Judicial Analysis Court Copy Headnote Facts Arguments Court observation

MADRAS HIGH COURT
Dr. G. Jayachandran and Sunder Mohan, JJ.
Sukumari Prathibha – Appellant
versus
E. Ponnuswamy Nadar and Ors. – Respondents
A.S.(MD)Nos.44, 45, 46 and 170 of 2011 and M.P.(MD)Nos.1 and 2 of 2011 in A.S.(MD)No.44 of 2011 and M.P.(MD)Nos.1 and 2 of 2011 in A.S.(MD)No.45 of 2011 and M.P.(MD)No.1 of 2011 in A.S.(MD)No.46 of 2011 and M.P.(MD)No.1 of 2011 in A.S.(MD)No.170 of 2011
Decided on 4.1.2023

Advocates:
Counsel for the Parties:
In A.S.(MD)No.44 of 2011:
For the Appellant:Mrs. N. Krishnaveni, Senior Counsel for Mr. C. Arul Vadivel @ Sekar, Advocate
For the Respondent Nos.2 to 4: Mr. G. Prabhu Rajadurai
For the 5th Respondent: Foreign Envelope Due
For the Respondent Nos.6 to 9: No Appearance
In A.S.(MD)No.45 of 2011:
For the Appellant:Mrs. N. Krishnaveni, Senior Counsel for Mr. C. Arul Vadivel @ Sekar, Advocate
For the 2nd Respondent: Foreign Envelope Due
In A.S.(MD)No.46 of 2011:
For the Appellant:Mrs. N. Krishnaveni Senior Counsel for Mr. C. Arul Vadivel @ Sekar, Advocate
For the Respondent Nos.2 to 4:Mr. G. Prabhu Rajadurai, Advocate
In A.S.(MD)No.170 of 2011:
For the Appellant Nos.2 to 4:Mr. G. Prabhu Rajadurai, Advocate
For the 1st Respondent:Mrs. N. Krishnaveni, Senior Counsel for Mr. C. Arul Vadivel @ Sekar, Advocate
For the Respondent Nos.2 and 3: Dismissed. vide order, dated 04.07.2018
For the Respondent Nos.4 to 6: No Appearance

IMPORTANT POINT
Law in India does not recognize a Power of Attorney executed in a foreign land to authorize Attorneys living in that foreign country but in respect of immovable property situated in India.

Headnote:
(A) Property Law – Partition – Co-owner can challenge alienation done without her consent and seek for partition without seeking cancellation of sale deed effecting alienation without her knowledge. (Para 33)
(B) Indian Stamp Act, 1899 – Sections 32 and 33 – General Power of Attorney – Certificate under Section 32 of Stamp Act is not a validation for General Power of Attorney executed in a foreign land – Law in India does not recognize a Power of Attorney executed in a foreign land to authorize Attorneys living in that foreign country but in respect of immovable property situated in India – Purpose of executing Power of Attorney in a foreign country to administer property in India can be achieved only if Power of Attorney resides in India and represent Principal who live abroad – Authorizing a Non- Resident Indian does not carry any purpose or meaning for executing Power of Attorney. (Paras 52, 53 and 54)
Result: Appeals dismissed.

JUDGMENT (COMMON)

Dr. G. Jayachandran and Sunder Mohan, JJ.—

Prelude:—

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 collection of stamp duty. On 22.02.2005 collecting Rs.100/-, after adjudication, Certificate under Section 32 of the Indian Stamp Act was granted to this General Power of Attorney.

6. E. Ponnuswamy Nadar first filed a suit before the Principal Munsif Court, Kollam, in C.S.No.743 of 2003 against Selvan Swamydhas Raman, Sukumari Prathibha, Ajayakumar and B.Mini in respect of Item No.1 of the property mentioned in O.S.No.98 of 2008. The said property is located at Kollam. That suit was filed for declaration and possession of the property, which was jointly purchased in the name of E. Ponnuswamy Nadar and his erstwhile wife Sukumari Prathibha under the Sale Deed dated 06.02.1984. In that suit, E. Ponnuswamy Nadar alleged that Selvan Swamydhas Raman claiming himself as Power Agent of E. Ponnuswamy Nadar and Sukumari Prathibha, had sold the pr