AIR 2017 (NOC) 835 (KAR.) ::2017 (3) AKR 161 ::(2017) 3 ICC 894

Karnataka High Court

Hon'ble Judge(s): Aravind Kumar , J

(A) Evidence Act (1 of 1872) S. 118 — Civil P. C. (5 of 1908), O. 3, R. 1 — Powers of Attorney Act (7 of 1882), S. 2— Evidence of Power of Attorney holder — Credibility — General Power of Attorney presented at time of examination of Attorney holder on behalf of principal — Not sufficient to arrive at conclusion that evidence tendered by Attorney holder, also binding on principal. (Para 28)

(B) Civil Procedure Code (5 of 1908) S. 151 ; O. 3 Rr. 1, 2 — Recognized agent — Power of Attorney (POA) holder — Word ' act— — Relates to acts done by POA holder in exercise of power granted under said document — But cannot depose for ' acts' ‌ done by principal regarding matter of which principal having personal knowledge. AIR 2005 SC 439, Rel. on. (Para 24)

(C) Hindu Law — Hindu undivided property — Suit for partition — Power of Attorney holder — Plea of fraud and misrepresentation — Plaintiff not entering witness box — Plaintiff and defendant-daughters affixing signatures on several occasions on some papers, bonafidely, having great faith and affection towards defendant-sons — Plea of plaintiff that not only her intentions and ignorance had been misused but also of her daughters — Defendants challenging competency of Attorney holder to tender evidence on behalf of plaintiff — Instant case requires proving of facts which were within personal knowledge of plaintiff alone who alone can depose to said effect — Non-examination of plaintiff, partially fatal. Civil P. C. (5 of 1908), S. 151; O. 3, Rr. 1, 2. Powers of Attorney Act (7 of 1882), S. 2. AIR 2005 SC 439, Rel. on. (Para 28,30,32,34)

(D) Civil Procedure Code (5 of 1908) O. 26, R. 9; S. 151— Appointment of Commissioner — Application for — Determination of age of ink on documents produced — Two expert witnesses stating in their evidence that thumb impressions and signatures are of one and same person — One of defendants admitting her signature on sale deed and palupatti (panchayat partition) — Application liable to be rejected. Evidence Act (1 of 1872), S. 45. (Para 57)

(E) Evidence Act (1 of 1872) S. 92 — Exclusion of oral evidence — Scope of S. 92— Person who asserts that recitals in registered document not to be accepted and relied upon — Has to establish same by tendering rebuttal evidence. (Para 60)

(F) Hindu Law — Hindu undivided property — Suit for partition — Plaintiff being wife of last surviving son of deceased owner applying for partition of property — Defendants denying existence of undivided joint family — Severance of joint family, during partition and allotment of separate shares as per document to parties styled as ' palupatti— — Plaintiff and defendants duly signed document and acted upon it — Plaintiff and one defendant selling some of properties allotted to them — Defendants establishing validity and genuineness of ' palupatti— and sale deeds corroborated by Expert reports — Purchasers of allotted properties, in possession of it and paying taxes to municipal authorities — Defendants successfully establishing partition and severance of joint family property by way of panchayat — Suit, liable to be dismissed. Civil P. C. (5 of 1908), O. 26, Rr. 9, 10, (Para 60,62,63,64)