Sukumari Prathibha vs E. Ponnuswamy Nadar (Died)

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Mad) 992

IN THE HIGH COURT OF MADRAS, MADURAI BENCH
G. JAYACHANDRAN, SUNDER MOHAN, JJ.
Sukumari Prathibha - Appellant
Versus
E. Ponnuswamy Nadar (Died) and Ors. – Respondents
A.S.(MD)Nos.44, 45, 46 and 170 of 2011 and M.P.(MD)Nos.1 and 2 of 2011.
Decided On : 04-01-2023

Advocates Appeared:
For the Appellant : Mrs. N. Krishnaveni for Mr. C. Arul Vadivel @ Sekar.
For the Respondents: Mr. G. Prabhu Rajadurai, Foreign Envelope Due.

Headnote:
Code of Civil Procedure,1908 - Section 96 - Indian Stamp Act - Section 32 - Registration Act, 1908 - Sections 33(1)(c) and 33 - Indian Evidence Act - Sections 33(4) read with 85,112, 74 and 78(4) - Conveyancing Act, 1919 - Section 163B - Indian Stamp Act - Section 32 - Persons to present documents for registration - Power of attorney recognizable for purposes - Employed at Uganda as Teachers, then, shifted their family to Australia, continued her teaching profession and quit the teaching profession, engaged himself in restaurant business - Held, Respect of Item No.1, she is directed to pay 50% of sale consideration for property at Kollam which she sold without knowledge of co-sharer is set aside - Parties are directed to work out their remedy in suit in C.S.No. file of Principal Munsif Court - A.S.(MD)No.44 of 2011 is partly allowed

JUDGMENT :

(G. Jayachandran, Sunder Mohan, JJ.)

(Prayer : First Appeal filed under Section 96 of the Code of Civil Procedure, against the judgment and decree, dated 21.02.2011, made in O.S.No.98 of 2008, on the file of the District Court, Kanyakumari at Nagercoil.)

(PRAYER : First Appeal filed under Section 96 of the Code of Civil Procedure, against the judgment and decree, dated 21.02.2011, made in O.S.No.23 of 2009, on the file of the District Court, Kanyakumari at Nagercoil.)

(PRAYER : First Appeal filed under Section 96 of the Code of Civil Procedure, against the judgment and decree, dated 21.02.2011, made in O.S.No.88 of 2010, on the file of the District Court, Kanyakumari at Nagercoil.)

(PRAYER : First Appeal filed under Section 96 of the Code of Civil Procedure, against the judgment and decree, dated 21.02.2011, made in O.S.No.98 of 2008, on the file of the District Court, Kanyakumari at Nagercoil.)

Prelude:-

1. E. Ponnuswamy Nadar and his erstwhile wife Sukumari Prathibha are the main contesting parties in these batch of four First Appeals arising from three Original Suits, namely, O.S.Nos.98 of 2008 and 23 of 2009, filed by E.Ponnuswamy Nadar and O.S.No.88 of 2010 filed by Sukumari Prathibha. The ancillary parties to the suits are the second wife of E.Ponnuswamy Nadar, Kumari Thangam and her two children, namely, Indira Priyadharshini and Raniki Jhancy Lakshmi Bai. They are all sailing with E.Ponnuswamy Nadar.

2. Whereas Sukumari the erstwhile wife of E.Ponnuswamy Nadar and his nephew Selvan Swamydhas Raman, claiming the joint Power of Attorneys for E.Ponnuswamy Nadar and the parties, who have purchased the properties from them on the strength of a General Power of Attorney, alleged to have been executed before a Solicitor and Notary at Australia on 14.05.2003, sail together with Sukumari Prathibha.

Facts relevant in each of the suits and its outcome:-

3. The background for this litigation is that E.Ponnuswamy Nadar married Sukumari Prathibha on 10.12.1969. They were gainfully employed at Uganda as Teachers, then, shifted their family to Australia, where Sukumari Prathibha continued her teaching profession and E.Ponnuswamy Nadar quit the teaching profession, engaged himself in restaurant business. They invested the income in the properties located at Kollam District, State of Kerala, Kanyakumari District and Chengalpattu District, both in the State of Tamil Nadu. The properties were purchased jointly in the name of E.Ponnuswamy Nadar and Sukumari Prathibha. When their marital relationship got strained, it ended up in dissolution of marriage by the decree of divorce passed by the Family Court, Australia, on 13.09.1990.

4. In respect of their properties at Australia, it appears that they have settled it by way of a compromise decree, which was passed subsequently. In the circumstances, E.Ponnuswamy Nadar has left Australia and came down to India, married Kumari Thangam as his second wife, on 07.04.1993. Ten years later, in the end of the year 2002, he went back to Australia to settle all his financial matters. At that time, it is stated that he suffered Parkinson disease and got admitted at Rozelle Hospital, Car Church & Glover Streets, Leichhardt, New South Wales - 2040, Australia and got discharged on 17.05.2003. When he was admitted in the Hospital, he was taken care by his erstwhile wife Sukumari Prathibha. Few days before his discharge from the hospital, a General Power of Attorney was executed by E.Ponnuswamy Nadar on 14.05.2003 in favour of his erstwhile wife Sukumari Prathibha and his nephew Selvan Swamydhas Raman.

5. The said General Power of Attorney was executed in the presence of Tom A. Doumanis, Public Notary, Level 7, 9 Hunter Street, Sydney, New South Wales 2000, Australia. He has also given the statutory declaration to that effect and annexed his Notarial Witness Certificate. The said General Power of Attorney executed in Australia was presented before the Sub-Registrar Office, Periamedu, Chennai in India, for