My father has filed a civil suit for Title declaration of property. As he is now 79 yrs old and because of health issues unable to attend court, hence I am a POA holder for my father in that civil suit.
My uncle was defendant no1 , but he is no more now and his legal heirs are defendant. - Prayer is that - 1/2 share in the property as not partitioned.
My fathers cousin, is defendant no 2 in this suit. - Prayer is that - have 1/3 share in the property as it was joint family property of his father and grandpa. Purchased from common income.
Details of suit :
1. My Father (I am POA holder) Plaintiff vs My uncle (died his legal heirs) - Defendant no 1
The oral partition was happened between my father and uncle (As he was a KARTA of family that time) - defendant no 1 -- in 1963 and accordingly they registered their name on property in grampanchayat by giving application with both's sign.( Application copy not present in Grampanchayat but they have given in written that the name registered on properties as per applciation dated) and also all Namuna 8 have mentioned the name registered by applciation received in 1963.
We had total 4 properties on my Grandfather name - out of which 3 properties are given to my father share in partition and one property taken by my uncle (KARTA of Family) as it was in main area and cost was almost equal to other 3 properties. As my father properties are out of village and uncle property was in main peth of the village.
Uncle sold his property. My father also sold 2 property and one property still on my father name. We paid all taxes of grampanchayat for the last 40 years and also in our possession, having 11 tenant from whom my father collecting rent for last 35 yrs but no receipt given.
Now my uncle says that the property was not partitioned and left joint property, so he has 1/2 share in that.
2. MY father ( I am POA holder) - plaintiff vs Father cousin. Defendant no 2
The defendant no 2 says that - his father have 1/3 share in this property as it was purchased from common source of income by my grandfather (plaintiff's grandfather). My grandfather has 2 more brother as they were 3.
The partition of all house property and land partitioned between all my grandfathers in 1952. Before partition they have grocery shop which was given to my grandfather in partition(1952) also the license was on my grandfathers name. My grandfather purchased suit property in 1958. Hence defendant no 2 says that - grocery shop was common and the income coming from that used to purchase that property. So it is joint family property and he has 1/3 share in this. my grandfather has purchased the property from land income.
My grandfather other brother (no more) but his legal heirs are says that - it was not the joint family property and partitioned happened in 1952. After that there was no joint family or any joint family properties.
Still defendant two asks for 1/3 share.
I am a POA holder of my father (original plaintiff in suit), and
For def -1 original defendant in suit (real brother of plaintiff) -- no more. - legal heirs....
For def- 2 (cousin of plaintiff) - his father no more ....
Now my question is that, In cross examination as POA my cross will be considered as a valid cross or still my father (original platiff) to come in witness box to tell about how the partition happened between brothers means my father and his real brother in 1963.
Also their grandfathers means my father's father and def 2's father and thier other 3rd brother in 1952.
As I am a POA holder and was not present that time means in 1952 and 1963..
Also for defendant they were also not present that time and now their father also no more.
In such case, to tell in court the partition has happened in 1952 (also purchased property from own income in 1958) and 1963 - My father has to come in witness box (as he was present that time) or my cross will be sufficient.
Also defendant oral statement in cross will be valid.
As to tell about the partition happened in 1952 (also purchased property in 1958 from own source of income) and 1963, it is not their personal knowledge or act.
So if we consider below how it is applicable in my case.
Civil Procedure Code, 1908, Order 3 - Rule 1, 2 -- Power of attorney holder - Cannot depose in place of the principal - If the power-of-attorney holder has preferred any "acts" in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him - Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined.
