Does a general power of attorney executed by more than one principal stand automatically terminated on the death of one of them?

This Appeal Suit is directed against the judgment and decree dated 14.12.2020 passed in O.S.No.70 of 2011 on the file of the learned V Additional District Judge, Madurai.

The appellants are the plaintiffs in O.S.No.70 of 2011 on the file of the learned V Additional District Judge, Madurai. The respondents 1 to 3 are the defendants in that suit. The appellants/plaintiffs have filed the suit for declaration that the alleged sham and nominal, self-serving documents dated 09.04.2010 and 29.07.2005 in respect of the suit item Nos.1 and 2 properties respectively executed by the 1st defendant as power agent of the 1 st plaintiff and the deceased Murugesan in favour of the 2nd defendant are null and void and for declaration that the plaintiffs are the absolute owners of the suit properties and consequential permanent injunction.

For the sake of convenience, the parties are referred to as per their rank before the trial Court.

The brief facts are as below:

The trial Court framed the following issues upon the pleadings of both parties. (1)Whether the deceased Murugesan executed a Will dated 16.01.2007 bequeathing his properties in favour of the 2nd plaintiff? (2)Whether the power deed executed in favour of the 1st defendant was duly cancelled? (3)Whether the 1st defendant as power agent discharged his function properly? (4)Whether items 1 and 2 belong to the 2nd defendant absolutely by way of purchase for valuable consideration? (5)Whether items 3 to 10 are not in enjoyment of defendants1 and 2? (6)Whether the suit is not maintainable for non-joinder of necessary parties? (7)Whether the suit is barred by time? (8)Whether the plaintiffs are entitled for a declaration that the sale deed dated 29.07.2005 and 09.04.2010 is null and void? (9)Whether the plaintiffs are entitled to declare that they along with the 3rd defendant are absolute owners of the suit properties? (10)Whether the plaintiffs are entitled for a permanent injunction restraining the defendants 1 and 2 not to interfere with their possession and enjoyment? (11) To what other relief if any plaintiffs are entitled?

Before the trial Court, on the plaintiffs' side, P.W.1 to P.W.5 were examined and Ex.A.1 to Ex.A.37 were marked. On the 1st and 2nd defendants’ side, D.W.1 to D.W.3 were examined and Ex.B.1 to Ex.B.24 were marked.

On appreciation of evidence and the arguments made by either parties, the trial Court has concluded that the suit is barred by limitation, that the suit is bad for non-joinder of necessary parties and that the Will executed by Murugesan was not proved, the 1st defendant discharged his duties as per power deed executed by 1st plaintiff and said Murugesan and hence, the 2nd defendant is absolute owner of the item Nos.1 and 2 and thereby dismissed the suit by its judgment and decree, dated 14.12.2020.

The judgment and decree of the trial Court is under challenge in this appeal.

Both parties have argued at length by relying on rulings of the Hon’ble Supreme Court and High Courts.

The learned counsel for the appellants/plaintiffs has submitted that there is no dispute that the suit properties and other properties originally belonged to the grandfather of the husband of the 1st plaintiff, namely Karuppanan and there is also no dispute regarding the relationship based on the genealogical tree. The 1st plaintiff’s husband died on 28.11.1992. The brother-in-law of the 1st plaintiff is one Murugesan, who was living separately as his wife left him and married another person. The 1st plaintiff and the said Murugesan have executed Ex.A.5 general power of attorney deed dated 31.07.1999 in respect of certain properties, in favour of the 1st defendant as he is the husband of the 1st plaintiff’s sister, the 2nd defendant herein. The suit properties are ancestral properties. The 1st plaintiff’s children are the 2nd plaintiff and the 3rd defendant. At the time of executing the power of attorney deed, the said children were minors and there is no whisper about the said minor children in Ex.A.5 power deed. One of the executors of the power deed, namely Murugesan, died on 12.10.2008. After that, the 1st defendant executed Ex.A.8 sale deed dated 09.04.2010 in favour of his wife, the 2nd defendant herein, in respect of the 1st item of the suit property. The husband executed the sale deed in favour of his wife. The wife certainly could not pass any sale consideration. The defendants have not proved the payment of sale consideration. The plaintiffs have lodged a police complaint alleging that the 1st defendant had created the sale deeds and a criminal case was registered. The 1st defendant obtained anticipatory bail in that case. The same was admitted by the 1st defendant in his cross examination. The power deed was executed without adding the minors and so the power of attorney is not a complete one. Moreover, one of the executors, Murugesan, died before the execution of the sale deed under Ex.A.8. Hence, the Ex.A.8 sale is not a valid one.

The learned counsel for the appellants/plaintiffs further submitted that 2nd defendant is the sister of the 1st plaintiff and the 1st defendant is the husband of the 2nd defendant. The defendants 1 and 2 have acted against the 1st plaintiff and the welfare of her minor children as stipulated in the power of attorney. The 1st plaintiff invested huge money in the 1st item of property for constructing buildings. So, the 1st plaintiff cancelled the Ex.A.5 power deed through the Ex.A.9 registered cancellation deed dated 25.10.2010 and the same was informed to the 1st defendant by way of legal notice dated 14.12.2010. The contention of the 1st defendant that he was not informed about the cancellation of the power deed is a false one and the plaintiffs have clearly pleaded in the plaint. After issuance of legal notice, dated 14.12.2010, the plaintiffs came to know in the last week of April, 2011 that the 1st defendant had also executed Ex.A.12 sham sale deed dated 29.07.2005 in favour of his wife in respect of 2nd item. So, they applied for a certified copy of the same and obtained it on 02.05.2011. The 1st defendant admitted the relationship. The 1st plaintiff believed the 1st defendant, who is the husband of the 2nd defendant, but the 1st defendant committed a breach of trust. He managed the suit properties according to his wishes and got electricity service connection and revenue mutation records.

The learned counsel for the appellants/plaintiffs further submitted that the trial Court has not carefully anaylised the evidence of the plaintiffs' side. The trial Court simply added something that the 1st plaintiff might know regarding the sale deed executed by the 1st defendant under Ex.A.8 and Ex.A.12 upon the assumption of knowledge by the 1st plaintiff as she is residing near the house of the 1st defendant and dismissed the suit. The trial Court has also found that the suit is barred by limitation and also bad for non joinder of necessary parties. The plaintiffs came to know about the sale deed for the 2nd item of the suit property during the last week of April, 2011, and obtained a certified copy on 02.05.2011, thereafter, the plaintiffs filed the suit on 09.05.2011, well within the limitation as per Article 134 of the Limitation Act. From the date of knowledge, the plaintiffs filed the suit within three years, so the suit is not barred by limitation. Further, the minors are not parties in power deed and so the alleged sale by the 1st defendant will not bind the minors. But the trial Court held that the minors, who became majors prior to 2011, have not challenged the said sale deed and so the suit is barred by limitation. The finding of the trial Court is not correct one. The trial Court has not correctly appreciated the evidence and concluded that the suit is barred by limitation, which is not sustainable.

The learned counsel for the appellants/plaintiffs further submitted that the trial Court has also held that the suit is bad for non joinder of a necessary party, that one Thavamani, brother of Murugesan, was not added on the ground that the properties are ancestral properties and so the said Murugesan could not bequeath the share to his brother Thavamani. Admittedly, the said Thavamani filed an impleading petition and the same was dismissed by the trial Court. Challenging the dismissal of the impleading petition, the Civil Revision Petition and SLP were dismissed. The trial Court has not considered the said facts. So, the said Thavamani was not impleaded as he was not a necessary party, as already held by the trial Court. Further, after execution of the power deed, the said Murugesan and the 1st plaintiff sold a few properties covered in that power deed to the 1st defendant and one Mariappan through Ex.A.32 and Ex.A.33. The 1st defendant has also admitted the same. Subsequently, the said Murugesan executed Ex.A.7 - Will dated 16.01.2007 bequeathing the suit properties to the 2nd plaintiff. Murugesan died in the year 2008 and his last Will came into force. So, the 2nd plaintiff is entitled to the suit properties. While the 1st defendant admits the execution of Ex.A.32 and Ex.A.33, he cannot go back from his version that the Ex.A.7 -Will is invalid and it was not executed by the said Murugesan. The Will was proved by examination of P.W.2, who is the attestor to the Will. The trial Court has not considered the evidence of P.W.2, merely since she is a close relative of the 1st plaintiff. In fact, she is also a relative of the defendants 1 and 2 and she is a relative of both parties. Only with a view to usurp the 1st defendant created sham sale deeds in respect of the suit items 1 and 2 properties. The suit properties, item Nos.3 to 10, belonged to the plaintiffs. The defendants have not denied the same. But the trial Court held that the suit item Nos.3 to 10 are unpartitioned and they also belonged to brothers Thavamani, Chandran and two brothers and so the item Nos.3 to 10 are liable for partition. The trial Court observed hot and cold simultaneously. The trial Court misconstrued the facts of the case while appreciating the evidence. Therefore, the plaintiffs are entitled for reliefs sought in the suit. The judgment and decree of the trial Court are not sustainable in law and the same is liable to be set aside. Therefore, the appeal may be allowed.

Per contra, the learned counsel for the respondents 2, 4 and 5 has argued that the plaintiffs have filed the suit for declaration that the plaintiffs and the 3rd defendant are absolute owners of the suit properties and also that Ex.A.8 and Ex.A.12 are null and void. So, it is the bounden duty of the plaintiffs to prove their title over the suit properties and relied on the decision of the Hon’ble Supreme Court in the case of Ramchandra Sakharam Mahajan /v/ Damodar Trimbak Tanksale (Dead) and Ors. case reported in (2007) 6 SCC 737. The plaintiffs further took a stand during the course of evidence that there was an oral partition happened in the family and the suit properties were allotted to them and also took a stand that the Ex.A.5 power of attorney was executed on behalf of the minor children of the 1st plaintiff i.e., the 2nd plaintiff and the 3rd defendant and so, the Ex.A.5 power of attorney would not bind them and based on which the Ex.A.8 and Ex.A.12 sale deeds are invalid in respect of minor children. But the plaintiffs have not specifically pleaded the above averments in their plaint, and hence, without pleading the evidence let in by the plaintiffs, could not be taken into consideration by relying on the decision of the Hon’ble Supreme Court in the case of Srinivas Raghavendrarao Desai (Dead) by LRs /v/ Kumar Vamanrao and Ors. reported in AIR 2024 SC 1310.

The learned counsel for the respondents 2, 4 and 5 has further argued that as per genealogy, one of the executors of Ex.A.5 power deed, namely Murugesan, was a married man and his wife is Nagalakshmi. It is stated that the said Murugesan was a heart patient. The 1st plaintiff and the said Murugesan executed Ex.A.5 power of attorney deed in respect of 18 items. Out of the said 18 items, items 1, 2, 3, 4, 7, 8 and 9 mentioned in Ex.A.5 have been shown as suit properties. The other items of Ex.A.5 are not shown as suit properties. Moreover, items 5, 6 and 10 of the suit properties are not shown in Ex.A.5 power deed. The execution of the power deed is admitted by the plaintiffs. According to the contents of Ex.A.5 power deed, the 1st defendant was given fullest power to alienate. Based on which, the 1st defendant sold the item of the suit property to the 2nd defendant through Ex.A.8 sale deed dated 09.04.2010 and also sold the 2nd item to the 2nd defendant under Ex.A.12 dated 29.07.2005. The defendants 1 and 2 constructed five shops in the 1st item of the suit property. The said Murugesan died on 12.10.2008. The plaintiffs further stated that the said Murugesan executed Ex.A.7 - Will dated 16.01.2007 bequeathing his properties to the 2nd plaintiff. The Will is an unregistered one and it was attested by close relatives and also the scribe was not examined. At the time of execution of the said Will, the said Murugesan was a heart patient and he was not physically fit to execute such Will. Moreover, the said Murugesan had a wife and they were not divorced and also he had another brother, Thavamani. These facts are not shown in the said Will. Moreover, the said Murugesan has no absolute right to bequeath the properties through Ex.A.7 Will. The propounder of the Will and the Scribe of the Will were not examined. It is a settled proposition that a litigant who did not enter the witness box to substantiate his case an adverse presumption has to be taken. Further, as per the evidence, the Will was kept by the testator, Murugesan. The plaintiffs filed Ex.A.29 for divorce between the said Murugesan and his wife, but the same was not incorporated in Ex.A.7 Will. Ex.A.29 has no legal sanctity and there was no divorce granted by a court of law to the said Murugesan and his wife Nagalakshmi @ Latha. So, how the Will came out after his death is unclear. So, the Will is shrouded with suspicious circumstances. The Will was not proved by the plaintiffs as required by law. If so, the said Murugesan died intestate, and his legal heirs would have the right over his properties. But the plaintiffs cannot claim rights over his properties.

The learned counsel for the respondents 2, 4 and 5 has further argued that P.W.4 clearly deposed that the signature found in Ex.A.29 is not that of him. Ex.A.7 and Ex.A.29 were created for this suit. These are silent in the plaint. The plaintiffs further pleaded that the 1st defendant acted against the contents of the Will and the plaintiffs and so the 1st plaintiff cancelled the Ex.A.5 power deed and intimated the same to the defendants by Ex.A.10 legal notice. The plaintiffs have not specifically stated that the 1st defendant has not given accounts in respect of the suit property and the plaintiffs have not lodged any complaint for the alleged commission of breach by the 1st defendant. The 1st plaintiff admitted in her evidence that the power of attorney was voluntarily executed. There was no coercion. So, the power deed is valid. Even during the existence of power, the 1st defendant has executed Ex.A.8 and Ex.A.12 sale deeds dated 09.04.2010 and 29.07.2005, respectively, between the date of the power deed, 31.07.1999 and 25.10.2010. So, the power is valid, and Ex.A.8 and Ex.A.12 are also valid one and they have been legally executed. Further, the Ex.A.10 notice was sent on 14.12.2010 after two months from the cancellation of the power deed on 25.10.2010. The plaintiffs further said that after execution of the power deed, the 1st plaintiff and the said Murugesan sold their properties, so the power deed was not given with fullest right. But, the 1st defendant signed as witness in those sale deeds and also some different property which is not covered in Ex.A.5 power deed was sold by the 1st plaintiff and the said Murugesan.

The learned counsel for the respondents 2, 4 and 5 has further argued that the suit is barred by limitation in respect of Ex.A.12 sale deed dated 29.07.2005, because the plaintiffs claim that they had knowledge in April, 2011. But there is no proof for the same. The plaintiffs are neighbours and close relatives of the defendants, and so each and every happening regarding the suit property might have been with their knowledge. The trial Court has also given such a finding. The plaintiff marked patta and joint patta, which would not be sufficient for establishing title over the immovable property. As per the joint patta, the suit properties were enjoyed by Thavamani, Deivanaiammal and Murugesan, so the plaintiffs are not absolute owners of the suit properties. Hence, without adding the living Thavamani brother of Murugesan and also the wife of Murugesan, namely Nagalakshmi @ Latha, the suit is bad for non-joinder of a necessary party. The plaintiffs took inconsistent pleas regarding suit properties, under oral partition and also under Will. The power deed was executed on 31.07.1999. The minors, i.e., the 2nd plaintiff, became major in 2005 and the 3rd defendant became major in 1996. They have not questioned the power deed as well as Ex.A.8 and Ex.A.12 sale deeds. So, the suit is barred by limitation. Therefore, the plaintiffs have not established their title over the suit properties. The trial Court has properly appreciated the evidence and rightly held that the suit is barred by limitation and also bad for non-joinder of necessary parties and that the plaintiff has not proved their title over the suit properties, however, it is proved that the 2nd defendant proved her title over the suit items 1 and 2 properties. Thus, the findings of the trial Court do not warrant interference. Therefore, the appeal is liable to be dismissed.

In support of his argument, the learned counsel for the defendant relied on the following citations: 1. AIR 2024 SC 1310 in the case of Srinivas Raghavendrarao Desai (Dead) by LRs. /v/ Kumar Vamanrao & Ors. (Civil Appeal Nos.7293-7294 of 2010) 2. (2007) 6 Supreme Court Cases 737 in the case of Ramchandra Sakharam Mahajan /v/ Damodar Trimbak Tanksale (Dead) and Ors. 3. 2009-3 Law Weekly 622 of Madras High Court in the case of Ramulu Ammal /v/ Ramachandra Reddy & Ors. 4. AIR 2020 SC 3717 in the case of Vineeta Sharma /v/ Rakesh Sharma & Ors. in Civil Appeal No..Diary No.32601 of 2018 5. AIR 2005 Supreme Court 422 in the case of Ramesh Chandra Rampratapji Daga /v/ Rameshwari Ramesh Chandra Daga. 6. 2025 Live Law (SC) 838 in the case of Chowdamma (D) by LR and Anr. /v/ Venkatappa (D) by LRs and Anr. 7. (2010) 10 Supreme Court Cases 512 in the case of Man Kaur (Dead) by LRs. /v/ Hartar Singh Sangha. 8. 2011 (5) CTC 287 of Madras High Court in the case of N.Govindarajan /v/ N.Leelavathy and Ors. 9. (2007) 5 MLJ 706 of Madras High Court in the case of Josephine Jerome & Ors. /v/ Santiago & Anr. 10. (2007) 7 Supreme Court Cases 225 in the case of Apoline D’ Souza /v/ John D’ Souza. 11. AIR 2017 Supreme Court 494 in the case of Ramesh Verma (D) Thr. LRs. /v/ Lajesh Saxena (D) by LRs. and Anr. 12. AIR 2009 Supreme Court 2966 in the case of T.K.Mohammed Abubucker (D) Thr. LRs. & Ors. /v/ P.S.M.Ahamed Abdul Khader & Ors. 13. (2004) 5 Supreme Court Cases 272 in the case of Bajranglal Shivchandrai Ruia /v/ Shashikant N. Ruia and Ors. 14. MANU/SC/8733/2006 of the Hon’ble Supreme Court in the case of Utha Moidu Haji /v/ Kuningarath Kunhabdulla and Ors.

The points for consideration are:

Point Nos.1 and 2:- I have carefully considered the arguments of both sides and the rulings relied on by the respondents' 2, 4 & 5 sides along with material records of the case. As per the records and arguments, there is no dispute that the plaintiffs and the defendants are relatives. On hearing both sides and on perusing the material records along with the grounds of appeal, both sides admitted that the suit properties and other properties originally belonged to one Karuppanan, who is the grandfather of the 1st plaintiff’s husband Chandran and that the father's name of the said Chandran is Alagan @ Alagu. It is admitted that the grandfather Karuppanan had four sons namely Mari, Karuppanan, Nagan and Alagan @ Alagu. The said Alagan @ Algu has three sons Chandran, Thavamani and Murugesan. So, the plaintiffs and the 3rd defendant, the said Thavamani and Murugesan had right over the properties of their grandfather Karuppanan through their father Alagan @ Alagu. It is the case of the plaintiffs that the 1st plaintiff’s husband died in 1992 and she was helplessly residing along with her two minor children. It is also the case that the said Murugesan, though he is married, his wife left him and he was residing along with his brother Chandran as he was suffering from heart disease, so the 1st plaintiff and the said Murugesan executed a registered power of attorney in favour of the 1st defendant under Ex.A.5 dated 31.07.1999. The 1st defendant is none other than the husband of the 1st plaintiff's sister and it is not in dispute. On the basis of Ex.A.5 power deed, the 1st defendant sold the item Nos.1 and 2 of the suit properties to the 2nd defendant, who is none other than the wife of the 1st defendant, by virtue of sale deeds Ex.A.8 dated 09.04.2010 and Ex.A.12 dated 29.07.2005.

Now, the plaintiffs claim that the sale was done against the benefit of the plaintiffs and welfare of the minor children and they took a stand that the minors are not shown as parties in Ex.A.8 power deed. The defendants 1 and 2 vehemently contended that there is no pleading regarding the minors not being shown in power deed and so, the plaintiffs’ version during the course of evidence could not be taken into consideration. This argument has merits. Because, it is a settled position of law that evidence could not be let in without pleading as rightly contended on the defendants side by relying on ruling rendered by the Hon’ble Supreme Court in Srinivas Raghavendrarao Desai case reported in AIR 2024 SC 1310 (supra). It is also the case of the plaintiffs that one of the executor of power deed namely Murugesan died on 12.10.2008, but the 1st defendant executed Ex.A.8 and Ex.A.12 sale deeds in favour of his wife and so, the sale deeds are not valid. It is not a correct statement. It is a settled position of law that when multiple persons execute a power of attorney, the death of any one of them or a few of them would not automatically cancel the power deed as long as the other executors are alive. This position has been adopted by various High Courts frequently and also the principal seat of this Court held such view in it judgment rendered in S.A.Nos.238 and 239 of 2023 on 28.11.2025, which is extracted hereunder:

The 1st plaintiff and her husband are the heads of the family. If so, the 1st plaintiff has the right to execute a document for the benefit of her family and minors, and the minors cannot question it. This Court held that a Kartha/Father Manager is having enormous powers of alienation with regard to the Hindu Joint Family either for discharging his own debt or for the benefit of the estate and the same is binding upon other members of Hindu Joint Family as held in Mariammal and Anr. Vs. Subbuthai & Ors. in S.A(MD)No.255 of 2010 reported in 2013 (5) CTC 49, this Court held in paragraph Nos.53 and 55 as follows: "53. In Sri Narayan Bal and others .v. Sridhar Sutar and others, 1996 (1) CTC 390 (SC):1996 (8) SCC 54, the Hon'ble Apex Court has held that "Kartha of Hindu Joint Family is having unfettered right of alienation of Joint Family Property and the same is binding upon other members. 55. From the conjoint reading of the decisions referred to supra, it is made clear that a Kartha/Father Manager is having enormous powers of alienation with regard to Hindu Joint Family either for discharging his own debt or for the benefit of the estate and the same is binding upon other members of Hindu Joint Family. Further even if a sale is effected by a manager without legal necessity, the same is nothing but voidable and not void."

From perusal of records and evidence, the Ex.A.5 power deed was cancelled by way of Ex.A.9 cancellation. Ex.A.5 power deed is dated 31.07.1999 and the cancellation is dated 25.10.2010. The 1st defendant, as power of attorney of the 1st plaintiff and Murugesan, sold the suit items 1 and 2 to the 2nd defendant under Ex.A.8, dated 09.04.2010 and Ex.A.12, dated 29.07.2005. These sales deeds took place prior to the cancellation of the power deed. Moreover, the 1st plaintiff as P.W.1 has clearly deposed in her cross examination that “th.rh.M.5 Mtzj;ij ve;j fhuzj;jpw;fhf vGjpf;bfhLj;njd; vd;why; vd; fzth; rpW tajpnuyna vd;id tpl;Ltpl;L ,we;Jtpllhh; brhj;Jf;fis ghJfhg;gjw;fhf vGjpf;bfhLj;njd;. gth; gj;jpuj;jpid uj;J bra;fpw tiuapy; me;j gj;jpuj;jpw;F caph; ,Uf;Fk; tpguk; bjhpa[k; vd;why; bjhpa[k;. th.rh.M.5 Mtzj;jpy; fpiuak; bra;tjw;fhft[k;> xj;jp bra;tjw;fhft[k;> <L bra;tjw;fhft[k; vd;W Fwpg;gplg;gl;Ls;sJ vd;why; ehd; goj;Jg;ghh;f;fhky; ifbaGj;J nghl;L bfhLj;njd;. ehd; jhf;fy; bra;Js;s gpuhjpy; th.rh.M.5 gth; gj;jpuj;ij goj;Jg; ghh;f;fhky; ifbaGj;J bra;Js;nsd; vd;W brhy;ypa[s;nsdh vd;why; brhy;ytpy;iy.......”. So, they are valid in the eye of law, until any coercion or violation of the contents of the power deed.

From perusal of records, the plaintiffs have not substantiated that the 1st defendant acted against the power deed and has not given the sale consideration or any accounts upon demand. The 1st plaintiff as P.W.1 has admitted in her cross examination that “th.rh.M.9 Mtzk; uj;J bra;tjw;F Kd;ghf jhth 1. 2 ,yf;f brhj;Jf;fis tpw;wjw;F gzk; jutpy;iy vd;W nfl;L nehl;O]; vJt[k; uhn$e;jpuDf;F bfhLj;jPh;fsh vd;why; bfhLf;ftpy;iy. ,J ehs; tiuapy; uhn$e;jpud; vd;gth; fpiua gzk; bfhLf;ftpy;iy vd;W rl;lg{h;tkhf ePjpkd;wj;jpy; mth; kPJ tHf;F nghltpy;iy........”. So, Ex.A.8 and Ex.A.12 are valid in the eye of law and on the basis of the same, the 2nd defendant has absolute title over the suit items 1 and 2.

At this juncture, the plaintiffs have argued that the trial Court has observed that the suit properties are undivided properties and so, the plaintiffs have to seek partition, but the trial Court held that Ex.A.8 and Ex.A.12 are valid and the trial Court set hot and cold upon the case of the parties. There is no bar to alienate the undivided share of a coparcener prior to partition, and the alienee has valid title over the share sold to him. According to the law of equity, if any undivided share is purchased by a person prior to partition, he is entitled to seek allotment of the same, which would be allotted to his vendor as a coparcener. The Law of Equity is settled by the Hon’ble Supreme Court in a decision reported in 1995 (6) SCC 150 (Adivi Naidu & Ors. v. E.Duruvasulu Naidu & Ors.), it is held in paragraph No.5 as follows: ''5.Having considered the respective contentions, we are of the view that since the preliminary decree was allowed to become final, the trial Court need to give effect to it. It is settled law that alienees of the alinees have no right to equities. Equally, it is settled law that a coparcener has no right to sell his undivided share in the joint family property and any sale of undivided and specified items does not bind the other co-parceners. Since the specific properties were purchased prior to the institution of the suit for partition, though the appellants have no right to equities, it could be said that the respective share to which their principal alienor was entitled would be allotable to them as a special case........'' So, the argument of the plaintiffs' side in this respect has no merit.

The plaintiffs' further case is that after Ex.A.5 power deed, the 1st plaintiff and the said Murugesan sold some property covered in Ex.A.5, so the Ex.A5 power deed was not given effect. The plaintiffs produced Ex.A23 and Ex.B.23 and Ex.B.24. The 1st defendant claims that he is an attesting witness to those sale deeds and he had knowledge of the same. The plaintiffs have not denied the facts. So, the argument in this respect is not acceptable.

The Ex.A.5 power deed was executed on 31.07.1999. Based on which, Ex.A.12 sale deed was executed on 29.07.2005. The plaintiffs claim that they got knowledge only in April, 2011. A perusal of the judgment of the trial Court, it is clear that the plaintiffs, being neighbours of the defendants 1 and 2, have sufficient knowledge about the activities of the defendants. The 1st plaintiff admitted in her evidence that she is residing opposite the house of the defendants 1 and 2. Moreover, the 2nd plaintiff became major even in the year 2005 as per the plaint cause title. The 3rd defendant is a major, and she is sailing with the plaintiffs. The 2nd plaintiff and the 3rd defendant have not challenged either the Ex.A.5 power deed, dated 31.07.1999 or Ex.A.12 sale deed dated 29.07.2005 within 3 years after attaining majority. Moreover, the plaintiffs have not established that they have knowledge only on receipt of the SRO copy of Ex.A.12 in April, 2011. So, as rightly decided by the trial Court, the suit is barred by limitation.

From the above facts and circumstances, the Ex.A.8 and Ex.A.12 sale deeds, which were executed by the 1st defendant on the basis of Ex.A.5 power deed, are valid ones and the suit is barred by limitation. The points are answered against the appellants/plaintiffs.

Point Nos.3 and 4:- The plaintiffs filed the suit for declaration that they are the absolute owners of the suit properties. If so, at first the plaintiffs must prove their title over the suit properties as rightly argued by relying on the ruling of the Ramchandra Sakharam Mahajan case reported in (2007) 6 Supreme Court Cases 737 and in the case of Mohammed Abubucker reported in AIR 2009 Supreme Court 2966. There is no dispute that the suit properties are ancestral properties of their grandfather Karuppanan, who had four sons. The plaintiffs and the 3rd defendant are legal heirs of one of the grandsons of Karuppanan. The 1st plaintiff’s husband also has two brothers. When the facts being so, the plaintiffs ought to have pleaded how the suit properties were entitled to them and in what way. The plaintiffs have not pleaded any partition. Only during the course of evidence the 1st plaintiff state that there was an oral partition. But, the oral partition was not established by the plaintiffs.

Another stand taken by the plaintiffs is that the Murugesan bequeathed the suit properties to the 2nd plaintiff by way of Ex.A.7 Will dated 16.01.2007. There are no material documents to show that the said Murugesan was the absolute owner of the properties mentioned in Ex.A.7 Will. Moreover, Ex.A.7 Will is an unregistered one. So, the initial burden is on the plaintiffs to prove the Will. In this case, the witnesses to the Will are close relatives of both parties, i.e., a co-brother of the husband of the 1st plaintiff. When Ex.A.5 power executed in favour of the 1st defendant was in force, why was he left to sign as a witness in Ex.A.7 Will and there is no acceptable explanation offered by the plaintiffs in this regard, because the plaintiffs stated that the 1st defendant committed breach of trust after execution of Ex.A.8 sale deed of the year 2010. The Will was executed in 2007. As rightly argued by the defendants side the propounder of the Will and Scribe of the Will were not examined. The propounder of the Will is the 2nd plaintiff. He has not entered into the witness box to substantiate his case. It is a settled position that when a party to the case does not enter into the witness box to depose in support of his case and was subject himself to cross examination by the other side, an adverse presumption has to be drawn as per decisions relied on by the respondents/defendants 2, 4 and 5. Moreover, the said Murugesan married one Nagalakshmi @ Latha. The plaintiffs have stated that she was divorced by way of customary divorce. But there is no evidence to substantiate the same. It is pertinent to note here that the mother of the said Nagalakashmi @ Latha has deposed on the plaintiffs' side as P.W.4, who deposed that her daughter Nagalakashmi @ Latha was not divorced from Murugesan. It is also evident that there is no divorce granted to them by the Court of law. These facts are not disclosed in the Ex.A.7 Will. Muchless, these facts are not averred in the plaint also. So, the plaintiffs have not come to court with clean hands. As per the version of the plaintiffs, Murugesan was a heart patient and he was admitted as an inpatient in the hospital. P.W.1 in her cross examination admitted that “rhl;rp jhkhfnt. 2008k; tUlj;jpy; ,wg;gjw;F 1 thuk; Kd;ghf kUj;Jtkidapy; ,Ue;jjhf bjhptpj;jhh;. mtUf;F ,Uja nehah my;yJ fhr nehah vd;why; ,Uja neha; mtuhy; rhpahf K:r;R tpl KoahJ vd;why; rhpjhd;.......” So, Ex.A.7 - Will is shrouded by suspicious circumstances and these are not cleared by the plaintiffs. Hence, this Court is of the considered view that the Ex.A.7 Will is not proved.

In this case, the defendants fairly stated that the suit items 3 to 10 are not in their enjoyment. As already stated, the suit items 5, 6 and 10 are not shown in Ex.A.7 Will, which relates to 18 items. When Ex.A.7 Will is not proved, the Murugesan is deemed to have died intestate. In this case, the suit properties, items 3 to 10 and other properties, originally belonged to grandfather Karuppanan and there is no partition among his branches. Though the plaintiffs state oral partition, the same was not proved by them. Moreover, as per patta and chitta marked in this case as Ex.A.1 to Ex.A.3, Ex.A.18, Ex.A. 19 and Ex.B.3, Ex.B.8 would show joint pattadhars along with the 1st plaintiff. So, the suit properties are not shown as exclusive properties of the plaintiffs. That being so, the brother of Murugesan, namely Thavamani and the wife of Murugesan, namely Nagalakshmi @ Latha, are necessary parties. The trial Court has correctly observed and held that the Will was not proved and the suit is bad for non joinder of necessary parties and the same are upheld. So, these points are answered against the appellants/plaintiffs.

Point Nos.5 and 6:- From the above discussion, the trial Court has correctly appreciated the evidence adduced on both sides and after considering the arguments and citations relied on by both sides, the trial Court correctly held that the appellants/plaintiffs have not proved their case and they are not entitled to the relief of declaration of title and declaration of Ex.A.8 and Ex.A.12 sale deeds as null and void. For all these reasons, the judgment and decree of the trial Court are sustainable in law and the same need not be interfered with by way of this appeal. So, these points are answered accordingly. Thus, the appeal fails.

In the result, this Appeal Suit is dismissed. The judgment and decree dated 14.12.2020 passed in O.S.No.70 of 2011 on the file of the learned V Additional District Judge, Madurai are confirmed. No costs. 01.09.2026