2004 (12) TMI 646 - SC - Indian Laws

Whether the appellants have any share in the property (38, Koregaon Park, Pune) subject matter of dispute? Whether on the date decrees were passed, the appellants were co-owners of the said property? Whether the said property was the residence of the appellants at the time possession was taken? Held that - The appellants have miserably failed to establish that on the date the decrees were passed, the appellants were the co-owners of the property at 38, Koregaon Park, Pune. They further failed to establish that they have any independent source of income and they have contributed for purchase of the property at 38, Koregaon Park, Pune, from their own independent income. Further the appellants failed to discharge the burden of proving that the appellants have a share in the property. The other connected issues are only consequential to this issue and it may not be necessary for us to deal with them in view of our decision above. Accordingly, the appeal fails and is dismissed with costs.

Issues Involved:
1. Whether the appellants have any share in the property at 38, Koregaon Park, Pune.
2. Whether on the date decrees were passed, the appellants were co-owners of the said property.
3. Whether the said property was the residence of the appellants at the time possession was taken.
4. Validity of allowing a power of attorney holder to appear in the witness box on behalf of the appellants.

Issue-wise Detailed Analysis:

1. Whether the appellants have any share in the property at 38, Koregaon Park, Pune:
The Supreme Court directed the Debt Recovery Tribunal (DRT) to determine if the appellants had a share in the property at 38, Koregaon Park, Pune. The DRT was to ascertain if the appellants had any independent source of income and if they contributed to the property's purchase from their own income. The burden of proof was on the appellants. The DRT allowed Mr. V.R. Bhojwani, the power of attorney holder and husband of appellant no.2, to testify on behalf of the appellants. The Tribunal's decision was challenged as it was inconsistent with the Supreme Court's directions. The Supreme Court held that the appellants failed to establish that they had any independent source of income or that they contributed to the purchase of the property from their own income. Thus, the Tribunal's finding that the appellants had a share in the property was set aside.

2. Whether on the date decrees were passed, the appellants were co-owners of the said property:
The Supreme Court found that the appellants had not proven they were co-owners of the property at the time the decrees were passed. The property was purchased by M/s Bhojwani Brothers, HUF, a separate legal entity. The appellants claimed the amount paid by M/s Bhojwani Brothers was a loan to them, which they repaid, but failed to provide sufficient evidence. The Supreme Court noted that the appellants did not disclose their independent income sources and did not provide credible evidence of their contributions to the property's purchase. Therefore, the appellants were not considered co-owners of the property.

3. Whether the said property was the residence of the appellants at the time possession was taken:
The DRT was directed to determine if the property was the appellants' residence when possession was taken. However, given the Supreme Court's finding that the appellants failed to prove their ownership or contribution to the property's purchase, this issue became secondary. The Supreme Court did not find it necessary to address this issue in detail, as the core question of ownership was not established by the appellants.

4. Validity of allowing a power of attorney holder to appear in the witness box on behalf of the appellants:
The Supreme Court addressed the validity of allowing a power of attorney holder to testify on behalf of the appellants. The Court held that the power of attorney holder could not depose in place of the principal for matters requiring personal knowledge and cross-examination. The Court emphasized that deposing in the witness box is a personal act and cannot be delegated to an agent. The Court overruled the view that a power of attorney holder could testify on behalf of the principal, as held by the Bombay High Court in Floriano Armando Luis & Anr. vs. Humberto Luis & Anr. The Supreme Court upheld the view that a power of attorney holder can only testify about acts done in pursuance of the power of attorney but cannot testify on behalf of the principal for acts requiring personal knowledge.

Conclusion:
The Supreme Court concluded that the appellants failed to establish their ownership or contribution to the purchase of the property at 38, Koregaon Park, Pune. The appellants did not provide sufficient evidence of their independent income or contributions. The Tribunal's decision allowing the power of attorney holder to testify on behalf of the appellants was found to be erroneous. The appeal was dismissed with costs, and the appellants were not recognized as co-owners of the property.

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