Dismissed

Antony Thomas v. Thomas Joseph

Kerala HC8 Feb 2024RSA/345/2014

Case brief

AI extract

What is this about?

In this second appeal, the court examined whether Power of Attorney documents conferred restricted or absolute powers to a mother to execute a partition deed. Holding that the documents restricted power to selling for consideration only, the court affirmed the First Appellate Court's decree permitting partition by metes and bounds.

What did the court decide?

The regular second appeal is dismissed. The decree and judgment of the First Appellate Court are confirmed, allowing partition of the property by metes and bounds.

Antony Thomas Vs Thomas Joseph — Partition | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

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THURSDAY, THE 8TH DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945

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RSA NO. 345 OF 2014

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AGAINST THE JUDGMENT DATED 31.08.2013 IN A.S.NO.24/2010 ON THE FILES
OF THE ADDITIONAL DISTRICT COURT, ALAPPUZHA AROSE FROM THE DECREE AND
JUDGMENT DATED 11.02.2010 IN O.S.NO.108/2008 ON THE FILES OF THE SUB

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COURT, ALAPPUZHA

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APPELLANT/1ST RESPOND ENT/1ST PLAINTIFF:

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ANTONY THOMAS
AGED 52 YEARS, S/O.P.M.THOMAS, MAPPILASSERI, MALIYECKAL,
CHAMPAKKULAM VILLAGE, KUTTANADU TALUK,
PRESENTLY RESIDING AT 107 LANETTO DR, SPARTAN BURG,
SC 29301, USA
REPRESENTED BY HIS P/A. HOLDER BINUMON JOSPEH,
AGED 35 YEARS, S/O.A.N.JOSEPH, ASARIPARAMBU HOUSE,
VYSHUAMABHAGAOM, P.O., VANDANAM, ALAPPUZHA DISTRICT.**

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**THE POWER OF ATTORNEY EXECUTED IN FAVOUR OF BINUMON
JOSEPH IS CANCELLED AND REPLACED WITH POWER OF ATTORNEY
EXECUTED IN FAVOUR OF N.J.JAMES AS PER ORDER DATED
08.02.2024 IN I.A.NO.1/2024

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BY ADVS.

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SRI.T.R.HARIKUMAR

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RESPONDENTS/APPELLANTS & RESPONDENTS 2 T O 6/PLAINTIFF 2 & 3 &

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DEFENDANTS:

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1THOMAS JOSEPH
AGED ABOUT 72 YEARS
S/O.P.M.THOMAS, MAPPILASSERI HOUSE,
NEAR RAILWAY OVER BRIDGE, PERUNNA P.O.,
CHANGANACHERRY, ALAPPUZHA DISTRICT.
2THOMAS JOHN
AGED ABOUT 63 YEARS
S/O.P.M.THOMAS, MAPPILASSERI MALIYAKKAL,
CHAMBAKULAM VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT,
PRESENTLY RESIDING AT 97 BLYD, NEW MILFORD,
NEW JERSEY, 07646, USA.

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R.S.A. No. 345 of 2014

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3THOMAS CHACKO
AGED ABOUT 58 YEARS
S/O.P.M.THOMAS, MAPPILASSERI MALIYAKKAL,
CHAMBAKULAM VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT,
PRESENTLY RESIDING AT 1256, PENDARGRASS ROAD,
JEFFERSON, GA 30549, USA.
4DR.THOMAS MATHEW
AGED ABOUT 73 YEARS
S/O.P.M.THOMAS, MAPPILASSERI MALIYECKAL,
CHAMPAKULAM VILLAGE, KUTTANADU TALUK,
ALAPPUZHA DISTRICT, PRESENTLY RESIDING AT
300 PARK WAY, BLUE FIELD, W.VIGINIA, 24701, USA.

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5THOMAS GEORGE
AGED ABOUT 69 YEARS
S/O.P.M.THOMAS, MAPPILASSERI MALIYECKAL,
CHAMPAKULAM VILLAGE, KUTTANADU TALUK,
ALAPPUZHA DISTRICT, PRESENTLY RESIDING AT
31171 OLD SANJUAN RD, SAN JUAN CAPO, CA 92675-2305 USA.
6MARIAMMA DAVIS
AGED ABOUT 67 YEARS, W/O DAVID, MAPPILASSERI MALIYECKAL,
CHAMPAKULAM VILLAGE, KUTTANADU TALUK,
ALAPPUZHA DISTRICT, PRESENTLY RESIDING AT
PATHADAM HOUSE, ELAVOOR P.O., ELAVOOR MURI,
ANGAMALY-683 572.

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7THOMAS SEBASTIAN
AGED 63 YEARS
S/O.P.M.THOMAS, MAPPILASSERI MALIYECKAL,
CHAMPAKULAM VILLAGE, KUTTANADU TALUK,
ALAPPUZHA DISTRICT, PRESENTLY RESIDING AT 138,
WEST MON DR, GAFFNCY SC 29340, USA.
8ABRAHAM THOMAS
AGED ABOUT 56 YEARS
S/O.P.M.THOMAS, MAPPILASSERI MALIYECKAL,
CHAMBAKULAM VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT,
PRESENTLY RESIDING AT 114 ST.JAMES DR.SPTG, SC 29301,
USA.
BY ADVS.
B.PRAMOD – FOR R1,R2,R3
BIJU VIGNESWAR – FOR R5, R6, R8

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON
08.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.S.A. No. 345 of 2014

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JUDGMENT

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Dated this the 8^th day of February, 2024

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This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.24 of 2010 dated 31.08.2013 on the files of the Court of the Additional District Judge, Alappuzha arose from the decree and judgment in O.S. No.108 of 2008 dated 11.02.2010 on the files of the Court of the Sub Judge, Alappuzha. The appellant herein is the 1^st defendant and respondents are plaintiffs and defendants 2 to 6 in O.S. No.108 of 2008.

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Heard the learned counsel for the appellant and the learned counsel appearing for the respondents, in detail. Perused the lower court records and the verdicts under challenge.

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I shall refer the parties in this appeal with reference to their status before the trial court.

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As per order dated 21.05.2014, my learned

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R.S.A. No. 345 of 2014

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predecessor admitted this appeal by formulating the following substantial question of law:

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Was the lower appellate court justified in taking the view that Exts.X1 and X2 confer only a restricted power on the power of attorney holder whereas the trial court was of the view that those documents confer absolute power on the power of attorney holder?

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In this matter, the plaintiffs filed suit for partition and to declare Partition Deed No.648/1996 of S.R.O, Pulinkunnoo, executed by the 1^st defendant and Eliamma, the mother of the plaintiffs and defendants, as void ab initio or the same is vitiated by fraud and undue influence. The sum and substance of the plaint averments is that the plaint schedule properties originally belonged to Sri.P.M. Thomas, the father of the plaintiffs and defendants, on the strength of gift deed No.1282/1956 of S.R.O, Pulinkunnoo. According to the plaintiffs, the properties are partible and the plaintiffs and defendants succeed thereof consequent to the death of their father. Accordingly, after setting aside

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R.S.A. No. 345 of 2014

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the Partition Deed No.648/1996, partition of the plaint schedule properties was sought for.

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The 1^st defendant filed written statement and resisted the suit. The main contention raised by the 1^st defendant is that partition deed No.648/1996 was executed with the consent and concurrence of all sharers and the mother signed the document for and on behalf of the children except the 1^st plaintiff and the 1^st plaintiff already executed release deed No.123/1989 in favour of the mother and other children. The further contention is that the 2^nd and 3^rd plaintiffs executed Exts.X1 and X2 power of attornies in favour of the mother and acting on the said power of attornies, Partition Deed No.648/1996 was executed. Therefore, the plaint schedule properties are not partible is the contention raised by the 1^st defendant.

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The trial court recorded evidence and tried the matter. PWs 1 to 3 examined and Exts.A1 to A3 series marked on the side of the plaintiffs. DW1 examined and Ext.B1 marked on the side of the defendants. Exts.X1 and X2 were also marked.

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R.S.A. No. 345 of 2014

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The trial court after considering rival contentions,

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decreed the suit in part as under:

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“In the result.

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(a) The suits stands decreed in part,

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(b) P2 and P3 are entitled to 1/6

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share each over 4 cents of property which is allotted in favour of their mother as per the Partition Deed No.648/96 dated 1-3-1996.

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Appeal was filed before the First Appellate court challenging the decree and judgment of the trial court vide A.S. No.24/2010. The First Appellate Court considered the matter and found that Exts.X1 and X2 power of attornies were executed by the 2^nd and 3^rd plaintiffs in favour of their mother, but the mother was not authorized to execute a partition deed and the intent behind the execution of the power of attornies is as stated in Clause No.1 of Exts.X1 and X2. Accordingly, the Appellate Court allowed the appeal on the premise that the partition deed marked as Ext.A2 would not affect the rights of the plaintiffs. The

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R.S.A. No. 345 of 2014

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Appellate Court set aside the judgment of the trial court and decreed the suit as under:

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“In the result, the appeal is allowed and plaint schedule property shall be partitioned by metes and bounds among the appellants and respondents.

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1^st appellant/plaintiff is entitled to get 1/9 share of 1/3 share of 1 acre 21 ½ cents of plaint schedule property.

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Appellants 2 and 3 (plaintiffs 2 and 3) and respondents/defendants are entitled to get equal share upon the (1/8) plaint schedule property after demarcating the share of 1^st appellant/plaintiff.

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The mesne profits shall be determined at the time of final decree proceedings.

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Appellants/plaintiffs 1 to 3 are directed to apply for final decree within three months from the date of preliminary decree before lower court.

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Cost of the suit will come out of the estate.”

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In the case at hand, the question of law

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R.S.A. No. 345 of 2014

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formulated is that, what are the powers conferred upon the mother by the executants of Exts.X1 and X2 power of attorney, who are the 2^nd and 3^rd plaintiffs? On perusal of Clause No.1, the intent behind execution of Exts.X1 and X2 could be gathered and the same is as extracted hereunder:

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“To sell by private treaty or by any other mode, convey or by way of all or any of the immovable properties, land, houses, vacant sites, building sites, enclosures belonging to me and situate at Nedumudy and Champakulam villages in Kuttanadu Taluk with all rights title and interest thereto to any person or persons whether in block or separately for any consideration whatsoever.”

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Going through Clause Nos.2 to 9 in Exts.X1 and X2, the intent behind the execution of Exts.X1 and X2 to be gathered and the same is to convey the property either in block or separately for any consideration. But, Exts.X1 and X2, in no way permitted the mother to execute a partition deed of her choice without having received consideration entitled by plaintiffs 2 and 3. To put it otherwise, the intent

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R.S.A. No. 345 of 2014

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behind Exts.X1 and X2 power of attornies is to get sale consideration of the property for and on behalf of the executants of Exts.X1 and X2 by executing conveyance and not for executing partition deed, now under challenge.

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12. In view of the discussion, the substantial question of law answered holding that the f i rst Appellate Court is fully justif i ed in taking the view that Exts.X1 and X2 conferred

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only a restricted power on the power of attorney holder, whereas the trial court wrongly interpreted that Exts.X1 and X2 conferred absolute power to the power of attorney holder so as to execute partition deed also . Thus, it is discernible that the First Appellate Court rightly found that the mother

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had no authority to execute Ext.A2 partition deed No.648/1996 to give up the right of plaintiffs 2 and 3. Accordingly, ignoring partition deed, which is not binding on plaintiffs 2 and 3, the Appellate Court set aside the trial court’s judgment and allowed the appeal as herein above extracted.

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On perusal of the available materials, it is discernible that the First Appellate Court rightly granted partition and the said finding appears to be very

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R.S.A. No. 345 of 2014

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reasonable. Accordingly, after confirming the decree and judgment of the First Appellate Court, this regular second appeal stands dismissed.

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All interlocutory orders stand vacated and all interlocutory applications pending in this regular second appeal stand dismissed.

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Sd/-

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A. BADHARUDEEN JUDGE

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Antony Thomas v. Thomas Joseph

Case brief

What is this about?

What did the court decide?

Antony Thomas v. Thomas Joseph

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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