IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN TUESDAY, THE 3RD DAY OF JUNE 2014/13TH JYAISHTA, 1936 RSA.No. 418 of 2014 () -----------------------
AS 283/2011 of II ADDL.DISTRIT COURT.,TRIVANDRUM IN OS 1833/2008 of II ADDL. MUNSIFF COURT,TRIVANDRUM ---------
APPELLANT:- APPELLANTS/PLAINTIFF -------------------------------------------------------
1. MARIAMMA ANTONY FERNANDEZ, AGED 53 YEARS, W/O. LATE ANTONY FERNANDEZ, MAGGIVILA, PALLINADA, ATTIPRA VILLAGE, THIRUVANANDAPURAM - 695583.
2. MAGGI ANTONY FERNANDES, AGED 26 YEARS, D/O. LATE ANTONY FERNANDEZ, MAGGIVILLA, PALLIADA, ATTIPRA VILLAGE, THIRUVANANDAPURAM-695583.
3. PETER ANTONY FERNANDEZ, AGED 22 YEARS, S/O.LATE ANTONY FERNANDES,M MAGGIVILLA, PALLINADA, ATTIPRA VILLAGE, THIRUVANANTHAPURAM - 695583.
4. TRACY ANTONY FERNANDEZ, AGED 20 YEARS, D/O.LATE ANTONY FERNANDEZ, MAGGIVILLA, PALLINADA, ATTIPRA VILLAGE, THIRUVANANDAPURAM-695583.
BY ADVS.SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V.
SRI.GOVIND PADMANAABHAN RESPONDENTS:
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1. SHERLY MATHEW, D/O. D.F. PATHROSE, AGED 63 YEARS THENGUMOOTTIL HOUSE, MAGGI GARDENS, KUZHIVILA, KARIMANAL, KULATHOOR P.O., THIRUVANANDAPURAM-695583
2. P.J.MATHEW, S/O.T.V. JOHN, AGED 69 YEARS,THENGUMOOTTIL HOSUE, MAGGI GARDENS, KUZHIVILA, KARIMANAL, KULATHOOR P.O., THIRUVANANTHAPURAM - 695583.
R1 & R2 BY ADVS. SRI.N.R.SURESH KUMAR SRI.J.JAYAKUMAR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BP P.BHAVADASAN, J.
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R.S.A. No. 418 of 2014 - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 03rd day of June, 2014
J U D G M E N T
Antony Fernandez, the husband of the first appellant and the father of the rest of the appellants obtained 1.35 acres of land from his father as per Ext.A1 gift deed of the year 1976. Both Antony Fernandez and plaintiffs were abroad and the allegation is that the property was initially being looked after by the father of the Antony Fernandez and later on, after the death of the father, the property was entrusted for management with the defendants. The specific allegation in the plaint is that while they were so entrusted with the management, they created documents in respect of plaint B schedule property and are attempting to deprive the plaintiffs of their right to the plaint B schedule property. Plaint B schedule property is a portion of plaint A schedule property. It is also alleged that any document so created by the defendants is invalid and has no legal effect.
The so called power of attorney is a fraudulent concocted document. On the basis of these allegations, they laid the suit asserting right over plaint B schedule.
2. The defendant resisted the suit. According to them, on 05.03.1977, Antony Fernandez executed a registered power of attorney in favour of his father for the management of property and the executant of the power of attorney had given absolute right to his father to deal with the property in the manner mentioned in the power of attorney document. In pursuance to the authority given under the said document, an extent of 35 cents was assigned by the power of attorney holder in the year 1981 as per Ext.B1 document dated 23.12.1981 to the defendant. Ever since then, they have been in absolute possession and enjoyment of the same and they say that Antony Fernandez was fully aware of the said transaction. They thus resisted the suit.
3. Issues were raised and the parties went to trial.
The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A6 from the side of the plaintiffs. The defendants had Exts. B1 to B5 marked.
4. Both the courts below took the view that Ext. B2 power of attorney alleged to have been executed by Antony Fernandez in favour of his father was more than 30 years old and therefore, the presumption under Section 90 of the Indian Evidence Act applies. Being a legal presumption, the burden was on the plaintiff to rebut the same. The courts below, on evidence found that there was absolutely no rebuttal evidence and therefore drawing the presumption available under Section 90 of the Indian Evidence Act, came to the conclusion that there are no grounds to assail Ext.B1 sale deed in favour of the defendant. The suit was accordingly dismissed which was confirmed in appeal.
5. Sri. G.P. Shinod, the learned counsel appearing for the appellant contended that the courts below have erred in law in applying Section 90 of the Indian Evidence Act to the facts of the case. The defendants have not gone into the box and they have not explained as to how they came into the possession of Ext.B2 power of attorney alleged to have been executed by Antony Fernandez. Relying on Section 55 (3) of the Transfer of Property Act, it was contended that when the whole of the property is not assigned, the assignor is entitled to keep the title deed. Applying the principles to the case on hand, the learned counsel contended that Antony Fernandez gave power of attorney in respect of 1.39 acres of land and what is alleged to have been assigned is only 35 cents of land. It is inconceivable, according to the learned counsel, that as is now been concluded by the courts below that Ext.B2 would have been given to the vendee at the time of execution of Ext.B1 document. That is not a matter for presumption but the matter for proof. It is to avoid inconvenient questions in that regard that the defendants deliberately remained away from the box. The plaintiffs have thereby being precluded from ascertaining as to how the defendants came into possession of Ext.B2. It is therefore contended that there is no evidence to show that Ext.B2 has come from proper custody. If that be so, the presumption available under Section 90 has no application.
6. The defendants have entered a caveat. The learned counsel appearing for them pointed out that the case of the plaintiff was that the property was entrusted for management with the defendants and while they were in management, they have concocted and created documents and have acquired a portion of the property belonging to Antony Fernandez. There is absolutely no evidence to show that Ext.B2 is either fabricated or concocted. In fact, there are materials to show even going by the plaintiffs evidence that power of attorney has been acted upon. It was pointed out by the learned counsel that the power of attorney holder died in 1989 and the executor of the document died only in 2007. The courts below have considered the evidence in considerable detail and have come to the conclusion that in all probability, Ext.B2 must have been handed over to the defendants at the time of execution of Ext.B1 document. Even assuming it not to be so, after the death of the father, it is only reasonable to presume that they would have come into possession of the property since they alone were at home. At any rate, according to the learned counsel, both the courts below have concurrently found that the presumption under Section 90 applies, there is no reason to take a different view.
7. After having heard the learned counsel on both sides, it is felt that the view taken by the courts below appears to be just and reasonable. Even though it is alleged that the power of attorney is forged, concocted etc. there is absolutely no evidence in support of the said allegations. At the time of argument of this appeal, the contention was confined to the question as to whether Ext.B2 has been produced from proper custody. Both the courts below have applied Section 90 to Ext.B2 document and applied presumption available under the said provision. Even though there was a contention that it does not apply to the power of attorney, the lower appellate court rightly rejected the same.
8. It is true that both the courts below have come to the conclusion that in all probability, along with the execution of Ext.B1 document, Ext. B2 document might have also been handed over. It is also true that Ext.A1, the original document of title regarding the property has been produced by the plaintiff. But it must be remembered that even going by the plaintiffs case, they were abroad and the properties were being managed by the father of Antony Fernandez. It is here that the allegations in the plaint assumes importance. The definite allegation is that after the death of the father, the defendants were put in management of the property and during that time, they had concocted the document.
9. The courts below were justified in their approach in coming to the conclusion that Antony Fernandez and his family being abroad, it is reasonable that the power of attorney would have been handed over to the defendants. It may be at the time of execution of Ext.B1 or may be later. But that is irrelevant. It is not shown that they could not have been in possession of the document. There is also nothing to show that power of attorney was not executed by Antony Fernandez. Though there was a contention regarding the fraudulent nature of the document, that remains unsubstantiated. Even assuming that Ext.B2 was not handed over at the time of Ext.B1, that does not help the plaintiff much for the simple reason that at the time of death of the father, the defendants alone were at home and it is possible that they would have come into possession of the power of attorney. Even otherwise, Ext.B1 sale deed in their favour contains recital regarding the power of attorney.
10. One cannot omit to note that power of attorney is a registered one. As already noticed, even though the power of attorney was alleged to be a concocted document, there was absolutely no evidence in that regard. Such being the position, the courts below were fully justified in drawing a conclusion that in all probability, at the time of execution of Ext.B1, Ext.B2 might have been handed over. Even assuming it to be not so, that does not advance the case of the plaintiff, in the light of the fact that there is a recital in Ext.B2 regarding the authority under which document was being executed. It is possible that after the death of the father they might have come into possession of the power of attorney. It could not be said that power of attorney is not produced from proper custody. Since even according to the plaintiffs, the defendants were put in possession and management of the property as per the averments in the plaint.
11. Viewed from any angle, the claim that there is want of proof that Ext.B2 has been produced from proper custody cannot be countenanced. The courts below were fully justified in drawing the presumption under Section 90 of the Indian Evidence Act.
This appeal is without merits and is accordingly dismissed in limine.
ds //True Copy// P.A. To Judge Sd/-
P.BHAVADASAN JUDGE P.BHAVADASAN, J.
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C.M.Appl.No. 343 of 2014 in R.S.A. No. 418 of 2014 - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 22nd day of May, 2014
O R D E R
This is a petition to condone the delay of 69 days in filing the appeal.
2. In the affidavit filed in support of the petition, it is averred that due to an inadvertent omission, the counsel who was appearing for the appellant in the lower appellate court failed to inform the appellant about the receipt of certified copy of the judgment and that caused the delay. It is pointed out that there were no willful laches or negligence on the part of the appellant in not filing the appeal within the stipulated time. Delay occurred under the above circumstances. It is further prayed that unless the delay is condoned and the matter is heard on merits, the appellant will be put to irreparable loss and injury.
3. The petition is very seriously opposed by the respondents by filing a counter and it is pointed out that no grounds are made out to condone the delay.
4. After having heard the learned counsel for the appellants and the learned counsel for the respondents, it is felt that though the reason offered may not be totally acceptable, it cannot be said that there were any willful laches or negligence on the part of the appellant in not filing the appeal within the stipulated time. It needs to be remembered that suit was dismissed and it was confirmed in appeal. The appellant does not stand to gain in any way by deliberately delaying the filing of the appeal. There appears to be an inadvertent omission on the part of his counsel.
For the above reason, this petition is allowed and the delay stands condoned.
P.BHAVADASAN JUDGE ds