Andhra Pradesh High Court - Amravati
Dr.V.R.Sola S.Venkateswara Rao vs S.Venkata Narasimha Rao 6 Others on 23 September, 2024
APHC010429351998
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
MONDAY, THE TWENTY THIRD DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
FIRST APPEAL NO: 1637/1998
Between:
1. DR.V.R.SOLA @ S.VENKATESWARA RAO, -
...APPELLANT
AND
1. S VENKATA NARASIMHA RAO 6 OTHERS, -
...RESPONDENT
IA NO: 1 OF 1998(CMP 19127 OF 1998
Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in support of the petition, the High Court may
be pleased to grant temporary injunction restraining the respondents
herein from alienating the suit schedule property or to make any changes
or to alter to the suit schedule property during the pendency of the
appealon the file of this Hon'ble Court
IA NO: 1 OF 2023
Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in support of the petition, the High Court may
be pleased pleased to condone the delay of 1093 days in filing the
2 VGKRJ
AS 1637 of 1998
application to set aside the dismiss for default order dt. 29-11-2019 and
pass
IA NO: 2 OF 2023
Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in support of the petition, the High Court may
be pleased pleased to set aside the dismiss for default order dt. 29-11-
2019 and restore the appeal to its original position and pass
Counsel for the Appellant:
1. VENKATESWARLU SANISETTY
Counsel for the Respondent:
1. M R S SRINIVAS
2. 7780/A SURYANARAYANA
The Court made the following:
JUDGMENT:-
This Appeal, under Section 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the Appellant/plaintiff challenging the Decree and Judgment, dated 27.04.1998, in O.S. No.5 of 1992 passed by the learned Principal Senior Civil Judge, Ongole [for short 'the trial Court']. The Respondents herein are the defendants in the said Suit.
The learned counsel for appellant filed a memo on 14.08.2024 stating that the first defendant being the father of appellant died on 04.02.2001. The case of the appellant is that the appellant is the only legal heir to his father i.e., the first defendant, the appellant is on record in the appeal itself.
3 VGKRJ AS 1637 of 1998
2. The appellant/plaintiff filed the Suit for partition and separate possession of item Nos.1 to 4 of plaint schedule property into two equal shares and to allot one such share to the plaintiff and for costs of the suit.
3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court.
4. The brief averments of the plaint, in O.S. No.5 of 1992, are as under:
The plaintiff is the son of the first defendant and he has been practicing as a Doctor in Louisa, Kentucky in U.S.A. from several years, the plaintiff schedule property and several other properties situated in Ongole are the ancestral properties belonging to the plaintiff and his father i.e., first defendant herein. Thus, they are joint family properties possessed and owned by the family in which the plaintiff is having half share by birth. The plaintiff demanded the first defendant orally and through letters, demanding for a partition unequivocally expressing his intention to separate. The plaintiff also requested the first defendant whenever he came down to Ongole from America not to alienate the schedule property stating that it is required for construction of a clinic and for his professional living as he intended to re-settle at Ongole so as to make his expert medical services available at Ongole so as to make his countrymen with upto date medical equipment.
ii) On 12.10.1991, the plaintiff came down to Ongole from states and came to know that the first defendant sold the schedule property to the defendants 2 to 7 without taking cognizance of the previous demand made by the plaintiff for partition and the useful nature of the schedule property for his professional living at Ongole.
4 VGKRJ AS 1637 of 1998
iii) As the plaintiff stay in Ongole was only for a limited period, he issued a lawyer's notice through his advocate to all the defendants demanding for partition of the plaint schedule property into two equal shares according to its good and bad qualities and for allotting one such share to him. As the defendants did not co-operate for amicable partition, the plaintiff is constrained to file the suit for partition and separate possession.
5. The first defendant filed a written statement by admitting the relationship with the appellant and also by admitting the alienation of the properties covered under Ex.B1 to Ex.B7 to the respondents 2 to 7 herein and he specifically pleaded that with a bonafide belief that the plaintiff will agree to the alienation that he entered into an agreement and with the same belief the other defendants agreed to purchase the same.
6. The second defendant filed a written statement, which was adopted by the defendants 3 and 4, by denying all the averments mentioned in the plaint and further contended as under: -
The first defendant is responsible for filing the suit. The contention of the plaintiff is that the first defendant got returned the notice with false postal endorsement itself is positive that the first defendant is behind this litigation. The first defendant, who is an addict in litigation and Court affairs got filed the suit through plaintiff making false and desperate allegations in order to harass the other defendants. First defendant himself filed a suit in O.S.No.92 of 1991 questioning the sale deeds in favour of this defendant and other defendants and the first defendant also got filed another suit through his henchmen setting up fictious contract of sale.
5 VGKRJ AS 1637 of 1998
ii) The suit filed for partition of only one item is unsustainable under law and the suit is bad for partial partition. First defendant acted as manager of the joint family consisting of the plaintiff and himself. Plaintiff being the member of the joint family cannot question the acts of the first defendant in his dealing with their joint family property. The first defendant sold several parts and effected several alienations, which are not subject matter of the suit. Plaintiff has not stated in the plaint on which date he made for partition.
iii) This defendant purchased 438 square yards of site within definite boundaries under a registered sale deed dated 30.07.1991, which was registered on 14.08.1991. He also purchased another 192 square yards within definite boundaries under a registered sale deed dated 26.08.1991 which was registered on 31.08.1991. Fourth defendant purchased 410 square yards within specific boundaries for proper and valid consideration which was registered on 14.08.1991. Fourth defendant purchased another piece of vacant site of 55 square yards under the registered sale deed dated 26.08.1991, which was registered on 31.08.1991. Third defendant purchased an extent of 888 square yards of site within definite boundaries which was registered on 14.08.1991. All these documents were in possession and enjoyment of their respective shares. Plaintiff has no right to question the sales in favour of this defendant and other defendants. Those are binding on the plaintiff as the first defendant alienated the same in his capacity as manager of the joint family.
7. The sixth defendant filed a written statement, which was adopted by the defendant Nos.5 and 7, by denying all the averments mentioned in the plaint and further contended as under: -
6 VGKRJ AS 1637 of 1998 The first defendant is a seasoned litigant and well versed in Court affairs. The first defendant himself filed a suit in O.S.No.92 of 1991 on the file of Additional Sub-Court, Ongole claiming some more sale consideration. He also got filed another suit in O.S.No.128 of 1991 through others by fabricating a contract of sale. This suit is also filed at the instance of the first defendant in order to coerce the defendants to terms and to extract more money. Since the first defendant executed sale deeds in his capacity as a manager of the joint family, for the benefit of the joint family, all the sale deeds executed by the first defendant are valid and binding on the plaintiff. He can neither ignore nor question the said sale deeds. The plaintiff and the first defendant are members of joint family even today and the alleged division in status is only a myth.
8. Based on the above pleadings, the trial Court framed the following issues:
(i) Whether the plaintiff is entitled for partition and separate possession as prayed for?
(ii) Whether the plaintiff is entitled for profits as prayed for?
(iii) Whether the sales in favour of D2 to D7 are binding on the plaintiff?
(iv) To what relief?
ADDITIONAL ISSUES
(i) Whether the suit for partial partition is not maintainable?
(ii) Whether the Court fee paid by the plaintiff is not correct?
(iii) Whether item No.1 is self acquired property of D1?
7 VGKRJ
AS 1637 of 1998
9. During the course of trial in the trial Court, on behalf of the Plaintiff, PW1 was examined and Ex.A1 and Ex.A5 were marked. On behalf of the Defendants DW1 to DW3 were examined and Ex.B1 to Ex.B11 were marked.
10. After completion of the trial and on hearing the arguments of both sides, the trial Court dismissed the suit vide its judgment, dated 27.04.1998, against which the present appeal is preferred by the appellant/plaintiff in the Suit questioning the Decree and Judgment passed by the trial Court.
11. Heard Sri Venkateswarlu Sanisetty, learned counsel for appellant and Sri M.R.S.Srinivas, learned counsel for the respondents.
12. Learned counsel for appellant would contend that trial Judge erred in holding that the plaint schedule property is not ancestral property and it is self-acquired property of the first defendant and the Court below ought to have seen that the ancestral property cannot become self-acquired property, once the property is ancestral, that cannot be converted into self-acquired property. He would further contend that the Court below ought to have seen that the plaintiff is not a party to the sale deeds executed by the first defendant in favour of defendants 2 to 7. He would further contend that the appeal may be allowed by setting aside the decree and judgment passed by the learned trial Judge.
13. Per contra, the learned counsel for respondents 2 to 7 would contend that on appreciation of the entire evidence on record, the learned trial Judge came to correct conclusion and dismissed the suit and there is no need to interfere with the finding given by the learned trial Judge.
8 VGKRJ AS 1637 of 1998
14. Having regard to the pleadings in the suit, the findings recorded by the trial Court and in the light of rival contentions and submissions made on either side before this Court, the following point would arise for determination:
Whether the trail Court is justified in dismissing the suit with a finding that the plaintiff is not entitled the relief of partition of the plaint schedule property?
15. Point :
The relationship of the plaintiff with first defendant is not at all in dispute. The alleged sale deeds under Ex.B1 to Ex.B7 are dated 14.08.1991, 31.07.1991, 26.08.1991, 31.07.1991, 26.08.1991, 29.08.1991 and 26.08.1991 respectively. It is an admitted fact that the appellant got issued a legal notice to the defendants on 22.10.1991 under Ex.A3. In Ex.A3 he specifically pleaded that on 12.10.1991 while he came down to Ongole from America and learnt that the first defendant sold the schedule property to the defendants 2 to 7 without taking into cognizance of the previous demands made by him for partition and useful nature of the schedule property for his professional living at Ongole. He would further contend that the said sales are not only unauthorized but also illegal sales and the first defendant has no right to alienate the entire property including his share. Ex.A4 is the reply notice said to have been issued by defendants 2 to 4. In Ex.A4 it is specifically pleaded that his intention to construct a nursing home is nothing but issue of falsehood and the first defendant and his son are living under one roof whenever he visits Ongole and there is no disruption of the joint family as stated in Ex.A3 legal notice. In Ex.A4 reply notice, a specific plea was taken by the 9 VGKRJ AS 1637 of 1998 respondents that the schedule property was acquired by the government and at the instance of first defendant the acquisition was annulled and the same was got back by the first defendant and so the appellant has no right in the said property and the said property is a self acquired property of first defendant. Ex.A5 is another reply notice said to have been issued by defendants 6 and 7. In Ex.A5 notice, defendants 6 and 7 also specifically pleaded that the plaintiff is residing with his father whenever he visits Ongole and they have quite amicable with each other. A specific pleading was taken by the defendants 2 to 7 in the legal notice itself that there was a cordial relationship in between plaintiff and first defendant i.e., son and father, by the date of alienation made by the father and subsequent to alienation also the son visited first defendant, from America to Ongole, and stayed with his father under one roof, by the date of issuance of Ex.A3 notice also the plaintiff and first defendant are residing together under one roof. Therefore, it is for the appellant to prove that there was a strained relationship in between him and his father by the date of alleged sale deeds.
16. The severe contention taken by the respondents is that the plaintiff and first defendant i.e., son and father colluded together and whenever the appellant came to India, he used to stay in the house of first defendant and both are staying under one roof. The learned counsel for respondents would contend that the first defendant alienated the plaint schedule property to the respondents as a manager of the joint family and therefore, the plaintiff has no authority to question the alleged sales made by his father.
17. Ex.A1 is registered General Power of Attorney said to have been issued by the plaintiff to authorize PW1 to file a petition on his behalf in a 10 VGKRJ AS 1637 of 1998 Court of law and to give evidence on his behalf before the Court of law. It is relevant to say Ex.A3 notice is dated 22.10.1991. In Ex.A1 Power of Attorney, it was specifically recited that he came over to India from America on 12.10.1991 and he came to know that his father alienated the ancestral property of Ac.0.76 cents to the defendants 2 to 7 under Ex.B1 to Ex.B7. In Ex.A1 it was also specifically stated by appellant that he came to India from America once in two or three years to enquire his properties and to attend welfare of his parents. In Ex.A3 dated 22.10.1991 it was specifically recited that once in 2 or 3 years, he used to come down to India from America to enquire his joint family properties and also to look after his parents. The recitals in Ex.A1 clearly goes to show that the relationship in between the father and son are cordial and there is no strained relationship in between both the father and son. Further more, there was a clear admission by PW1 in his evidence in cross examination itself that the first defendant was managing the affairs of joint family till the plaintiff executed a General Power of Attorney in favour of PW1 on 11.11.1991. It seems that there was a cordial relationship between the father and son by the date of alienation under Ex.B1 to Ex.B7 and whenever the son came over to India, he used to stay with his father under one roof. It is also made clear that the plaintiff has been residing in America since more than 25 years i.e., prior to institution of the suit itself and the first defendant was acting as a manager of the joint family properties and as a Kartha of the joint family.
18. The recitals in Ex.B1 to Ex.B7 goes to show that the schedule property was acquired by the government for public interest and the first defendant received a compensation from the government, but the government did not utilize the property and the said property was kept idle and that the first defendant filed a writ petition before this Court and 11 VGKRJ AS 1637 of 1998 this Court also allowed his writ petition by giving a direction to the government to restore the possession of the writ petitioner i.e., the first defendant herein and directed the first respondent to remit back the sale consideration to the government which was taken and he also paid back the same to the government and his possession was restored by the government on 30.06.1988 by issuing a proceeding. It is also relevant to say at the time of acquisition of land in the year 1971 itself, the appellant has not raised any objection before the government that he is having half share in the schedule property. It is also not the specific case of the appellant that without his knowledge, the property was acquired by the government. As noticed supra, the acquisition was taken place in the year 1971 and Ex.B8 also reveals the same. In such a situation what prevented the appellant to raise a plea at the time of acquisition of land by government that he is also having half share in the schedule property. Furthermore, to safeguard the rights in the property, the father himself filed a writ petition before the High Court and the son has not made any efforts and the father taken back the possession of the property by repaying the sale consideration of nearly Rs.10,000/- which was received from the government in those days. As stated supra, it is not the specific case of the appellant that he is not having knowledge of the property when the property was acquired by the government and paying compensation to the first defendant, the first defendant specifically pleaded in all the sale deeds under Ex.B1 to Ex.B7 itself that after paying relevant amount to the government, his possession was restored and property was re-delivered to him and that he is having absolute title in the plaint schedule property. It is relevant to say that the plaintiff has not sought any relief of cancellation of sale deeds till so far. The aforesaid circumstances clearly goes to show that the first defendant received 12 VGKRJ AS 1637 of 1998 compensation from the government approximately an amount of Rs.10,000/- as absolute owner of the property by virtue of the award No.31/1971 passed by the land acquisition officer and he also taken pains to protect his right in the schedule property by filing a writ petition and after paying back the entire consideration to the government he restored his possession and later subsequent to 3 years, he alienated the schedule property for Rs.2,40,000/-. It seems that for the benefit of the joint family only for getting more funds, the first defendant as a kartha of the joint family alienated the property for Rs.2,40,000/-. It clearly goes to show that the father is very much interested to protect the interest of the plaintiff for betterment of estate. Admittedly, no specific plea is taken by the appellant that his father alienated the schedule property due to bad vices and for illegal and immoral purpose. As stated supra, there was a clear admission of PW1 in his evidence in cross examination itself that the first defendant was managing the affairs of the joint family till the plaintiff executed a registered General Power of Attorney in favour of PW1 on 11.11.1991. Furthermore, there was a specific recital in Ex.A1 registered General Power of Attorney said to have been executed by the plaintiff in favour of PW1 dated 11.11.1991 that the plaintiff used to come to India from America once in 2 or 3 years to look after his parents and to enquire the welfare of his parents and to enquire the properties.
19. The fact remains that it is not the case of the appellant that his father was having bad vices, the first defendant get back his property from the government by taking all pains, by approaching this Court by filing a writ petition and later he paid an amount of Rs.10,000/- to the government and get back the plaint schedule property, after a lapse of 3 years he alienated the same property for Rs.2,40,000/-. It goes to show that the father is very much interest to protect the interest of son and 13 VGKRJ AS 1637 of 1998 himself for betterment of estate. The fact remains that the wife of the first defendant is no more and he is having only son i.e., the appellant herein. More over, the act of alienation of the first defendant for alienation of the property under Ex.B1 to Ex.B7 is for the benefit of the estate, but not to cause any loss or hardship to the appellant. It is not the case of the appellant that his father alienated the property for illegal or immoral purpose and it is also not the case of the appellant that his father indebted to several others. In fact, no single allegation is levelled against his father by the plaintiff in the plaint itself, likewise, the father i.e., first defendant also has not made any single allegation against his son in the written statement itself.
20. It is well settled that right of the kartha to execute an agreement to sell or sale deed of a joint Hindu family property is settled and he is beyond cavil vide several judgments of the Apex Court including Sri Narayan Bal and others vs. Sri Sridhar Sutar and others1, wherein it has been held that a joint Hindu family is capable of acting through its kartha or adult member of the family in management of the joint Hindu family property. Where a kartha has alienated a joint Hindu family property for value either for legal necessity or benefit of the estate it would bind the interest of all undivided members of the family even when they are minors or widows. The kartha enjoys vide discretion in his decision over the existence of legal necessity and as to in what way such necessity can be fulfilled. The exercise of powers given the rights of the kartha on fulfilling the requirements of legal necessity or betterment of estate is valid and binding on the other coparceners. As noticed supra, in the case on hand, the father paid an amount of Rs.10,000/- to the 1 1996 (8) SCC 54 14 VGKRJ AS 1637 of 1998 government and get back his property and after 3 years the same property was sold for an amount of Rs.2,40,000/- under Ex.B1 to Ex.B7. Therefore, the said alienations made by the first defendant are only for betterment of estate and he is very much interest to protect his son and also very much interest to protect himself for betterment of estate.
21. Once the factum of legal necessity stood proved, then no coparcener (son) has a right to challenge the sale made by the kartha of his family. The plaintiff being a son was one of the coparcener along with his father first defendant and he had no right to challenge such sale in the light of findings of legal necessity being recorded against him. It was more so when the plaintiff failed to prove by any evidence that there was no legal necessity for sale of the suit property or that the evidence adduced by the defendants to prove the factum of existence of legal necessity was either sufficient or irrelevant or no evidence at all.
22. In a case of K.C.Laxmana vs. K.C.Chandrappa Gowda and another2, the Apex Court held as follows:
Article 109 of Limitation Act reads as under:
Description of suit Period of limitation Time from which period begins to run
109. By a Hindu Twelve years When the alienee governed by takes possession of Mitakshara law to set the property.
aside his father's
alienation of ancestral
property.
2
2022 livelaw (SC) 381
15 VGKRJ
AS 1637 of 1998
9. The word 'alienation' in this article includes 'gift'. In order to attract Article 109, the following conditions have to be fulfilled, namely, (1) the parties must be Hindus governed by Mitakshara; (2) the suit is for setting aside the alienation by the father at the instance of the son; (3) the property relates to ancestral property;
and (4) the alienee has taken over possession of the property alienated by the father. This article provides that the period of limitation is twelve years from the date the alienee takes possession of the property.
12. It is trite law that Karta/Manager of a joint family property may alienate joint family property only in three situations, namely, (i) legal necessity (ii) for the benefit of the estate and (iii) with the consent of all the coparceners of the family.
As stated supra, there is an ample evidence which is supported by the evidence of DW1 to DW3 that for betterment of the estate to protect the interest of his son and to protect the interest of himself, the alienation was made by the first defendant, more over, it is not the case of the son there was a strained relationship in between him and his father by the date of filing of the suit or prior to filing of the suit or during the pendency of the trial before the trial Court. In the case on hand, the plaintiff did not enter into the witness box, though the father is alive during the pendency of the suit, he also did not enter into the witness box. The law is well settled that the General Power of Attorney holder is not competent to depose anything prior to 11.11.1991 i.e., prior to the date of execution of registered General Power of Attorney. The General Power of Attorney holder cannot import his personal knowledge, more over the statement of PW1 in his evidence is that there are some misunderstandings in between the son and the father. Furthermore, the recitals in Ex.A1 16 VGKRJ AS 1637 of 1998 registered General Power of Attorney dated 11.11.1991 itself goes to show that the plaintiff used to come to India from America to enquire whereabouts of his parents and also used to enquire the welfare of his parents and also to enquire his property transactions. The recitals in Ex.A1 made it clear that to look after the parents, the plaintiff is coming to India once in 2 or 3 years, therefore, the evidence of PW1 is quite contrary to the recitals in Ex.A1 and the evidence of PW1 is also not trustworthy.
23. PW1 admits in cross examination that there was no necessity for the first defendant to sell the plaint schedule properties and the sale deeds were brought into existence in between the first defendant and defendants 2 to 7 and the said sale transactions are collusive transactions. PW1 admits in his evidence in cross examination itself that he does not remember whether any separate petition was filed along with this suit by seeking permission of the Court to permit him to prosecute the case on behalf of the plaintiff basing on the General Power of Attorney executed by the plaintiff or not and the plaintiff was not physically present in India at that time when the plaint was drafted, again, he had stated a different version that the plaintiff was very much present in India at the time of drafting the plaint in the suit. The above admissions clearly goes to show that he has no personal knowledge about the suit transaction and he does not know whether the plaintiff is in India by the date of drafting of the plaint and he also does not know about the basic facts of the case. Another admission made by PW1 in his evidence in cross examination is that he does not remember whether the plaintiff put his signature in the plaint or vakalath of the suit prior to filing of the suit. The other admissions made by PW1 in his evidence is that he does not know about the possessing of lands by their family in Yendaluru on the date of filing of the 17 VGKRJ AS 1637 of 1998 suit and except the plaint schedule properties, their joint family has not possess any other properties. He further admits that the first defendant sold Ac.3.87 cents of land on 19.06.1997 under Ex.B9 and the first defendant alienated Ac.3.47 cents in S.No.151/2 on 16.07.1997 under Ex.B10 for a sum of Rs.1,33,600/- and the property in Ex.B9 and Ex.B10 are the self acquired property of the first defendant and the said property is not included in the plaint schedule. But the fact remains that the recitals in Ex.B9 and Ex.B10 goes to show that the said property is also the ancestral property. Therefore, the above admissions of PW1 clearly goes to show that he does not know about the basic facts of the case and he does not know whether any petition under Rule 32 of Civil Procedure Code is filed by the plaintiff by permitting the PW1 to institute the suit.
24. The learned counsel for appellant placed a reliance in Kasaram Jayamma and another vs. Jajala Lakshamma and others 3 , in that decision it was held as follows:
It is well settled that the joint family properties can be alienated only for joint family purpose. Exs. B2, B4, B7 and B8 do not indicate the joint family purpose for which the alienations/settlements are effected by late Muni Subbiah alias Muddiah. A reading of the impugned judgment discloses that the trial Court considered each transaction under the above documents and held that the alienations thereunder are not valid and binding on the plaintiffs. I am unable to take a different view of the matter having regard to the ratio laid down by the Supreme Court in raghavamma v. Chenchamma, AIR 1964 SC 136 and in M. N. Arya Murthy and another v. M. K. Subbaraya Setty (Died) by his L. Rs. and others, AIR 1972 SC 1279.3
1997 (6) ALD 562 18 VGKRJ AS 1637 of 1998
25. In a case of Mohinder Kaur vs. Sant Paul Singh4, the Apex Court held as follows:
In Janki Vashdeo (supra), it was held that a power of attorney holder, who has acted in pursuance of the said power, may depose on behalf of the principal in respect of such acts but cannot depose for the principal for the acts done by the principal and not by the power of attorney holder. Likewise, the power of attorney holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross-examined. In our opinion, the failure of the respondent to appear in the witness box can well be considered to raise an adverse presumption against him as further observed therein as follows :
"15. Apart from what has been stated, this Court in the case of Vidhyadhar v. Manikrao observed at scc pp. 583-84, para 17 that:
"17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct...."
26. In a case of Vidyadhar vs. Mankikrao and another 5, the Apex Court held as follows:
Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross 4 (2019) 9 SCC 358 5 (1999) 3 SCC 573 19 VGKRJ AS 1637 of 1998 examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksha Singh v. Gurdial Singh, AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh, AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v.
Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 Madh Pra 225, also followed the Privy Council decision in Sardar Gurbakhsh Singhs case (AIR 1927 PC 230) (supra ). The Allahabad High Court in Arjun Singh v. Virender Nath, AIR 1971 Allahabad 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand, AIR 1974 Punj and Har 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.
27. In a case of Manisha Mahendra Gala and others vs. Shalini Bhagwan Avatramani and others6, the Apex Court held as follows:
The law as understood earlier was that a general power-of-attorney holder though can appear, plead and act on behalf of a party he represents but he cannot become a witness on behalf of the party represented by him as no one can delegate his power to appear in the witness box to another party. However, subsequently in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. [Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217] , this Court held that the 6 (2024) 6 SCC 130 20 VGKRJ AS 1637 of 1998 power-of-attorney holder can maintain a plaint on behalf of the person he represents provided he has personal knowledge of the transaction in question. It was opined that the power-of-attorney holder or the legal representative should have knowledge about the transaction in question so as to bring on record the truth in relation to the grievance or the offence. However, to resolve the controversy with regard to the powers of the general power-of-
attorney holder to depose on behalf of the person he represents, this Court upon consideration of all previous relevant decisions on the aspect including that of Janki Vashdeo Bhojwani [Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217] in A.C. Narayanan v. State of Maharashtra [A.C. Narayanan v. State of Maharashtra, (2014) 11 SCC 790 : (2014) 4 SCC (Civ) 343] concluded by upholding the principle of law laid down in Janki Vashdeo Bhojwani [Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217] and clarified that power-of-attorney holder can depose and verify on oath before the court but he must have witnessed the transaction as an agent and must have due knowledge about it. The power-of-attorney holder who has no knowledge regarding the transaction cannot be examined as a witness. The functions of the general power-of-attorney holder cannot be delegated to any other person without there being a specific clause permitting such delegation in the power of attorney; meaning thereby ordinarily there cannot be any sub-delegation.
In view of the aforesaid case law, it is clear, the law is well settled that the General Power of Attorney holder can only depose about the facts within his personal knowledge and not about those facts which are not within his knowledge or are within the personal knowledge of the person who he represents or about the facts that may be transpired much 21 VGKRJ AS 1637 of 1998 before he entered into the scene. PW1 admits in his cross examination itself that there were misunderstandings between the plaintiff and the first defendant but the recitals in Ex.A1 goes to show that the son used to visit India to enquire the welfare of his parents and to enquire the properties. PW1 also made a different version in his evidence in cross examination itself at one stage he stated that he does not remember whether any separate application was filed along with the suit by seeking permission of the Court to grant permission to permit him to prosecute the plaintiff's case on his behalf, basing on the General Power of Attorney executed by the plaintiff or not and the plaintiff was not physically present in India at the time when the plaint was drafted, again, he further stated the plaintiff was present in India at the time the plaint was drafted. Another contrary admission made by him in his evidence in cross examination is that the first defendant sold the properties under Ex.B9 and Ex.B10 which are self-acquired properties, but the recitals of Ex.B9 and Ex.B10 clearly goes to show that the said properties are also ancestral properties. Therefore, the above admissions clearly goes to show that PW1 does not know whether the plaintiff is in India or not at the time of drafting the plaint. Another admission made by him is that he does not know about the possessing of lands by their family in Yendaluru by the date of filing of the suit. Therefore, his evidence fails to establish the case of the plaintiff that his father and defendants 2 to 7 have colluded together and Ex.B2 to Ex.B7 are collusive transactions. Admittedly, the alleged collusion is not at all proved through PW1 except the bald statement of the plaintiff that the sale transaction of his father is a collusive transaction, no iota of evidence is placed by the appellant to show that all the Ex.B1 to Ex.B7 transactions are collusive transactions. Furthermore, the evidence of DW1 to DW3 clearly goes to show that after payment of entire sale 22 VGKRJ AS 1637 of 1998 consideration only, the sales under Ex.B1 to Ex.B7 are effected. Furthermore, the alleged sale deeds are not yet challenged by the son within 12 years from the date of possession taken over by the alienee. For the reasons best known to the son and father, they did not enter into the witness box, if really they enter into the witness box, the real facts will come out.
28. The learned counsel for appellant placed a reliance in K.I.Askari vs. Nawab Mir Barkat Ali Khan7, in that decision, it was held as follows:
The evidence of general power of attorney holder can be taken into consideration in so far it relates to marking of documents on behalf of the plaintiff and testifying the other facts with in his knowledge and it cannot be rejected in toto.
29. The learned counsel for appellant placed another reliance in Secretary to Government of India, Ministry of Defence, New Delhi vs. Indira Devi and others8, in that decision, it was held as follows:
The requirement is that when GPA-holder is representing the party, the Judge is required to record in writing that he is permitted to appear and act on behalf of the party. In the instant case, the procedure prescribed under Rule 32 of Civil Rules of Practice has been followed. The case dealt with by the learned single Judge of Rajasthan High Court was on a different footing. Apart from that, when once a person files a suit on behalf of the party, as a G. P. A. holder he enters into the shoes of that party and except to the extent of personal knowledge, he is entitled to depose on other facts. In the instant case, what was relied upon by the plaintiffs is 7 2010 (4) ALD 244 8 2003 (4) ALD 302;
23 VGKRJ AS 1637 of 1998 entirely documentary evidence, which are public documents and no personal knowledge was required to be pressed into service to establish the case of plaintiff.
30. The recitals in Ex.A1 clearly goes to show that son used to come to India to enquire the welfare of his parents and to enquire the properties once in 2 or 3 years. As stated supra, no single allegation is levelled against his father by the plaintiff in the plaint itself, likewise, no single allegation is levelled against his son by the father i.e., first defendant in the written statement itself. The evidence of PW1 also goes to show that he is not having certainty whether he is having knowledge about the alienation or transactions in the joint family property and he pleaded ignorance about the possessing of lands by the family of the plaintiff in Yendaluru on the date of filing of the suit. It is the statement of PW1 that the first defendant sold his self acquired property under Ex.B9 and Ex.B10 but the recitals in Ex.B9 and Ex.B10 goes to show the first defendant got those properties from his ancestors. Furthermore, the appellant is not seeking the partition of those properties covered under Ex.B9 and Ex.B10.
31. The specific case of the second defendant is that the plaintiff has no right to question the sale in favour of the second defendant and other defendants and those are binding upon the plaintiff since the first defendant executed sale deeds as a manager of the joint family and for the benefit of the family. A specific plea is taken by the sixth defendant in the written statement itself that the first defendant executed sale deeds in his capacity as a manager of the joint family and for the benefits of the joint family and all the sale deeds executed by the first defendant are valid and binding on the plaintiff and he can neither ignore nor question 24 VGKRJ AS 1637 of 1998 the said sale deeds. He further pleaded that the plaintiff and the first defendant are the members of the joint family even today and the alleged division in the status is only myth and the plaintiff is not bonafide in filing the suit. He further pleaded that the first defendant possessed extensive properties and the first defendant disposed off number of items of properties with exorbitant prices and the plaintiff for the reasons best known to him has not questioned the sale deeds and the suit filed for partition of only one item is bad under law. In such a case, what prevented the plaintiff to enter into the witness box to prove that all the sale transactions covered under Ex.B1 to Ex.B7 are collusive transactions.
32. The statement of PW1 is that he does not remember whether any application is filed under Rule 32 of Civil Procedure Code by permitting PW1 to prosecute the case on behalf of plaintiff basing on the General Power of Attorney executed by him. The evidence of PW1 is silent whether any application is filed under Rule 32 of Civil Procedure Code by the plaintiff. As seen from the plaint averments, no single allegation is levelled against his father in the plaint, likewise, the father also has not levelled any single allegation against his son in the written statement itself that it clearly goes to show the relationship in between son and father is very cordial and there is no strained relationship in between son and father. Furthermore, the recitals in Ex.A1 clearly goes to show that son used to come to India from America once in 2 or 3 years to ascertain the welfare of his parents and to ascertain the whereabouts of his properties. There is no whisper in the plaint that his father conspired with defendants 2 to 7 and all the sale transactions are collusive transactions. The above circumstances clearly reveals that the father as a kartha, alienated the plaint schedule property for the benefit of joint family for improvement of 25 VGKRJ AS 1637 of 1998 funds. Furthermore, it is not the case of the plaintiff that his father is wasting the money for illegal or immoral purpose. The father and son did not enter into the witness box for the reasons best known to them, if they enter into the witness box, the real facts will come out, as stated supra, no single allegation is levelled against his father by the son in the plaint itself, likewise, the father also has not made any single allegation against his son in the written statement, moreover, the recitals of Ex.A1 clearly goes to show that son used to come to India to enquire the welfare of his parents and to enquire about his properties.
33. The above circumstances clearly reveals that within the knowledge of the appellant, the first defendant alienated the property, the same is strengthened by the evidence of DW1 to DW3. Furthermore, as per the own case of the appellant, his father i.e., first defendant died on 04.02.2001 during the pendency of the appeal and he is the only son to his father and the mother of the plaintiff was no more and the appellant is only surviving legal heir of the first defendant, therefore, he stepped into the shoes of his father, now he cannot challenge the alienations made by his father, furthermore, no suit is filed by the appellant to challenge the alienations made by the father within 12 years from the date of possession taken over by the alienee. The evidence of PW1 is not inspiring confidence, moreover, the General Power of Attorney holder cannot import his personal knowledge, he has taken different stands in his evidence contrary to the documentary evidence, he pleaded ignorance in cross examination on all the crucial aspects. The plaintiff failed to prove his case by adducing cogent oral and documentary evidence. For the aforesaid reasons, I do not find any illegality in the decree and judgment passed by the learned trial Judge. The point is answered accordingly.
26 VGKRJ AS 1637 of 1998
34. In the result, the Appeal Suit is dismissed, confirming the decree and Judgment dated 27.04.1998, in O.S.No.5 of 1992 passed by the learned Principal Senior Civil Judge, Ongole. Considering the facts and circumstances of the case, each party do bear their own costs in the appeal.
As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.
_________________________ V.GOPALA KRISHNA RAO, J Date: 23.09.2024 sj 27 VGKRJ AS 1637 of 1998 104 THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO APPEAL SUIT No.1637 OF 1998 Date: 23.09.2024 sj