Derek Rodricks vs Ramdeo and Others

N.K. Mody, J.

Being aggrieved by the Judgment and the Decree dated 30.3.95 passed by III ADJ, Ratlam in civil suit No. 79A/88 whereby the suit filed by the appellant for partition, separate possession of appellant''s share and for accounts from defendant No. 1 has been dismissed, the present appeal has been filed.

Short facts of the case are that appellant filed a suit alleging that appellant, respondent Nos. 1 and 2 are the real brothers and respondent Nos. 3 to 7 and Mrs. Edelied who was defendant No.3 before the learned court below were the sisters. It was alleged that Jeffery Rodricks, the father of the parties died in the year 1956. His wife and mother of the parties, Mrs. Issabella died in June 1968. It was alleged that Mrs. Issabella owned a plot at Retired Colony at Ratlam measuring 85 ft. East-West and 145 feet North-South. It was also alleged that over this plot, Mrs. Issabella built a house and named it as Peace Haven. It was also alleged that Mrs. Issabella executed a will dated 26.3.68 whereby she made arrangements for disposal of suit property and also movable properties kept in the suit house. The original will is with respondent No.1. It was alleged that appellant came to know about the will from respondent No.1 who showed it to the appellant. It was alleged that in case No. 1/83, which was for grant of letter of administration, respondent No. 1 denied that there was disposal of property by Will. It was alleged that respondent No.1 while managing the house on behalf of his brothers has got the house assessed separately in the name of three brothers and got the separate number plates fixed on the house and paid taxes on behalf of three brothers and has inducted tenants. It was alleged that by the will, appellant and respondent Nos. 1 to 3 are equal owners of the house, It was further alleged that respondent No.3 who migrated to Canada has made over title of movable and immovable property in favour of the appellant. It was further alleged that on 10.1.83 when the appellant came to Ratlam, at that time appellant occupied half of the middle portion of the house. It was alleged that on 21.8.83 respondent No. 1 lodged a complaint against the appellant to the effect that appellant has locked the entrance door. With the aforesaid facts, the suit was filed.

Respondent No.1 filed written statement wherein it was admitted that allegations made in para 3 of the plaint that Mrs. Issabella regarding her above mentioned immovable and movable property made their disposal by will dated 26.3.68 but it was denied that original will is held by defendant No.1. It was held that original will is with Neville, respondent No.2, It was alleged that appellant migrated to Canada in the year 1969 and released his share to respondent No. 1 in consideration of Rs. 21,000/-. It was alleged that appellant was never been in possession of the property since 1969 and hence the appellant cannot claim any right on the basis of possession. It was also alleged that respondent No.1 is in adverse possession of the property against the appellant and rest of the respondents. It was prayed that suit be dismissed. On the basis of pleadings of parties, learned Trial court farmed the issues, recorded the evidence and dismissed the suit.

Learned counsel for the appellant submits that learned court below committed error in dismissing the suit. It is submitted that admittedly the suit property belongs to the mother of the appellant and respondents. It was also not in dispute that will was executed by the mother of the deceased. It was submitted that original will was in possession of respondent No. 1. Appellant moved an application under Order 13 Rule 2 CPC for directions to respondent No. 1 to produce the original will. In reply of that application, the respondent No.1 submitted that he is not possessing the original will but no order was passed by the learned trial court asking the respondent No.1 to produce the will. It was alleged that photocopy of the will was on record which was not taken into consideration by the learned court below. It is also alleged that in the statement of Romeo, respondent No.1 who was DW-1, it was specifically admitted that will was executed by the mother of the parties and will was in possession or power of respondent No.1. It is submitted that in view of this, adverse inference ought to have been drawn against the respondent No.1. Learned counsel further submits that even assuming that there was no will, then too, in view of the written statement filed by the respondent No.1 and also in view of the statement made before this Court, the suit could not have been dismissed.

Shri A.S. Kutumbale, learned Sr. counsel of respondent No.1 submits that learned court below has rightly dismissed the suit. The appellant has not come to the witness box to support his case. Only power of attorney has been examined as PW-1, Kishore Mehta who has said nothing. It is submitted that even if it is assumed that power of attorney, Kishore Mehta has proved the case of the appellant, then too his statement cannot be read as evidence. For this, reliance has been placed on a decision in the matter of Janki Vashdeo Bhojwani and Another Vs. Indusind Bank Ltd. and Others, , wherein Hon, Apex Court has observed that order 3 Rule land 2 empowers the holder of power of attorney to act on behalf of the principal. The word ''acts'' employed in 0.3, Rule land 2 confines only in respect of ''acts'' done by the power of attorney holder in exercise of power granted by the instrument. The term ''acts" would not include deposing in place and instead of the principal. If the power of attorney holder has rendered some ''acts'' in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.

Learned counsel submits that appellant himself has not entered into witness box, therefore, no illegality has been committed by the learned court below in dismissing the suit. It was specifically pleaded by the respondent No.1 that appellant has relinguished his rights upon payment of Rs.21,000/- by the respondent No.1 to the appellant. It is also submitted that this fact was proved by respondent No.1 adducing evidence. It is submitted that no cross-examination has been made by the appellant in that regard and the statement of respondent No.1 is an uncrossed testimony which cannot be disbelieved.

From perusal of record, it is evident that it is not in dispute that suit property which was a plot having a house over it belongs to the mother of the parties. It was also not in dispute that appellant and respondent Nos. 1 to 7 and deceased defendant No.8 were legal heirs of the deceased Issabella. The execution of will was also not in dispute by defendant No.1. The will has not come on record. The Respondent No. 1 in his statement has also specifically admitted that mother of the parties died in the year 1968 who executed the will in her lifetime. It was also stated in para 10 by the respondent No.1 that the property was divided in three shares as per will and mutation took place in the record of Municipal Corporation. It was also admitted by respondent No.1 that original will was in his possession. This statement has been given by respondent No.1 on 30.3.94. On that very day, the application was filed by the appellant under order 13 Rule 2 CPC wherein it was prayed that respondent No. 1 be directed to produce the will. Later on, on 19.4.94, an affidavit was filed by the respondent No.1 to the effect that will is not in his possession. The affidavit filed on 19.4.94 is contrary to the statement given by the respondent No.1 on 30.3.94.

However, since the appellant was asking for partition of the property, therefore, it was the duty of the appellant to get the will produced and proved but appellant has taken no steps to take permission to adduce the secondary evidence. In the circumstances the photocopy of the will cannot be looked into. No steps have been taken by the appellant to examine himself or the attesting witnesses in presence of whose the alleged will was executed. However, since it was not disputed that property belongs to the mother of the parties, therefore, appellant and all the respondents were having the share being her successors. No doubt for proving the plaint allegations the appellant ought to have come in witness box. In view of the law laid down by the Apex Court in the case of Janki Vasudev Bhojwani (supra), the power of attorney can give statement to the extent of the acts done by him in pursuance of power of attorney and the term act would not include deposing in place and instead of principal.

However, since the respondent No.1 has admitted that the suit property belongs to the mother of parties and by the will executed, suit property was divided equally between her successors, therefore, only because appellant has not come in witness box will not damage the case in any manner.

In view of this, the appeal is allowed. The judgment and the decree passed by the court below is set aside with a direction that learned court below shall determine the share of the parties and will pass a preliminary decree after giving an opportunity of hearing to both the parties. The parties are directed to remain present before the court below on 3rd July, 2006.

The appeal stands disposed of.