Muthuvel Nainar vs D.A. Hatheeja Beebi and Others

S.M. Abdul Wahab, J.—The Second Appeal No. 73 of 1993 arises out of the judgment and decree of the Principal District Judge;

Tiruchirapalli, dated 28:2.1992 in A.S. No. 401 of 1991 reversing the judgment and decree, dated 23.1.1990 in G.S. No. 741 of 1982 on the file

of the District Munsif of Perambalur. The first defendant is the appellant in this Court.

S.A. No. 293 of 1993 is against the very same judgment and decree preferred by the second defendant in suit O.S. No. 741 of 1982. the suit is

for declaration and injunction. The case Of the plaintiff in the suit is that the suit properties belonged to her husband Abdul Rahim. The first item

was purchased by him from one Duraisamy Nainar under sale deed, dated 29.12.1971 for Rs. 3,000. Similarly he purchased item No. 2 from one

Manoranjithammal on 5.1.1972. Ever since, the purchase, the plaintiff and her husband are in possession and enjoyment of the suit properties. The

plaintiff''s husband has left for Dubai. Originally, the first item belonged to the first defendant and his brothers. They sold the property bearing

Survey No. 49/1 measuring an extent of 40 cents to Duraisami Nainar. Similarly item 2 also belonged to them and they sold the said properties to

Rajarathina Nainar. After the demise of Rajarathina Nainar, his wife Manoranjithammal sold the property to the plaintiff''s husband. The second

defendant appears t6 have sold by auction the suit properties to the first defendant on 8.8.1982. The sale in favour of the first defendant was for

the loans to be paid by the first defendant to the second defendant subsequent to 1966. Therefore, the second defendant has no right to attach the

property and sale deed. Since purchase, she is entitled for injunction.

The defendants 1 and 2 have filed written statement separately. The first defendant questioned the validity of the sale deeds dated 29.12.1971

and 5.1.1972 in favour of the plaintiff''s husband. The plaintiff was not in possession. The properties were attached in 1965 and sold in 1985. The

second defendant was in possession and from 8.8.1992 the first defendant was in possession. Hence the suit must be dismissed.

In the written statement of the 2nd defendant, the sale deeds in favour of the plaintiffs are challenged. The possession is also disputed. The first

alone has been in possession. The earlier sale deed dated 9.12.1960 is also not valid. The properties were attached in 1965 and sold to the first

defendant.

The trial court framed six issues. The issues 1 and 2 related to the validity of the sale deeds in favour of the plaintiff''s husband the earlier sale

deed dated 9.12.1966. As regards the first item the trial court found that the sale deed dated 9.12.1966 under Ex. A. 3 and 29.12.1971 under Ex.

A. l are not valid.

As regards item No. 2 the sale deeds dated 13.12.1966 under Ex. A. 4 and 25.1.1972 under Ex. A. 2 are valid. The trial court has found that

as there is no power of attorney given to the plaintiff she is not eli-gible to maintain the suit. The trial court further found that the plaintiff is not in

possession. Finally the trial court granted decree of declaration as regards item No. 2. In other respects, the suit was dismissed. An appeal was

preferred by the plaintiff to the District Judge, Tiruchirapalli in A.S. No. 401 of 1991. The appellate court reversed the judgment and decree of the

trial court and granted reliefs of declaration and injunction to the plaintiff as prayed for. Hence the first defendant has preferred the first Second

Appeal No. 73 of 1993. The second defendant has preferred the Second Appeal No. 293 of 1993. The learned Counsel for the appellants in

both the second appeals contended that as there was attachment during 1965-66 the transfer in favour of the plaintiff''s husband were not valid as

they were subsequent to the said attachment. Secondly they contended that in as much as the relief of declaration is concerned it cannot be granted

to the plaintiff, because the plaintiff is seeking relief not in her favour but in favour of her hus-band.

As regards, the first contention, the lower appellate court has rightly found that as there was no evidence of attachment, no document was

produced with reference to the same. Further it is also found that P.W. 1 the first defendant has acted fraudulently with reference to the suit

property. In the absence of any proof or attachment prior to the sale deed in favour of the plaintiff''s husband under Ex. A. l the finding of the

appellate court found that the sale deeds in favour of the husband of the plaintiff under Exs. A. 1 and A. 2 are valid. It was also found that the

earlier sale deeds under Exs. A. 3 and A. 4 are also valid. It has also found possession in favour of the plaintiff. The trial court has relied upon Ex.

B-l filed in O.S. No. 740 of 1982 to show that some attachment was there. But the said document was not filed in the suit O.S. No. 741 of 1982.

Therefore, the reliance placed by the trial court on the said document is not only illegal but also indicates the immaturity on the part of the District

Munsif, who tried the suit O.S. No. 741 of 1982. But the question with reference to maintainability of the suit by the wife for a relief to be granted

to husband, there is some problem. The relief claimed is for declaration which is as follows:

Discretion of court as to declaration of status or right:- Any person entitled to any legal character, or to any right as to any property, may

institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a

declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such

declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Effect of declaration: A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them

respectively and where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration such parties would be

trustees.

From the reading of the aforesaid Sub-Sections, it is very clear that the person who can obtain declarative decree is only a person entitled to legal

character or any right as to any property. But here the persons entitled to such a legal character and the right in the properties is the husband.

The procedure is prescribed for filing a suit on behalf of the person who is entitled to file a suit. Order 3, Rule 1, C.P.C. states as follows:

Appearances, etc. may be in person by recognised agent or by, pleaders: Any appearance, application or act in or to any court, required or

authorised by law to be made or done by a party in such Court may, except where otherwise expressly provided by any law for the time being in

force, be made or done by the party in person, or by his recognised agent, or by a pleader (appearing, or acting, as the case may be) on his behalf:

Provided that any such appearance shall, if the Court so desires, be made by the party in person.

As per the aforesaid provisions, particularly as per the amendment made by the High Court, the suit can be filed by the Power of Attorney. Here

the suit is not: filed by the patty through a power of attorney. The plaintiff is a stranger to the relief in the sense that she is not the person entitled to

obtain the declaration, merely because she happens to be the wife of the person entitled to obtain the declaration she cannot rely upon the

provisions of Section 34 of Specific Relief Act.

The present suit has been filed by the wife. She is a party to the suit. In as much as she has no right to get the declaration with reference to the

legal character and the right to the property in schedule the suit cannot be maintained by her. Even for filing a suit through a power of attorney, the

suit must be in the name of the party, who is entitled to the legal character and right to the property and the plaint must be signed with a power of

attorney, as per the provisions contained in the Order 3, Rule 1, C.P.C.

The learned Counsel for the respondent cited a number of decisions in support of his contention:

Zamindar of Ettiapuram v. Subba Reddy and Ors. 14 M.L.J. 223; 2. Lodd Govindoss Krishnadas Varu v. P.M.A.R.M. Muthiah Chetty AIR

1925 Mad. 660 : 48 M.L. J 721; Bengal Jute Mills Vs. Jewraj Heeralal, 4. Ramashre Chandrakar v. Dena Bank and Anr. AIR 1994 N.O.C. 266

(M.P.); 5. Subbiah Pillai alias S.S.M. Subramaniapillai v. Sankarapandiam Pillai AIR 1948 Mad. 369 : (1947) 1 M.L.J. 227; 6. All India Reporter

Ltd. and Another Vs. Ramchandra Dhondo Datar, ; 7, Iyakku Mathoo Vs. Julius Elias Metropolitan, ; 8. Basdeo and Ors. v. John Smidt and Ors.

ILR 22 All. 55; 9, Harikishan Chela Daya Singh v. The Shiromani Gurdwara Parbandhak Committee and Ors. AIR 1976 P. &H. 130.

In the case Zamindar of Ettiapuram v. Subba Reddy and Ors. 14 M. LJ. 223 the power of attor-ney given by the Zamindar was not filed along

with the plaint when the Zamindar was in Delhi tempo-rarily. Hence the plaint was returned. Thereafter the plaint was represented along with

power of attor-ney. But at that time of representation Zamindar returned from Delhi. The Division Bench of this Court had held that the

presentation of the plaint on the origi-nal date will be the date of proper presentation for all purposes, i.e., for date of filing, engagement of law-yer

etc. The facts of this case is not at all applicable to the case on hand.

The case Lodd Govindoss Krishnadas Varu v. P.M.A.R.M. Muthiah Chetty AIR 1925 Mad. 660 relates to a case where the plaint was

signed and verified by the plaintiffs agent, who was only subsequently granted power to sign and verify the plaint. The facts of this case are also

different.

The case Bengal Jute Mills Vs. Jewraj Heeralal, is also not helpful; where an agent signed an application to set aside the award on behalf of the

principal firm. The application was filed by the Mills only and only by the agent. The agent affixed his signature as authorised agent A single Judge

of the Calcutta High Court held that the agent was duly authorised as contemplated by Order 6, Rule 14 of the Code and hence took the view that

the application to set aside the award was maintainable.

In the case Ramashre Chandrakar v. Dena Bank and Anr. AIR 1994 N.O.C 266 (M.P.) the photo copy of the power of attorney was

submitted. The acting of the power of attorney was submitted. The Acting Chief Justice of the Madhya Pradesh High Court held that the suit was

maintainable as no apparent prejudice was caused to the appellant. The plaintiff was Bank and being a Corporate body it can produce the

photostat copy. Hence this case is not supporting the contention of the counsel for the respondent.

Subbiah Pillai alias S.S.M. Subramaniapillai v. Sankarapandiam Pillai AIR 1948 Mad 369 : (1947) 1 M.L.J. 227 is a case where the plaint

was not signed by the plaintiff. A Division Bench of this Court held that the defect is not such a defect as could af-. fect the merits of the case or

jurisdiction of the court. They did not approve the view of the lower appellate court dismissing the suit. This case is also not helpful to the

plaintiff/respondent.

All India Reporter Ltd. and Another Vs. Ramchandra Dhondo Datar, is also a case where it was held by a Bench of the Bombay High Court

that if a plaint was not properly signed and verified but is admitted and entered in the register of suits it did not cease to be a plaint and the suit

cannot be said not to have been instituted merely because of the existence of some defects or irregularities in the matter of signing and verification

of the plaint. It was further held that if the defects are cured on a subsequent date, the plaint is not change to the subsequent date. The case is also

not helpful.

Iyakku Mathoo v. Julius Elias AIR 1962 Ker. 79 is a case which relates to the signing of the plaint and the verification was by the Metropolitan

on behalf of the Throne of Antioch, Throne of Antioch was not a juristic person and is only a figurative way of describing the Patriarch. The plaintiff

in the case was Patriarch and the Metropolitan has signed and verified the plaint only on behalf of the Patriarch as his delegate. A preliminary point

was raised as to the validity of the plaint. The court has found that the plaintiff was Patriarch and the plaint was signed by Metropolitan as delegate

without proper power of attorney. Therefore, the trial court held in favour of the plaintiff and proceed with the suit. But the High Court reversed it

and refused to grant further time to the agent to produce the power of attorney. Incidentally, the learned Judge of the High Court doubted whether

in such circumstances, the defect could be cured by the Metropolitan by obtaining a power of attorney making him a recognised agent. Therefore,

this case is also not helpful.

In the case Basdeo and Ors. v. Johan Smidt and Ors. l. LR. 22 All. 55 the plaint was not signed by the plaintiff or his authorised agent the

Division Bench of Allahabad High Court held that the defect could be cured at any stage of the suit. However, they took the view that even though

the plaint was not signed by the plaintiff, the lawyer who was engaged by the plaintiff conducted the trial and appeal and therefore, he was not even

insisting for amending the plaint after it has reached the stage of second appeal. The learned Judge disposed of the Second Appeal on merits. The

facts of this case are also different.

In Parkash Chander Vs. Haryana State Electricity Board and Others, the Full Bench of the High Court of Punjab and Haryana took the view

that the question of locus standi must be decided as preliminary issue. The issue related to the question whether the institution is Sikh Gurdwara or

not. I am not able to understand how this case is helpful to the respondent.

The learned Counsel for the respondent cited Mohammad Mustafa Vs. Sri Abu Bakar and Others, . This case is also not helpful. It relates to

the amendment being allowed at any stage. We are not considering any application for amendment now.

All the decisions cited above relate to the signing of the plaint by the plaintiff or agents at a later stages. But the plaintiff in the aforesaid suits are

the persons who are entitled to the relief claimed in the suit and the suits were not in the name of the agent. Therefore, all these cases are not

applicable to the ease on hand. The suit is one for a relief. Claimed u/s 34 of the Specific Relief Act. The plaintiff is not a person who is entitled to

declaration with reference to her right or title to any property. The plaintiff in this case is claiming a relief not for herself but for her husband. She is

not the person entitled to claim the relief u/s 34. Hence the relief of declaration cannot be granted. It is, found in the plaint that after the purchase by

plaintiff''s husband under Ex. A. 1 and A. 2, the plaintiff and her husband are cultivating the lands with the help of P.W. 1. In Ex. A. 1 dated

29.12.1971 there is a recital that the possession was handed over to the plaintiff''s husband on that date itself. Similarly in Ex. A. 2 there is a recital

that the possession was handed over on 25 1.1972 to the plaintiffs husband. Under Exs. A. 3 and A. 4 in which the documents, the first defendant

himself is a party has clearly stated that the possession of the suit property was handed over to the purchaser. From the recital coupled with the

evidence of P.W. I it can be safely concluded that the plaintiff''s husband and the plaintiff has been in possession and enjoying the suit property.

Since the plaintiff''s husband is abroad, she is managing it with the help of P.W. 1. As her possession is legal and Valid, she is entitled to have

decree of injunction. As regards her claim for declaration alone the suit has to be rejected. In other respect the decree of the lower appellate court

will stand, i.e., the plaintiff is entitled to decree for injunction only with reference to suit properties.

In view of the findings rendered above, the Second Appeal No. 293 of 1993 is also partly allowed. The decree with reference to the

declaration relating to the suit properties is cancelled and the plaintiff will be entitled to injunction as prayed for with refer-ence to both items of the

suit properties. There will be no orders as to costs.

As regards S.A. No. 294 of 1993 is concerned it arises out of the suit O.S. No. 740 of 1982 for decla-ration and injunction. The plaintiff

claims the relief in her own right. The defendants are the same defendants as in S.A. Nos. 73 of 1993 and293 of 1993. The trial court dismissed

the suit. However, the lower appellate court reversed the decree and judgment and decree the suit as prayed for. The main contention urged by the

appellant is that there was attachment by the second respondent. The plaintiff purchased the suit property subsequent to the said attachment.

Therefore, the sale in her favour under Exs. A. 1 and A. 2 was not valid. The trial court relied upon the document Ex. B-1. In Ex. B-1 what is

stated is that as per the decision obtained by the Special Officer, the property mentioned in the schedule would be sold on 29.12.1975 or on other

dates to which the sale was adjourned. This is the only document produced by the defendant. From this, one is not able to find as to whether there

was any attachment at all with refer-ence to the suit property. There is also no evidence as to whether any sale took place on the date mentioned in

the notice or on other dates. Subsequent orders relating to the sale etc. are not produced. The sale is said to take place on 29.12.1975. But on

12.12.1966 itself under Ex. A. 2, the suit property has been sold by the first defendant and others to Panchavarnathammal. Under Ex. A. 1

Panchavarnathammal has sold the property to the plaintiff on 28.12.1977. In the absence of evidence to show that there was attachment before

12.12.1977 it cannot be said that the sale in favour of the plaintiff is invalid. From some reference noted en the right hand side top in Ex. B-1 it is

not possible to assume that the attachment took place during 1965-66. Therefore, the lower appellate is right in reversing the judgment and decree

and the finding of the trial court that the sale in favour of the plaintiff was valid.

The appellate court has found that the plaintiff has been in possession and enjoyment of the suit property. As regards the possession P.W. I

has asserted that he is cultivating the land on behalf of the plaintiff. The plaintiff has also produced Exs. A. 3 to A. 11 to show that she has paid kist

and tax for cultivating the land. Ex. A. 1 recites about the handing over possession also. Under Ex. A. l the first defendant Panchavarnathammal

has conveyed the suit property to the plaintiff. Under Ex. A. 2 possession is said to have been handed over to the said Panchavarnathammal by the

first defendant himself. Therefore, it is proved that the plaintiff continued to be in possession from the date of purchase under Ex. A. 1. For the

foregoing reasons, I am of the view that no interference is called for relating to the judgment and decree of the lower appellate court. Hence the

Second Appeal No. 294 of 1993 is dismissed. However there will be no orders as to costs.