Back
L.NARAYANA SWAMY
LEO FERNANDES – Appellant
Versus
JHON FERNANDIS – Respondent
What is the legality and evidentiary sufficiency of the Release Deed Ex. P3 in favor of the plaintiff? What are the rights and admissibility of a General Power of Attorney Holder (GPA Holder) as a competent witness under the Evidence Act and CPC? What is the appropriate treatment and outcome of the affidavit/ memo evidence and non-appearance of defendants in assessing the partition suit?
Key Points: - The release deed Ex. P3, executed by sisters and mother in 1979, purportedly releases property in favor of the plaintiff and leads to partition; its proof and validity are central to the suit (!) (!) (!) (!) . - The General Power of Attorney Holder (plaintiff’s wife) is examined as a witness, and the court discusses competency under Section 118 of the Evidence Act and the admissibility of GPA evidence (!) (!) (!) (!) (!) . - The court addresses that non-appearance of party/beneficiary witness can give rise to adverse inferences under Section 114 of the Evidence Act, and that documents proven by witnesses present (including DW1’s identification of signatures) affect the finding on Ex. P3 (!) (!) (!) . - The trial and appellate courts’ findings on Ex. P3 being proven and the consequent partition are examined, with emphasis on whether Ex. P3 was proven "in accordance with the law" and the standards for proving such deeds (!) (!) . - The court notes that the GPA holder can be examined as a witness and that the evidence of P.W.1 (GPA holder) is scrutinized for knowledge about Ex. P3 and its execution (!) (!) . - The judgment ultimately dismisses the appeal and sustains the lower courts’ conclusion regarding Ex. P3 and partition (!) .
L. Narayana Swamy, J.
Plaintiff has filed a suit for partition and separate possession in O.S.No.83/1993 on the file of the Additional Civil Judge (Sr. Dn.). The suit came to be decreed on 17.09.2009, against which the appellants, who are the defendants preferred Regular Appeal in R.A.No.52/2009. The same also came to be dismissed on 16.06.2011, by confirming the order passed by the trial Court, against which this appeal is filed.
2. The plaintiff is the younger brother of the family. It is the case of the plaintiff that the members of the family namely, sisters and mother have executed a release deed dated 10.12.2007, in his favour. The plaintiff executed a General Power of Attorney in favour of his wife. On the service of notice, the defendants have entered appearance. Defendant No. 3 placed ex parte. Defendant Nos. 6 and 7 were absent and defendant Nos. 1, 2, 4, 5, 8, 9, 10, 11 were represented through their Advocates. The appellants are the defendant Nos. 2 to 4. They have filed written statement denying the fact of execution of the registered release deed dated 10.12.1979. In order to substantiate the case, Power of attorney holder of the plaintiff was examined as P.W.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
