010 serving Interrogatories on the plaintiff as to whether late Ramdas had properties in Nekraje village. The plaintiff filed an Affidavit answering that Ramdas had immovable properties in Nekraje village. Thereafter The 5th defendant filed I.A No.2122/2010 serving Interrogatories seeking the details of properties of Ramdas in Nekraje village. The plaintiff filed an Affidavit answering that he does not have the details and particulars of properties held by Ramdas in Nekraje village. Even though it is not the burden of the contesting defendants to prove a RSA NO.1109 of 2015 24 2024:KER:81246 negative fact that deceased Ramdas did not have property in Nekraje village, the contesting defendants took pain to produce a voluminous document Ext.B15 which is the certified copy of the entire KR Book maintained in the Paddy Group of villages in respect of Nekraje village to prove that Ramdas did not have any property in Nekraje village. Ext.B14 Reply under the RTI Act issued by DW3 also would prove that Ramdas had property only in Paddy village. It is in evidence of DW1 and DW3 that Nekraje and Paddy Villages are group villages, and they have a single Village Officer, single Village Assistant, and single Office. DW3 is the Village Officer of Nekraje and Paddy Group village. Ext.B15 relating to Nekraje village is issued by the Paddy Group Village Officer. Hence, there is a chance of committing a mistake while referring to the properties situated in these villages. The plaintiff did not adduce any evidence, either oral or documentary to defend the said contention. When the plaintiff is asserting a fact that Ramdas had property in Nekraje village the burden is on the RSA NO.1109 of 2015 25 2024:KER:81246 plaintiff to prove that Ramdas had property in Nekraje village. The plaintiff did not mount to the witness box. The evidence adduced by the contesting defendants would prove that while executing Ext.X1, the real intention of the parties to Ext.X1 was to include the property in Paddy village in Item No.2 and not Nekraje village. Hence it could be concluded that the name of the village is mistakenly shown in Item No.2 in Ext.X1 as Nekraje instead of Paddy. But as rightly pointed out by the learned Counsel for the appellant, Power of Attorney has to be construed strictly in the light of the precedents cited by her. The contesting defendants ought to have filed suit under Section 26 of the Specific Relief Act for rectification of Ext.X1. Section 26 of the Specific Relief Act provides that a suit for rectification is to be filed when an instrument does not reveal the real intention of the parties on account of a mutual mistake. Ext.X1 was executed on 25/05/1993. Ext.B7 was executed on 19/07/1993. The circumstances indicate that it was executed for selling the properties of the deceased Ramdas. RSA NO.1109 of 2015 26 2024:KER:81246 Though the 1 defendant had admitted the execution of Ext.X1 by st him, he objected to marking of Ext.X1 on the ground that the execution is disputed. The Trial Court overruled the objection and marked the document. The evidence of DW1 would prove that the plaintiff was very much present when the 1st defendant executed Ext.B7 Sale Deed representing him as Power of Attorney holder to sell the plaint schedule property to the 5th defendant. This part of the evidence of DW1 is not cross examined by the plaintiff. The plaintiff did not raise any objection against selling his rights over the plaint A schedule property to the 5th defendant on the strength of Ext.X1. He allowed the 5th defendant and the assignees defendants to take possession of the Plaint A schedule property, to enjoy the same and to make improvements therein. The present suit is brought after more than 15 years after the execution of Ext.B7 Sale Deed. It indicates that the parties, including the plaintiff, believed and caused others to believe that Ext.X1 includes the property in Paddy village also. The state affairs RSA NO.1109 of 2015 27 2024:KER:81246 continued for more than 15 years. In these facts and circumstances of the case, the plaintiff is estopped from contending that Ext.X1 does not include Plaint A schedule property in Paddy village in view Section 121 of the Bharatiya Sakshya Adhiniyam,2023 corresponding to Section 115 of the Evidence Act,1872. Ext.B7 sale deed could not be said to be a void document as contended by the learned counsel for the appellant. It is obvious that the plaintiff has been indulging in experimental litigation challenging valid sale deeds which were executed years back with his full knowledge and consent. The failure of the contesting defendants to file suit for rectification of Ext.X1 in such a situation is not fatal.
32. The second contention of the contesting defendants is that Ext.B7 is ratified by the plaintiff and the defendants 2 & 3. Sections 197 to 200 of the Indian Contract Act deal with ratification. Section 197 provides that ratification may be expressed or implied in the conduct of the person on whose behalf the acts are done. The suit RSA NO.1109 of 2015 28 2024:KER:81246 is seen filed after about 15 years from the date of the Ext.B7 document executed by the 1st defendant with respect to the plaint A schedule property. As found earlier, the plaintiff had full knowledge of the execution of Ext.B7 on the strength of Ext.X1 Power of Attorney on the date of execution of Ext.B7 itself. Of course, mere silence for long period would not amount to ratification. But when there is a long silence after the transaction with respect to which ratification is claimed, it is the duty of the party remaining silent to explain the valid reasons for the silence. In the absence of any sufficient or reasonable explanation for the long silence after the questioned transaction, the ratification could be presumed. Non-examination of the plaintiff is not fatal in every case. If, in a case, the burden is entirely on the defendant to prove the unsustainability of the prayers of the plaintiff, the nonexamination of the plaintiff is not fatal. If the pleadings in the plaint are admitted by the defendants and they dispute the sustainability of the prayers on account of the defense raised by RSA NO.1109 of 2015 29 2024:KER:81246 them in the Written Statement, the non-examination of the plaintiff is not fatal to the case. But there may be circumstances shifting the burden of proof from one party to another. Hence, the question of whether non examination of the plaintiff is fatal or not is a matter to be decided in the facts and circumstances of each case. In the case on hand, the plaintiff and the supporting defendants did not mount to the Witness box to explain the reason for the long delay on their part to challenge Ext.B7. They did not make themselves available for cross examination by the contesting defendants. Hence from the conduct of the plaintiff and the defendants 2 & 3 it is revealed that they have ratified Ext.B7 Sale executed by the 1st defendant on behalf of them on the strength of Ext.X1 Power of Attorney by their long silence.
33. When Ext.B7 is executed validly by the 1st defendant for and on behalf of the plaintiff and the defendants 2 & 3 on strength of Ext.X1 Power of Attorney in the presence of the plaintiff, it is not hit by non compliance of Section 32 and 33 of the Registration Act. RSA NO.1109 of 2015 30 2024:KER:81246
34. In view of the aforesaid discussion, I find that Questions of law Nos. B & C do not arise in the matter. I answer Question of Law A in the affirmative and Questions of Law Nos. D & E in the negative, all in favour of the contesting respondents and against the appellant and supporting respondents.
35. The Regular Second Appeal is dismissed with costs.
Sd/-
M.A.ABDUL HAKHIM JUDGE jma