ROSAMMA Vs. GEORGE JOSEPH

JUDGEMENT

(1.) PLAINTIFF is the appellant. She and the 1st defendant are daughter and son respectively of one Ouseph Ouseph and his wife, Aley. The plaint schedule items 1 and 2 belonged to him. He executed a will in 1979 by which he bequeathed the plaint schedule properties to his wife, Aley, and after her death to the 1st defendant. Aley was given the right of alienation. But later by sale deed No. 159 of 1991 he sold plaint schedule item No. 1 to the plaintiff through his power of attorney holder. After his death in 1991 Aley sold plaint schedule item No. 2 to the plaintiff by sale deed No. 903 of 1992. Thus the plaintiff became the owner of both items of properties. The 1st defendant, along with his wife and children who are the additional defendants, resides in the property in his capacity as son of Ouseph Ouseph. Though the plaintiff demanded him to vacate the property; he refused to do so. She apprehended that the defendants would commit mischief in the property. On these allegations she prayed for declaration of her title to and possession of plaint schedule properties, recovery of plaint schedule item No. 2 with mesne profits at the rate of Rs. 3000/ - per annum and a perpetual injunction prohibiting committing mischief in the properties.

(2.) AFTER the institution of the suit the 1st defendant died. Defendants 3 to 5 were minors. The 2nd defendant filed a written statement for herself and for and on behalf of the minor children. Their main contentions are as follows: By the will Ouseph Ouseph has bequeathed the plaint schedule properties to the 1st defendant. The power of attorney on the basis of which the sale deed was executed in favour of the plaintiff is not genuine. If it is considered genuine, Ouseph Ouseph revoked the will by the power of attorney. The mother, Aley, had no right to alienate plaint schedule item No. 2. The first defendant effected improvements in plaint schedule item No. 2 and if the defendants are found liable to be evicted, they are entitled to the value of the improvements.

(3.) PLAINT schedule items 1 and 2 belonged to Ouseph Ouseph. Ext. A13 is the will executed and registered by him on 18.6.1979, the genuineness of which is not in dispute. By the will he bequeathed plaint schedule items 1 and 2 to the 1st defendant, the total extent being 1 acre 50 cents. But on the strength of Ext. A2 dated 6.6.1990 which is purported to have been executed by Ouseph Ouseph one Mathai executed Ext. A1 sale deed dated 25.1.1991 in favour of the plaintiff in respect of 50 cents which is described as plaint schedule 1st item. The defendants contended that the power of attorney is a fabricated one and the sale deed executed on its basis is void. The learned Sub Judge did not examine the genuineness of the power of attorney. It appears that he took it for granted that it is a genuine document. But he took the view that it did not empower the holder to execute a sale deed and therefore, the sale deed is void.