Hussain Maktumhussain vs Mehaboobsab

S.N. Satyanarayana, J.—The 2nd defendant in O.S. No. 317/2006 pending on the file of Prl. Senior Civil Judge, Belgaum, has come up in this Writ Petition impugning the order dated 4.6.2014 in rejecting his application in I.A. No. 13 filed seeking to reject the evidence of PW. 1 as power of attorney holder of plaintiff.

The brief facts leading to this Writ Petition are that, O.S. No. 317/2006 is filed by the 1st respondent herein for the relief of partition of suit properties by metes and bounds, granting 11/20th share in the suit schedule A and B properties to the plaintiff by declaring that the gift deed executed by the 2nd defendant in respect of R.S. No. 121/3 of Marihal village in favour of his son Asif Hussain Mulla on 8.8.2006 who is defendant no. 4 in the original suit as null and void and other consequential relief.

Admittedly the plaintiff and 2nd defendant are sons of Maktumhussain @ Babu Mulla. The 1st defendant is the widow of said Maktumhussain @ Babu Mulla and mother of plaintiff and 2nd defendant. 3rd defendant is sister of 2nd defendant and 4th defendant is son of 2nd defendant. In the said suit a power of attorney was granted by the plaintiff in favour of his son for adducing evidence. It is seen that the said power of attorney is executed by the plaintiff in favour of his son after pleadings are complete and issues are framed in the said suit. Pursuant to the power of attorney given in his favour, the plaintiff''s son got examined himself as PW. 1 by filing his evidence by way of affidavit. At the stage of cross examination of PW. 1, the application in I.A. No. 13 was filed by the 2nd defendant under Section 151 of CPC seeking to reject the evidence of PW. 1 which was filed in the form of affidavit as power of attorney holder of plaintiff. The said application was opposed by the plaintiff and subsequently the application in I.A. no. 13 came to be dismissed by order dated 4.6.2014 which is impugned in this Writ Petition.

The contention of the petitioner herein, who is 2nd defendant before the Court below is that the plaintiff could not have granted power in favour of his son to adduce evidence in his place. He could have examined him independently to adduce evidence in support of his case, but not as a substitute, for the reason that several allegations are made by him against the defendant with reference to the family settlement and other documents claiming that they are all done by the 2nd defendant with fraudulent intention. The contention of the 2nd defendant is that when there is allegation of fraudulent intention against him by the plaintiff, the evidence will have to be rendered by the plaintiff himself and not through the power of attorney who could not have had any personal knowledge in that matter. It is also contended that regarding other acts which are said to have committed by the 2nd defendant with reference to some of the properties which are sought to be declared as null and void, the plaintiff should adduce evidence independently not through the power of attorney holder.

In support of that, he would rely upon the judgment rendered by the Apex Court in the matter of Janki Vashdeo Bnojwani vs. INDUSIND Bank Limited, reported in ACJ-2005-0-924 and also the judgment rendered in the matter or Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha, trying to advert the attention of this Court to the principles laid down in the aforesaid two judgments with reference to the right of power of attorney holder to adduce evidence in place of the plaintiff.

So far as the judgment in the matter of Janki Vashdeo Bhojwani vs. INDUSIND Bank Limited was discussed at length by a co-ordinate bench of this Court in the matter of Bhimappa and others vs. Allisab and others, reported in ILR 2005 Kar. 3129, which was relied upon by the learned counsel for the respondent in this proceeding who is the plaintiff in the original suit.

The sum and substance of these judgments would indicate the manner in which a power of attorney would be empowered to adduce evidence in support of the case of plaintiff. It is no doubt true that though the parties can lead evidence through the power of attorney holder, there are several restrictions within which such power of attorney could be executed and operated upon by the parties as envisaged in the judgment rendered in the matter of Man Kaur vs. Hartar Singh Sangha, wherein at para 6 the Apex Court clearly spelt out the circumstance under which the principal can grant power of attorney in favour of his agent to adduce evidence on his behalf which are identified under 7 categories and referred to under Clause (a) to (g) of paragraph 6 which reads as under:

To succeed in a suit for specific performance, the plaintiff has to prove: (a) that a valid agreement of sale was entered by the defendant in his favour and the terms thereof; (b) that the defendant committed breach of the contract; and (c) that he was always ready and willing to perform his part of the obligations in terms of the contract. If a plaintiff has to prove that he was always ready and willing to perform his part of the contract, that is, to perform his obligations in terms of the contract, necessarily he should step into the witness box and give evidence that he has all along been ready and willing to perform his part of the contract and subject himself to cross examination on that issue. A plaintiff cannot obviously examine in his place, his attorney holder who did not have personal knowledge either of the transaction or of his readiness and willingness. Readiness and willingness refer to the state of mind and conduct of the purchaser, as also his capacity and preparedness on the other. One without the other is not sufficient. Therefore a third party who has no personal knowledge cannot give evidence about such readiness and willingness, even if he is an attorney holder of the person concerned.

We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:

(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.

(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.

(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.

(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.

(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.

(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.

(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his ''state of mind'' or ''conduct'', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his ''bona fide'' need and a purchaser seeking specific performance who has to show his ''readiness and willingness'' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or ''readiness and willingness''. ''Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.

In the instant case the petitioner herein can press into service clause (c) which is referred to in para 6 of the aforesaid judgment to support his case. If that is taken into consideration in the background of the issues which are framed in the Court below, it is seen that except issues 1 to 3 the burden of proving issues 4 to 9 lies on the defendants. Under the circumstances what is required to be proved by the plaintiff is only issues 1 to 3 which are as under:

Whether the plaintiff proves that suit properties are belonging to his father and plaintiff and defendants are tenants in common to the said property?

Whether plaintiff proves that he has got share in property to an extent of 11/20th share in schedule "A" & "B" properties?

Whether plaintiff proves that gift deed executed by defendant no. 2 in respect of R.S. No. 121/3 dated 18.8.2006 is null, void and not binding upon his rights?

As far as issues 1 to 3 are concerned, it does not call for the personal knowledge of plaintiff to give evidence, since these three issues are with reference to the nature of properties as to whether they belong to plaintiff, 2nd defendant and their father and what is the share of plaintiff in the said properties and so far as issue no. 3 is concerned it is with reference to the gift deed in respect of R.S. No. 121/3 dated 18.8.2006, and that is also required to be decided on the basis of documents. However it is necessary to clarify at this stage that this issue is wrongly framed insofar as stating that the said document is executed by the defendant no. 2 in favour of the plaintiff which is factually incorrect, since the said document is executed by the defendant no. 3 in favour of the plaintiff. The said issue has to be read accordingly. Except that mistake, this issue also appears to be correct. To prove that issue, again personal knowledge of the plaintiff or his power of attorney is not required. In the circumstance the condition which is imposed in clause (c) of paragraph 6 of the judgment in the matter of Man Kaur vs. Hartar Singh Sangha would not restrict the right of the plaintiff in giving power of attorney to his son to adduce evidence on his behalf. In as much as all these three issues do not call for personal knowledge of the plaintiff to be subjected to cross examination while recording the evidence in the aforesaid suit.

Even, for issue no. 3, evidence of an independent witness could be adduced. The 2nd defendant can adduce evidence to demonstrate that there is no acceptance of the oral gift, which is a matter of fact required to be established by adducing evidence of the parties. If for any reason the defendants feel that the evidence of 2nd defendant is necessary in the matter, it is open for him to file necessary application in the original suit.

In that view of the matter, this Court feel that the order of the trial Court in rejecting the application filed by the defendant no. 2 in I.A. No. 13 seeking to reject the power of attorney executed by the plaintiff in favour of his son to adduce evidence on his behalf appears to be just and proper which cannot be interfered with in this Writ Petition.

Accordingly the Writ Petition is dismissed.