CLARA AURORO DE BRANGANCA Vs. SYLVIA ANGELA ALVARES

JUDGEMENT

(1.) 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 of the same respondents in the execution of the said Deed on the strength of a void Power of Attorney, but also because, in any event, the second appellant admittedly acted in excess of the powers conferred to him. Therefore, they prayed for various declarations and for the cancellation of the said Power of Attorney and Partition Deed.

(3.) The suit so framed was resisted by the first two appellants, mainly on technical grounds. In fact, they raised quite a number of objections as regards the maintainability of the suit which, according to them, is bad for multifariousness, misjoinder of causes of action and parties and untenable under Ss. 31 and 34 of the Specific Relief Act, apart from the fact that the plaint is defective inasmuch as it is signed and verified by the second respondent as constituted Attorney. On merits, their stand has been that though ordinarily respondent Joseph Salvador is of unsound mind, he executed the challenged Power of Attorney during a period when he was lucid and in so far as respondent Bridget is concerned, she was not mentally retarded. They further took the defence that in any event, the partition deed was executed as per the wishes of all the parties concerned and accordingly drafted by Advocate Anastasio de souza with the help of Advocate Usgaoncar.