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1. A suit for inter alia declaration of nullity of a Power of Attorney and a Deed of partition and for cancellation thereof was instituted by the first six respondents in the Court of the Civil Judge, Senior Division, Mapusa against the appellants and the present respondents Nos. 7, 8 and 9 and ultimately decreed by the impugned judgment dated 5th Aug.1983.

2. Broadly, as set out in the plaint, the case of the first six respondents was that on the death of one Inacio Francisco Braganza, father of the first appellant and grandfather of the Respondents Nos. 1, 3, 5, 6,7 and 8, Inventory proceedings were initiated for the partition of the estate left behind by him. This partition was executed in the year 1913 in accordance with a Court's Order and allotment of specific properties was individually made in favour of his widow Ana Severina and of his four children, namely (1) Maria Elizabeth, (2) Lucia Paula, (3) Clara Aurora (appellant No.1) and (4) Antonio Sebastiao Anacleto. Maria Elizabeth, who was married to one Damasceno Nazareth, died after her husband, leaving behind as her sole heirs the respondents Olivia and Francisco Xavier. Lucia Paula was married to William Gregory Alvares. She too died leaving as her heirs the respondents Sylvia, Filomena, Joseph Salvador and Bridget. Anacleto was a bachelor and died on 23rd Jan.1968. He left as his heirs his sister Clara (appellant No.1) and his nieces and nephews, the respondents Sylvia (R. 1), Filomena (R. 3), Joseph Salvador (R. 5), Bridget (R. 6), Olivia (R. 7) and Francisco Xavier (R. 8). Though the estate left behind by Inacio Francisco Braganza had been partitioned in the year 1913 and allotment of specific properties had been made to each of his heirs, his widow Ana Severina was managing all the properties that originally belonged to Inacio Francisco up to her death. Then, the management of the same properties was taken up by Anacleto and on the latter's death, appellant No.2, original defendant No.5 and husband of the first appellant, took over the administration thereof. On 6th April 1968, the second appellant got Power of Attorney executed in his favour by the respondents Sylvia, Filomena, Joseph Salvador and Bridget to act on their behalf for the purpose of executing a Deed of Partition as regards the estate left behind by the said Anacleto, though he very well knew that Joseph Salvador was of unsound mind and Bridget mentally retarded. On the same day, respondents Olivia and Sylvia executed, in their turn, Power of Attorney in favour of the third appellant, the original defendant No.6, for the same purpose. On the strength of and the authority conferred by these Powers of Attorney, a Deed of Partition was executed on 28th May, 1968 the second appellant having acted on behalf of respondents Sylvia Filomena, Joseph Salvador and Bridget, and third appellant on behalf of respondents Olivia and Francisco Xavier and the first appellant for herself. However, though the Powers of Attorney were conferred for the specific and sole purpose of executing a Partition Deed as regards the estate left behind by Anacleto only, the subject matter of the partition deed executed on 28th May, 1968 includes not only the estate of Anacleto, but also properties which had already been allotted in the year 1913 to Ana Severina, Maria Elizabeth, Lucia Paula and Clara in the Inventory proceedings instituted on the death of Inacio Francisco Braganza, and the partition was done in such a manner that the first appellant was given a lion's share, much beyond her right, in clear detriment of all the respondents. In the light of these facts, the first six respondents contended in the suit that the Power of Attorney executed in favour of the second appellant by respondents Joseph Salvador and Bridget is null and void on account of insanity and mental retardation. respectively, as null and void is the Deed of Partition not only because the second appellant intervened and acted on behalf of the same respondents in the execution of the said Deed on the strength of a void Power of Attorney, but also because, in any event, the second appellant admittedly acted in excess of the powers conferred to him. Therefore, they prayed for various declarations and for the cancellation of the said Power of Attorney and Partition Deed.

5. Appellants assail this judgment and decree dated 5th Aug.1983 mainly on three grounds, namely (1) that the suit was not maintainable under S. 31 of the Sp. R. Act, (2) that the plaint was signed and verified by an incompetent person, since it was signed and verified by the second respondent on behalf of the respondents Joseph Salvador and Bridget on the strength of the Power of Attorney executed by William Alvares in his favour in his alleged capacity of natural guardian of the said respondents and (3) that though unsoundness of mind of respondent Joseph Salvador is admitted, the evidence has established that he was in a period of lucidity when the Power of Attorney was executed, and as regards Bridget, the plaintiffs failed to prove that she was mentally retarded.

9. We may now turn to the next ground of challenge, according to which the suit was liable to be dismissed, since the plaint was verified and signed on behalf of the respondents Joseph Salvador and Bridget by a person who was incompetent to do so. In this regard, the learned counsel for the appellants invited our attention to Exh. PW.I/A which is an instrument of general Power of Attorney executed in favour of the second respondent by the respondents Sylvia and Filomena and by William Alvares on behalf of respondents Joseph Salvador and Bridget for the purpose of instituting a suit challenging the partition done by Deed dated 28th May. 1968. He contended that a plain reading thereof suffices to show that William Alvares purportedly intervened in the execution of the said instrument as natural guardian of the respondents Bridget and Joseph Salvador, alleging that they are mentally retarded and of unsound mind, respectively. The said William was not appointed guardian by the Court and hence, the learned counsel further submitted, he had no authority to institute the suit on behalf of the said respondents and much less to execute Power of Attorney on their behalf for the aforesaid purpose. The plaint was verified and signed by the second respondent on behalf of the plaintiffs, including the present respondents Joseph Salvador and Bridget, though he was incompetent to do so on behalf of the latter two respondents. In the premises, the learned counsel concluded, the plaint is materially defective and such defect makes the suit liable to he dismissed on that ground alone.

10. We find no merit in the above contentions. We may first mention that this point was raised by the second appellant in his written statement and, as such, a preliminary issue in respect thereof was framed and decided by the learned trial Judge in his original judgment dated 25th Feb.1974. However, after this judgment was set aside by the Division Bench with a direction to the trial Court to decide the suit on merits, determining also the preliminary issues raised, the appellants, as recorded in para 10 of the impugned judgment, did not press it, perhaps because they realised that, as observed by the Division Bench, even prima facie the findings of the trial Court in respect thereof in the judgment dated 25th Feb. 1974 were unsustainable in law. Thus, having given it up in the trial Court, it was not open to them to agitate it in this appeal. But, on merits also, the above submissions are unsustainable in the facts and circumstances of this case where it is clearly proved. as we will presently show, that respondents Joseph Salvador and Bridget were at the' material time of the institution of the suit. and still Continue to be, of unsound mind and mentally retarded, respectively, and it is not disputed that William Alvares was their father and de facto guardian. He had no interest adverse to theirs. William was, therefore, the natural guardian of the said respondents and would have been ordinarily so appointed to represent them in the suit, which was to safeguard and to restore their rights and their interests. He was admittedly, residing at Bombay and the suit had to be instituted in Goa. In the premises therefore, he had a good cause to authorise as natural and de facto guardian of the respondents Joseph Salvador and Bridget, the second respondent to sign the plaint on their behalf. We find no provision of law barring the delegation of powers by a guardian or next friend, nor the learned counsel for the appellants was able to point out any and on the contrary, in the context of the above facts, O.6, R. 14, C.P.C. makes such delegation entirely permissible. We therefore hold that the signing and verifying of the plaint by the second respondent on behalf of the respondents Joseph Salvador and Bridget does not constitute an irregularity and does not vitiate the suit.