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Bombay High Court
K.M.REDDY,G.F.COUTO
Clara Auroro de Branganca - Appellant
Versus
Sylvia Angela Alvares - Respondent
Decided On : 02/04/1985
SPECIFIC RELIEF ACT, 1877 - SECTION 31 - POWER OF ATTORNEY - NULLITY - PARTITION DEED - CANCELLATION - MAINTAINABILITY OF SUIT - MENTAL RETARDATION - UNSOUNDNESS OF MIND - INQUIRY UNDER ORDER 32, RULE 15, C.P.C. - TIME OF HOLDING - EFFECT OF NON-HOLDING - CURABLE IRREGULARITY - MEDICAL EVIDENCE - SUFFICIENCY - LUCIDITY - BURDEN OF PROOF.
Fact of the Case:
The first six respondents filed a suit for declaration of nullity of a Power of Attorney and a Deed of Partition and for cancellation thereof. The appellants challenged the maintainability of the suit, contending that the Power of Attorney was exhausted by the execution of the impugned Partition Deed and that the plaint was signed and verified by an incompetent person. They also contended that the suit was not maintainable under Section 31 of the Specific Relief Act, 1877, as the Power of Attorney had been revoked prior to the institution of the suit.
Finding of the Court:
The Court held that the suit was maintainable under Section 31 of the Specific Relief Act, 1877, as the Power of Attorney was used for a purpose other than the one for which it had been executed and hence, it was not exhausted. The Court also held that the plaint was not materially defective and did not vitiate the suit, as the second respondent was the natural guardian of the respondents Joseph Salvador and Bridget, who were of unsound mind and mentally retarded, respectively, and had no interest adverse to theirs. The Court further held that the non-holding of an inquiry under Order 32, Rule 15, C.P.C. at the time of the institution of the suit did not vitiate the suit, as the inquiry was held at a later stage and it was found that the respondents Joseph Salvador and Bridget were of unsound mind and mentally retarded, respectively, at the time of the institution of the suit. The Court also held that the medical evidence on record clearly established the mental insanity of Joseph Salvador and the mental retardation of Bridget, and that the appellants had failed to prove that Joseph Salvador was in a period of lucidity when he executed the Power of Attorney in favour of the second appellant.
Issues: 1. Whether the suit was maintainable under Section 31 of the Specific Relief Act, 1877? 2. Whether the plaint was materially defective and vitiated the suit? 3. Whether the non-holding of an inquiry under Order 32, Rule 15, C.P.C. at the time of the institution of the suit vitiated the suit? 4. Whether the medical evidence on record established the mental insanity of Joseph Salvador and the mental retardation of Bridget? 5. Whether the appellants had proved that Joseph Salvador was in a period of lucidity when he executed the Power of Attorney in favour of the second appellant?
Ratio Decidendi: 1. Section 31 of the Specific Relief Act, 1877, can be taken recourse of only in a case where a person against whom a written instrument is void or voidable apprehends that, if such instrument is left outstanding, it may cause him serious injury. The Power of Attorney in question was used for a purpose other than the one for which it had been executed and hence, it was not exhausted. Therefore, the suit was maintainable under Section 31 of the Specific Relief Act, 1877. 2. The plaint was not materially defective and did not vitiate the suit, as the second respondent was the natural guardian of the respondents Joseph Salvador and Bridget, who were of unsound mind and mentally retarded, respectively, and had no interest adverse to theirs. Order 6, Rule 14, C.P.C. makes such delegation entirely permissible. 3. The non-holding of an inquiry under Order 32, Rule 15, C.P.C. at the time of the institution of the suit did not vitiate the suit, as the inquiry was held at a later stage and it was found that the respondents Joseph Salvador and Bridget were of unsound mind and mentally retarded, respectively, at the time of the institution of the suit. 4. The medical evidence on record clearly established the mental insanity of Joseph Salvador and the mental retardation of Bridget. 5. The appellants had failed to prove that Joseph Salvador was in a period of lucidity when he executed the Power of Attorney in favour of the second appellant.
Final Decision: The appeal was dismissed with costs.
COUTO, J.:- A suit for inter alia declaration of nullity of a Power of Attorney and a Deed of partition and for cancellation thereof was instituted by the first six respondents in the Court of the Civil Judge, Senior Division, Mapusa against the appellants and the present respondents Nos. 7, 8 and 9 and ultimately decreed by the impugned judgment dated 5th Aug. 1983.
2. Broadly, as set out in the plaint, the case of the first six respondents was that on the death of one Inacio Francisco Braganza, father of the first appellant and grandfather of the Respondents Nos. 1, 3, 5, 6, 7 and 8, Inventory proceedings were initiated for the partition of the estate left behind by him. This partition was executed in the year 1913 in accordance with a Court's Order and allotment of specific properties was individually made in favour of his widow Ana Severina and of his four children, namely (1) Maria Elizabeth, (2) Lucia Paula, (3) Clara Aurora (appellant No. 1) and (4) Antonio Sebastiao Anacleto. Maria Elizabeth, who was married to one Damasceno Nazareth, died after her husband, leaving behind as her sole heirs the respondents Olivia and Francisco Xavier. Lucia Paula was married to William Gregory Alvares. She too died leaving as her heirs the respondents Sylvia, Filomena, Joseph Salvador and Bridget. Anacleto was a bachelor and died on 23rd Jan., 1968. He left as his heirs his sister Clara (appellant No. 1) and his nieces and nephews, the respondents Sylvia (R.1), Filomena (R.3), Joseph Salvador (R.5), Bridget (R.6), Olivia (R.7) and Francisco Xavier (R.8). Though the estate left behind by Inacio Francisco Braganza had been partitioned in the year 1913 and allotment of specific properties had been made to each of his heirs, his widow Ana Severina was managing all the properties that originally belonged to Inacio Francisco up to her death. Then, the management of the same properties was taken up by Anacleto and on the latter's death, appellant No. 2, original defendant No. 5 and husband of the first appellant, took over the administration thereof. On 6th April 1968, the second appellant got Power of Attorney executed in his favour by the respondents Sylvia, Filomena, Joseph Salvador and Bridget to act on their behalf for the purpose of executing a Deed of Partition as regards the estate left behind by the said Anacleto, though he very well knew that Joseph Salvador was of unsound mind and Bridget mentally retarded. On the same day, respondents Olivia and Sylvia executed, in their turn, Power of Attorney in favour of the third appellant, the original defendant No. 6, for the same purpose. On the strength of and the authority conferred by these Powers of Attorney, a Deed of Partition was executed on 28th May, 1968 the second appellant having acted on behalf of respondents Sylvia, Filomena, Joseph Salvador and Bridget, and third appellant on behalf of respondents Olivia and Francisco Xavier and the first appellant for herself. However, though the Powers of Attorney were conferred for the specific and sole purpose of executing a Partition Deed as regards the estate left behind by Anacleto only, the subject matter of the partition deed executed on 28th May, 1968 includes not only the estate of Anacleto, but also properties which had already been allotted in the year 1913 to Ana Severina, Maria Elizabeth, Lucia Paula and Clara in the Inventory proceedings instituted on the death of Inacio Francisco Braganza, and the partition was done in such a manner that the first appellant was given a lion's share, much beyond her right, in clear detriment of all the respondents. In the light of these facts, the first six respondents contended in the suit that the Power of Attorney executed in favour of the second appellant by respondents Joseph Salvador and Bridget is null and void on account of insanity and mental retardation, respectively, as null and void is the Deed of Partition not only because the second appellant intervened and acted on behalf
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