Case Note & Summary
The petitioner, Mr. Tomas Shamson De Souza, through his power of attorney holder Mr. Teofilo Dias, filed a writ petition in the High Court of Bombay at Goa challenging the judgment and order of the District Judge, South Goa, dated 30th September 2015. The District Judge had dismissed the appeal filed by the petitioner under Section 384 of the Indian Succession Act, 1925, against the grant of a succession certificate in favour of the respondents, on the ground that the appeal was not maintainable as it was filed by a power of attorney holder. The petitioner contended that the power of attorney holder was competent to file the appeal, relying on Section 2(a) of the Power of Attorney Act, 1882, which allows a power of attorney holder to do any act which the principal could do. The respondents argued that the right to appeal is a personal right and cannot be delegated. The Court analyzed the provisions of Section 384 of the Indian Succession Act, which uses the word 'person' without any restriction, and held that a power of attorney holder is included within the meaning of 'person' and can file an appeal on behalf of the principal. The Court noted that the right to appeal is a substantive right and can be exercised through an agent, as long as the agent is duly authorized. The Court allowed the writ petition, set aside the impugned order, and remanded the matter to the District Judge for hearing the appeal on merits.
Headnote
A) Succession Law - Appeal by Power of Attorney Holder - Section 384 of Indian Succession Act, 1925 - Maintainability - The issue was whether a power of attorney holder can file an appeal under Section 384 against the grant of a succession certificate - The Court held that the word 'person' in Section 384 includes a power of attorney holder, as the right to appeal is a substantive right and can be exercised through an agent - The Court allowed the petition and set aside the appellate order that had dismissed the appeal as not maintainable (Paras 1-10).
Issue of Consideration
Whether a power of attorney holder is competent to file an appeal under Section 384 of the Indian Succession Act, 1925, against the grant of a succession certificate.
Final Decision
The High Court allowed the writ petition, set aside the impugned order of the District Judge dated 30th September 2015, and remanded the matter to the District Judge for hearing the appeal on merits. The Court held that a power of attorney holder is competent to file an appeal under Section 384 of the Indian Succession Act, 1925.
Law Points
- Power of attorney holder can file appeal under Section 384 of Indian Succession Act
- 1925
- Succession certificate proceedings
- Maintainability of appeal by agent
- Section 2(a) of Power of Attorney Act
- 1882
