LEO FERNANDES Vs. JHON FERNANDIS

JUDGEMENT

(1.) 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 10.12007, 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 10.11979. In order to substantiate the case, Power of attorney holder of the plaintiff was examined as P.W.1 and she is a witness to the document marked at Ex.P3. Defendant No. 11 was examined as D.W.1 and documents were marked from Exs.P1 to P9, of which Power of Attorney and Conversion Order are at Exs.P1 and P2 and Exs.P4 to P9 are RTCs. Caveat, Lawyer notice and notice sent by Srinivas Achar, Advocate are at Exs.D1 to D4. After hearing arguments of respective counsel, the trial Court has decreed the suit and the same has been confirmed by the Appellate Court.

(3.) Learned counsel for the appellant submitted that the document Ex.P3-Release Deed relied upon by the plaintiff was not proved. Though in the written statement the defendants have stated that Ex.P3 which has been executed is forgery, fraud, undue influence and coercion committed by the plaintiff, he has proved the case examining himself in support of his case. Further GPA Holder, who was examined as PW.1 who is none other than wife of plaintiff, is having knowledge of Ex.P If at all in order to prove the case, the plaintiff alone is the best person. In support of the case, the learned counsel has also referred to the judgment in the case of Man Kaur Vs. Hartar Singh Sangha, reported in (2010)10 SCC 512 : (2010 AIR SCW 6198); in which it has held in Head Note 'C' as under: