Judgment:
1. Petitioners, who are the plaintiffs before the Court below, filed suit for declaration of title and also for recovery of suit schedule property. The case of action taken by the plaintiffs/ petitioners is that they are dispossessed from the suit schedule property. It is the further case of the first plaintiff, who is the wife of the second plaintiff, that she is the foster-daughter of Bheemanna and Basamma and she inherited the property on the death of her father. Defendants are the brothers of her father. They have deprived the inheritance of the property of Bheemanna and Basamma as the parents of the first plaintiff. She made an application under Order 3, Rule 2 of the Code of Civil Procedure, 1908 by executing power of attorney in favour of the second plaintiff, who is none other than her husband. The said application came to be rejected. It is the submission of the learned Counsel that the rejection of application is an error of law and fact. When the plaintiff proved her case that the second plaintiff is her husband and he has got personal knowledge of disputed question and fact, she has got all rights to execute power of attorney and she cannot be forced to step into witness-box and she has also got right in law to execute power of attorney. In support of his submissions, the learned Counsel relied upon the judgment of this Court in the case of Sharadamma vs Kenchamma and Others (AIR 2007 Kant. 17 : 2006(4) KCCR 2221); and the judgment of the Hon'ble Supreme Court in the case of Man Kaur by L. Rs V Hartar Singh Sangha ((2010)10 SCC 512) wherein it has been held that the power of attorney holder, who has no personal knowledge, cannot be examined in place of plaintiff. It is submitted that in the nature of giving power of attorney, the effort of the first plaintiff is that the second plaintiff, who is the husband of the first plaintiff, has got personal knowledge and hence rightly could be the power of attorney. It is submitted that even without the power of attorney, the husband of the first plaintiff himself is a party and hence, he could examine himself as also examined on behalf of his wife who is the first plaintiff.
2. The learned Counsel for the respondent submits to dismiss the petition. He submits that the nature of the relief sought by the plaintiff is the basis to entertain the application, especially, for power of attorney. It is not right for any party top execute any regional power of attorney. As it is rightly held in the case of Hartar Singh Sangha, when the power of attorney holder who acquires personal knowledge in respect of suit, he could be examined by the authority of general power of attorney. In the instant case, the suit is filed by the first plaintiff and the second plaintiff, who is none other than her husband, has been appointed as power of attorney to examine. The learned Counsel submits that the case of plaintiff that she is the foster-daughter of Bheemanna and Basamma itself is in dispute. The defendants who are the brothers of Bheemanna have disputed her status as foster-daughter. When such being the case, it is the fiorst plaintiff alone, who has to step into witness-box and she alone as to defend her case o subject herself to cross-examination in respect of her dispute as a foster-daughter. Secondly, as is stated in the affidavit, if she is not keeping good health, he could be examined by appointing a Court Commissioner and she may not necessarily be present on all the occasions before the Court. Lastly, it is submitted that even without being the power of attorney, the second plaintiff could have very well be examined himself on behalf of his wife. Hence, there is no error of law committed by the learned judge.
3. Heard the learned Counsel for the parties and gone through the judgments relied upon. The Court keeps its discretion to accept or reject the power of attorney. Acceptance or rejection depends upon case to case. It is anybody's right to insist for acceptance of power of attorney. First plaintiff, who files the suit along with her husband in a special circumstance as a foster-daughter of Bheemanna and Basamma. When her relationship with Bheemanna and Basamma itself in dispute, she alone is competent to give evidence subjecting herself to cross-examination as to whether she is the foster-daughter of Bheemanna and Basamma. That aspect is purely personal to the first plaintiff and not to the second plaintiff. The second plaintiff joined her as husband from the date of marriage. He may not be in a position to subject himself to cross-examine in respect of the status of the first plaintiff as a foster-daughter of Bheemanna and Basamma. At this juncture, the learned Counsel for the petitioner submits that the second plaintiff is also from the same village who knew about the adoption of the first plaintiff as daughter. In respect of this submission, it could be said that the second plaintiff could speak on the first plaintiff. Be that as it may, no person could be compelled to enter the witness-box and answer all the questions posed by the respondent. A person who has stepped into witness-box has got fundamental right to keep silent or abstain from answering any question to that effect. But, any person can execute power of attorney in a case depending upon the facts of each case. In the instant case, the statement made by the petitioner in affidavit that she is over aged cannot be accepted. Firstly, she is 55 years and the presumption would be that her husband is older in age. Secondly, she has stated that she is suffering from disease. The same also cannot be accepted since no supporting document has been produced.
4. In that view of the matter, it is observed that the first plaintiff need not enter into witness-box and even if she enters she can keep silent and not answer the questions in her cross-examination, if she so desires. In the facts and circumstances of the case and also for the reason that the second plaintiff is the husband of the first plaintiff; and as is submitted, he has got personal knowledge about the case as also about the status of his wife as foster-daughter of Bheemaana and Basamma. Under the circumstances, by rejecting the application, it is not fatal to the case of the plaintiff. Though it is a case to make some observation, but I find that the order passed by the learned Trial Judge is not in error either in law or jurisdiction. I am not inclined to interfere in the matter. Petition accordingly stands disposed of.