Judgments‎ > ‎Case Number‎ > ‎

Regular Second Appeal


R.S.A. No. 763 of 2006 - Babu Vs. Arunapriya, 2012 (4) KLT 487 : 2012 (4) KLJ 491 : ILR 2012 (4) Ker. 908

posted Jun 30, 2013, 12:00 AM by Law Kerala   [ updated Jun 30, 2013, 12:04 AM ]


(2012) 272 KLR 282 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

WEDNESDAY, THE 3RD DAY OF OCTOBER 2012/11TH ASWINA 1934

R.S.A.No.763 of 2006

---------------------------------------

[AGAINST THE DECREE AND JUDGMENT DATED 20.03.2006 IN A.S.34/2005 OF THE COURT OF THE DISTRICT JUDGE, KOZHIKODE; FROM THE DECREE AND JUDGMENT DATED 17.09.2004 IN O.S.NO.155/2003 OF THE COURT OF THE II ADDITIONAL SUB JUDGE, KOZHIKODE.

-------------------

APPELLANT/APPELLANT/DEFENDANT:-

---------------------------------------------------------

BABU, S/O. KAVUNGAL VASU, AGED 53 YEARS, RESIDING IN PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT.

BY ADV. SRI.K.M.SATHYANATHA MENON.

RESPONDENT/RESPONDENT/PLAINTIFF:-

------------------------------------------------------------

AYILLALATH ARUNAPRIYA, D/O. DAMODARAN MASTER, AGED 27 YEARS, RESIDING IN VAZHAYUR VILLAGE, ERNAD TALUK, MALAPPURAM DISTRICT.

BY ADVS. SRI.K.JAYAKUMAR (SENIOR ADVOCATE) SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE) SRI.P.B.KRISHNAN.

THE REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27-09-2012, ALONG WITH C.O.NO.33/2010, THE COURT ON 03-10-2012 DELIVERED THE FOLLOWING:- 

K. Vinod Chandran, J

- - - - - - - - - - - -- - - - - - - - - - -

R.S.A.No.763 of 2006-G & Cross Objection No.33 of 2010

- - - - - - - - - - - - - - - - - - - - - - -

Dated this the 3rd day of October, 2012

Head Note:-

Hindu Succession Act, 1956 - Sections 6(1), 8 & 17 - Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976) - Hindu Succession (Amendment) Act, 2005 – Section 6 - Mitakshara Law Hindu Undivided Family Tenants-in-Common - Coparcenary Property - Existence of - In the State of Kerala, after the enactment of Act 30/1976, coparcenary property ceases to exist and all the members in the coparcenary who till then were joint-tenants become tenants-in-common as if a statutory partition had taken place among all the coparceners. Section 4 of the said Act provides that all members of an undivided Hindu family governed by the Mitakshara law holding any coparcenary property on the day the Act comes into force shall be deemed to hold it as tenants-in-common, as if a partition had taken place among all the members of that undivided Hindu family. Therefore, on the day on which the Hindu Succession Amending Act No.35/2005 came into force, there was no coparcenary property existing within the State of Kerala consequent to the passing of Act 30/1976.

Hindu Succession Act, 1956 - Sections 6(1), 8 & 17 - Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976) - Hindu Succession (Amendment) Act, 2005 – Section 6 - Nothing contained in sub-section (1) of Section 6 of Act 30/1956 shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. The joint holding (coparcenary property), if at all, ceased to exist on the coming into force of Act 30/1976, i.e., 1.12.1976.

J U D G M E N T

The defendant in a suit for partition is the appellant herein. The plaintiff, who is the defendant's niece born to his elder sister, is the respondent in the Second Appeal and cross-objector in C.O.No.33 of 2010. The plaintiff, claiming through her mother, sought for partition of the properties acquired from the great-grandfather of the defendant, more specifically one-half share. The Courts below, by concurring judgments, partitioned the properties and out of the 9 equal shares, the plaintiff's entitlement to 3/9 shares was declared and the remaining 6/9 share was set apart for the defendant.

2. When the Second Appeal was admitted, a learned Single Judge of this Court framed the following questions of law:

"i. When the plaintiff's mother Jayasree was admittedly not a party to Ext.A1 document dt.22.1.1956, was the lower appellate court justified in applying sec.6 of the Hindu Succession Act, 1956 in view of the fact that the said Act came into force only on 17.6.1956?

ii. Were the courts below justified in treating the plaint schedule property as the self-acquired property of Nayadi Vaidyar, the great grandfather of the plaintiff when, in the hands of his son Choyi and Choyi's son Vasu, the property was coparcenary property?"

3. By the Cross Objection, essentially the plaintiff seeks for one-half share as contended by her before the Courts below. The question of law arising therein would be:

iii. Whether the plaintiff, through her mother, is entitled to one-half share in the plaint schedule property by virtue of Section 6(1) of the Hindu Succession Act, 1956 (hereinafter referred to as "Act 30 of 1956") as amended by the Hindu Succession (Amendment) Act, 2005 (hereinafter referred to as "Act 39/2005"); which enabled the daughter of a coparcener, by birth, to become a coparcener in her own right in the same manner as the son?

4. Admittedly the plaintiff's mother and the defendant were siblings, belonging to a family of Makkathaya Hindu Thiyyas of Calicut and governed by Hindu Mithakashara Law. The mother of the plaintiff being a female member, was not entitled to a share in the co-parcenary property of her great-grandfather, Nayadi Vaidyar. Nayadi Vaidyar had three children, Kelan, Choyi @ Kuttan and Raman. Of the three children, Choyi @ Kuttan died first and then Raman, who died a bachelor and issueless. Even during the life time of Raman; himself, Kelan and Vasu S/o.Choyi @ Kuttan had decided on a partition of Nayadi Vaidyar's property, orally, by setting apart one share to the branch of Kelan and another to the branch of Choyi @ Kuttan and Raman together. After Raman died, Kelan's children Sreenivasan and Balan representing that branch and Vasu and his children Rajan and Babu representing the deceased Choyi @ Kuttan's branch and also that of deceased Raman entered into a deed of partition dated 22.1.1956 by Exhibit A1. By the said partition deed, the 'A' schedule properties therein were set apart for Kelan's branch and Vasu, Rajan and Babu became entitled to share in 'B' schedule properties therein. Rajan and Babu (the defendant) were both minors and were represented by their father and natural guardian Vasu. The 'B' schedule in Exhibit A1 is the plaint 'A' schedule property herein. Subsequently Vasu died and then Rajan followed. Rajan also died a bachelor and issueless. Sreeja @ Jayasree, who was the sister of Rajan and Babu, married and the plaintiff was born in the wedlock. She too passed away in 1990. Hence, the surviving members in the family were Babu, the defendant and Arunapriya, his niece, the plaintiff.

5. The plaintiff having sought for partition personally and through lawyer's notice, filed the suit on her attempts becoming futile. The suit was filed in the year 2003 and the plaintiff, holding herself out to be the only other surviving member along with the defendant, claimed one-half of the plaint schedule properties. The defendant, however, contended that the plaintiff has absolutely no rights over the properties, since it is a co-parcenary property and female members are not entitled to share in the co-parcenary property. The plaintiff's claim, obviously, was through her mother and though her mother was alive at the time of Exhibit A1, she was not participated in the partition entered into by the male members then living.

6. The trial Court found that Exhibit A2, assignment deed of 1997, indicated that Rajan, the brother of Sreeja @ Jayasree and Babu, the defendant, predeceased the plaintiff's mother Sreeja @ Jayasree. The claim of the plaintiff for one-half share was negatived. It was found that as per Exhibit A1 Vasu and his two sons Rajan and Babu had one-third share in the plaint schedule properties. Subsequently on Vasu's death, his share equally devolved upon his three children Sreeja @ Jayasree, Rajan and Babu. Then on Rajan's death, his individual share acquired by virtue of A1 and the fractional share inherited by him on the death of his father, Vasu, devolved equally upon the plaintiff's mother and the defendant. It was in such circumstance that the plaintiff was declared to be entitled to 3/9 share and the defendant to 6/9 share of the plaint schedule property.

7. The first appellate Court concurred with the said finding and specifically dealt with the contention of the plaintiff with respect to the amendment to Act 30/1956 made in the year 2005 by Act 39/2005. The first appellate Court held that the effect of the amendment brought in by Act 39/2005 has to be examined along with the provisions of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (hereinafter referred to as "Act 30/1976"). By virtue of Act 30/1976, it was held that the joint family system among the Hindus in the State of Kerala was abolished. Since Section 6(1) refers specifically to a "Joint Hindu Family" governed by Mitakshara Law and since Act 39/2005 did not make any specific reference to Act 30/1976, it can only be presumed that the said provision did not apply to the State of Kerala. It is this finding of the first appellate Court that is challenged herein through the Cross Objection.

8. The learned counsel for the appellant Sri.Sathianatha Menon would contend that the Courts below erred in relying on Act 30/1956, since partition was of a coparcenary property effected before Act 30/1956 came into force. It is also contended that there is no evidence as to when exactly the death of Vasu and Rajan occurred. Though Exhibit A1 was executed on 22.1.1956 and Act 30/1956 came into force on 17.6.1956, this Court cannot assume without any reliable evidence that the death of Rajan and Vasu did not occur during that short period. It is also contended on behalf of the appellant/defendant that the plaintiff had acquired no rights over the property, since her mother was clearly excluded from the partition as early as in the year 1956 and had not challenged such exclusion in her lifetime. The mother of the plaintiff expired long after, in the year 1990. The daughter has chosen to claim the share through her mother only in the year 2003.

9. The learned Senior Counsel Sri.S.V.Balakrishna Iyer, appearing for the respondent-cross objector/plaintiff, per contra, would contend that the death of Vasu definitely is after 1956, as is evident from Exhibit A2. Exhibit A4 is the Purchase Certificate issued with respect to the very same property in the name of all the three children of Vasu in the year 1981. Exhibits A5 and A6 are respectively the statement accompanying the order and the order in Suo Motu proceedings No.3810/76 taken under the Kerala Land Reforms Act, 1964, which evidently culminated in Exhibit A4. This would show that Rajan's death was after Act 30/1976 came into force on 1.12.1976. Vasu having died after Act 30/1956, his share is subject to the proviso to Section 6. Sreeja @ Jayasree, the mother of the plaintiff, gets an entitlement even as a female member and with respect to Rajan, since his death occurred after the coming into force of the Act 30/1976, there is no question of application of Section 6 of Act 30/1956 and what is applicable is Section 8.

10. The learned counsel for the appellant seriously disputes this. It is his contention that though the documents are marked in evidence, that alone is not proof of its contents. He also contends, without conceding, that if at all Vasu's share is found to be subject to the proviso to Section 6 of Act 30/1956, Rajan's share would be governed by Section 6 as such. Section 6 provides that after the commencement of the Act if a male Hindu, having an interest in a Mitakshara coparcenary property, dies, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. Hence, when Rajan died, his interest would be one in Mitakshara coparcenary property and only Babu, the surviving member of the coparcenary; gets a claim by way of devolution by survivorship.

11. Nayadi Vaidyar, this Court is informed, died in 1935 and Choyi @ Kuttan in 1939. The date of their death does not at all alter the facts situation or has any relevance to the law to be applied in the above case. Exhibit A1 is admitted by all parties; nor does the plaintiff challenge the same, since it was executed on 22.1.1956, evidently before Act 30/1956 came into force on 17.6.1956. The plaintiff's mother was alive at that point of time and there was nothing wrong in having not included her in the partition deed, since admittedly it was a coparcenary property. Only the male members, i.e., Vasu, Rajan and Babu, representing the share of two sons of Nayadi Vaidyar were entitled to share therein. Within about five months, i.e. on 17.6.1956, Act 30/1956 came into force.

12. Before the commencement of the Hindu Succession Act, coparcenary property, in contradistinction with the absolute or separate property of any individual coparcener, devolved according to the rule of devolution by survivorship upon surviving coparceners in the family, which consisted exclusively of male members. Section 6 of the Act while recognizing the rule of devolution by survivorship among the members of the coparcernary, made an exception to the rule in the proviso. By the proviso to Section 6, it was provided that when a male Hindu dies after the commencement of Act 30/1956, if he is survived by a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession; under Act 30/1956 and not by survivorship. A coparcener is further enabled under Section 30 to make a testamentary disposition of his undivided interest in the Joint family property. Vasu having died after 17.6.1956, the said proviso gets attracted with respect to the share acquired by Vasu, on the strength of Exhibit A1. The mother of the plaintiff and her two brothers Rajan and Babu were the children of deceased Vasu. Hence, the share of Vasu devolved upon these three children equally. Hence, if by Exhibit A1 Vasu, Rajan and Babu had acquired 3/9 shares of 'B' schedule therein, on the death of Vasu, the three children get 1/3 share each. Rajan's and Babu's share would be then 4/9 each and the share of the plaintiff's mother 1/9.

13. Then Rajan dies, by which time Act 30/1976 came into force, which, by Section 4, deemed that all members of an undivided Hindu Family governed by the Mitakshara Law holding any coparcenary property on the day when the Act came into force shall hold it as tenants-in-common as if a partition had taken place and each share shall be separately held as full owner thereof. Hence Rajan, Babu and their sister Sreeja @ Jayasree holds the property as their own separately. When Rajan died intestate, unmarried and issueless, Section 6 has no application, since there is no coparcenary property available at that point, by virtue of the provisions of Act 30/1976. Then necessarily one has to go to Section 8 of Act 30/1956. Section 8 provides that the property of a male Hindu dying intestate shall devolve firstly, upon the heirs, being the relatives specified in Class I of the Schedule and on such heirs being unavailable, then upon the heirs, being the relatives specified in Class II of the Schedule. Rajan left behind only his brother and sister - Babu the defendant and Sreeja @ Jayasree, the plaintiff's mother. He did not have any Class I heirs surviving. The brother and sister equally share under Class II of the Schedule. Hence, his 4/9 shares gets equally divided; and Babu, who already had 4/9 share gets an additional share of 2/9 making his share 6/9. Sreeja @ Jayasree having inherited 1/9 share on her father Vasu's death, gets additional 2/9 share on Rajan's death, making her share 3/9. This is the partition effected by the trial Court and affirmed by the first appellate Court.

14. The learned counsel for the appellant would persist in his plea with respect to the deceased Rajan's succession as being governed by the main Section 6 of Act 30/1956. He would rely on the decision reported in C.Kamalamma v. Narayana Pillai, 1993 (1) KLT 174. The Full Bench in that case was considering the question as to whether Act 30/1976 intended to trench upon Section 17 of Act 30/1956. The argument put forward was that Section 17, by providing for succession on the death of a Hindu Marumakkathayee female, by sub-clause (a) to (e) of sub-section (ii), effectively incorporated an amendment into the Travancore Nair Act and other statutes. On the repeal of the Travancore Nair Act and other State laws by Act 30/1976, Section 17 of Act 30/1956 too stood repealed. All the learned Judges concurred and held that Section 4 of Act 30/1956 has an overriding effect and by providing for devolution of interest in the property of tarawad, etc. by Section 7 and general rules of succession by Sections 15 and 17 as also testamentary succession by Section 30; Travancore Nair Act in so far as it was repugnant to Act 30/1956 would be void to that extent. Referring to the Objects and Reasons of Act 30/1976 and noticing the specific statement that the Central Acts would prevail as also the suggestion of the Kerala Law commission not to change Section 17 of Act 30/1956; it was held that the plea of repugnancy fails. The argument of Section 17 of Act 30/1956 being engrafted into Travancore Nair Act and its consequent repeal, by repeal of the Travancore Nair Act by Act 30/1976, was also rejected. Considering the effect of Act 30/1976 it was held by the majority that it has no effect on Section 17, since it continues to be applicable to those who were alive before the promulgation, since they were born into the identifiable group of Marumakkathayees and Act 30/1976 has no effect on their succession which opens on their death on or after 1.12.1976. For those who were born after 1.12.1976, there can no longer be an identifiable group of Marumakkathayees due to its abolition by Act 30/1976.

15. The learned counsel would submit that, on the same principle, Act 30/1976 does not invalidate Section 6 of Act 30/1956. That is not the case projected by the Senior Counsel for the respondent. It is the case of the plaintiff that Act 30/1976 extinguishes coparcenary property and there being no coparcenary property after Act 30/1976; Section 6 cannot be relied upon and one has to go to Section 8 to decide succession. Looking again at the Full Bench decision, Their Lordships noticed that Act 30/1956 dealt with "Wills, intestacy and Succession" coming under Entry 5 of List III of the 7th Schedule to the Constitution (para 18 supra). It was also noticed that Act 30/1976 dealt with "Tarawad and its management and partition" (para 20 supra). While Act 30/1956 determined the succession on death, intestate or testamentary; Act 30/1976 created a division during the lifetime of a person. If Rajan died before 1.12.1976; his share remained a coparcenary property and would have gone to the surviving coparcener. Provisions of Act 30/1956 could not be replaced by Act 30/1976; nor could there be a plea of repugnancy because the Act 30/1956 is enacted by the Union and Act 30/1976 by the State. There is absolutely no overlap or even incidental trenching, since the aspects dealt with though falling under the same entry in Schedule 3 deals with different fields as is noted in Kamalamma's case (supra).

16. As noticed by the Full Bench, Section 17 refers two specific groups, i.e., persons governed by "Marumakkathayam" and "Aliyasantana" laws and makes a departure from the general rules of succession. Act 30/1956 codified law relating to intestate succession among Hindus and gave rights till then unknown in relation to women's property. However, as far as "Marumakkathayam" and "Aliyasantana" laws were concerned, the law makers were faced with the prospect of taking away more than equal rights already available to women. Hence it necessitated treatment as a separate group under Section 17. Section 6 in contradistinction provided for devolution of interest in "coparcenary property". When Act 30/1976 came to be enacted, within Kerala, the coparcenary property ceased to exist. On 1.12.1976, by operation of law, there was a deemed partition and the joint properties were henceforth held individually as tenants-in-common. For reason of there being no coparcenary property thereafter Section 6 ceased to have any effect within State of Kerala. However, though held separate, the property of a female Marumakkathayye having born to such group prior to 1.12.1976; her death makes Section 17 of Act 30/1956 applicable to her properties, as held by the Full Bench. After 1.12.1976, there is no coparcenary property in existence by reason of Act 30/1976; in the State of Kerala. Hence, there can be no succession by survivorship as provided in Section 6 of Act 30/1956, one has to go to Section 8.

17. The claim of one-half share put forth by the plaintiff is on the strength of amendment to Section 6. The (Amendment) Act, 2005 was enacted to remove the discrimination contained in S.6 of the Hindu Succession Act, 1956 by giving equal rights and liabilities to the daughters in the Hindu Mitakshara coparcenary property as the sons have. The said Act came into force with effect from 9.9.2005. The legislature did not specifically make the provisions retrospective. A careful reading of sub-sections (1) and (5) of Section 6 of the said Act indicates that the Act is prospective. It creates substantive right in favour of the daughter a right of coparcener from the date when the amended Act has come into force, i.e. 9.9.2005. Section 6, as substituted by Act 39/2005 is extracted for ready reference:

"6. Devolution of interest in coparcenary property - (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, -

(a) by birth become coparcener in her own right in the same manner as the son; ....

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

18. The aforementioned provisions give no room for doubt. The provision applies only to coparcenary property surviving as on the date of enactment of the amended provision of the Hindu Succession Act. As noticed above, in the State of Kerala, after the enactment of Act 30/1976, coparcenary property ceases to exist and all the members in the coparcenary who till then were joint-tenants become tenants-in-common as if a statutory partition had taken place among all the coparceners. Section 4 of the said Act provides that all members of an undivided Hindu family governed by the Mitakshara law holding any coparcenary property on the day the Act comes into force shall be deemed to hold it as tenants-in-common, as if a partition had taken place among all the members of that undivided Hindu family. Therefore, on the day on which the Hindu Succession Amending Act No.35/2005 came into force, there was no coparcenary property existing within the State of Kerala consequent to the passing of Act 30/1976.

19. The next issue would be the actual time of death of Vasu and Rajan. It is the contention of the learned counsel for the appellant that no reliance can be placed on the documents or its contents to hold that Vasu died after 1956 and Rajan after 1976, more specifically after Act 30/1956 and Act 30/1976, came into force, respectively. It is the contention of the appellant that marking of documents and proof of its contents are two different concepts. Merely because a document has been produced in evidence, that cannot lead to a presumption that the contents of the documents is proved.

20. The Hon'ble Supreme Court considered the issue in Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC 745. The plaintiff in the said case sought for recovery of possession of the suit premises on the ground of trespass and as a pre-emptive measure; in the plaint itself it was averred that his adoptive mother, under whom the claim was made, had signed on some blank papers and handed them over to the defendant. The defendant in the written statement made specific reference to the rent receipts issued in his favour by the adoptive mother of the plaintiff. No specific plea of fraud or forgery was made by the plaintiff but for what was stated in the plaint. No further explanation as to how blank printed rent receipts, thumb-marked and signed on the back portions came into the hands of the defendant. Reiterating the undisputed position that mere production and marking of documents as Exhibits by the Court cannot be held to be due proof of its contents, the position was once again affirmed by the Supreme Court. The execution, it was held, has to be proved by admissible evidence, i.e, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue". However, the situation was held to be different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as Exhibits by the Court. The plaintiff having not disputed the rent receipts, it was held, there was no further burden of proof on the defendant to lead additional evidence in proof of the writing on the rent receipts and its due execution. The reliance placed by the High Court on P.C.Purushothama Reddiar v. S.Perumal, (1972) 1 SCC 9 was approved by the Supreme Court. This was followed in Oriental Insurance Co. Ltd. v. Premlata Shukla, (2007) 13 SCC 476, wherein it was so held in para 15:

"A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and where for consent of the other party has been obtained, the former in our opinion cannot be permitted to turn round and raise a contention that the contents of the documents had not been proved and, thus, should not be relied upon".

21. In the present case, admittedly there was no oral evidence, either by the plaintiff or by the defendant. Going by the plaint, the plaintiff specifically pleaded that Vasu died after the commencement of the Act 30/1956. It was also pleaded that Rajan, one son of Vasu, died thereafter and his share devolved equally upon the defendant and the plaintiff's mother. It is the contention of the learned counsel for the appellant/defendant that the defendant had, in paragraph 5 of the written statement, specifically pleaded that the factum of death having occurred after the coming into force of Act 30/1956, was specifically denied. The denial was in the following terms: "The statement that Vasu died after the Hindu Succession Act came into force and that by the provisions of the aforesaid enactment, Vasu's share in the property devolved upon the plaintiff's mother Jayasree @ Sreeja, the defendant and their brother Rajan is not correct" (sic). This according to me, is an omnibus denial. That alone does not cast any additional burden on the plaintiff.

22. I have looked at the "B" Diary of the trial Court available in the records. The suit was listed for trial on 9.9.2004. It was submitted on behalf of the plaintiff that there was no oral evidence. Exhibits A1 to A6 were marked. The plaintiff's evidence was closed and the case was posted to 10.9.2004 for the defendant's evidence, if any. On 10.9.2004, it was submitted that there is no oral evidence for the defendant. Hence, it was posted for hearing and after hearing the judgment was pronounced. The defendant had not raised any objection with respect to the marking of the documents. It was again marked on his consent. Applying the law laid down by the aforesaid Supreme Court decisions, the defendant cannot now turn round and say that there was requirement of further proof.

23. Looking at the document itself; Exhibit A2 is a certified copy of a sale deed bearing No.316/1997 of the Sub Registrar's Office, Meenchantha, Kozhikode, conveying 9.5 cents of land by way of sale to third parties. The vendors in the said document are the defendant, the father of the plaintiff and the plaintiff. The recitals in the document is to the effect that the properties sold are part of that acquired by Vasu, Rajan and Babu by way of Exhibit A1 in 1956. Rajan and Babu were minors at that point. It is specifically stated that, Vasu was holding the same on behalf of the minors also till they attained majority. The death of Vasu as also the death of Rajan is evident from the recitals. The devolution of Vasu's share to the three children and Rajan's share to the defendant and the plaintiff's mother has also been stated. It is on the strength of such recitals that the aforesaid three vendors put their signature to Exhibit A2 document. The defendant too has signed on the document and he has not denied the same. Even in the written statement the defendant admits to the same, but dismisses the inclusion of the plaintiff as an expedient measure due to the ignorance of the vendee therein. Afterthought cannot substitute/extinguish specific recitals made in the deed. Vasu has been shown as having held the property till both Rajan and Babu attained majority. Babu, the defendant, was 53 when this appeal was filed in the year 2006. At the time of execution of Exhibit A1, i.e., 22.1.1956, the defendant would have been three years old. If Vasu survived till he attained majority, necessarily Vasu died after the coming into force of Act 30/1956.

24. Now we come to the death of Rajan. As has been shown in Exhibit A4, the property was assigned to the plaintiff's mother, the defendant and the other sibling Rajan, in 1981. Exhibits A5 and A6 are objected to by the learned counsel for the appellant as being on dates prior to 1.12.1976. More specifically, both of them are dated 25.10.1976. The contention is that Exhibits A5 and A6 are prior to the coming into force of Act 30/1976. Exhibit A4 Purchase Certificate, it is contended, is one issued as a natural consequence of Exhibit A5 and A6 order and it cannot at all conclusively prove that Rajan was alive when Act 30/1976 came into force. That contention does not impress this Court. Section 114 of the Evidence Act confers power on this Court to presume the existence of certain facts. This Court can presume that judicial and official acts have been regularly performed. It can only be presumed that Rajan was alive at the time when Act 30/1976 came into force. The defendant had not objected to the marking of the Purchase Certificate issued in the name of the three siblings. The defendant neither in the written statement nor at any time had a plea that Rajan was not alive at the time when Exhibit A4 was issued. In the circumstances, going by the discussion above as to the devolution of the share on Vasu and Rajan on their death, the judgments of the Court below are not liable to be interfered with.

25. The first question with respect to the plaintiff's mother not being a party to Exhibit A1 document dated 22.1.1956 and the justification of the lower appellate Court in applying Section 6 of Act 30/1956, which came into force subsequently, has to be answered in favour of the respondent/plaintiff and against the appellant/ defendant. On 22.1.1956 when Exhibit A1 document was executed, the female member could not have had any entitlement to the coparcenary property. But, after the coming into force of Act 30/1956 on 17.6.1956, the female member gets a claim under the proviso to Section 6. Hence, Vasu's share devolves equally upon his children - Rajan, Babu and Sreeja @ Jayasree. At the time of death of Rajan, Act 30/1976 having came into force, his property is held by him separately as tenants-in-common and as full owner thereof. The devolution on his death has to accede to Section 8. Class I heirs being unavailable, the brother and sister share the property equally as Class II heirs. The question whether the plaint schedule property is the self acquired property of Nayadi Vaidyar when the same was coparcenary property in the hands of his children Choyi and Choyi's son Vasu cannot at all have any relevance, because it is not Nayadi Vaidyar's property as such which is claimed by the plaintiff, but the share of Vasu, being the father of the plaintiff's mother, who died after Act 30/1956 came into force and the share of Rajan, the brother of the plaintiff's mother who died after Act 30/1976 came into force.

26. The question raised by the cross objector/plaintiff regarding her entitlement to one-half share based on the amendment to Section 6 by Act 39/2005 does not arise at all, since, as held by the first appellate Court, the effect of that Section cannot be taken as extinguishing the provisions of Act 30/1976. In fact, the Statement of Objects and Reasons of Amendment Act, 2005 specifically refers to Act 30/1976 being a precursor towards the goal of equal rights to women. Also for the further reason that by the amendment of 2005, it was only provided that nothing contained in sub-section (1) of Section 6 of Act 30/1956 shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. The joint holding (coparcenary property), if at all, ceased to exist on the coming into force of Act 30/1976, i.e., 1.12.1976. In view of the above findings, this Court is of the opinion that there is no merit in the Second Appeal as also the Cross Objection. They are, accordingly, dismissed. The parties shall suffer their costs.

Sd/- K. Vinod Chandran, Judge

vku/- (true copy)


R.S.A. No. 662 of 2003 - Seline Fernandez Vs. Bernard Francis, 2012 (4) KLT 283 : 2012 (4) KLJ 468 : ILR 2013 (1) Ker. 56

posted Jun 29, 2013, 10:53 PM by Law Kerala   [ updated Jun 29, 2013, 10:54 PM ]


(2012) 51 KLR 277

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K. Vinod Chandran, J.

R.S.A. No. 662 of 2003

Decided On : 09-Oct-2012

Seline Fernandez & Anr.

 Vs.

Bernard Francis & Ors.

Head Note:-

Civil Procedure Code, 1908 - Section 92 - Sanction - Church Trust - Suit for Declaration - Whether a Christian, more specifically, the Administrators elected by a Parish needs the sanction of its "ordinary" to initiate civil litigation to protect the property of the Church?

Held:- A suit could be said to be one under Section 92 only if there is in existence a public trust of a religious or charitable character and either a breach of trust or directions from the Court are deemed necessary for administration of such trusts and the prayers are one or other of the relief specifically mentioned in the Section. The three ingredients should exist together. The contention of the learned counsel for the appellants is that the declaration sought for in the suit is in effect a declaration of vesting of the property in the individual trustees. That would bring it under sub-clauses (c) and (e) of Section 92(1) CPC, is the argument. Even if the reliefs are so considered, it is pertinent that there is no breach of trust alleged; nor is there any necessity; deemed or express, of any direction from the Court for the administration of the trust. Looking at the reliefs too, it cannot be said that they are covered by either sub-clause (c) or sub-clause (e) of Section 92(1) CPC. Prayer (a) is for a declaration that plaint 'A', 'B' and 'C' schedule properties are owned and possessed absolutely by the Mukkad Thirukudumba Church Trust as also the Church, the parishioners and the plaintiffs. The plaintiffs necessarily were the Committee of Administrators, being the elected representatives, of the parishioners and did not by the said relief claim any vesting of property in themselves in exclusion to the parishioners, the Church or the trust. The prayer is not one coming under either sub-clause (c) or sub-clause (e) of sub-section (1) of Section 92 of the Code of Civil Procedure. The contention regarding the absence of leave of Court as provided under Section 92 CPC being intrinsically connected with the contention regarding lack of jurisdiction of the Munsiffs Court, both have to be rejected on the strength of the discussions above.

Canon Law and Prescriptions - Canon law would not override the civil law of the land - Canon Law can have theological or ecclesiastical implication to the parties, but such personal law cannot have any legal impact - When legislature enacts a law even in respect of the personal law of a group of persons following a particular religion, then such statutory provisions shall prevail and override any personal law, usage or custom prevailing before coming into force of such Act.

Transfer of Property Act, 1882 – Section 55 – Registration of sale deed - On registration, the title will normally pass to the purchaser from the date of execution of the sale deed; registration being prima facie proof of intention to transfer property. Any contra intention or condition of payment of consideration as a pre-condition for passing of title was held to be a conclusion on facts, to be gathered from the recitals of the deed. In the instant case, neither the recitals nor the subsequent conduct of the vendors reveal any such intention. The plea has to fail.

For Appellants: P.R. Venkatesh

For Respondents: Varghese C. Kuriakose, Jacob sebastian & Praveen K. Joy

J U D G M E N T

"And I tell thee this is my turn, that thou art Peter, and it is upon this rock that I will build my church; and the gates of hell shall not prevail against it".

(Mathew 16:18)

"and I will give to thee the keys of the kingdom of heaven; and whatever thou shalt bind on earth shall be bound in heaven; and whatever thou shalt loose on earth shall be loosed in heaven".

(Mathew 16:19)

1. The words "bound" and "loosed" are expressions borrowed from the Jews, which means respectively "prohibited" and "permitted". Thus St.Peter was entrusted with the key to establish the Catholic Church on Earth. The keys are seen as the symbol of papal authority. The Kingdom of heaven, here, means the Church on Earth. St.Peter was entrusted the key to open the doors of faith to the world. It is believed that St.Peter is the "Rock", on which the Church has been built on this Earth. St.Peter is considered to be the head of the Apostolic College and to this day, the supreme legislator of the Catholics, is the Roman Pontiff. The Apostles were empowered with the power to bind and loose (prohibit and permit); in the affairs of the Church, to set Church policy and teachings. Interesting question as to whether a Christian, more specifically, the Administrators elected by a Parish needs the sanction of its "ordinary" to initiate civil litigation to protect the property of the Church is one of the questions raised here.

2. The unsuccessful defendants 1 and 2 before the trial Court, who are also the appellants in the first appellate Court, are the appellants in the above Second Appeal. The defendants 1 and 2 are the same persons; defendant No.2 is impleaded in her capacity of Managing Partner of a firm as defendant No.1.

3. The respondents/plaintiffs are the parishioners/ Roman Catholics residing in the Edavaka of Mukkad Thirukudumba Church of Meenathucherry, Sakthikulangara Village, hereinafter referred to as "the Church". The plaintiffs 1 and 2 claimed to be the trustees and the 3rd plaintiff the Convener of the elected representatives of the parish constituting a Committee, in which plaintiffs 3 to 12 are members. The 3rd defendant is the Bishop of the Quilon Catholic Diocese, under which the Church comes, and the 4th defendant is the Vicar, appointed by the said Bishop. The suit was one filed for declaration of title and possession of plaint schedule properties, more fully described in plaint 'A', 'B' and 'C schedules comprised in Survey No.2/63; totalling 2 acres and 15.5 cents. According to the revenue records, Survey No.2/63 comprised a total of 3.51 acres. In addition to the declaration that the said property belonged to the Church Trust, fixation of boundaries as also injunction against obstruction of enjoyment of the property by the plaintiffs, the trust and the parishioners; as against defendants 1 and 2 was also sought. An ancillary relief in the nature of recovery and mesne profits in the event of any encroachment during the pendency of the suit was also prayed.

4. The defendants filed written statement claiming title over plaint 'A' schedule property and raised a counter claim, in the nature of injunction from trespass, and destruction of boundaries and improvements. Though in the written statement the title of the Church over plaint 'B' and 'C' schedules were also disputed, it was given up in the course of the proceedings as is evident from the deposition of D.W.1. The learned counsel appearing for the appellants also does not urge it before this Court. Essentially the dispute is with respect to plaint 'A' schedule property. The appellants/defendants 1 and 2 claim title over the very same property and resists the suit on the basis of derivation of independent title by virtue of Exhibits B7 and B8; respectively of 51.5 cents and 50 cents, lying north-south.

5. The questions of law, as discernible to this Court from the arguments advanced and as agreed to by the learned counsel, are the following:

(i)   Whether the plaintiffs independently or together as a Committee of Administrators, are competent to represent the parish and claim rights over the property of the Church, as per the Canon Law; which vests the Church property in the hands of the Bishop or the Vicar and clearly mandates a consent from either of these two personalities for initiating a litigation?

(ii)  Whether on the admission of the plaintiffs that the Church and its properties constituted a Public Trust; leave under Section 92 of the Code of Civil Procedure ought to have been obtained by the plaintiffs, especially by reason of the reliefs being covered under clause (c) and (e) of Section 92 CPC?

(iii) On leave under Section 92 CPC being found to be necessary, is not the suit bad only for the reason of such leave having not been obtained and also for the reason of the suit being not filed in the principal Court having jurisdiction to try suits under Section 92 CPC?

(iv) Is the declaration of title granted by the Court below one eminently possible on the evidence recorded before the Court below and has not the plaintiffs failed to establish title and identify the properties which are scheduled in the plaint and title over which is claimed?

6. The question regarding competence is raised by the learned counsel for the appellants based on Canon 532 and 1288. Canon 532 provides that in all juridic affairs the pastor represents the parish and he has to take care that the goods of the parish are properly administered. Canon 1288, according to the counsel, is a specific prohibition on the administrators from initiating or contesting litigation in a civil forum in the name of a public juridic person without written permission of their own "ordinary" ('ordinary' from Latin 'ordinarius' is an officer of Church or Civic authority, who has, by virtue of his office, 'ordinary power' to execute laws. In the Episcopal Church - the Bishop). Before looking into whether Canon Law would bind the Civil Courts of the Sovereign, Socialist, Secular, Democratic Republic of India, the contention could be analyzed in the perspective of Canon Law itself.

7. The three Churches, in the Catholic Communion, in India, recognizing the Roman Pontiff as the supreme head, are the Syro Malabar, Syro Malankara and the Latin Churches. The former two, considered as Eastern Catholic Churches, are governed by the Code of Canons of the Eastern Churches (CCEC). The latter, part of the Western Church, is ruled by the Code of Canon Law (CIC). Both were promulgated by Pope John Paul II, respectively in 1990 and 1983. We are concerned with the latter.

8. Canon Law is specifically addressed to the good order of church and society. The Canon Law recognizes three categories of personalities; i.e., the moral person, the physical person and the juridic person. The Catholic Church and the Apostolic See have the character of a moral person (Canon 113). By baptism when an individual is incorporated into the Church of Christ, then he is constituted as a physical person with the duties invested and rights vested properly to Christians (Canon 208-223). Juridic persons are constituted either by prescript of law or by special grant of competent authority given through a decree (Canon 114). Prior to creation of a juridic person, it is necessary that there exist a moral person. Juridic persons constitute aggregates of persons or of things (Canon 115). An aggregate of persons which can be constituted only with at least three persons, is collegial if the members determine its action through participation in rendering decisions; whether by equal right or not, according to the norm of law and the statutes. While such aggregate of persons or things constitute a public juridic person, in accordance with norms of prescripts of law; private juridic persons are the other juridic persons who can be given the personality of a public juridic person only by a special decree of competent authority. The Catholic Church and the congregation of persons committed to an apostilic purpose, exists in the present case and the aggregate of persons too, being the Committee of Administrators. The moral person being in existence; the juridic person in the form of the Committee is constituted by the prescript of law.

9. Canon 532 postulates that in all juridic affairs the pastor represents the parish and he has to take care of the goods of the parish. From the commentaries in "New Commentary on the Code of Canon Law", commissioned by The Canon Law Society of America, Edited by John P.Beal, James A.Coriden & Thomas J.Green, 2010 Edition, it can be seen that what is mandated under the said Canon is more in the nature of ecclesiastical sensitivity in the administrators, in first consulting their "ordinaries" before embarking on a civil litigation. Canon 1288 cannot be seen as a total prohibition of administrators from initiating or contesting litigations before a civil forum without the written permission of their "ordinary". The consideration underlining the wisdom of requiring permission of ones "ordinary" is mainly due to the common law principles regarding precedents. The commentaries, on a careful analysis, indicates that what was intended is that any matters affecting the Church and its administration or religious precepts should not be agitated before a civil Court, without proper authorization, for fear of that being held against the Church as a whole, going by the rigor of precedents.

10. Examining the Canon as a whole, what is discernible is that the temporal goods belonging to a parish which, by law, is a public juridic person do not belong to the diocese. "Parish" is defined as "a certain community of the Christian faithful stably constituted in a particular church" by Canon 515.1 and by Canon 515.3, a legitimately erected parish possesses juridic personality by the law itself. Territory of a Particular Church though is not a constitutive element; it determines the faithful living in such territory to be included (Canon 372). When such Particular Church is erected by the Supreme Authority, then that possess juridic personality by the law itself (Canon 373). The 2nd defendant is also a parishioner. The 2nd defendant does not challenge the establishment or existence of the Church. Consecration of a Church is the essential element of carrying on religious activities. The 2nd defendant swears by her faith, as a parishioner of the Church. The plaintiffs have styled themselves to be the Committee of Administrators of the Church. Going by the Canon, they individually are the "physical persons" representing the "juridic persons", being the elected representatives of the parish entrusted with the administration of the Church.

11. Canon 1256 specifically provides that under the supreme authority of the Roman Pontiff, ownership of goods belongs to that juridic person which has acquired them legitimately. It is evident from Exhibit A3 that the trustees along with the Parish Priest had acquired the property from the vendors of that deed. Both "parish" and the "diocese" are public juridic persons. The role of the Administrator has been succinctly laid in Canon 1284.1, which binds all administrators to fulfil their function with "the diligence of a good householder". As a consequence, they are also bound to take care that the Church properties are protected by civilly valid methods and observe the prescripts of both canon and civil law. It exhorts administrators to be especially on guard, so that no damage comes to the Church from the non-observance of civil laws. It cannot at all be gain-said that the Administrators who have arrayed themselves individually before the Court below as plaintiffs are not competent to initiate a civil proceeding before a recognized civil Court for protection of the property belonging to the Church.

12. The property vests in the parish. Canon 1290 specifically provides for observance of general and particular provisions which the civil law has established for contracts and their disposition unless they are contrary to Canon Law. The Transfer of Property Act, 1882 defines "transfer of property" as an act between living persons, conveying property. A "living person" includes a Company or association or body of individuals, incorporated or not. The parish has the juristic personality of a "living person". The suit, as is revealed from the records, was filed under Order 1 Rule 8 of the Code of Civil Procedure. The plaintiffs, by publication, proclaimed their intention to represent the parish in the said suit. The Bishop and the Parish Priest have also been impleaded as defendants 3 and 4. It is not as if the Bishop or the Parish Priest has opposed it; nor has any other third party come up with the claim of being the valid administrator of the Church. In fact the Bishop and the Parish Priest have affirmed affidavits dated 20.2.2004 unequivocally conceding the rights of the plaintiffs to file the above suit. The said affidavits are produced as Annexures R2(a) and R2 (b) along with the counter affidavit dated 20.2.2004 to I.A.No. 144 of 2004.

13. As seen above, the Church and its properties would not vest in the Pope or the Arch Bishop as delegates of the Pope even in accordance with Canon Law. The maxim "Roma locuta est, causa finita est" (meaning, "Rome has spoken, case is closed") no longer survives. It is also maintained by scholars that St.Augustine (Sermon 131:10) did not state so as an indication of papal infallibility. Fr.Frank Morrisey, OMI, Ph.D., J.C.D., Professor of Canon Law, Saint Paul University, Ottawa, Canada, draws parallels in canonical and civil ownership, with his statement "good fences make good neighbours". Canon Law, as it exists now, realizes the fences erected by civil law and cautiously veers away from any transgression thereof. The competence of the plaintiffs cannot at all be doubted even going by the Canon Law; less so by the law applicable to this land.

14. Canon Law and the prescriptions therein were discussed only since the same was raised to non-suit the plaintiffs. It is not for a moment to be understood that Canon Law would override the civil law of the land. A Full Bench of this Court had in George Sebastian Vs. Molly Joseph, ILR 1995 (1) Ker. 1 held that Canon Law can have theological or ecclesiastical implication to the parties, but such personal law cannot have any legal impact. The statute that came up for consideration in the said case was the Divorce Act. This view was upheld by the Hon'ble Supreme Court in Molly Joseph Vs. George Sebastian, (1996) 6 SCC 337 wherein it was held:

"It is well settled that when legislature enacts a law even in respect of the personal law of a group of persons following a particular religion, then such statutory provisions shall prevail and override any personal law, usage or custom prevailing before coming into force of such Act. From the provisions of the Divorce Act it is clear and apparent that they purport to prescribe not only the ground on which a marriage can be dissolved or declared to be nullity, but also provided the forum which can dissolve or declare the marriage to be nullity".

15. The Hon'ble Supreme Court has also considered the issue of what can be deemed to be matters of a civil nature coming within the definition of Section 9 of the Code of Civil Procedure in Most Rev. P.M.A.Metropolitan Vs. Moran Mar Marthoma, 1995 Supp (4) SCC 286. A Division Bench of this Court had in Themma Vs. Infant Jesus Church, 2005 (4) KLT 296, held that the sanction from Venerable Curia of Verapoly Archdiocese is not a necessary legal requirement for executing a sale deed in pursuance of an agreement for sale entered into by the Church. The decision of the Madras High Court in Robert Vs. Kanagappan, 2003 (2) KLT SN 73 (C.No.97) relied upon by the learned counsel for the appellants, in my opinion, with due respect, may not be the correct understanding of law and the Canon.

16. The learned counsel for the respondents would also draw my attention to the order of this Court in C.R.P.No.155 of 1980. The respondents had filed an earlier suit for injunction against the appellants. The same was dismissed by the trial Court, holding that the plaintiffs were not competent to file the suit without permission from the Bishop and cannot represent the parish without publication under Order 1 Rule 8 of the Code of Civil Procedure and also for reason of not identifying the plaint schedule property. An appeal was filed and there a prayer was made to withdraw the suit with liberty and the same was granted. The appellants filed the above Civil Revision Petition against the appellate judgment. This Court in the Civil Revision Petition held:

"It cannot, however, be said that the plaintiffs are not competent to maintain the suit. As worshippers of the Parish, they can maintain the suit if they obtain permission under Order I Rule 8 C.P.C. or obtain permission from the Bishop".

This Court also noticed the filing of the present suit subsequent to the appellate order and rejected the revision. The contention advanced that the appellants cannot raise any preliminary plea against maintainability, after having suffered the order in Civil Revision Petition, need not be considered by this Court in view of the findings on competence rendered above.

17. The other question with respect to the maintainability of the suit is raised on the strength of Section 92 of the Code of Civil Procedure. The learned counsel for the appellants would contend that admittedly the Church is a Christian trust. The same being a public trust, according to the learned counsel, the subject matter of the suit would be one coming within sub-clauses (c) and (e) of sub-section (1) of Section 92 of the Code of Civil Procedure. The Church being projected as a public trust and the reliefs being with respect to vesting of property and declaration of title over the trust property, it is contended, the plaintiffs ought to have instituted the suit only with leave of the Court and that too in the principal Civil Court of original jurisdiction. The plaintiffs have not sought for any leave and the suit is instituted in the Munsiffs Court. Nothing more is required to throw out the suit, is the contention. The learned counsel would also rely on two decisions of this Court, reported in Koshy Vs. Thomas, 1962 KLT 662 and St Peter's Orthodox Syrian Church Vs. Fr.Abraham Mathews, 2011 (4) KLT 540.

18. Koshy's case (supra) was a case in which 4 parishioners of a Church filed a suit in their individual capacity as also representative of the parishioners and on behalf of the Church. The validity of the meeting which elected the defendants to a committee to manage the affairs of the Church and their authority to carry on the management was questioned. There was also a prayer for framing a scheme. The defendants contended that the suit would come within the umbrella of Section 92 CPC for reason of there being a prayer for framing a scheme. The plaintiffs then filed a replication before the Court below alleging that the Church was not a public trust and withdrawing the prayer for framing a scheme. This Court found that all suits, founded upon any breach of trust for public purposes of a charitable or religious nature irrespective of the relief sought, would not come within Section 92. It was also clearly held that a suit for declaration that a property in suit belongs to a public trust also would not fall within the mischief of Section 92. For applying the mischief under Section 92, it was held that all the three conditions enumerated in the said Section must co-exist, i.e., (i) there must be an express or constructive trust for public purposes of a charitable or religious nature; (ii) there must be an allegation of breach of trust or the direction of the Court should be deemed necessary for the administration of such trust; and (iii) the suit should have a prayer for any one of the reliefs mentioned in sub-clauses (a) to (h) in sub-section (1) of Section 92. However, in the said case it was held that the withdrawal of the prayer for framing a scheme alone would not take it out of the mischief of Section 92 in so far as the averments in the plaint were to the effect that for the proper and efficient management of the Church, a scheme of management is necessary. It was only in such circumstance that the said case went against the plaintiffs.

19. St. Peter's Orthodox Syrian Church case (supra) reiterated the rigid requirements of law regarding an express or constructive trust for public purposes of a charitable or religious nature, the existence of alleged breach or necessity for a direction for the administration; and the suit praying for any one of the reliefs mentioned in sub-clauses (a) to (h) of Section 92(1) CPC. These decisions does not come to the aid of the appellants herein. The Hon'ble Supreme Court has in Harendra Nath Vs. Kaliram Das, AIR 1972 SC 246 which was referred to in St.Peter's Orthodox Syrian Church case (supra) , held that a suit could be said to be one under Section 92 only if there is in existence a public trust of a religious or charitable character and either a breach of trust or directions from the Court are deemed necessary for administration of such trusts and the prayers are one or other of the relief specifically mentioned in the Section. The three ingredients should exist together.

20. The contention of the learned counsel for the appellants is that the declaration sought for in the suit is in effect a declaration of vesting of the property in the individual trustees. That would bring it under sub-clauses (c) and (e) of Section 92(1) CPC, is the argument. Even if the reliefs are so considered, it is pertinent that there is no breach of trust alleged; nor is there any necessity; deemed or express, of any direction from the Court for the administration of the trust. Looking at the reliefs too, it cannot be said that they are covered by either sub-clause (c) or sub-clause (e) of Section 92(1) CPC. Prayer (a) is for a declaration that plaint 'A', 'B' and 'C' schedule properties are owned and possessed absolutely by the Mukkad Thirukudumba Church Trust as also the Church, the parishioners and the plaintiffs. The plaintiffs necessarily were the Committee of Administrators, being the elected representatives, of the parishioners and did not by the said relief claim any vesting of property in themselves in exclusion to the parishioners, the Church or the trust. The prayer is not one coming under either sub-clause (c) or sub-clause (e) of sub-section (1) of Section 92 of the Code of Civil Procedure. The contention regarding the absence of leave of Court as provided under Section 92 CPC being intrinsically connected with the contention regarding lack of jurisdiction of the Munsiffs Court, both have to be rejected on the strength of the discussions above.

21. Admittedly, there is no dispute with respect to plaint 'B' and 'C' schedule properties and what survives for consideration is only the dispute on plaint 'A' schedule property. The question of law raised as (iv) above is confined to plaint 'A' schedule property. While plaint 'A' schedule property was described as having an extent of 1 acre 75 cents, the Commissioner who inspected the properties along with the Surveyor found the same to be having only an extent of 1 acre and 27.5 cents. The defendants 1 and 2 claim title over 1 acre and 1.5 cents.

22. The plaintiffs claim title on behalf of the Church on the strength of Exhibit A3 document, being a sale deed bearing No.3794 of the year 1116 M.E. According to the plaintiffs, Exhibit A3 is a document executed by Augustine Fernandez and his wife Agneshya Fernandez. The husband and wife, who are the vendors in Exhibit A3, obtained the same by Exhibits B24, B27 and B28. Exhibit B24 is a "Streedhanakuri" (dowry deed) bearing No.363 of 1080 M.E. The vendors of Exhibit B24 dated 8.2.1080 M.E. were Sebastian Fernandez, the father of Agneshya Fernandez, and her brother Francis Fernandez @ Frenchisk Fernandez. By Exhibit B24, the father and brother of Agneshya Fernandez settled on her property having east-west 12 Dhannu and north-south 18 Dhannu measurements. Exhibit B27, again on 8.2.1080 M.E., confers title on the husband Augustine Fernandez. That property is also in survey No.2/63, on the western side of 3.51 acres and lying to the south of the property given as "Streedhana" (Exhibit B24). The said deed also showed the extent of the property as being east-west having 12 Dhannu measurement width. Exhibits B24 and B27 were conveyance of properties comprised in the 3.51 acres in Survey No.2/63 and were situated in the western proximity of the properties comprised in Survey No.2/63. The western boundary was also shown as a "vettuthodu" (a canal). On the northern boundary, was the backwaters. Again in 1099.M.E., specifically 26.9.1099 M.E., Exhibit B28 was executed by the father-son duo in the name of the husband and wife. Exhibit B28 covered property having east-west measurement of 12 Dhannu width, comprised again in Survey No.2/63 and lying east of vettuthodu. Hence, from a reading of the various documents, it is revealed that Exhibit B24 property was to the south of the backwaters and lying east of the vettuthodu. Property described in Exhibit B27 had Exhibit B24 property on the northern boundary and again the vettuthodu on the western boundary. Exhibits B27and B28 lie east of vettuthodu and Exhibit B28 lies south of Exhibit B27. The title of the father-son duo is not disputed and that was acquired by Exhibit B23 dated 23.4.1079 M.E. This vettuthodu had over the years, admittedly, transformed into a road, which lies to the western boundary of these properties.

23. There is a reference by the defendants 1 and 2 in their written statement with respect to a lease of land from the Quilon Diocese lying west of the road, wherein situated a jetty and diesel oil pump, said to have been operated by the 1st defendant's firm. The lease claimed of the said property is independent of the subject matter of the suit. I specifically refer to the lease only because, but for the contention of possession of such leasehold properties, defendants 1 and 2 does not at all claim possession of the property having 1 acre and 1.5 cents over which title is claimed by them. The specific contention in the written statement was that though the 1st defendant had purchased the properties for its business purposes, the Church had been preventing the 1st defendant from carrying on such business purposes in the land. The counter claim was also in the nature of an injunction from trespass and destroying boundaries and improvements. There is no appeal from the rejection of the counter-claim.

24. The 1st defendant claimed 1 acre and 1.5 cents purchased as per Exhibits B7 and B8, being sale deeds executed respectively on 10.4.1973 and 11.3.1973. The vendors in Exhibit B7 were the widow and children of one Joseph Camoins and those in Exhibit B8 were the widow and son of the said Joseph Camoins. They claimed title on the strength of Exhibits B5 and B6 documents said to have been executed by the legal heirs of Agneshya Fernandez. The 1st defendant, however, traces its title also to Exhibit B15 sale deed dated 10.8.1106 M.E. executed by the son of the father-son duo, viz., Francis Fernandez, by which 50 cents was sold to Joseph Manuel. Joseph Manuel sold the said 50 cents again by Exhibit B14 in the year 1957. The property so acquired by Exhibits B14 and B15 was described as having actually an extent of 51.5 cents in sale deed No.3078/1957 (Exhibit B13), executed in favour of one Fr.Albert Camoins. Fr.Albert Camoins by Exhibit B12 gift deed of the year 1958 gifted the said 51.5 cents to Joseph Camoins. The description of the property in Exhibit B12 was that it was 51.5 cents "purayidam" lying to the north of the property of the Church.

25. Agneshya Fernandez, sister of Francis Fernandez, then; along with others, filed a suit, O.S.No.778 of 1966, for recovery of the said 51.5 cents from Joseph Camoins. Exhibit B16 is the judgment by which the suit was decreed in favour of Agneshya Fernandez and her children. Exhibit B16 specifically shows that the claim set up by Agneshya Fernandez was relatable to Exhibit B28 document executed by her father and brother in favour of herself and her husband in 1099 M.E. The Church was not a party in the suit; nor was Exhibit A3 referred to by the plaintiffs therein. The decree and judgment in the said suit was the subject matter of an appeal, resulting in Exhibit B17 judgment. The decree and judgment by the trial Court were reversed by the first appellate Court. On second appeal to this Court, the same was remanded. At that point, the legal representatives of Agneshya Fernandez, the plaintiffs before the trial Court in that suit, executed Exhibits B5 and B6 documents in favour of the widow and children of Joseph Camoins.

26. Having set out the claim of title by both parties, this Court is set with the task of examining how the Courts below have appreciated the evidence, for the purpose of understanding whether the findings of the Courts below are one possible from the evidence available. This Court does not intend to go on a reappreciation of evidence; nor is it possible in the contours of the jurisdiction conferred on this Court. However, the evidence as examined by the Courts below is put in the perspective of this Court.

27. The plaintiffs claim plaint 'A' schedule property having an extent of 1.75 acres. The Commissioner has, by Exhibit C1 report, identified the property in existence, as revealed from the documents, to be an extent of 1.27 acres. Evidently much reliance cannot be placed on the extent of the property; nor can any weight be attached to the difference in extent, since, as noticed above, "Dhannu measurements" in the earlier documents does not at all give a correct picture of the extent of the property. The Courts below, hence, relied on the boundaries. What is clearly discernible is that the northern boundary is the backwaters and the western boundary is the vettuthodu. This vettuthodu was subsequently converted into a road, which is admitted by both parties. Exhibits B24, B27 and B28 shows the western boundary as the vettuthodu. Exhibit B27 also indicates that it lies to the south of Exhibit B24 property. Both the said properties are comprised in Survey No.2/63 and lie on the western extremity of the total 3.51 acres comprised in Survey No.2/63. Exhibit B28 shows that property to be on the east of the vettuthodu. Exhibit B28 also, by the recitals therein, lies to the south of the properties held by Agneshya Fernandez and her husband. There can be no dispute with respect to the said identity of the property as has been clearly earmarked in the Commissioner's report, more specifically Exhibit C4 sketch. Plaint 'B' and 'C' schedules, as noticed above, does not raise any dispute and lie contiguously to the south of plaint 'A' schedule property. The identity of the property described in Exhibit A3 on the basis of the descriptions in the said document as also in Exhibits B24, B27 and B28 as found by the Courts below is unassailable. They lie with the backwaters on the north and vettuthodu on the west and are located on the western portion of the properties comprised in Survey No.2/63.

28. Exhibit A3 is challenged as having been not acted upon. The consideration as indicated in Exhibit A3, it is contended on behalf of the 1st defendant, has not been paid. Possession also was not granted. The 1st defendant relies on Exhibit B10 and B11 to urge the above contention. Exhibits B10 and B11 are proceedings under the Transfer of Registry Rules. By Exhibit B10, the claim of Agneshya Fernandez regarding approximately 80 cents of property was allowed. The claim was only with respect to mutation being made in the name of the said Agneshya Fernandez. Exhibit B10 is dated 2.4.1957 and is after Exhibit A3. It is contended that these proceedings would show that Exhibit A3 was not acted upon. It is also contended that Exhibit B11 being an order in revision before the District Collector, confirmed Exhibit B10 order, thus affirming the claim of Agneshya Fernandez. As noticed, the claim was only with respect to mutation and did not at all confer any title on Agneshya Fernandez. Exhibit B11 also specifically noticed this and while rejecting the revision petition filed by the Church, the pendency of the earlier suit was also noticed. Exhibit B10 being not conclusive of the title as a proposition of law, was also noticed specifically in Exhibit B11 order.

29. The contention on behalf of defendants 1 and 2 with respect to Exhibit A3 being not acted upon is, hence, two fold. One plea is no consideration having been paid and the other being the mutation effected in the name of Agneshya Fernandez, who was one of the vendors in Exhibit A3, even after the execution of Exhibit A3; by Exhibit B10. With respect to the absence of payment of consideration, it is not at all discernible from the recitals in Exhibit A3. That in any event would be a fact within the knowledge of the vendors who would have urged it, if that was so. I say this, because, it is not as if the vendors of Exhibit A3 merely faded into oblivion. Agneshya Fernandez, wife, at least had been tenaciously pursuing the proceedings before the authorities claiming mutation and also filing litigations with respect to the properties which her father and brother conveyed to herself and her husband. She neither has such a case in Exhibit B11; nor is such claim revealed from a reading of Exhibit B16 judgment. The contentions raised by the plaintiffs therein does not at all refer to Exhibit A3. If no consideration was paid, then that would have been her contention before the revenue authorities. In the suit against Joseph Camoins and others, she suppressed the sale to the Church.

30. In fact, the defendants in O.S.No.778 of 1966, under whom the defendants 1 and 2 herein claim, specifically referred to the sale of 1.75 acres made by the 1st plaintiff by deed of 1116 M.E. (i.e., Exhibit A3). The contention of the defendants therein was that Agneshya Fernandez had no such title. Agneshya Fernandez's title was established in the suit; but, however, reversed and then remanded in appeal. No reliance can be placed on such title having been established. But, however, the title is clear from Exhibits B24, B27 and B28, as has been held by the Courts below. But, Agneshya Fernandez refused to state anything about Exhibit A3 in the said suit filed against third parties, and that too without the Church in the party array. Exhibit A3 was swept under the carpet. She had no claim of absence of consideration in that suit or before the revenue authorities. She maintained a studied silence, which goes against the plea of absence of consideration. In any event, absence of consideration cannot at all be a stumbling block on the passing of title by a registered sale deed.

31 The learned counsel for the respondents/plaintiffs relies on the decisions reported in Kamta Prasad Vs. Lachmi Sah, AIR 1929 Pat. 550; State of Kerala Vs. Cochin Chemical Refineries, AIR 1968 SC 1361; Narayanan Moopil Vs. Narayanan Prabhakaran, 1993 (1) KLT 41 and Latif Estate Line India Vs. Hadeeja Ammal & Others, 2011 KHC 2273. The learned counsel for the appellants/defendants 1 and 2 would place reliance on Kaliaperumal Vs. Rajagopal, (2009) 4 SCC 193.

32. Kamta Prasad's case (supra) clearly held that a sale once registered results in passing of the title unless it is  established that the intention of the parties was that the title should pass only after the payment of consideration. In Cochin Chemical Refineries' case (supra), the State of Kerala sought invalidation of an indenture of mortgage on the ground that the State had not advanced the loan as specified under the indenture. The State resiled from its obligation to purchase goods under the indenture on the ground of absence of the payment of the advance money. The Supreme Court held that breach of contract by one party does not automatically terminate the obligation under the contract. The injured party, it was held, has the option either to treat the contract as still in existence or to regard himself as discharged. If he accepts the discharge of the contract by the other party, the contract is at an end; and in the event he does not accept the discharge, he could insist on performance. The Supreme Court quoted with approval the observation of the Bombay High Court reported in Tatia Vs. Babaji, (1898) ILR 22 Bom. 176:

"I am not, however, prepared to assent to the train of thought which puts conveyances of lands in the mofussil perfected by possession or registration where the consideration expressed in the conveyance to have been paid has not in fact been paid in the same category as contracts void for want of consideration".

This decision was relied on by a learned Single Judge of this Court in Narayanan Moopil's case (supra), to hold that if the price of the property which is the subject matter of a registered sale deed is not paid, the vendor cannot get the sale deed avoided only on that account. Latif Estate Line India Ltd. (supra) is a Full Bench decision of the Madras High Court, wherein the execution of a deed of cancellation by the vendor of a sale deed executed by him was held to be not creating a new right or extinguishing any right that flowed from the earlier deed.

33. The reliance placed on Kaliaperumal's case (supra) by the learned counsel for the appellants also does not aid the appellants in so far as the Supreme Court in that case also held that on registration, the title will normally pass to the purchaser from the date of execution of the sale deed; registration being prima facie proof of intention to transfer property. Any contra intention or condition of payment of consideration as a pre-condition for passing of title was held to be a conclusion on facts, to be gathered from the recitals of the deed. In the instant case, neither the recitals nor the subsequent conduct of the vendors reveal any such intention. The plea has to fail.

34. The defendants 1 and 2 claim title under Exhibits B7 and B8 from the vendees in Exhibits B5 and B6. They also claim title from Exhibit B15. Hence, the defendants 1 and 2 claim title from Francis Fernandez, the brother of Agneshya Fernandez and tries to perfect it by Exhibits B5 and B6 executed by the legal heirs of Agneshya Fernandez. The claims, at best, are conflicting and self-defeating. Francis Fernandez, as noticed above, along with his father executed Exhibits B24, B27 and B28 in favour of his sister Agneshya Fernandez and her husband. Exhibits B24 and B27 were in the year 1080 M.E. Subsequent to the execution of Exhibit B24 and B27, the father-son duo, viz., Sebastian Fernandez and Francis Fernandez, entered into Exhibit A9 Udampadi on 5.2.1088 ME Exhibit A9 Udampadi specifically referred to Exhibits B24 and B27 Francis Fernandez, hence, did not retain any title over the properties transferred under Exhibits B24 and B27 after 1088 M.E. and that was confirmed by Exhibit A9. Subsequent to Exhibit A9, by Exhibit B28 in the year 1099 M.E., Francis Fernandez along with his father again conveyed properties to his sister and her husband. Exhibit B15 sale, which is said to have occurred in 1106 M.E., is after Exhibit B24, B27 and B28. Francis Fernandez could have sold only those properties which remained with him and, obviously, the properties conveyed by Exhibits B24, B27 and B28 were not in his ownership or possession in 1106 M.E. The Courts below have categorically found that Francis Fernandez had no ownership, title and interest in the properties in the 50 cents conveyed by Exhibit B15. Exhibits B14, B13 and B12, hence, could not at all have created any interest or title over the said property on the vendees therein. At that point of time, comes the suit by Agneshya Fernandez and others, instituted in the year 1966. Nothing came of it as noticed above, since it was remanded and was settled out of Court by execution of Exhibits B5 and B6. Her claim was on the basis of Exhibit B28, which properties she conveyed to the Church by Exhibit A3.

35. What conferred title on Agneshya Fernandez or her legal heirs to execute Exhibit B5 and B6? Exhibit B5 dealt with 51.5 cents of property and Exhibit B6 with 50 cents of property. With respect to 51.5 cents of property, despite this Court finding the various conveyances beginning from Exhibit B15 to be not conferring any title on the vendees; at least traces a link through Exhibits B12, B13, B14 and B15, in that order. The 50 cents covered by Exhibit B6, however, surfaces only through Exhibit B6. Agneshya Fernandez definitely did not get her claims established in the suit after remand. She, or her legal heirs, chose to settle it. The defendants went along with such settlement. She could not have definitely conveyed any property over which she had no subsisting ownership or title based merely on a prior ownership. Exhibits B5 and B6 could not confer on the vendees any interest over and above that the vendor had. Francis Fernandez did not have title to the properties he sold by Exhibit B15. Agneshya Fernandez's claim was based on the deed executed by Francis Fernandez, her brother, and their father Sebastian Fernandez in favour of herself and her husband, i.e. Exhibit B28. Those properties were conveyed in the name of the Church by Exhibit A3. The claim is self-destructive. The defendants 1 and 2 cannot have any claim over the properties covered by Exhibits B7 and B8. They cannot claim any title under Francis Fernandez, since he did not have interest, title or ownership over the properties he sold by Exhibit B15. In any event, he could not have sold the properties covered by Exhibits B24, B27 and B28 and specifically referred to in Exhibit A9. Exhibits B24, B27 and B28 confer title on Agneshya Fernandez and her husband, which title was conveyed to the Church by Exhibit A3. Agneshya Fernandez by way of compromising a dispute with third parties and executing a deed settling such properties on the basis of that compromise with such third parties could not confer any title on such third parties. The defendants 1 and 2 cannot at all perfect any title through Agneshya Fernandez or her legal representatives.

36. Hence, it cannot be held that the plaintiffs were not competent to file the instant suit for merely lack of sanction from their "ordinary". The suit has been properly instituted in a representative capacity after publication under Order 1 Rule 8 of C.P.C. It is not a suit which comes within the mischief of Section 92 C.P.C. and no leave is required. The Munsiffs Court rightly exercised its jurisdiction. Looking at the evidence, it cannot be said that there is an erroneous approach in its appreciation nor does it by any stretch border on perversity. Irrelevant considerations have not weighed with the lower Courts and the conclusions are reasonable and eminently possible from the materials on record.

In the result, this Second Appeal is dismissed, with costs.


R.S.A. No. 1174 of 2012 - Escotel Mobile Vs. Ramani, (2013) 301 KLR 511 : 2013 (2) KLT SN 90

posted May 28, 2013, 8:44 PM by Law Kerala   [ updated May 28, 2013, 8:45 PM ]


(2013) 301 KLR 511

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

TUESDAY, THE 26TH DAY OF MARCH 2013/5TH CHAITHRA 1935

RSA.No. 1174 of 2012 ()

------------------------

AS.190/2006 OF ADDITIONAL DISTRICT COURT, THALASSERY. OS.222/2003 OF ADDITIONAL MUNSIFF COURT, KANNUR.

.............

APPELLANT/APPELLANT/DEFENDANT:

---------------------------------------------------------

ESCOTEL MOBILE COMMUNICATIONS LIMITED, REGIONAL OFFICE, MERCY ESTATE, M.G. ROAD, ERNAKULAM, KOCHI-682 015. NOW IT IS CHANGED AS IDEA CELLULAR LIMITED, HAVING ITS REGISTERED OFFICE AT GUJARAT AND HAVING REGIONAL OFFICE AT MERCY ESTATE AT M.G. ROAD, ERNAKULAM, KOCHI-682 015, REPRESENTED BY ITS AUTHORIZED OFFICER, RAJ KUMAR, AGED 34, S/O.P. NARENDRAN, MANAGER- LEGAL, IDEA CELLULAR LTD., 2ND FLOOR, MERCY ESTATE, RAVIPURAM, KOCHI-682 015.

BY ADVS.SRI.P.N.RAMAKRISHNAN NAIR, SRI.P.VISWANATHAN.

RESPONDENT/RESPONDENT/PLAINTIFF:

------------------------------------------------------------ P

ULUKKOOL RAMANI, AGED 57, D/O.PULUKOOL MADHAVI, NO OCCUPATION, RESIDING AT POURNAMI, P.O. ALAVI, KANNUR-670 008.

BY ADV. SRI.V.RAMKUMAR NAMBIAR.

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs.

THOMAS P. JOSEPH, J.

=====================

R.S.A. No. 1174 of 2012

==============================

Dated this the 26th day of March, 2013

Head Note:-

Transfer of Property Act, 1882 - Section 106 - Lease Agreement - terms expressed its intention to terminate the lease - period of notice - not in accordance with Clause 4(i) of the agreement - there is a valid termination of the lease arrangement.

J U D G M E N T

Admit.

2. Following substantial question of law is framed for a decision. "Whether courts below are justified in not holding that the lease was terminated properly under Sec.106 of Transfer of Property Act (for short "the Act") ?

3. In view of the decision I propose to take in the second appeal, since the parties had not adduced oral evidence and since copy of relevant documents are given to me for perusal, it is not necessary to call for records of the case.

4. It is not disputed that appellant/defendant and respondent/plaintiff executed a lease agreement on 01.08.2000 as per which the suit property belonging to the respondent was entrusted with petitioner for a period of ten years. The period of lease expired by 30.06.2010. It is admitted that rent fixed was Rs.5,000/- per month . Respondent received Rs.75,000/- by way of interest-free security deposit to be returned to the petitioner on successful termination of the lease arrangement. Clause 4(i) of the agreement provided that it is open to the petitioner to terminate the lease on giving three calendar months notice in advance to the respondent.

5. It is the case of respondent/plaintiff that on 23.08.2002 appellant sent a notice stating that it wishes to terminate the lease agreement and requesting to return the security amount after adjusting Rs.7,500/- being rent payable for August, 2002 and half the rent payable for September, 2002. According to the appellant, it terminated the lease w.e.f. 15.08.2002. Respondent alleged that termination is not in accordance with Clause 4(i) of the agreement, it is invalid, undated and that petitioner is continued to be in possession of premises. Respondent prayed for a decree for mandatory injunction to direct petitioner remove all structures from the suit property and restore it to the position as on the date of lease agreement.

6. Petitioner while resisting the suit contended that it has successfully invoked Clause 4(i) of the lease agreement and that since 15.08.2002 it has no interest in the property. Appellant claimed that as per agreement between the parties respondent is entitled to adjust Rs.30,000/-, for removal of articles remaining in the suit property and less the said sum of Rs.30,000/- appellant is entitled to get back Rs.45,000/- with interest. Accordingly, a counter claim was raised which was suitably answered by the respondent. Trial court found that since there is no valid termination of lease agreement at the instance of the appellant, lease continued and hence respondent is not entitled to the mandatory injunction prayed for. The suit was consequently dismissed. The counter claim also ended in a dismissal.

7. Respondent did not challenge dismissal of the suit while appellant challenged dismissal of counter claim in A.S. No. 190 of 2006 of the Additional District Court, Thalasery. That appeal was dismissed. Hence the second appeal with the substantial question I have framed above for a decision.

8. Learned counsel for the appellant contends that the view taken by the courts below regarding termination of lease at the instance of appellant is wrong. It is contended that even if it is assumed that the period mentioned in the notice dated 23.08.2002 falls short of the period required by Clause 4(i) of the lease agreement, on completion of the period of three months from 23.08.2002, there is a proper termination of the lease. Thereafter, appellant has nothing to do with the suit property as is evident from the conduct of respondent in not asking for recovery of possession or eviction of appellant from the suit property. Learned counsel has placed reliance on the decision in Nopany Investments (P) Ltd V. Santokh Singh (2008(2) SCC 728) and Shri Radhakrishan Temple Trust Maithan V. Hindco Rotatron (P) Ltd. (2012(2) KLT 978). Learned counsel argued that assuming that three months notice is required for valid termination of tenancy by virtue of Clause 4 (i) of the lease agreement and therefore appellant is liable to pay rent for the said period of three months also, less the sum of Rs.15,000/- (Rs.5000x3) payable as rent for the said three months appellant is entitled to get Rs.30,000/- after adjusting Rs.30,000/- required for removal of the articles. Learned counsel has requested for a decree for that amount.

9. Alternatively on instruction learned counsel for appellant submitted that in case appellant is fled from responsibility to pay rent from the date of valid termination of tenancy, appellant is prepared to forego its claim for refund of any amount as per the counter claim provided, appellant is not saddled with responsibility to remove the articles found in the suit property.

10. Learned counsel for respondent has contended that in so far as notice issued by the appellant terminating tenancy is not valid, it must be taken that the tenancy continues. According to the learned counsel, there was no agreement between parties as per which respondent undertook responsibility to remove the articles. It is argued that in the circumstances, notwithstanding that trial court dismissed the suit, appellant cannot claim any amount from the respondent.

11. Ext.A1 is the undated notice (admittedly sent to the respondent on 23.08.2002) wherein appellant, in unambiguous terms informed the respondent that in exercise of the power conferred on it under Clause 4(i) of the lease agreement, appellant wishes to terminate the lease agreement w.e.f. 15.08.2002. It is not very much in dispute that the undated notice (Ext.A1) reached the respondent on 24.08.2002. Though not produced or exhibited in evidence, learned counsel for the respondent has given me a copy of the lease agreement dated 01.08.2000. Clause 4(i) states that tenancy shall be determinable at the option of lessee (appellant herein) by giving the lessor (respondent) three months calender notice in writing.

12. It follows that Ext.A1, notice falls short of the period required for valid termination of the lease. Then the question is whether for the said reason alone, it could be said that appellant continues to be a tenant of the premises? In Nopany Investments (P) Ltd V. Santokh Singh (supra), in paragraph 22, it is held that "in any view of the matter it is well settled that filing of eviction of suit under the general law itself is a notice to quit". In Shri Radhakrishan Temple Trust Maithan V. Hindco Rotatron (P) Ltd. (supra) the Delhi High Court has taken the view that even a summon in a suit for eviction could be treated as amounting to termination of the lease arrangement. In the present case, by Ext.A1 notice though it falls short of the period referred to in Clause 4(i) of the lease agreement, appellant has, in unambiguous terms expressed its intention to terminate the lease. Therefore, assuming that the period of notice mentioned in Ext.A1 is not in accordance with Clause 4(i) of the agreement, on the expiry of three months from 24.08.2002 on which day Ext.A1 was served on the respondent, I am inclined to think that there is a valid termination of the lease arrangement at the instance of appellant. Hence from 24.11.2002 onwards, appellant has ceased to be a tenant of the premises.

13. The principle of holding over under Sec.116 of the Act could not be imported to the facts of this case since appellant/lessee expressed its intention to discontinue the lease arrangement which I said should, be treated as effective from 24.11.2002.

14. I must also referred to the conduct of respondent notwithstanding Ext.A1, notice. It is relevant to note that while respondent wanted the appellant to remove the materials from the suit property, she has not asked for eviction of the appellant. The report of the Advocate Commissioner would show that appellant was nowhere in the premises at the time the Advocate Commissioner inspected the property. Instead, son of the respondent was present with Advocate Commissioner in the suit property. These circumstances also would show that after 24.11.2002 appellant had no possession or occupation of the suit property. For these reasons, I am to interfere with the finding of the courts below that there was no valid termination of the lease at the instance of appellant and that the lease arrangement continued even thereafter.

15. What remains is the claim of appellant for recovery of amount as per the counter claim. I submitted that on instruction learned counsel for the appellant in fairness submitted that appellant is not pursuing its claim for refund of any amount as prayed for in the counter claim provided appellant is fled from responsibility to pay rent arrears as if tenancy is not terminated.

16. While appreciating that concession, I must notice that appellant has a contention that there was an agreement between parties as per which respondent was to remove the articles from the suit property for which a sum of Rs.30,000/- was to be adjusted.

17. Having regard to the facts and circumstances, I am inclined to think that this controversy could be put an end finding that since 24.08.2002 appellant has no right, interest or possession of the suit property and holding that (though alternatively) as conceded by the appellant, it is not entitled to claim any amount as prayed for in the counter claim but leaving it open to the respondent to remove the articles found in the suit property at her expense. 18. The substantial question of law framed is answered as above.

Resultantly, this second appeal is disposed of as under:-

1) It is found that since 24.11.2002 appellant has no right, interest or possession of the suit property, there being a valid termination of the lease on that day.

2) Submission made by the learned counsel for the appellant on instruction that appellant is not pursuing its prayer in the counter claim is recorded. As such dismissal of counter claim for the above reason does not call for interference.

3) It is open to the respondent to remove the articles found in the suit property at her expense.

4) Parties shall suffer their cost throughout.

Sd/-

THOMAS P.JOSEPH, JUDGE

smv //True copy// P.A. To Judge


R.S.A. No. 421 of 2012 - Jacob John Vs. Kunjamma, 2013 (1) KLT SN 100 (C.No. 85) : 2013 (1) KHC 443

posted Mar 12, 2013, 2:44 AM by Law Kerala   [ updated Mar 12, 2013, 2:45 AM ]

(2013) 288 KLR 688

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN

FRIDAY, THE 18TH DAY OF JANUARY 2013/28TH POUSHA 1934

RSA.No. 421 of 2012 ()

----------------------

AS.175/2008 OF THE II ADDITIONAL DISTRICT JUDGE, KOLLAM OS.281/2004 OF THE PRL.MUNSIFF'S, KOLLAM

--------------------

APPELLANT(S)/IST RESPONDENT/PLAINTIFF :-

------------------------------------------

JACOB JOHN, S/O. YOHANNAN, RESIDING AT PUTHUCHIRA VEEDU KACHERI.P.O, KACHERI - WARD, KOLLAM FROM KAIPPALLY VEEDU PUNNAMUKKU, PERUMPUZHA.P.O, PERUMPUZHA CHERRY ELAMPALLOOR VILLAGE, KOLLAM NOW RESIDING AT KAIPPALLY VEEDU, 19/HARISREE NAGAR RADHAS COLONY, NEAR SANKER'S HOSPITAL, KOLLAM.

BY ADVS.SRI.N.DHARMADAN (SR.) SMT.D.P.RENU SRI.M.R.VENUGOPAL

RESPONDENT(S)/APPELLANTS 1 & 2/RESPONDENTS 2 TO 5/DEFENDANTS :-

-----------------------------------------------------------------

1. KUNJAMMA @ PODIYAMMA, W/O. VARGHESE PANICKER, KOZHALDEEKARA PUTHEN VEEDU, PERUMPUZHA.P.O, KUNDARA CHERRY, ELAPALLOOR VILLAGE, KOLLAM.

2. KUNJAMMA @ SUJAMOL, D/O. VARGHESE PANICKER, KOZHALDEEKARA PUTHEN VEEDU, PERUMPUZHA.P.O, KUNDARA CHERRY, ELAPALLOOR VILLAGE, KOLLAM.

3. SARAMMA, D/O. VARGHESE PANICKER, KOZHALDEEKARA PUTHEN VEEDU, PERUMPUZHA.P.O ELAPALLOOR VILLAGE, KOLLAM.

4. BROTHER KUNJUMON FOR INDIA POORNA SUVISESHA DAIVA SABHA, KUNDARA.

5. PASTER BABU VARGHESE, S/O. GEEVARGHESE, KURUGOTTU VEEDU, KUMPALA POYKA.P.O KANNAMPARA, VADASSERIKARA VILLAGE.

6. PASTER BABU VARGHESE, PRESIENT SEON PRARTHANA MANDIRAM, KUNDARA, RANNI TALUK, PATHANAMTHITTA DISTRICT.

R5 BY ADV. SRI.VARGHESE PREM R1 & R2 BY ADV. SRI.ALEX N.MATHEW (KOLLAM) R1 & R2 BY ADV. SRI.H.RAMANAN R1 & R2 BY ADV. SRI.JAMES JOSE

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt

N.K.BALAKRISHNAN, J.

--------------------------------

R.S.A. No.421 of 2012

---------------------------------

Dated this the 18th day of January 2013

Head Note:-

Civil Procedure Code, 1908 - Section 100 & Order XLIII Rule 1(u) - Appeal against the order of remand Second Appeal is unsustainable.

J U D G M E N T

"Is a Regular Second Appeal maintainable against an order of remand passed by the lower appellate court" is the short question that now arises for consideration in the appeal. The plaintiff who filed a suit for fixation of the northern boundary of the plaint schedule property and for consequential injunction has filed this second appeal. It is alleged that in the suit an Advocate Commissioner was appointed to measure the property. When the suit was posted for evidence, both parties represented before court that they have no dispute against the report, mahazar and plan submitted by the Advocate Commissioner. Hence, without raising any issue the court decreed the suit accepting the Commissioner's reports and plans. Defendants 1 and 3 filed appeal challenging the said decree and judgment passed by the trial court. The Addl. District Judge, after hearing both sides, allowed the appeal, set aside the judgment of the trial court and remanded the case to the trial court for fresh disposal. It is contended by the appellant herein that the lower appellate court was not justified in not acting upon the oral admission or consent made by the counsel appearing for the parties before the trial court that the parties had no objection in deciding the suit accepting the Commissioner's report and plan. It is also argued that the defendants, who filed the appeal did not in fact adduce any oral or documentary evidence to sustain their plea that Ext.C3 plan causes serious prejudice to them.

2. Heard the learned Senior Counsel appearing for the appellant and also the learned counsel appearing for the respondents.

3. An objection has been raised by the learned counsel appearing for R1 and R2 that a Regular Second Appeal under Sec.100 of CPC is not maintainable against an order of remand passed by the lower appellate court. It is pointed out by the learned counsel for the respondents that an appeal is provided under Sec.104 and Order XLIII of CPC against an order passed under Rule 23 or 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court as provided under Order XLIII Rule 1(u) of the CPC. As per Rule 23 of Order XLI, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment or order to the court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suit, and proceed to determine the suit. The relevant portion of the judgment of the lower appellate court is extracted here under :-

"The judgment and decree are set aside. The matter is remanded for fresh disposal to proceed with the case as per law. Parties shall appear before court below on 15.3.2012."

Therefore, the contention that it is not an order of remand under Rule 23 of Order XLI and so it is not appealable as provided under Order XLIII Rule I(u) cannot be sustained.

4. It was vehemently argued by the learned Senior Counsel appearing for the appellant that the lower appellate court was not justified in upsetting the decree and judgment of the trial court solely for the reason that no endorsement was obtained to pass a consent decree. It is further argued that in paragraph 5 of the trial court judgment it was clearly stated that the counsel appearing for the defendants submitted that the defendants had no dispute against fixing and putting up of boundary as per Ext.C3 plan and that fact was, in fact recorded by the trial court and so, the decree and judgment of the trial court based on the said submission made by the counsel appearing for the defendants should not have been ignored. The decision of the Apex Court in Vimaleshwar Nagappa Shet v. Noor Ahmed Sheriff & Ors. [AIR 2011 SC 2057] has been relied upon in support of the submission that statement made by the counsel, as recorded in the judgment or order, cannot be later challenged before the superior court. Any way, it is not necessary to further probe into those aspects since the second appeal is to be disposed of on the preliminary point only. Hence, whether the admission made by the defendants' counsel before the trial court as recorded in the judgment of the trial court can be challenged before the appellate court or not is to be considered in the appeal yet to be properly filed by the appellant.

5. Learned counsel for the respondents would submit that as per sub-rule (2) of Order XLIII Rule 1A, in an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded and so, the contention that the defendants in the suit were not entitled to file appeal challenging the decree and judgment of the trial court cannot be sustained.

6. The learned Senior Counsel appearing for the appellant has relied upon the decision of the Madras High Court in Kaluvaroya Pillai and others v. Ganesa Pandithan and others [AIR 1969 Madras 248] in this connection. That was a case where the lower appellate court remanded the suit for re-consideration of all the issues after setting aside the judgment and decree of the trial court in full. It was found therein that the lower appellate court had substituted its own judgment to that of the trial court and in the peculiar circumstances of the case it was not open to the appellants in the Civil Miscellaneous Appeal to canvass the entire judgment and decree of the lower appellate court by filing an appeal under Order XLIII Rule 1(u) of CPC. This decision has been canvassed by the learned Senior Counsel to fortify his submission that even though an appeal against the order of remand is provided under Order XLIII Rule 1(u) of CPC, in the peculiar nature of this case, a second appeal is perfectly maintainable. But this submission has been taken strong exception to by the learned counsel appearing for the respondents pointing out that the appeal before the lower appellate court was mainly filed under Order XLI and that in view of Rule 1A of Order XLIII it was open to the defendants to contend that the compromise should not have been recorded as it was unlawful, being vitiated by fraud or misrepresentation and that was the reason why the decree and judgment of the trial court was set aside by the lower appellate court. The learned counsel for the respondents would submit that the decree and judgment of the trial court was set aside by the lower appellate court for the reasons mentioned above and an order of remand was made because of those reasons and so, if actually the plaintiff (the appellant herein) wanted to challenge that order of remand then certainly all those contentions can be raised in the appeal that can be filed under Order XLIII Rule 1(u) of CPC.

7. It was held by the Honourable Supreme Court in Jegannathan v. Raju Sigamani & Anr. [AIR 2012 SC 3788] :-

"Order 43 of the Code provides for appeals from orders. Clause (u) of Rule 1 Order 43 was amended consequent upon insertion of Rule 23A in Order 41 w.e.f. February 1, 1977.

It reads as under : An appeal shall lie from the following orders under the provisions of Section 104, namely :-

x x x x x

(u) an order under Rule 23 or Rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court ;

x x x x x

It is clear from the above provision that an order of remand passed under Order 41 Rule 23A is amenable to appeal under Order 43 Rule 1(u) of the Code."

8. The decision of this Court in Joy Francis and another v. Joseph Netto and others [ILR 2012 (2) Ker. 272] has also been referred to in this connection. This decision has been relied upon to contend for the position that if a party wants to impeach the decree passed on the basis of the compromise or agreement, the remedy left to him is to impeach the same before the court which passed the decree based on such compromise or agreement and to establish that the consent or agreement relied upon by the trial court is vitiated by fraud, undue influence, misrepresentation etc. But the learned counsel for the respondents would submit that the party challenging the compromise referred to above can file a petition under the Proviso to Rule 3 of Order XXIII or an appeal under Sec.96(1) of the Code, in which case, he can question the validity of the compromise in view of Rule 1A of Order XLIII as has been held by the Apex Court in Banwari Lal v. Smt.Chando Devi (through L.R.) and another [AIR 1993 SC 1139]. In view of the finding entered by me that the remedy open to the appellant is to file an appeal against the order of remand passed by the appellate court as provided under Order XLIII Rule 1(u), I have no hesitation to hold that the present Second Appeal filed by the appellant is unsustainable. The appellant can file an appeal against order of remand as provided under Order XLIII Rule 1(u), if he is so advised. This R.S.A. is hence dismissed as not maintainable.

N.K.BALAKRISHNAN, JUDGE.

Jvt


R.S.A. No. 418 of 2005 - Raveendran Vs. Vimala, 2011 (1) KLT 925 : 2011 (1) KLJ 754 : ILR 2011 (1) Ker. 993

posted Feb 2, 2013, 11:30 PM by Law Kerala   [ updated Feb 2, 2013, 11:31 PM ]

IN THE HIGH COURT OF KERALA

S.S. Satheesachandran, J.

R.S.A. No. 418 of 2005

Decided On: 16.02.2011

Malayimmal Raveendran

Vs.

Malayimmal M. Vimala

Head Note:-

Indian Evidence Act, 1872 - Section 112 - Paternity and Maternity - Subsistence of a valid marriage In the matter of deciding adisputed question over paternity, the presumption would shift the burden to prove non-access where the subsistence of a valid marriage is admitted or established. However, in the case of a dispute over maternity, no such presumption is carved out since it could normally never be a matter of dispute. 'Maternity' is almost accepted as an undisputed fact whereas, 'paternity' is a matter of opinion; and, when a court is called upon to decide the question of maternity, it has no other go, but, to examine the materials placed and to enter a finding thereof.

For Appellant: K.V. Sohan, Joyan P. Antony, K. Sreeja Sohan and K. Ambily, Advs.

For Respondents: B. Krishnan and R. Parthasarathy, Advs.

J U D G M E N T

S.S. Satheesachandran, J.

1. King Solomon renowned for his wisdom, when called upon to decide the rival claims of maternity over a new born baby by two harlots, adopting a clever tactic based on his profound knowledge of human nature, resolved the literally unsolvable dispute with ease. The decision rendered by King Solomon identifying the true mother from the two rival claimants and handing over the infant to her, acclaimed as 'The Judgment of Solomon", showing his outstanding wisdom, depicted in Kings 3:16-28, most probably may be the first case over an issue of maternity. Certainly, it is not the last, though the factual scenario over the dispute may be different, as seen from the present case. King Solomon was blessed with the "Wisdom of God", but the courts manned by little mortals, not endowed with the wisdom of King Solomon nor of having his profound human knowledge, cannot follow or adopt any tactic to resolve the issue, but have to determine and render a decision applying the settled legal principles, but necessarily having due regard to the human course of conduct while evaluating the evidence and pleadings of the parties to the case.

2. Plaintiff is the Appellant. Suit was one for partition. His claim for division and separate possession of the suit property claiming equal share with the two Defendants alleging that all of them are the children of late Madhavi, to whom, admittedly, the suit property belonged, was resisted by the Defendants/Respondents contending that the Plaintiff is not the son of Madhavi. Negativing that contention, the trial court passed a preliminary decree and judgment holding that he is entitled to equal share with the Defendants in the suit property, which was directed to be divided into three equal shares, and, allotting one such share to him. However, in the appeal preferred by the Defendants, that decree was set aside and the Plaintiff was non-suited. Feeling aggrieved, he has preferred this appeal.

3. Before the trial court Plaintiff was examined as PW2 and a lady, who lived next door when he was brought up by his parents at Bombay, as PW1. A family photograph of the Plaintiff while he was an infant in which, PW1 and her husband also joined, was exhibited through that witness, apart from tendering Exts.A2 to A7 documents to sustain the suit claim for partition. On the side of the Defendants, the 2nd defendant was examined as DW1 and another witness a retired police personnel, as DW2, and Exts.B1 and B2 were exhibited. The trial court, mainly relying upon the evidence of PW 1, whose sworn testimony was found trustworthy and credible, accepted the case of the Plaintiff that he is the son of Madhavi through Kumaran, which had been challenged by the Defendants contending that his progenitress was a Maharashtrian lady with whom Kumaran, their father, had an illicit affair. The conclusion so formed by the trial court to pass a preliminary decree declaring that the Plaintiff is entitled to an equal share with the Defendants in the suit property, which belonged to Madhavi, was interfered with in the appeal preferred by the Defendants by the lower Appellate court, which after considering the materials tendered in the case, took a different view on the disputed issue of maternity of the Plaintiff. Non-production of the hospital records relating to the birth of the Plaintiff, voters list or ration card showing that his mother is Madhavi and non-examination of the close relatives of Madhavi in thexase appeared to the lower Appellate court as decisive and fatal to the claim of the Plaintiff based on his status as the son of Madhavi. PW1, who was examined as a close by neighbour was unable to give an unequivocal answer, but, feigned ignorance when she was confronted with the question that the plaintiff was born through a Maharashtrian lady to Kumaran, according to that court, rendered her evidence as wholly unacceptable. Challenge raised by the Defendants that the trial court lacked pecuniary jurisdiction to entertain the suit, which was raised as one among the two points for determination in the appeal, the other being the dispute over the status of the Plaintiff as the son of Madhavi, was also found to be appealing to the lower Appellate court, to conclude that the claim of the Plaintiff was not entertainable, with the result of non-suiting him, reversing the decision of the trial court, by allowing the appeal.

4. The following substantial questions of law have been formulated for hearing in the appeal:

(a) Whether the court can draw a presumption in law regarding the maternity of the child if the paternity is admitted or proved and the birth of the child is during the period of subsistence of living together and a legal marriage between the alleged mother and the father?

(b) Whether the court is entitled to draw a presumption under Section 112 of the Evidence Act regarding conclusive proof of maternity also if the child is born during the continuous of the valid marriage between his father and the alleged mother?

(c) Whether Section 112 of the Indian Evidence Act violates Article 14 of the Constitution of India to the extent of not treating a husband and wife equally, who are parties to the marriage and are equally placed unequally with respect to the presumption regarding legitimacy of children born during the continuance of valid marriage?

(d) Is not the finding of the lower court perverse when there are overwhelming evidence to conclude that the Appellant is the son of Madhavi born in the lawful wedlock?

(e) Is not the lower Appellate court committed error of law in not drawing the presumption and placing the burden of proof on the Appellant even after it is proved that he is a child born to one of the parties during the subsistence of a valid marriage?

(f) Is the lower Appellate court correct in holding that the Munsiff Court has no pecuniary jurisdiction to try the suit when the suit is for partition and the Plaintiff has shown the value of his share only below the pecuniary limits of the court and the Commissioner also reported that the value of the share if below the limit?

5. The learned Counsel for the Appellant assailed the judgment of the lower Appellate court, by which, it interfered with the decree passed by the trial court to non-suit the Plaintiff as based on totally misconceived notions and mis-appreciation of the pleadings and evidence of the case. Pecuniary jurisdiction of the trial court to entertain the suit which was raised as a challenge to its decree based on the valuation of the property involved had never been pressed into service before the parties proceeded with the trial of the case, and when that be so, the point for determination raised in the appeal on the above ground, its consideration and the adverse finding entered thereof to unsettle the decision of the trial court was totally unjustifiable, is the submission of the counsel. So far as the disputed question involved in the case as to whether the Plaintiff and the Defendants are progenies from a common mother late Madhavi, the legal evidence tendered in the case by the Plaintiff was brushed aside and the finding rendered in his favour by the trial court was interfered with by the lower Appellate court even without looking into the improbability of the defence set up by the Defendants, which remained unsubstantiated by any evidence worthy of consideration, is the submission of the counsel. Per contra, while practically conceding that the finding made by the lower Appellate court over the question of pecuniary jurisdiction cannot be sustained under law.the learned Counsel for the Defendants/Respondents contended that the finding entered that the Plaintiff is not the son of Madhavi does not suffer from any infirmity as he had miserably failed to tender any legal evidence to prove his maternity as claimed. PW1, the only other witness examined by the Plaintiff, over and above the examination of himself as PW2 to substantiate his case canvassed that he was born to Madhavi, when confronted with the challenge that the Plaintiff was born to one Maharashtrian lady could not refute it and when that be so, the conclusion formed by the lower Appellate court that the Plaintiff had failed to establish his claim as the son of Madhavi, according to the counsel, does not at all warrant any interference. No scrap of paper other than a photograph was produced by the Plaintiff to show that he is the son of Madhavi despite the specific challenge raised by the Defendants disputing his maternity contending that he was born to a Maharashtrian lady to their father, and that being so, on the evidence of the Plaintiff as PW2 and his witness as PW1, that alone, his claim cannot be sustained and it was so rightly found by the lower Appellate court interfering with the decision of the trial court holding otherwise. The finding so entered to non-suit the Plaintiff does not call for any interference, is the submission of the counsel.

6. Suit property belonged to late Madhavi, who was married to Kumaran. Plaintiff is the son of Kumaran is admitted to by the Defendants, but his claim for partition of the property as the son of Madhavi along with die Defendants, the other children, is resisted contending mat he was born to Kumaran through a Maharashtrian lady. Kumaran is the father of the Plaintiff and also the Defendants. Admittedly, Kumaran and Madhavi with their children resided in Bombay. Madhavi had passed way when Plaintiff was aged below three years. After the death of Madhavi, Kumaran married her younger sister, namely, Kallyani, and, thereafter, Plaintiff then an infant was taken care of and brought up by the sister of Kumaran in their native place. Kumaran with his second wife and her children and also the Defendants, his two daughters in the first wife, continued to reside in Bombay. Plaintiff married a close relative of Madhavi, the daughter of her brother. The factual aspects as stated above are undisputed.

7. The claim of the Plaintiff as the son of Madhavi while accepting his paternity with Kumaran, is disputed by the Defendants contending that he was born to Kumaran through a Maharashtrian lady. In the written statement, strangely enough, other than setting forth such a contention to dispute the maternity of the Plaintiff, no specific particulars as to how the Plaintiff came under the parental care of Kumaran are spelt out. Perusing the written statement, it is seen, a specific contention was also advanced that the Plaintiff never resided with Madhavi, the mother of the Defendants. That case so projected, it is seen, was given a go by when the 2nd defendant, who alone among the Defendants was examined as DW1 in the case. When examined before the court, she gave a version that her father Kumaran brought a child, a ten day old infant, and handed it over to her mother Madhavi confessing that he had committed a mistake. Her father Kumaran, according to the witness, told Madhavi, that the mother of the child was no more. That child, the Plaintiff, was, thereafter, taken care of by Madhavi, who passed away when he was two years old, is her version. So, Madhavi, the mother of the Defendants, took care of the child (Plaintiff) in his infancy, is admitted to by the 2nd defendant, which was against the version of the Defendants in the written statement that the Plaintiff never resided with Madhavi. Her version that Kumaran brought the infant to home and confessed to Madhavi that the child was born to him through a Maharashtrian lady, and also of her death, necessarily has to be viewed in the background of normal human nature and conduct whether any such confession could have been made in the presence of the children of spouses. If we reckon the age of the 2nd defendant at the time of the aforesaid incident canvassed to dispute the maternity of Plaintiff, with reference to the entries as to the date of birth of the Plaintiff under Ext.A4, and, thereby, the date of death of Madhavi two or three years after his birth, and the date of examination of DW1 before the court with her age recorded in the deposition statement, it could be seen that she was then hardly six years old. As already indicated, no particulars of the above incident are stated in the written statement. The trial court had rightly held that her version as to her father confessing before her mother that the Plaintiff was born to him through a Maharashtrian lady is highly improbable and unacceptable. The only other witness examined by the Defendants is a pensioner, who retired from police department. That witness would state that Kumaran had told him that Plaintiff was born to him through a Maharashtrian lady. He would also state that Kumaran had taken custody of the infant immediately after his birth. His version that Kumaran had told him as above 35 years ago where the age of the Plaintiff even when he was examined before the court is shown to be 34 years, does not require any further comment. Even the 2nd defendant examined as DW1 had no case that the child was brought to home and handed over to Madhavi immediately after his birth, but only when the child was ten days old.

8. The Plaintiff has examined a closeby neighbour, PW1, who had close acquaintance and relationship with Kumaran and his family to meet the challenge raised by the Defendants disputing his maternity. A photograph (Ext. A1), wherein Kumaran and his family, with the Plaintiff on his lap, and PW2 and her husband, was exhibited in evidence through thi s witness. She had asserted that Plaintiff was born to Madhavi in a hospital in Bombay and she had direct knowledge of his birth. She also stated that Madhavi died at Bombay when Plaintiff was two to three years old. The fact that she resided next door to the family of Madhavi at Bombay is not disputed. Ext. Al evidences the close relationship between the family of the witness with that of Kumaran and Madhavi. Her version that Plaintiff was born to Madhavi in a hospital in Bombay, which was found trustworthy to the learned Munsiff, who had the opportunity to watch her demeanour and deportment was discarded and held to be not acceptable by the lower Appellate court for the sole reason that to a question put in cross examination, whether Plaintiff was born to Kumaran through a Maharashtrian lady she had pleaded ignorance. In the light of her assertion that Plaintiff was born to Madhavi in a hospital at Bombay viewed in the backdrop that she was living next door to the house of Madhavi and also the close acquaintance of the two families, which is corroborated by Ext.A1 as well, the answer culled out from her during the cross examination, as stated above, is totally devoid of any value. At any rate, that answer does not in any way affect the worth of her testimony, which was found credible and trustworthy to the court, which had the opportunity to record her evidence. Evidence of PW1, which remained unshaken is more than sufficient to negative the frivolous contention taken by the Defendants to dispute the maternity of the Plaintiff contending that he was not born to Madhavi.

9. In the matter of deciding adisputed question over paternity, the presumption under Section 112 of the Evidence Act would shift the burden to prove non-access where the subsistence of a valid marriage is admitted or established. However, in the case of a dispute over maternity, no such presumption is carved out since it could normally never be a matter of dispute. 'Maternity' is almost accepted as an undisputed fact whereas, 'paternity' is a matter of opinion; and, when a court is called upon to decide the question of maternity, it has no other go, but, to examine the materials placed and to enter a finding thereof. In cases of this nature, conclusion formed on appreciation of the evidence tendered by the Judge, who had the advantage of seeing the demeanour of the witness in the box, ordinarily, is not to be interfered with, except upon grounds, which clearly prove that his view was wrong (See Nand Kishwar Bux Roy v. Gopal Bux Rai and Ors., AIR 1940 PC 93) wherein a similar question of maternity arose for decision).

10. The contention taken by the Defendants to resist the claim for partition by the Plaintiff disputing his maternity was apparently frivolous. It could also be stated that such a defence was canvassed by the Defendants having no regard for the sisterly concern to a younger brother, but, solely blinded by the avaricious and fanatic desire to have the suit property exclusively for themselves. Still, the issue cast thereof has to be adjudged on the materials placed, but, with due regard to the human course of conduct. Unfortunately, the reasoned judgment rendered by the trial court, after meticulously appreciating the materials tendered in the case with reference to the pleadings involved, without any justification, was unsettled by the lower Appellate court on wholly irrelevant and inconsequential circumstances, which have no bearing on the disputed question involved in the case. The reasonings expressed and the finding entered by the lower Appellate court to reverse the judgment of the trial court are perverse, totally discarding the proved facts and circumstances of the case. The decree passed by the trial court, in such circumstances, is liable to be restored, setting aside the impugned judgment rendered by the lower Appellate Court.

In the result the appeal is allowed, and reversing the judgment of the lower Appellate Court the judgment rendered by the Trial Court is restored with costs realisable from the Respondents.


R.S.A. No. 965 of 2010 - Ravi Chandran Vs. Philip, 2011 (1) KLT 581 : 2011 (1) KLJ 555 : 2011 (1) KHC 335

posted Jan 31, 2013, 9:24 AM by Law Kerala

IN THE HIGH COURT OF KERALA

 S.S. Satheesachandran, J.

R.S.A. No. 965 of 2010

Decided On: 21.01.2011

K.K. Ravi Chandran

Vs.

A.R. Philip

Head Note:-

Civil Procedure Code, 1908 - Section 11 - Res Judicata - Counter Claim - Counter claim raised in a suit no doubt has the character of a cross suit and even if the suit in which such counter claim was discontinued by the Plaintiff therein or dismissed, the counter claim has to be proceeded with and disposed in accordance with law. When the counter claim raised was considered with the suit claim of the Plaintiff and issues thereunder were dealt with and a decision rendered in common disposing of the suit claim and counter claim, then, it is needless to point out, the adverse finding on issues made over the counter claim of the Defendant, if not challenged shall operate as res judicata barring any further challenge to the decree passed on the suit claim in favour of the Respondent/Plaintiff.

For Appellant: K.N. Chandrababu, Adv.

For Respondents: C.K. Govindan and L.P. Aravindakshan, Advs.

J U D G M E N T

1. Defendant is the Appellant. Suit filed by the Respondent/Plaintiff for settlement of accounts in relation to a contract work undertaken by him for putting up a residential building for the Appellant was decreed in part by the trial court and it was confirmed in appeal by the lower Appellate Court. Resisting the suit claim, the Appellant/Defendant had set up a counter claim for compensation alleging that by the defective work in the construction of the building, he suffered loss, and additional expenditure was incurred for rectification. Counter claim of the Appellant for compensation was also found proved, but, in part, and the amount quantified thereunder was adjusted in the sum determined as payable in the contract, work executed by the Respondent. Sum of Rs. 20,000/- determined as compensation due to the Appellant, for the defective work was adjusted in the sum found payable to the Plaintiff, and a decree was passed allowing the Plaintiff to recover a sum of Rs. 28,835/- with future interest at 6% per annum. The decree so passed by the trial court, after reappraisal of the evidence, was confirmed in appeal by the lower appellate court. Concurrent decision so rendered is impeached by the Appellant in this second appeal.

2. I heard the counsel for the Appellant. From the submissions made and also perusing the decrees and judgments passed by the courts below, it is noticed that the Appellant, who had set up a counter claim for compensation resisting the suit claim of the Respondent, has not challenged the correctness of the decree passed over such counter claim by the trial court, by which, his claim, after being considered with the claim of the Respondent, was allowed only in part, negativing the rest of such claim. Counter claim raised in a suit no doubt has the character of a cross suit and even if the suit in which such counter claim was discontinued by the Plaintiff therein or dismissed, the counter claim has to be proceeded with and disposed in accordance with law. When the counter claim raised was considered with the suit claim of the Plaintiff and issues thereunder were dealt with and a decision rendered in common disposing of the suit claim and counter claim, then, it is needless to point out, the adverse finding on issues made over the counter claim of the Defendant, if not challenged shall operate as res judicata barring any further challenge to the decree passed on the suit claim in favour of the Respondent/Plaintiff. It is seen from the judgment of the trial court, issue No. 1 in the suit related to the question whether the Plaintiff had carried out any additional work on the request of the Defendant, and if so, the amount due to him for such additional work. Issue No. 1 raised on the counter claim related to the additional expenditure incurred by the Defendant for rectification of the defective works done by the Plaintiff. The issues so framed with respect to the suit and counter claim were dealt in common. Similarly, the issue Nos. 2 and 3 cast in the suit dealing with the entitlement of the Plaintiff for the amount claimed for the work done were considered in common with issue No. 3 arising from the counter claim as to the amount due to him as compensation, and such issues were also considered in common. After adjudication of such issues jointly, on the materials placed, the Plaintiff was found entitled to a sum of Rs. 48,835/- from the Defendant for the work done and the Defendant (Appellant) entitled to a sum of Rs. 20,000/- as compensation from the Plaintiff. Adjusting the compensation determined in the amount found payable to the Plaintiff, a decree was passed as indicted above. When such be the case, where there was no challenge against the disallowing of the rest of the counter claim and an appeal was filed only as against the decree passed in favour of the Plaintiff, it has the effect of sealing with finality the decision rendered on the common issues arising from the suit and the counter claim, barring the entertainability of the appeal as against the decision in one of them without challenging the other. However, without noticing the above aspect, the applicability of res judicata in such a situation, the lower appellate court has disposed the appeal filed by the Appellant against the decision rendered in the suit, that alone, on its merits. That was so done would not enable the Appellant to get over the bar of res judicata to challenge the concurrent decision rendered over the suit claim by way of second appeal. The failure, even assuming it to be an omission, of the Appellant/Defendant to challenge the decision rendered in the counterclaim, which was dealt in common with the claims raised in the suit, and such decision having become final, no challenge as against the decree passed in the suit in favour of the Plaintiff can be challenged, that, alone, by way of an appeal. That being so, I find the present appeal is not at all entertainable.


R.S.A. No. 895 of 2012 - Janu Vs. Thanka, (2012) 264 KLR 649

posted Aug 14, 2012, 7:49 PM by Law Kerala   [ updated Aug 14, 2012, 7:50 PM ]

(2012) 264 KLR 649 
IN THE HIGH COURT OF KERALA AT ERNAKULAM

 
PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH 
MONDAY, THE 16TH DAY OF JULY 2012/25TH ASHADHA 1934 
RSA.No. 895 of 2012 () 
---------------------- 
AS.123/2007 of PRL.SUB COURT,THRISSUR OS.1958/2001 of I ADDL.MUNSIFF COURT, THRISSUR 

APPELLANT(S)/APPELLANTS 1 TO 5 & ADDL. APPELLANT NO.7/ PLAINTIFFS 1 TO 6 AND NON PARTY TO O.S.NO.1958/2001 
1. JANU W/O.LATE VASU, VANNERI HOUSE, VILVATTOM VILLAGE MANNUMKAD DESOM, CHEROOR P.O., 680 008 TRISSUR TALUK AND DISTRICT. 
2. HARIHARAN, S/O.LATE VASU, VANNERI HOUSE, VILVATTOM VILLAGE MANNUMKAD DESOM, CHEROOR P.O., 680 008 TRISSUR TALUK AND DISTRICT. 
3. GIRIJA, D/O.LATE VASU, W/O.MOHANAN, PERUMPARAMBIL HOUSE MANNUTHI VILLAGE & DESOM, P.O.680 651 TRISSUR TALUK AND DISTRICT. 
4. PITHAMBHARAN. S/O.LATE VASU, VANNERI HOUSE, VILVATTOM VILLAGE MANNUMKAD DESOM, CHEROOR P.O., 680 008 TRISSUR TALUK AND DISTRICT. 
5. DIVAKARAN, S/O.LATE VASU, VANNERI HOUSE, VILVATTOM VILLAGE MANNUMKAD DESOM, CHEROOR P.O., 680 008 TRISSUR TALUK AND DISTRICT. 
6. SIDDHARTHAN, H/O.LATE USHA, PARAMEL HOUSE, PUTHURKARA DESOM PULLAZHI VILLAGE, P.O.680 012 TRISSUR TALUK AND DISTRICT. 
(THE 4TH PLAINTIFF/4TH PETITIONER USHA DIED DURING THE PENDENCY OF THE APPEAL AND THE ADDL.7TH APPELLANT WAS IMPLEADED AS HER LEGAL HEIR). 
BY ADVS.SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN SMT.USHA NARAYANAN
RESPONDENT(S)/RESPONDENTS 3 TO 12, 14, 16 TO 36, 38 TO 43 AND 45 TO 52/DEFENDANTS 3 TO 12, 14, 16 TO 36 AND NON PARTIES TO O.S.1958/2011:-: 
1. THANKA D/O.LATE KOCHU, W/O.PULIKAL VEETIL PARAMAN NETTISSERY VILLAGE AND DESOM, P.O.680 657 THRISSUR TALUK AND DISTRICT. 
2. AMMINI, D/O.LATE KOCHU, W/O.OOTTOLI KRISHNANKUTTY PALIEKKARAN, CHITTISSERTY VILALGE AND DESOM P.O.680301, THRISSUR TALUK AND DISTRICT. 
3. BHASMAVATHI, D/O LATE KOCHU, W/O CHOKIKATTUVEETIL MANI VIYYUR VILLAGE AND DESOM P.O.680 010 THRISSUR TALUK AND DISTRICT. 
4. RAMANI, D/O LATE KOCHU, W/O CHANDRAN, VANNERI HOUSE CHERUR P.O. 680 008, VILVATTOM VILLAGE MANNUMKAD DESOM, THRISSUR TALUK AND DISTRICT. 
5. DEVAKI, D/O KUTTAN, W/O VELU, CHANASSERI HOUSE MADAKATHARA VILLAGE CHIRAKAKODE DESOM, P.O. 680351 THRISSUR TALUK & DISTRICT. 
6. SUBHADRA, D/O KUTTAN, W/O MAMA, KULANGARAPARAMBIL HOUSE KANNAMKAD DESOM, VILVATTOM VILLAGE RAMAVARMAPURAM P.O.680631 THRISSUR TALUK AND DISTRICT. 
7. THANKA, D/O KUTTAN, W/O PANANTHARA CHATHU, VELLANIKARA DESOM MADAKKATHAR VILLAGE AND P.O. 680 654 THRISSUR TALUK AND DISTRICT. 
8. KOUSALYA, D/O KUTTAN, W/O THOTTUNGAL VELAYUDHAN THEKKUMPADAM DESOM, PANANCHERY VILLAGE, P.O.680 652 THRISSUR TALUK AND DISTRICT. 
9. LEELA, D/O KUTTAN,W/O KUMARAN, KUNNIKURU HOUSE VELLANIKARA DESOM MADAKKATHARA VILLAGE AND P.O.680 654 THRISSUR TALUK AND DISTRICT. 
10. JANAKI, D/O KARUPPAKUTTY, W/O RAGHAVAN, THEKKUT HOUSE CHERUR P.O. 680 008,VILLAGE THRISSUR TALUK AND DISTRICT. 
11. SUBHADRA, D/O KARUPPAKUTTY, THEKKUT HOUSE, CHERUR P.O.680008 THRISSUR DISTRICT. 
12. ACHUTHAN, S/O KUNJUKUTTAN, URAKOM VILLAGE DESOM AND P.O. 680 562, THRISSUR DISTRICT. 
13. KOUSALYA, W/O LATE GANGADHARAN, CHIRAKKAKODE DESOM MADAKKATHARA VILLAGE & PO 680651 THRISSUR TALUK AND DISTRICT. 
14. SUBHASH, S/O LATE GANGADHARAN, CHIRAKKAKODE DESOM MADAKKATHARA VILLAGE & PO 680651 THRISSUR TALUK AND DISTRICT. 
15. RATHNAM, S/O LATE GANGADHARAN, CHIRAKKAKODE DESOM MADAKKATHARA VILLAGE & PO 680651 THRISSUR TALUK AND DISTRICT. 
16. MOHANAN, S/O LATE GANGADHARAN, CHIRAKKAKODE DESOM MADAKKATHARA VILLAGE & PO 680651 THRISSUR TALUK AND DISTRICT. 
17. GIRIJAN, S/O LATE GANGADHARAN, CHIRAKKAKODE DESOM MADAKKATHARA VILLAGE & PO 680651 THRISSUR TALUK AND DISTRICT. 
18. ASOKAN, S/O LATE GANGADHARAN, CHIRAKKAKODE DESOM MADAKKATHARA VILLAGE & PO 680651 THRISSUR TALUK AND DISTRICT. 
19. SATHY, S/O LATE GANGADHARAN, CHIRAKKAKODE DESOM MADAKKATHARA VILLAGE & PO 680651 THRISSUR TALUK AND DISTRICT. 
20. SUNIL, S/O LATE GANGADHARAN, CHIRAKKAKODE DESOM MADAKKATHARA VILLAGE & PO 680651 THRISSUR TALUK AND DISTRICT. 
21. AMMINI, W/O VANNERI UNNI @ RAMAN CHERUR P.O. 680 008 VILVATTOM VILLAGE THRISSUR TALUK AND DISTRICT. 
22. HARINDRAN, S/O. VANNERI UNNI @ RAMAN CHERUR P.O. 680 008 VILVATTOM VILLAGE THRISSUR TALUK AND DISTRICT. 
23. PADMAVATHI PRABHAKARAN, D/O VANNERI UNNI @ RAMAN, W/O PRABHAKARAN PLAVALAPPIL HOUSE AYYANTHOLE VILLAGE AND DESOM P.O.680003 THRISSUR TALUK AND DISTRICT. 
24. CHANDRIKA PREMACHANDRAN, D/O VANNERI UNNI @ RAMAN W/O KARIPPOTTIL PREMACHANDRAN, GRAMALA DESOM KILLANNUR P.O.680 581 THRISSUR TALUK AND DISTRICT. 
25. LALITHA SIVADASAN, D/O.VANNERI UNNI @ RAMAN,CHERUR.P.O 680 008 VILVATTOM VILLAGE THRISSUR TALUK AND DISTRICT. 
26. GEETHAVASANTHAN, D/O.VANNERI UNNI @ RAMAN W/O.CHAKALAPARAMBIL VASANTHA,KUNDUVARA DESOM PERINGAVU VILLAGE & P.O.680018 THRISSUR TALUK & DISTRICT.  
27. SUKUMARI KUTTAN, D/O.VANNERI UNNI @ RAMAN,W/O.CHAKRATH KUTTAN KOZHIKUNNU DESOM, KILLANNUR VILLAGE,P.O.680581 THRISSUR TALUK AND DISTRICT. 
28. K.B.ANIL KUMAR, S/O.THANKA,KAIPPULLI HOUSE VELLANIKARA VILLAGE AND DESOM & P.O.680654 THRISSUR TALUK AND DISTRICT. 
29. K.B.SURESH, S/O.THANKA,KAIPPULLI HOUSE VELLANIKARA VILLAGE AND DESOM & P.O.680654 THRISSUR TALUK AN DISTRICT. 
30. K.B.SASIKUMAR, S/O.THANKA,KAIPPULLI HOUSE VELLANIKARA VILLAGE AND DESOM & P.O.680654 THRISSUR TALUK AND DISTRICT. 
31. SUJATHA SAHADEVAN, D/O.THANKA,W/O.KAYAMKULAM SAHADEVAN,KARUVANKAD DESOM MADAKKATHARA VILLAGE & P.O.680320 THRISSUR TALUK AND DISTRICT. 
32. VASU, S/O.THOPPIL SANKARAN,VILANGANKUNNU PUZHAKAL.P.O.680583,THRISSUR DISTRICT. 
33. THANKA, D/O.LATE KURUMBA,W/O.LATE KOTTIKAL KOCHUGOVINDAN ELAMTHURUTHI DESOM, P.O.680320 MARATHAKARA VILLAGE THRISSUR TALUK AND DISTRICT. 
34. PRABHAKARAN, S/O.LATE KURUMBA,W/O.LATE KOTTIKAL KOCHUGOVINDAN ELAMTHURUTHI DESOM P.O.680320 MARATHAKARA VILLAGE THRISSUR TALUK AND DISTRICT. 
35. INDIRA, D/O.LATE KURUMBA,W/O.LATE KOTTIKAL KOCHUGOVINDAN ELAMTHURUTHI DESOM, P.O.680320, MARATHAKARA VILLAGE THRISSUR TALUK AND DISTRICT. 
36. SHYMALA, D/O.LLATE KURUMBA,W/O.LATE KOTTIKAL KOCHUGOVINDAN ELAMTHURUTHI DESOM, P.O.680320 MARATHAKARA VILLAGE THRISSUR TALUK AND DISTRICT. 
37. KUMARI D/O.LATE KURUMBA,W/O.LATE KOTTIKAL KOCHUGOVINDAN ELAMTHURUTHI DESOM,P.O.680320,MARATHAKARA VILLAGE THRISSUR TALUK AND DISTRICT 
38. DINESAN, S/O.LATE KURUMBA, W/O.LATE KOTTIKAL KOCHUGOVINDAN ELAMTHURUTHI DESOM,P.O.680320,MARATHAKARA VILLAGE THRISSUR TALUK AND DISTRICT 
39. MANI, W/O LATE VIJAYAN, ELAMTHURUTHI DESOM, P.O.680320 MARATHAKARA VILLAGE, THRISSUR TALUK AND DISTRICT 
40. JIJI, D/O LATE VIJAYAN, ELAMTHURUTHI DESOM, P.O.680320 MARATHAKARA VILLAGE, THRISSUR TALUK AND DISTRICT 
41. JIJISH, S/O LATE VIJAYAN, ELAMTHURUTHI DESOM, P.O.680320 MARATHAKARA VILLAGE, THRISSUR TALUK AND DISTRICT 
42. JOBISH, S/O LATE VIJAYAN, ELAMTHURUTHI DESOM,P.O.680320 MARATHAKARA VILLAGE, THRISSUR TALUK AND DISTRICT 
43. CHINNAMA, W/O LATE KESAVAN, PETTIKADAI, KUNDA BRIDGE COONOOR, NILAGIRI, TAMIL NADU 643102 
44. CHANDRAN S/O LATE KESAVAN, PETTIKADAI, KUNDA BRIDGE COONOOR, NILAGIRI, TAMIL NADU 643102 
45. RAVI, S/O LATE KESAVAN, PETTIKADAI, KUNDA BRIDGE COONOOR, NILAGIRI, TAMIL NADU - 643102 
46. SUKU, S/O LATE KESAVAN, PETTIKADAI, KUNDA BRIDGE COONOOR, NILAGIRI, TAMIL NADU - 643102 BY ADV. SRI.D.ANIL KUMAR (R21 TO R27) 
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 

"C.R. " 
V.CHITAMBARESH, J. 
------------------------------- 
R.S.A.No.895 of 2012 
------------------------------- 
Dated this the 16th day of July, 2012 
Head Note:-
Indian Succession Act, 1925 - Section 63 - Indian Evidence Act, 1872 - Section 68 - Will - Beneficiary - Signature - Validity of - Does the mere fact that the beneficiaries had also appended their signature amongst the several attesting witnesses to the Will invalidate the disposition made thereunder ?  
Held:- Certainly not especially when there is nothing in evidence to show that the beneficiaries had influenced the testator. Ext.A1 Will on the other hand reveals that the Will was being executed after obtaining the consent of the beneficiaries as well. This explains the reason as to why the signature of the beneficiaries also find a place amongst the attesting witnesses. There is no finding by the courts below that the beneficiaries had taken an active part in the execution of Ext.A1 Will other than appending their signature to it. Moreover the beneficiaries are not the sole attesting witnesses to Ext.A1 Will to infer that they had played a dominant role in its execution by the testator. None of the witnesses were alive to enable Ext.A1 Will being proved in terms of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. The plaintiffs have examined the son of one of the attesting witnesses by name Madhava Marar to identify the signature found in Ext.A1 Will. He had also produced Ext.X1 document prepared by his father who was a scribe by profession which contained his signature as well. The plaintiffs in addition produced Ext.A12 copy of deed jointly executed by Vannery Raman and others. A comparison of the signature of Raman in Ext.A12 deed with that found in Ext.A1 Will leaves no room for doubt. It can safely be concluded that Ext.A1 Will has been sufficiently proved in terms of Section 69 of the Indian Evidence Act. I therefore answer substantial question of law No. (i) in favour of the plaintiffs and hold that Ext.A1 Will is valid and genuine. 
Code of Civil Procedure, 1908 - Section 11 Explanation IV Res judicata -  Principle of constructive res judicata - Will - Ground of defence in the earlier suit for partition - Any matter which 'might and ought' to have been made a ground of defence or attack in such former suit shall be deemed to have been directly and substantially in issue in such suit. A conjoint reading of Section 11 and Explanation IV shows that a plea which might and ought to have been taken in the earlier suit, shall be deemed to have been taken and decided against the person raising the plea in the subsequent suit. 
Held:- The existence of Ext.A1 Will might and ought to have been made a ground of defence in the earlier suit for partition to which Vasu was very much a party. There was no whisper about Ext.A1 Will either in Ext.P14 reply notice or in the written statement filed by Vasu in O.S.No.47/1980. The intrinsic evidence shows that Vasu had retired from service as a Government employee and was diligently defending the suit in O.S.No.47/1980. Vasu had engaged different counsel in the suit as well as in the appeal and there is nothing to show that he was mentally unsound at that time. Equally unacceptable is the plea of the plaintiffs that Ext.A1 Will could not be traced out by Vasu for production in O.S.No.47/1980. The plaintiffs who claim only through Vasu cannot get over the bar of Explanation IV to Section 11 of the CPC under the circumstances. 
J U D G M E N T 

Does the mere fact that the beneficiaries had also appended their signature amongst the several attesting witnesses to the Will invalidate the disposition made thereunder ? Decisions on this point are far and few and none by this Court hitherto. 

2. The plaint schedule property comprising of three items originally belonged to one Vannery Raman who died on 9.12.1970. The three children of Vannery Raman by name Kochunni, Unni @ Raman and Kurumba had earlier filed a suit for partition in O.S.No.47/1980. The suit was decreed and affirmed in appeal in A.S.No.175/1983 whereby a preliminary decree for partition was passed. A final decree for partition followed and the sharers also took delivery of the various items of property pursuant thereto. 

3. One of the sons of Vannery Raman by name Vasu was the first defendant in O.S.No.47/1980 whose children have filed the suit in O.S.No.1958/2001. The present suit has also been filed for partition of the very same property after setting aside the decree for partition in O.S.No.47/1980. The plaintiffs contend that Vannery Raman had executed Ext.A1 unregistered Will dated 30.7.1959 as regards devolution of his assets. Item No.1 property is bequeathed to Kochunni, Unni @ Raman and Vasu in equal shares and Item No.3 property to Kochunni and Unni @ Raman in equal shares. The plaintiffs however concede that item No.2 property had been assigned away by Vannery Raman during his life time itself. 

4. It is the case of the plaintiff that the suit in O.S.No.1958/2001 is necessitated since Ext.A1 Will could not be produced by Vasu in O.S.No.47/1980. The entitlement of the property to the various sharers would drastically change if the bequest under the Will is given effect to. Therefore the present suit has been filed for partition after setting aside the decree in O.S.No.47/1980 in relation to the same property. 

5. The contesting defendants point out that the suit in O.S.No.1958/2001 is barred by the principles of constructive res judicata in view of the decree in O.S.No.47/1980. The predecessor-in-interest of the plaintiffs-Vasu- could have as well produced Ext.A1 Will in O.S.No.47/1980. Ext.A1 Will is vitiated since three out of the five attesting witnesses are beneficiaries of the bequest. The suspicious circumstances surrounding the due execution of Ext.A1 Will have at any rate not been dispelled by the plaintiffs. 

6. The courts below dismissed the suit for partition in O.S.No.1958/2001 and the plaintiffs have come up in Regular Second Appeal. The following substantial questions of law as reframed arise for consideration in this Regular Second Appeal:- 
(i) Whether the mere fact that the beneficiaries had also appended their signatures amongst the attesting witnesses vitiate the Will ? 
(ii) Whether the suit in O.S.No.1958/2001 is barred by res judicata in view of the decree in O.S.No.47/1980 which has become final ? 
I heard Mr.N.Subramaniam, Advocate on behalf of the appellants and Mr.D.Anil Kumar, Advocate on behalf of respondents 21 to 27 in the Regular Second Appeal. The methodical preparation of the case by Mr.N.Subramaniam is worthy of emulation by any junior counsel. 

7. Two reasons have been held out against the plaintiffs to find that suspicious circumstances surrounding the due execution of Ext.A1 Will have not been dispelled. They are:- 
(i) Three out of the five attesting witnesses are beneficiaries under Ext.A1 Will. 
(ii) The signature of Raman in Ext.A1 Will has not been proved in accordance with law. 
Does the mere fact that the beneficiaries had also appended their signature amongst other attesting witnesses vitiate the Will and the disposition made thereunder ? 

Certainly not especially when there is nothing in evidence to show that the beneficiaries had influenced the testator. Ext.A1 Will on the other hand reveals that the Will was being executed after obtaining the consent of the beneficiaries as well. This explains the reason as to why the signature of the beneficiaries also find a place amongst the attesting witnesses. 

8. This precise question has been considered decades ago in Shiam Sundar Singh v. Jagannath Singh (AIR 1927 Privy council 248) as follows:- 
"Its manifest object was to secure the co-operation of his sons in carrying out the dispositions of the Will and to do that by inserting in the Will a formal declaration that his sons, by appending their signatures thereto, had concurred in those dispositions. By reading the clause as declaring that the sons had signed the Will as attesting witnesses, one would ascribe to it a meaning according to which it would not only defeat the object of the clause itself, but nullify the distribution of his property which the testator was seeking to bring about in making his Will. The more reasonable and natural reading would appear to be that the sons had attached their signatures as concurring in the declaration contained in the paragraph; and this latter construction (under which this particular declaration would take effect, together with the Will as a whole) seems to be enjoyed upon the Courts by S.71, of the Succession Act." 
(emphasis supplied) 
To the same effect is the decision of the Supreme Court in Rur Singh and others v. Bachan Kaur [(2009) 11 SCC 1] wherein it is held as follows:- 
"Only because one of the beneficiaries attested the Will, the same could not mean that he had taken an active part in it. In any event, the learned trial Judge as also the first appellate court found sufficient explanation therefor holding that as the Will was executed in the testator's house and he had been living jointly with his sons, their presence in the house was natural." 
(emphasis supplied) 
There is no finding by the courts below that the beneficiaries had taken an active part in the execution of Ext.A1 Will other than appending their signature to it. Moreover the beneficiaries are not the sole attesting witnesses to Ext.A1 Will to infer that they had played a dominant role in its execution by the testator. 

9. None of the witnesses were alive to enable Ext.A1 Will being proved in terms of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. The plaintiffs have examined the son of one of the attesting witnesses by name Madhava Marar to identify the signature found in Ext.A1 Will. He had also produced Ext.X1 document prepared by his father who was a scribe by profession which contained his signature as well. The plaintiffs in addition produced Ext.A12 copy of deed jointly executed by Vannery Raman and others. A comparison of the signature of Raman in Ext.A12 deed with that found in Ext.A1 Will leaves no room for doubt. It can safely be concluded that Ext.A1 Will has been sufficiently proved in terms of Section 69 of the Indian Evidence Act. I therefore answer substantial question of law No. (i) in favour of the plaintiffs and hold that Ext.A1 Will is valid and genuine. 

10. The relevant part of Section 11 of the Code of Civil Procedure, 1908 ('the CPC' for short) is as follows:- 
11. Res judicata - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. 
Explanation I - .......... 
Explanation II - .......... 
Explanation III - .......... 
Explanation IV - Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. 
Explanation V - ......... 
Explanation VI - ........   
Explanation VII - ........ 
Explanation VIII- ........ 
11. The existence of Ext.A1 Will might and ought to have been made a ground of defence in the earlier suit for partition to which Vasu was very much a party. There was no whisper about Ext.A1 Will either in Ext.P14 reply notice or in the written statement filed by Vasu in O.S.No.47/1980. The intrinsic evidence shows that Vasu had retired from service as a Government employee and was diligently defending the suit in O.S.No.47/1980. Vasu had engaged different counsel in the suit as well as in the appeal and there is nothing to show that he was mentally unsound at that time. Equally unacceptable is the plea of the plaintiffs that Ext.A1 Will could not be traced out by Vasu for production in O.S.No.47/1980. The plaintiffs who claim only through Vasu cannot get over the bar of Explanation IV to Section 11 of the CPC under the circumstances. 

12. The Supreme Court in Konda Lakshmana Bapuji v. Government of A.P. and others (2002 (3) SCC 258) has held as follows:-
In substance, Section 11 bars a Court from trying any suit in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties in a Court and has been heard and finally decided by such Court which is competent to try such subsequent suit or the suit in which such issue has been subsequently raised. Eight Explanations are appended to it. We are concerned with Explanation IV which embodies the principle of constructive res judicata and says that any matter which 'might and ought' to have been made a ground of defence or attack in such former suit shall be deemed to have been directly and substantially in issue in such suit. A conjoint reading of Section 11 and Explanation IV shows that a plea which might and ought to have been taken in the earlier suit, shall be deemed to have been taken and decided against the person raising the plea in the subsequent suit. 
(emphasis supplied) 
To the same effect are the following decisions: 
(i) P.K.Vijayan v. Kamalakshi Amma [(1994) 4 SCC 53)] 
(ii) Madhavkrishna v. Chandra Bhaga [(1997) 2 SCC 203] and 
(iii) Ramadhar Shrivas v. Bhagwandas [(2005) 13 SCC 1] 
The dispute as regards partibility of the property based on Ext.A1 Will should be deemed to have been decided against the plaintiffs in view of the decree in O.S.No.47/1980. I answer substantial question No. (ii) against the plaintiffs and hold that O.S.No.1958/2001 is barred by constructive res judicata. 

13. The Regular Second Appeal deserves to be dismissed since substantial question of law No.(ii) has been answered against the plaintiffs. The suit for partition in O.S.No.1958/2001 is dismissed confirming the judgment and decree of the courts below. 

The Regular Second Appeal is dismissed. No costs. 

V.CHITAMBARESH JUDGE 
nj. 

R.S.A. No. 443 of 2011 - Sarala Vs. Vijayan, (2012) 262 KLR 887

posted Aug 2, 2012, 7:11 AM by Law Kerala   [ updated Aug 2, 2012, 7:11 AM ]

(2012) 262 KLR 887 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

 

PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH 

THURSDAY, THE 19TH DAY OF JULY 2012/28TH ASHADHA 1934 

RSA.NO. 443 OF 2011 (C) 

------------------------------------- 

AS.23/2010 OF ADDITIONAL SUB COURT, KOLLAM OS.133/2000 OF PRINCIPAL MUNSIFF'S COURT, KOLLAM 


APPELLANTS/APPELLANTS/PLAINTIFFS: 

----------------------------------------------------------- 

1. SARALA,LEKSHMI VILASOM,ULIYAKKOIL CHERRY KOLLAM. 
2. CHANDRAN,LEKSHMI VILASOM,ULIYAKKOIL CHERRY,KOLLAM. 
BY ADV. SRI.K.SUBASH CHANDRA BOSE 

RESPONDENTS/RESPONDENTS/DEFENDANTS: 

------------------------------------------------------------------ 

1. VIJAYAN,POOTANI PUTHEN VAYAL, ULIYAKOIL CHERRY,KOLLAM.NOW RESIDING AT PREETHA NIVAS,KARAKKAMANGAPAM,NEMOM.P.O THIRUVANANTHAPURAM. 
2. CORPORATION OF KOLLAM,REPRESENTED BY ITS SECRETARY,CORPORATION OF KOLLAM,KOLLAM. 
BY ADV. SRI.A.MOHAMMED SAYED R1 BY ADV. SRI.M.K.CHANDRA MOHANDAS, SC FOR R2 

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 


THOMAS P.JOSEPH, J. 

==================================== 

R.S.A. No.443 of 2011 

==================================== 

Dated this the 19th day of July, 2012 

Head Note:-

Civil Procedure Code, 1908 - Section 9 - Kerala Municipality Act, 1994 - Sections 406 & 563 The issue regarding title and possession over the property is to be decided by the civil court.
Kerala Municipality Act, 1994 - Sections 406 & 563 Whether the civil court has  jurisdiction to grant the relief of declaration sought in the light of the constitution of the Tribunal for Local Self Government Institutions and the bar under Section 563 of the Kerala Municipality Act, 1994?  
Held:- It is not disputed before me that Secretary of the 2nd respondent has issued the impugned notice by virtue of the power conferred on him under Sec.406 of the Act. The said provision deals with power of the Secretary to direct demolition or alteration of the building work unlawfully commenced, carried on or completed. The challenge in this case is not to the propriety of notice issued by the Secretary or to the action taken by him. Appellants want a declaration of the title and possession they have claimed over the suit property. Section 406 of the Act do not vest with the Secretary of the 2nd respondent any power to declare title and possession of immovable property or grant injunction. No other provision in the Act is brought to my notice by the learned counsel for the respondents which empowered the Secretary of the 2nd respondent to decide question of title and possession. A decision on title involves complicated question and detailed enquiry. Such a question cannot be decided in a summary manner by the Secretary. His power is only to exercise the functions conferred upon him under the Act. If that be so, the Tribunal also cannot decide on the title and possession claimed by the appellants over the disputed property.

J U D G M E N T 


Heard. Admit. 


2. The following substantial question of law is framed for a decision: 


Whether the courts below are correct in entering a finding that the civil court has no jurisdiction to grant the relief of declaration sought in the light of the constitution of the Tribunal for Local Self Government Institutions (for short, "the Tribunal") and the bar under Section 563 of the Kerala Municipality Act, 1994 (for short, "the Act")? 


3. Respondents appear through counsel. 


4. In view of the substantial question of law framed for a decision which does not require calling for the entire records and a copy of the plaint and the written statement filed by the 2nd respondent are given to me for perusal, as agreed by the learned counsel on both sides records are not called for, for disposal of this appeal. 


5. Plaintiffs are the appellants. They sued the respondents-defendants in the Principal Munsiff's Court, Kollam in O.S. No.133 of 2000 for a declaration of title and possession they claimed over plaint A and B schedules, for injunction to restrain the 2nd respondent from demolishing the compound wall constructed on the eastern side of the suit property and for other reliefs. 6. It is the case of the appellants that they got title over 25 cents as per document Nos.2609 of 1962, 2984 of 1962, 2443 of 1967 and 1244 of 1985 (Exts.A1 to A4) and that out of the said 25 cents, they surrendered half a cent to the 2nd respondent- Corporation for construction of a drain on the eastern side. The rest of property belonging to and in the possession of the appellants - 24.5 cents is the suit property. Appellants produced Exts.A5 and A6 in proof of payment of revenue for the said 24.5 cents. Their further case is that the 1st respondent has 17 cents of property on the north of the suit property, he encroached into 19 cents of Kayal puramboke and at his influence the 2nd respondent issued a notice dated 06.12.1999 (copy of which is Ext.A7) directing the appellants to demolish the compound wall they constructed towards eastern portion of the suit property. Appellants contended that the compound wall was constructed in the property about 30 years back. They claimed title over the suit property, declaration of that title and possession and consequential injunction. 


7. The 1st respondent contended that the appellants have encroached into the puramboke land and constructed the compound wall without permission from the 2nd respondent. As per the resurvey, a strip of puramboke land was found on the eastern side of property of the 1st respondent and that according to him, was surrendered to the 2nd respondent. 


8. The 2nd respondent contended that as per the resurvey plan, property in resurvey 21 and 22 of block No.14 is in the possession of the appellants, appellants submitted a plan for construction of a compound wall but before granting sanction, they started with construction encroaching into the puramboke land on eastern side of the registered holding of the appellants. The construction is unauthorized and hence a notice as aforesaid was issued to the appellants. It is also contended that the Act gives ample power to the 2nd respondent to evict the encroachers and that the 2nd respondent has statutory right in the matter which cannot be interfered with. It is contended that the suit itself is not maintainable. 


9. The trial court though after recording evidence held that the suit is not maintainable in view of Sec.563 of the Act, refused to enter a finding on the other issues raised in the case and dismissed the suit. Appellants challenged that judgment and decree in the Additional Sub Court, Kollam in A.S. No.23 of 2006. Learned Sub Judge concurred with the finding of the trial court that the civil court has no jurisdiction, made certain findings as to the right claimed by the appellants and confirmed the dismissal of the suit. Hence this Second Appeal. 


10. The learned counsel for the appellants contended that finding of the trial and first appellate courts that the civil court has no jurisdiction to entertain the suit for declaration of title and possession and prohibitory injunction is clearly erroneous. It is contended that only the civil court can grant a decree regarding title and possession claimed by the appellants and that neither the secretary of the 2nd respondent nor the Tribunal could grant such reliefs. Learned counsel has placed reliance on the decision in Nahar Industrial Enterprises Ltd. v. Hongcong & Shanghai Banking Corpn. ([2009] 8 SCC 646) and in particular, paragraph 85. It is contended that the trial court has not given ample opportunity to the appellants to adduce further evidence in view of the stand it took that the civil court has no jurisdiction. It is prayed that the finding of the trial and first appellate courts regarding maintainability of the suit be set aside and the matter be remanded to the trial court for fresh decision on other issues after giving opportunity to adduce further evidence. 


11. The learned counsel for the respondents contended that as found by the courts below the civil court has no jurisdiction to entertain the suit. My attention is drawn to Secs.406 and 563 of the Act. Reliance is also placed on the decision in Corporation of Trivandrum v. Abubaker Thajudheen (2004 [1] KLT SN 14 - Case No.16) to contend that the bar under Sec.563 of the Act pertains not merely to the legality or propriety of any order passed under Sec.406 but of any action taken by or under the authority of the Secretary under Sec.406 of the Act. It is also contended by the learned counsel that the application for permission preferred by the appellants to construct compound wall was rejected by the Secretary of the 2nd respondent for the reason that the construction is in the puramboke land but that order is not under challenge. According to the learned counsel for respondents, if aggrieved, remedy of the appellants is to challenge the notice issued by the Secretary of the 2nd respondent before the Tribunal. 


12. In the decision relied by the learned counsel for the respondents it is held that jurisdiction of the civil court is barred to entertain any suit challenging the legality and propriety not of any order passed but of any action taken under the provisions of the Act contained inter alia in Chapter XVIII under which Sec.406 of the Act falls. On the other hand in the decision relied on by the learned counsel for appellants though pertaining to the the power of the Debt Recovery Tribunal to grant a declaratory decree the Supreme court observed in paragraph 85 that before the DRT no declaratory relief can be sought for by a debtor. 


13. Section 563 of the Act ousts jurisdiction of the civil court to entertain any suit, application or petition challenging the legality or propriety of any action taken by or under the authority of the Secretary under any provisions comprised in Chapter XVII, XVIII and XIX of the Act or the Rules and Regulations made thereunder. 


14. It is not disputed before me that Secretary of the 2nd respondent has issued the impugned notice by virtue of the power conferred on him under Sec.406 of the Act. The said provision deals with power of the Secretary to direct demolition or alteration of the building work unlawfully commenced, carried on or completed. The challenge in this case is not to the propriety of notice issued by the Secretary or to the action taken by him. Appellants want a declaration of the title and possession they have claimed over the suit property. Section 406 of the Act do not vest with the Secretary of the 2nd respondent any power to declare title and possession of immovable property or grant injunction. No other provision in the Act is brought to my notice by the learned counsel for the respondents which empowered the Secretary of the 2nd respondent to decide question of title and possession. A decision on title involves complicated question and detailed enquiry. Such a question cannot be decided in a summary manner by the Secretary. His power is only to exercise the functions conferred upon him under the Act. If that be so, the Tribunal also cannot decide on the title and possession claimed by the appellants over the disputed property.


15. The issue regarding title and possession over the property is to be decided by the civil court. Section 9 of the Code of Civil Procedure gives that power to the civil court unless it is expressly or by necessary implication taken away. I stated that the Secretary of the 2nd respondent has no power to decide issues regarding title and possession. Hence by Sec.563 of the Act, jurisdiction of the civil court is not expressly or impliedly ousted. I must also notice the decision in Kannan v. Kannan (1964 KLT 228) where it is held that even when the resurvey has become final and a suit is not brought within the time provided under Sec.13 of the Survey and Boundaries Act, a civil court has the power to decide on disputes as to title. Certainly therefore the question whether appellants have title and possession over the suit property is a matter which the civil court has to decide after recording evidence. It follows that civil court alone has the power to decide on a dispute regarding title and possession. In that view of the matter I am inclined to hold that the finding of the trial and first appellate courts that the civil court has no jurisdiction to decide the issue regarding title and possession claimed by the appellants is erroneous. 


16. On merits of the case both sides addressed arguments. The learned counsel for the appellants contended that Exts.A5 and A6 would show that even as per the resurvey, appellants have 24.5 cents (excluding the half cent allegedly surrendered to the 2nd respondent) and are paying revenue for the same. On the other hand the learned counsel for the respondents contend that the resurvey revealed that the impugned construction was made on puramboke land and taking note of that, the Secretary of the 2nd respondent has disallowed the sanction sought for by the appellants. It is also contended that at any rate as the construction is made without permission of the 2nd respondent it is unauthorized and removable at the orders of the Secretary of the 2nd respondent. 


17. The trial court has not entered a finding on other issues framed in the case. The first appellate court entered into some findings on other issues. It is seen that an Advocate Commissioner inspected the suit property and submitted Exts.C1 to C3. The Advocate Commissioner or the Surveyor are not examined. The learned counsel for the appellants submitted that the trial court did not record evidence of the Advocate Commissioner and the Surveyor since it was of the view that it has no jurisdiction to entertain the suit.


18. Having regard to the circumstances I am inclined to think that the matter has to go back to the trial court for fresh decision on other issues after giving both sides opportunity to adduce further evidence if any. 


19. It is contended by the learned counsel for the respondents that at any rate the notice issued to the appellants is valid in so far as no permission was obtained before the compound wall was constructed, that empowered the Secretary of the 2nd respondent to issue the notice under Sec.406 of the Act and that notice cannot be challenged in the civil court. I stated, the challenge in this case is not merely to the legality of the action of the Secretary of the 2nd respondent leading to the notice. The suit is for declaration of title and possession of the suit property as against claim of the respondents that the compound wall is constructed in puramboke land. 


20. But I make it clear that I have not expressed any opinion regarding the correctness of Ext.A7, notice on any point whatsoever including the contentions of the respondents that the construction being without sanction of the Secretary of the 2nd respondent, is unlawful. If ultimately the trial court finds that the appellants have title and possession of the suit property but the construction made is illegal in that permission of the Secretary of the 2nd respondent was required but not obtained, it is open to the trial court to mould the reliefs accordingly. 


21. The Substantial question of law framed is answered as above. Second Appeal is allowed as under: 

(i) Judgment and decree of the learned Additional Sub Judge, Kollam in A.S. No.23 of 2010 and of the learned Principal Munsiff, Kollam in O.S. No.133 of 2000 are set aside. 
(ii) It is held that civil court has jurisdiction to entertain the suit and decide the dispute regarding title and possession raised by the parties. 
(iii) O.S. No.133 of 2000 is remitted to the court of learned Principal Munsiff, Kollam for decision on other issues involved after giving both sides opportunity to adduce further evidence, if any. 
(iv) The learned Munsiff is directed to expedite trial and disposal of the suit since the suit is of the year 2000. Parties shall appear in the court of learned Principal Munsiff, Kollam on 08.08.2012. All pending Interlocutory Applications will stand dismissed. 
THOMAS P. JOSEPH, JUDGE. 
vsv

R.S.A. No. 674 of 2011 - Thuravoor Grama Panchayath Vs. Peter Jerry, 2012 (2) KLT SN 138 (C.No. 130) : 2012 (2) KHC 405

posted Jun 22, 2012, 3:08 AM by Law Kerala   [ updated Jun 22, 2012, 3:09 AM ]

(2012) 241 KLR 879

IN THE HIGH COURT OF KERALA AT ERNAKULAM

 

PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH 

MONDAY, THE 13TH DAY OF FEBRUARY 2012/24TH MAGHA 1933 

RSA.No. 674 of 2011 (E) 

---------------------------------- 

AS.120/2003 of SUB COURT, CHERTHALA OS.665/2000 of PRINCIPAL MUNSIFF COURT, CHERTHALA 


APPELLANT/APPELLANT/DEFENDANT: 

-------------------------------------------------------- 

THURAVOOR GRAMA PANCHAYATH,THURAVOOR THEKKU VILLAGE, REPRESENTED BY ITS SECRETARY, ALAPPUZHA-688 532. 
BY ADVS.SRI.V.CHITAMBARESH (SR.) SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP SRI.MATHEWS RAJU 

RESPONDENTS/RESPONDENTS/PLAINTIFFS: 

---------------------------------------------------------------- 

1. PETER JERRY,S/O. ISSAC, RESIDING AT CHENAMPARAMBATHU, PADINJATTUMKARA THEKKUM MURI,THURAVOOR SOUTH VILLAGE,CHERTHALA,ALAPPUZHA-688 532. 
2. PHILIP ALIAS JOHNY,S/O. ISSAC, RESIDING AT CHENAMPARAMBATHU,PADINJATTUMKARA THEKKUM MURI, THURAVOOR SOUTH VILLAGE,CHERTHALA, ALAPPUZHA-688532. 
3. ISSAC, S/O. PHILIP, RESIDING AT CHENAMPARAMBATHU,PADINJATTUMKARA THEKKUM MURI, THURAVOOR SOUTH VILLAGE,CHERTHALA, ALAPPUZHA-688 532. 
R1TO R3 BY SRI.ROY CHACKO (CAVEATOR) 

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13-02-2012, ALONG WITH FAO. NO.18/2011, FAO. NO.31/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS 


THOMAS P.JOSEPH, J. 

==================================== 

R.S.A. No.674 of 2011, F.A.O. No.18 of 2011 & F.A.O. No.31 of 2011 

==================================== 

Dated this the 13th day of February, 2012 

Head Note:-

Code of Civil Procedure, 1908 - Order XLI Rules 22 and 33 - Scope and application - Rule 33 of Order XLI of the Code is to be read along with Rule 4 of Order XLI and that it is intended to save situations where, in order to grant relief in favour of the appellant, it becomes necessary to interfere with the decision of the trial court which is not appealed against and it is necessary to pass decree or order which the trial court could have passed or made in order to avoid contrary and inconsistent decisions on the same question. Rule 33 empowers the appellate court to pass such decrees or make such orders as the trial court could pass or make to avoid inconsistency or inequality in reliefs granted to similarly placed parties and avoid unworkable decree or order coming into existence. Power under Rule 33 is not to be exercised to unsettle decrees which have been left behind untouched and which, a party by not appealing, has permitted to become final. Rule 33 is not a provision intended to circumvent the failure of a respondent in not filing an appeal or cross objection to challenge that part of the decree which went against him. 

J U D G M E N T 


The scope and application of Rules 22 and 33 of Order XLI of the Code of Civil Procedure (for short, "the Code") with other incidental questions arises for a decision in the Second Appeal and First Appeals. 


2. Respondents 1 to 3, claiming to be the owners in possession of plaint A and B schedules sued the appellant for a decree for mandatory injunction and recovery of damages. They claimed title and possession of plaint A and B schedules as per Exts.A1 to A3. On the eastern side of plaint A and B schedules there is a road. It is said that without the consent of respondents, appellant trespassed into the eastern portion of plaint A and B schedules and widened the road annexing a portion of plaint A and B schedules. It is further alleged that for the said purpose trees standing in that portion of plaint A and B schedules were cut and removed causing loss of Rs.8,600/- to the respondents. Appellant resisted the suit denying the claim of respondents regarding title and possession and contended that the road was in existence even earlier. It denied the allegation of respondents that it committed mischief in the suit property. 


3. The Advocate Commissioner inspected the suit property with the assistance of a Surveyor and submitted Exts.C1 and C1(a), report and plan. The Advocate Commissioner and Surveyor were examined as P.Ws.2 and 3. Evidence of P.Ws.2 and 3 and Exts.C1 and C1(a) revealed that as per measurement with reference to the documents of title, plaint A schedule extended to 60 cents (as against 61 cents referred to in the document of title) and that plaint B schedule extended to 72 cents (as against 67 cents referred to in Ext.A3). Trial court, relying on Exts.A1 to A3, C1 and C1(a) granted a decree for mandatory injunction in favour of respondents directing the appellant to restore the disputed portion of plaint A and B schedules to its original position. For want of evidence relief of damages was disallowed. Appellant challenged the decree for mandatory injunction in A.S. No.120 of 2003 in the Sub Court, Cherthala. Respondents neither filed an appeal nor a cross objection in A.S. No.120 of 2003 challenging that part of decree against them (disallowing damages). First appellate court confirmed finding of the trial court as regards mandatory injunction. It reversed finding of the trial court that there is no evidence regarding the claim for damages and granted a decree in favour of respondents for recovery of Rs.8,600/-. Judgment and decree of the first appellate court are under challenge in the Second Appeal on the following substantial questions of law. (i) When description of plaint schedule properties were not amended and as per the description the extent of the trespassed area does not form part of the plaint schedule property, whether a decree for mandatory injunction could be granted? (ii) Whether the first appellate court is competent to grant a decree for damages in favour of the respondents in the absence of a cross objection?


4. While the appeal was pending in the first appellate court respondents filed I.A. No.1784 of 2008 to restrain the appellant from tarring the disputed portion of the road. First appellate court passed order on that application on 10.12.2008 restraining the appellant tarring the road in dispute. Alleging that the order dated 10.12.2008 on I.A. No.1784 of 2008 was violated and that further encroaching into the plaint A and B schedules the road was formed, respondents filed I.A. No.30 of 2009 under Rule 2A of Order XXXIX of the Code to take action against the appellant for willful disobeyance of the order of injunction and I.A. No.31 of 2009 to direct the appellant restore the property to its original position. First appellate court by order dated 13.12.2010 allowed I.A. Nos.30 and 31 of 2009. F.A.O. No.18 of 2011 arises from the order dated 13.12.2010 on I.A. No.30 of 2009 while F.A.O. No.31 of 2011 arises from the order dated 13.12.2010 on I.A. No.31 of 2009. 


5. Learned counsel for appellant contended that based on Exts.C1 and C1(a) trial court was not correct in granting a decree for mandatory injunction and the first appellate court confirming the same. It is contended that though in the plaint, A schedule is described as 61 cents and B schedule as 67 cents, no amendment was made to the plaint schedule after Ext.C1(a) which stated extent of plaint A schedule as 60 cents and that of plaint B schedule as 72 cents. It is also contended that in so far as extent of B schedule stated in the plaint is only 67 cents, respondents could not claim title and possession over the excess land which the Advocate Commissioner has noted in Exts.C1 and C1(a). 


6. It is further contended that at any rate first appellate court was not right in reversing the judgment and decree of trial court refusing to grant damages to the respondents. It is contended by the learned counsel that since that part of the decree was against the respondents, they ought to have filed either an independent appeal or a cross objection in the appeal preferred by the appellant challenging that part of the decree disallowing damages and without doing that, respondents could not have, in the appeal filed by the appellant challenged correctness of the decree of trial court refusing to grant damages. It is contended that first appellate court lacked authority to reverse the decree of trial court refusing to grant damages for the reasons above stated. 


7. So far as F.A.O. Nos.18 and 31 of 2011 are concerned, learned counsel for appellant argued that though the Advocate Commissioner inspected the suit property in the appeal, assistance of a Surveyor was not obtained and even going by the reports submitted by the Advocate Commissioner in the appeal it is clear that he was not able to identify the disputed way so that it could be said that there is violation of the order dated 10.12.2008 on I.A. No.1784 of 2008. It is pointed out by the learned counsel that while for a decision in the suit preponderance of probability is sufficient, when it comes to a prosecution under Rule 2A of Order XXXIX of the Code, there must be evidence beyond reasonable doubt. Reliance is placed on the decision in Gyan Chand Jain v. XIIIth Addl. Dist. & Sessions Judge (AIR 1998 Allahabad 228). 


8. Learned counsel for respondents contended that no substantial question of law arises for a decision as regards the decree for mandatory injunction is concerned and that notwithstanding that this Court has framed a substantial question of law in that regard, it is open to the respondents to contend that no such substantial question of law is involved, invoking Sec.100(5) of the Code. It is contended by learned counsel that courts below on a proper appreciation of evidence came to the conclusion that respondents are entitled to the decree for mandatory injunction and it does not involve any substantial question of law. 


9. So far as decree of the first appellate court granting damages to the respondents is concerned, learned counsel contended that though no appeal or cross objection had been preferred by the respondents against that part of the decree disallowing damages, first appellate court has power to grant that relief to the respondents in the ends of justice. According to the learned counsel, Rule 33 of Order XLI of the Code empowered the first appellate court to pass any decree or order which the trial court was expected to do having regard to the facts, circumstances and evidence of the case and that to ensure justice to the respondents it was necessary that first appellate court exercised that power. The grant of decree for damages, therefore is justified. Various decisions on the point are also cited which I will advert to, later.


10. So far as order dated 13.12.2010 on I.A. Nos.30 and 31 of 2009 (in A.S. No.120 of 2003) under challenge in F.A.O. Nos.18 and 31 of 2011 is concerned, it is contended by learned counsel that reports submitted by the Advocate Commissioner in the appeal and the evidence of third respondent (as P.W.1) are sufficient to show that when the appeal was pending appellant, in gross violation of the order dated 10.12.2008 on I.A. No.1784 of 2008 has further trespassed into the suit property and converted a further portion of the suit property into a road and the said portion was tarred. Learned counsel submitted that it is the responsibility, nay, the duty of the court to ensure that its orders are respected by the parties and the appellant being a local authority, should not have taken law into its hand and violated the order. No leniency in the matter is required and called for. 


11. On the substantial question of law framed as regards the decree for mandatory injunction granted by the trial court and confirmed by the first appellate court, I referred to the arguments of learned counsel on both sides. True, in the plaint, A and B schedules are described as 61 and 67 cents, respectively while the measurement made by P.W2 with the assistance of P.W3, the Surveyor revealed that extent of plaint A and B schedules as 60 and 72 cents respectively. It is also true that pursuant to the report of the Advocate Commissioner plaint schedule was not amended. But it is not as if the court is powerless to grant relief notwithstanding that the plaint schedule was not amended. For, Exts.C1 and C1(a) form part of record of the case. Going by Exts.C1 and C1(a) and the plaint schedule it is not disputed that there is no discrepancy regarding the boundaries of plaint A and B schedules. The extent found by the Advocate Commissioner in Exts.C1 and C1(a) lies within the boundaries mentioned in the plaint schedule which tallied with the boundaries in Exts.A2 and A3. I am inclined to think that the boundaries noted by the Advocate Commissioner and which tallied with the boundaries in Exts.A2 and A3 must prevail. Respondents are entitled to get relief with respect to the extent of plaint A and B schedules as reported by the Advocate Commissioner and lying within the boundaries stated. 


12. So far as allegation and finding regarding trespass is concerned, it is seen from Ext.C1(a) that encroaching into the plaint A and B schedules to a total extent of 3.34 cents, the road was formed. Based on the evidence trial court found that there is trespass into plaint A and B schedules. Admittedly there was no surrender of land by the respondents, nor any acquisition of the trespassed area. If that be so, respondents are entitled to the decree for mandatory injunction as rightly found by the trial court and confirmed by the first appellate court. On that matter, no substantial question of law is involved. 


13. What remained in the Second Appeal is whether first appellate court was right in reversing the decree of trial court refusing to grant damages to the respondents? Trial court referred to the report of the Advocate Commissioner that at the time of inspection he was not able to find remnants of any tree allegedly cut and removed from the trespassed portion of plaint A and B schedules. In the absence of evidence trial court refused to grant decree for damages to the respondents. 


14. Neither did the respondents challenge that part of the decree against them by way of an independent appeal nor by way of cross objection in the appeal preferred by the appellant as provided under Rule 22 of Order XLI of the Code. Under Rule 22 a respondent though he may not have appealed from any part of the decree may not only support the decree but may also state that a finding against him in the court below in respect of any issue ought to have been in his favour and may also take any cross objection to the decree which he could have taken by way of appeal provided he has filed such objection in the appellate court within one month from the date of service on him or his pleader of notice of the day fixed for hearing of the appeal. Respondents could have challenged that part of the decree against them by way of a cross objection but they did not. 


15. Respondents are trying to take shelter under Rule 33 of Order XLI of the Code. The said provision empowers the appellate court to pass any decree and make any order which ought to have been passed or made by the trial court and to pass or to make such further or other decree or order as the case may require. That power may be exercised by the appellate court notwithstanding that the appeal is as to a part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees although an appeal may not have been filed against such decrees. 


16. Learned counsel for respondents has invited my attention to the decisions in State of Kerala v. Padmavathi (1983 KLT 17), Spl. Dy. Collector, L.A. Railways v. Peddinti Ramanuja Chary (2003 AIHC 3759), Barasai and Others v. Ram Phal ([2003] 9 SCC 606), C.Cheriathan v. P. Narayanan Embranthiri ([2009] 2 SCC 673) and Pralhad v. State of Maharashtra ([2010] 10 SCC 458). 


17. In Spl. Dy. Collector, L.A. Railways v. Peddinti Ramanuja Chary the Division Bench of Andhra Pradesh High Court has dealt with the scope of Rules 22 and 33 of Order XLI of the Code and held that the said provisions are not mutually exclusive. Those provisions are closely related with each other and if objection cannot be urged under Rule 22 against a co- respondent, Rule 33 could take over and come to the rescue of the objector. In that case question considered was whether a respondent could prefer a cross objection against a co- respondent? Having regard to the facts and circumstances the Division Bench held that if Rule 22 cannot be invoked, the court is not powerless having regard to the facts and circumstances to ensure that justice is done to the parties and in that situation the court could invoke Rule 33 of the Code against the co- respondent. 


18. In State of Kerala v. Padmavathi (in paragraph 10) this Court referred to Rule 33 of Order XLI of the Code and held: 

".....provisions contained in O.41 R.33, no doubt is widely worded; but it is meant to meet only exceptional circumstances in furtherance of justice where the court finds that the decree to be granted in an appeal could not be granted without interfering with the decision of the trial court in so far as it relates to the parties who had not appealed against it. Such cases by their very nature would only be a few and far between. The object of O.41, R.33 is to avoid contrary and inconsistent decisions on the same questions in the same suit. It is wrong to assume that the rule confers on the court an unrestricted right to reopen decrees which had become final merely because the appellate court does not agree with the reasoning given in the judgment appealed against. Ordinarily the power conferred by this rule would be confined to those cases where as a result of the interference in favour of the appellant, further interference by the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience". 

19. In Barasai and Others v. Ram Phal it is held that Rule 33 has to be read along with Rule 4 of Order XLI and that Rule 4 seeks to achieve one of the several objectives to be achieved by Rule 33 by avoiding a situation of conflicting decrees coming into existence in the same suit. It is further held that the above said provisions confer power of the widest amplitude on the appellate court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject matter of the appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. It is further held that the object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations. Firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the court; secondly, a claim given up or lost cannot be revived and thirdly such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of the party. 


20. In C.Cheriathan v. P. Narayanan Embranthiri (in paragraph 26) it is held on the facts and circumstances of that case that it was legally permissible for the appellant to support the decree passed in his favour by attacking the finding of the first appellate court which was made against him and that Rule 33 of Order XLI of the Code was available to him. In Pralhad v. State of Maharashtra, (in paragraph 18) it is held that the expression (in Rule 33) that "order ought to have been made" would obviously mean an order which justice of the case requires to be made as is clear from the expression used in the said rule by saying "the court may pass such further or other order as the case may require" and that the expression "case" would mean the justice of the case. In paragraph 20, reference is made to the decision in Benarsi v. Ram Phal - [2003] 9 SCC 606). 


21. In Nirmala Bala v. Balaji Chand (AIR 1965 SC 1874) it is held (per majority) that Rule 33 (of Order XLI) is expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the court to adjust the rights of parties. 


22. The Supreme Court in Choudhary Sabu v. State of Bihar (AIR 1982 SC 98) and this Court in Raman Ittiyathi v. Pappy Bhaskaran (AIR 1990 Kerala 112) have taken the view that Rule 33 of Order XLI is primarily intended to confer power on the appellate court to do justice by granting relief to a party who has not appealed when refusing to do so makes inconsistent, contrary or unworkable decrees. In Giani Ram and Others v. Ramjilal and Others ([1969] 1 SCC 813) power of the appellate court under Rule 33 of Order XLI of the Code is dealt with and it is held that the expression "which ought to have been passed" occurring in Rule 33 means " which ought in law to have been passed" and if the appellate court is of the view that any decree which ought in law to have been passed, but was in the fact not passed by the subordinate court, appellate court may pass or make such further or other decree or order as the justice of the case may require. 


23. A survey of the above decisions makes it clear that Rule 33 of Order XLI of the Code is to be read along with Rule 4 of Order XLI and that it is intended to save situations where, in order to grant relief in favour of the appellant, it becomes necessary to interfere with the decision of the trial court which is not appealed against and it is necessary to pass decree or order which the trial court could have passed or made in order to avoid contrary and inconsistent decisions on the same question. Rule 33 empowers the appellate court to pass such decrees or make such orders as the trial court could pass or make to avoid inconsistency or inequality in reliefs granted to similarly placed parties and avoid unworkable decree or order coming into existence. Power under Rule 33 is not to be exercised to unsettle decrees which have been left behind untouched and which, a party by not appealing, has permitted to become final. Rule 33 is not a provision intended to circumvent the failure of a respondent in not filing an appeal or cross objection to challenge that part of the decree which went against him. 


24. This is not a case where the first appellate court decided any issue in favour of the appellant and in that situation to avoid conflicting, unworkable or inequitable decisions on the same issue it become necessary for the first appellate court to interfere under Rule 33 of Order XLI. Challenge before the first appellate court was only to that part of the decree which went against the appellant, i.e., the decree for mandatory injunction. The decree for mandatory injunction was not dependent on the prayer for recovery of damages sought by the respondents. Respondents if aggrieved by that part of the decree refusing damages ought to have filed an independent appeal or cross objection in the appeal filed by the appellant, but neither was done. Thus respondents allowed the decree disallowing damages to them to become final by their inaction. In that situation first appellate court was patently in error in interfering with the decree of the trial court refusing to grant damages in favour of the respondents. 


25. Even on facts first appellate court could not have reversed the decree of trial court refusing to award damages. Trial court observed that there is no acceptable evidence to show that any damage was caused to the respondents. Trial court referred to the report of the Advocate Commissioner that he could not find remnants of any tree allegedly cut and removed from the trespassed area. It was for want of reliable evidence that the trial court refused to grant a decree to the respondents for recovery of damages. There was nothing before the first appellate court to reverse that finding even if it is held, by any stretch of imagination that first appellate court could have granted a decree in favour of respondents for damages. In that view of the matter also, I am inclined to think that first appellate court was not correct, legally or factually in reversing decree of the trial court refusing to grant damages to the respondents. That part of the decree of first appellate court has to go. 


26. The substantial questions of law framed in the Second Appeal are answered accordingly. 


27. Then, to the challenge to the order dated 13.12.2010 on I.A. Nos.30 and 31 of 2009 - those applications were filed by the respondents in the first appeal to prosecute the appellant under Rule 2A of Order XXXIX of the Code and direct the appellant to restore the further trespassed area to its original position. Exts.C1 and C1(a) are the report and plan obtained in the trial court through the Advocate Commissioner with the assistance of a Surveyor. I have been taken through the reports submitted by the Advocate Commissioner in A.S. No.120 of 2003. True, the Advocate Commissioner referred to some tarring work done by or at the instance of the appellant when he inspected the property on the second occasion. It is revealed from the reports that the Advocate Commissioner (in the first appeal) identified the suit property as pointed out by the third respondent. Commissioner reported that to say whether there was further trespass beyond the red shaded portion marked by the Surveyor in Ext.C1(a), the assistance of a Surveyor is required. Admittedly, the assistance of a Surveyor was not obtained in the appeal. What is available is only the evidence of P.W1 examined in the first appellate court about the alleged trespass on 16.12.2008 (order on I.A. No.1784 of 2008 was passed 10.12.2008). 


28. So far as a decision on an application for prosecution under Rule 2A of Order XXXIX of the Code is concerned, that cannot depend on mere preponderance of probabilities. For, it involves penal consequences. There must be reliable and acceptable evidence regarding the alleged violation of the order. Having regard to the factual situation emerging in the case I am unable to say that there is reliable and acceptable evidence to show that appellant violated the order dated 10.12.2008. Viewed in that line, the order dated 13.12.2010 on I.A. Nos.30 and 31 of 2009 cannot be sustained. 


29. The result of my above discussion is that the order dated 13.12.2010 on I.A. No.30 and 31 of 2009 of the first appellate court are liable to be set aside. 30. I have interfered with the order on I.A. Nos.30 and 31 of 2009 (in A.S. No.120 of 2003) for want of sufficient evidence to prove the alleged trespass and violation of the order of injunction passed on I.A. No.1784 of 2008. But that will not stand in the way of respondents seeking appropriate relief of restoration in execution of the decree for mandatory injunction already granted, in the executing court with respect to the alleged further trespassed area as well since the alleged further trespass if any was committed subsequent to the trial court passing a decree for mandatory injunction. Resultantly Second Appeal and F.A.Os are disposed of as follows: 

(I) R.S.A. No.674 of 2011 is allowed in part as under:  
(a) Judgment and decree of learned Sub Judge, Cherthala in A.S. No.120 of 2003 to the extent it reversed judgment and decree of the trial court refusing to grant damages to the respondents, and granted a decree in that regard in favour of respondents are set aside. 
(b) Costs awarded by the learned Sub Judge in A.S. No.120 of 2003 to the extent it related to the decree for recovery of damages is set aside. 
(c) R.S.A. No.674 of 2011 to the extent it concerned judgment and decree in A.S. No.120 of 2003 confirming the decree for mandatory injunction in O.S. No.665 of 2000 of the court of court of learned Principal Munsiff, Cherthala will stand dismissed. 
(d) It is directed that if there is any further encroachment into any portion of the suit property (as may be identified in the executing court) after the trial court passed the decree, it will be open to the respondents to seek restoration of that portion of the suit property as well along with that part of the suit property regarding which trial court has granted a decree for mandatory injunction. 
(II) F.A.O. No.18 of 2011 is allowed. The order dated 13.12.2010 passed by the learned Sub Judge, Cherthala on I.A. No.30 of 2009 in A.S. No.120 of 2003 is set aside. I.A. No.30 of 2009 will stand dismissed. 
(III) F.A.O. No.31 of 2011 is allowed. Order dated 13.12.2010 passed by the learned Sub Judge, Cherthala on I.A. No.31 of 2009 in A.S. No.120 of 2003 is set aside. I.A No.31 of 2009 will stand dismissed. 
(IV) Parties are directed to suffer their respective costs in these appeals. All pending Interlocutory Applications will stand dismissed. 

THOMAS P. JOSEPH, JUDGE. vsv 


R.S.A. No. 1139 of 2010 - Kamalakshi Amma Vs. Sangeetha, 2012 (3) KLT 264 : ILR 2012 (3) Ker. 45 : 2012 (2) KHC 880

posted Jun 15, 2012, 9:16 AM by Law Kerala   [ updated Jul 30, 2012, 7:54 AM ]

(2012) 255 KLR 600 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

 

PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH 

WEDNESDAY, THE 6TH DAY OF JUNE 2012/16TH JYAISHTA 1934 

RSA.No. 1139 of 2010 ( ) 

------------------------ 

AS.33/2008 of ADDL.DISTRICT COURT, NORTH PARAVUR OS.14/2006 of MUNSIFF COURT,ALUVA 


APPELLANT(S)//APPELLANT/PLAINTIFF.: 

------------------------------------------- 

KAMALAKSHI AMMA, AGED 73, D/O.KUNJAMMA, CHATHAPURA VEEDU, NAYATHODU KARA, ANGALAMALY VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT. 
BY ADVS.SRI.K.RAMACHANDRAN SRI.S.SREEDEV 

RESPONDENT(S)//RESPONDENTS/DEFENDANTS.: 

-------------------------------------------------- 

1. SANGEETHA, AGED 24 YEARS, W/O.ANIL, CHATHAPURA VEEDU, NAYATHODU KARA, ANGAMALY VILLAGE ALUVA TALUK,ERNAKULAM, PIN 683 572.. 
2. ANIL, AGED 38 YEARS,S/O.KAMALASHY AMMA, -DO- 
3. JAYASREE, AGED 39 YEARS, D/O.LAKSHMIKUTTY AMMA,- DO- 
BY ADV. SRI S.V.BALAKRISHNA IYER (SR. ADVOCATE) BY ADV. SRI.P.B.KRISHNAN BY ADV. SMT.GEETHA P.MENON BY ADV. SRI.P.M.NEELAKANDAN BY ADV. SRI.P.B.SUBRAMANYAN 

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 

"C.R." 


THOMAS P. JOSEPH, J. 

-------------------------------------- 

R.S.A. No.1139 of 2010 

-------------------------------------- 

Dated this the 6th day of June, 2012. 

Head Note:-

Specific Relief Act, 1963 - Section 31 - Could a person who is neither the executant of the deed nor bound under any circumstance by the executant request to deliver up and cancel the deed?  
Held:- It is only in the case of instruments which are either executed by a party or purports to have been executed by a party or by a person who can under certain circumstances bind him that the relief under Sec.31 of the Act can be claimed in law because in such cases only, could it be said that "there is a cloud on his title and an apprehension that if the instrument is left outstanding, it may be a source of danger." To illustrate, a party who has executed the document, or a principal in respect of a document executed by his agent or a minor in respect of a document executed by his guardian, etc., could under Sec.31 of the Act request the court to deliver up and cancel the document. A person who neither has executed the document, nor is bound in any circumstance by the person who executed the document could not seek relief under Sec.31 of the Act as the document is neither void nor voidable against him and as such document even if left outstanding is not capable of causing any injury to him. The remedy of such person, if he thinks that the document may create a cloud on his own title is to seek a declaration of his own title or that the impugned document does not affect his title. 

J U D G M E N T 


Heard. Admit. 


2. The following substantial questions of law are framed: 

(i) Could a person who is neither the executant of the deed nor bound under any circumstance by the executant request to deliver up and cancel the deed? 
(ii) Were the courts below justified in overlooking the fact that even as per the admitted partition deed, appellant is entitled to get more than 9 cents and also 2/3rd of the excess land? 

3. Respondents 1 and 2 appear through counsel.


4. Since I have perused a copy of Ext.A1, partition deed No.1122 of 1959 dated 07.04.1959 based on which parties hereto claim right, title, interest and possession, in view of the substantial questions framed for a decision and as agreed by the learned counsel on both sides, it is not necessary to call for entire records of the case. 


5. According to the appellant/plaintiff, plaint A schedule belongs to her exclusively as per Ext.A1, partition deed. Plaint B schedule was allotted to her sister, the late Lakshmikutty Amma in the said partition. The 3rd respondent is the sole legal heir of the said Lakshmikutty Amma. The 2nd respondent is the son of appellant. 1st respondent is the wife of 2nd respondent. Appellant claims that she was in possession of plaint A and B schedule items notwithstanding the partition as per Ext.A1. She constructed building in the said property about 42 years back. The building overlaps into plaint B schedule. According to the appellant, the 3rd respondent has no right over the building. While so, the 2nd respondent executed Ext.B1, assignment deed No.6402 of 2005 in favour of the 1st respondent in respect of 7.808 cents and building on the strength of a registered power of attorney (Ext.A5 is its certified copy) executed by the 3rd respondent. According to the appellant, entitlement of the 3rd respondent as legal heir of deceased Lakshmikutty Amma as per Ext.A1 is only 4.500 cents. Appellant apprehended that Ext.B1, assignment deed would affect her right, title and interest in the suit property and hence requested that the said assignment deed be cancelled. She also prayed for a decree for prohibitory injunction.


6. The 3rd respondent, supporting the appellant contended that she is the owner in possession of 4.500 cents. She claimed that the building in the suit property was constructed by the appellant. The 2nd respondent was not authorised to execute assignment deed in respect of anything more than 4.500 cents. She is not aware that the 2nd respondent has executed assignment deed in respect of 7.808 cents in favour of the 1st respondent. 


7. Respondents 1 and 2 contended that entitlement of the appellant as per Ext.A1, partition deed is only for 9 cents and that she has no right for any excess land. They denied that the entire property was in the possession and enjoyment of the appellant or that she constructed the building. The building was constructed by the 2nd respondent, his father and the late Lakshmikutty Amma. The 3rd respondent was the owner in possession of 7.808 cents after the death of Lakshmikutty Amma. The said 7.808 cents and building was assigned to the 1st respondent by the 2nd respondent on the strength of Ext.A5, power of attorney. That assignment deed is valid. Appellant is not entitled to get the said deed cancelled or injunction as prayed for. 


8. The trial court found against the plea of the appellant that she was in possession of the entire property and constructed the building. It was of the view that Ext.B1, assignment deed executed by the 2nd respondent in favour of the 1st respondent as power of attorney holder of the 3rd respondent cannot be cancelled as that document is neither void nor voidable against the appellant. Trial court dismissed the suit. First appellate court has concurred with the said view and dismissed the appeal. Hence this Second Appeal. 


9. The learned counsel for appellant has contended that it is admitted by both sides that there is excess land in Sy.No.405/12 than the 13.500 cents which was partitioned among the appellant and the late Lakshmikutty Amma as per Ext.A1 and hence having regard to the proportionate extent allotted to the appellant and the late Lakshmikutty Amma as per Ext.A1, there must be a proportionate division of the excess land in which case, 2/3rd of the excess land should go to the appellant and the entitlement of the 3rd respondent as legal heir of Lakshmikutty Amma is only the remaining 1/3rd of the excess land. Alternatively, it is argued that at any rate, the excess land is liable to be partitioned among the appellant and the 3rd respondent equally in which case also, 3rd respondent is not entitled to get 7.808 cents. As Ext.B1, assignment deed is for more than what the 3rd respondent is entitled, the said deed is liable to be cancelled as it affected the right, title and interest of the appellant regarding the 11.600 cents. 


10. Learned Senior Advocate for respondents 1 and 2 has contended that appellant is not entitled to get Ext.B1, assignment deed cancelled. Under Section 31 of the Specific Relief Act, 1963 (for short, "the Act") a deed can be cancelled only if it is void or voidable as against the party seeking that relief. It is contended that appellant is not a party to Ext.B1, nor is she bound by the person who has executed it. It is also argued that even as per the contention of the appellant, 3rd respondent is entitled to get 4.500 cents and a portion of the excess land and hence to that extent at least, Ext.B1 is valid. Hence also Ext.B1 is not liable to be cancelled. It is argued that appellant has no right over the 7.808 cents and building assigned as per Ext.B1. 


11. So far as the claim of the appellant that she constructed the building in the suit property and that she was in possession of plaint A and B schedules are concerned, courts below held that the properties were partitioned as per Ext.A1 and hence the claim of the appellant that she was in possession of the entire property even after Ext.A1 cannot be accepted. Courts below also found against the claim of the appellant that she constructed the building. The above findings are based on a proper appreciation of the evidence and involve no substantial question of law. 


12. The question is whether Ext.B1, assignment deed could be cancelled in the circumstances pleaded by the appellant? It is admitted that as per Ext.A1, the property comprised in Sy.No.405/12 was partitioned among the appellant and her sister, Lakshmikutty Amma. Appellant was allotted 9 cents and excess while Lakshmikutty Amma was allotted 4.500 cents and excess. Exhibit B1, assignment deed is executed by the 2nd respondent (son of the appellant) as power of attorney of the 3rd respondent (the sole legal heir of Lakshmikutty Amma) and in favour of the 1st respondent as regards 7.808 cents and the building.


13. Section 31 of the Act (corresponding to Sec.39 of the Specific Relief Act, 1877 - for short, "the old Act") states: 

"31. When cancellation may be ordered:- (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. 
(2) ...................................." 

It is clear from Sub-sec.(1) of Sec.31 of the Act that to enable the appellant get Ext.B1 cancelled, it must be shown that the said instrument is void or voidable as against her and the appellant has a reasonable apprehension that if Ext.B1 is left outstanding, it may cause her serious injury. 


14. It is said that most part of Sec.39 of the old Act (corresponding to Sec.31 of the Act) was borrowed from Articles 1906 and 1908 of the Draft New York Civil Code. The provision for cancellation of a written instrument is based upon the administration of protective justice for fear that the instrument may be vexatiously or injuriously used by one against another when the evidence to challenge such written instrument may be lost or that it may throw a cloud or suspicion over his title or interest. 


15. Story, in Equity Jurisprudence (English Edition), 1920 in Article 694 states: 

"In the first place, then, let us consider in which cases, court will direct the delivery up, cancellation or rescission of agreements, securities, deeds or other instruments. It is obvious that the jurisdiction exercised in cases of this sort, is founded upon the administration of a protective or preventive justice. If, therefore, the instrument was void for matter apparent upon the face of it, there was no call to exercise the jurisdiction, with the possible exception of instruments forming a cloud upon the title to land. The party is relieved upon the principle, as it is technically called quia timet: that is, for fear that such agreement, securities, deeds, or other instruments may be vexatiously or injuriously used against him when the evidence to impeach them may be lost; or that they may now through a cloud or suspicion over his title or interest."

16. Referring to Chapter V of the Old Act, Whitely Stoks states in Anglo-Indian Code (Vol.I) at page 934: 

"Chapter V declares that any person against whom a written instrument is void or voidable, who has reasonable apprehension that if left outstanding it may cause him serious injury, may obtain an adjudication that it is void or voidable and an order that it be delivered up and cancelled. The relief extends to a forged instrument, and also to one originally valid but which has subsequently forged. The Chapter applies to cases not unfrequent in India, where a party gets possession of document on which he might not indeed be able to found a claim in a court of justice but which might give him such prima facie right against the other as would expose him to vexatious demands and litigation." 

17. The Bombay High Court, in Jeka Dula v. Bai Jivi and others (AIR 1938 Bombay 37) laid down the following three conditions for the application of Sec.39 of the old Act (Sec.31 of the Act): 

"i. The written instrument is either void or voidable as against the plaintiff. 
ii. The plaintiff may reasonably apprehend serious injury from the instrument being left outstanding. iii. In view of all the circumstances of the case the court considers it reasonable and proper to administer the protective and preventive justice asked for." 

18. A Full Bench of the Madras High Court considered the scope of Sec.39 of the old Act (Sec.31 of the Act) in Muppudathi Pillai v. Krishnaswami Pillai (AIR 1960 Madras 1) and held at page 4 as under: 

"........... It stands to reason that the executant of the document should be either the plaintiff or a person who can in certain circumstances bind him. It is only then it could be said that the instrument is voidable by or void against him. The second aspect of the matter emphasises that principle. For there can be no apprehension if a mere third party, asserting a hostile title creates a document. Thus relief under Sec.39 would be granted only in respect of an instrument likely to affect the title of the plaintiff and not of an instrument executed by a stranger to that title."

The Full Bench illustrated that when a trespasser purports to convey the property in his own right and not in the right of the owners, the remedy of cancellation of such an instrument cannot be granted because such a relief would not remove the cloud upon his title by the instrument and the proper remedy is to seek a declaration of the plaintiff's own title or a declaration that the sale deed is not binding or valid against the plaintiff. Thus, when a document is not executed by the plaintiff or by a person who can in any circumstance bind him, that document cannot create a cloud upon the title of the true owner, nor does it create apprehension that it may be a source of danger to him. 


19. It is only in the case of instruments which are either executed by a party or purports to have been executed by a party or by a person who can under certain circumstances bind him that the relief under Sec.31 of the Act can be claimed in law because in such cases only, could it be said that "there is a cloud on his title and an apprehension that if the instrument is left outstanding, it may be a source of danger." To illustrate, a party who has executed the document, or a principal in respect of a document executed by his agent or a minor in respect of a document executed by his guardian, etc., could under Sec.31 of the Act request the court to deliver up and cancel the document. A person who neither has executed the document, nor is bound in any circumstance by the person who executed the document could not seek relief under Sec.31 of the Act as the document is neither void nor voidable against him and as such document even if left outstanding is not capable of causing any injury to him. The remedy of such person, if he thinks that the document may create a cloud on his own title is to seek a declaration of his own title or that the impugned document does not affect his title. 


20. In the present case appellant is not a party to Ext.B1. Nor is the appellant bound under any circumstance by the person who has executed Ext.B1. Exhibit B1 is executed by the 2nd respondent acting as power of attorney holder of the 3rd respondent. In the circumstances Ext.B1, assignment deed is neither void nor is voidable against the appellant and hence she could not seek relief under Sec.31 of the Act. If the appellant thinks that Ext.B1 might create a cloud on the title she has claimed, her remedy was to sue for declaration of the title she claims or that Ext.B1 does not affect the titled she claims. 


21. The next question is regarding the title claimed by the appellant over 11.600 cents. According to the appellant, entitlement of the 3rd respondent as legal heir of Lakshmikutty Amma is only for 4.500 cents and 1/3rd of the excess. Appellant claims that as she was allotted 9 cents and excess and Lakshmikutty Amma was allotted 4.500 cents and excess, she is entitled to 2/3rd of the excess and only the remaining 1/3rd of the excess would got to the 3rd respondent. 


22. I have gone through the copy of Ext.A1, partition deed. Appellant is allotted 9 cents and excess land and Lakshmikutty Amma is allotted 4.500 cents and excess land, both in survey No.405/12. I do not find any provision in Ext.A1 to hold that the excess land if any is to be divided between the appellant and Lakshmikutty Amma in the same proportion they got 9 cents and 4.500 cents, respectively. In the absence of any specific provision as to the manner in which the excess land if any is to be partitioned between the appellant and Lakshmikutty Amma, the reasonable and proper interpretation to be given to Ext.A1, partition deed is that the excess land if any, has to be partitioned between the appellant and 3rd respondent (being the sole legal heir of Lakshmikutty Amma) equally. 


23. As of now, contention of the appellant is that the total extent of excess land is 3.300 cents. If that be so, in the light of what I have stated above, appellant should get 9 cents and 1.650 cents out of the excess land and the 3rd respondent should get 4.500 cents and 1.650 cents being the remaining excess land. But, Ext.B1, assignment deed is executed for 7.808 cents. I make it clear that extent of excess land if any available is stated here, only based on the plaint averments. It is for the trial court to enquire into and decide after proper survey of the properties what exactly is the land available for the appellant and the 3rd respondent (as sole legal heir of Lakshmikutty Amma) as per Ext.A1, partition deed (or, to the 1st respondent consequent to Ext.B1, as the case may be) and the extent of excess land if any available to them as aforesaid. 


24. I found that no interference is possible with respect to the finding that appellant has no role in the construction of the building in plaint B schedule. When the excess land if any, which the appellant is entitled is being determined by the trial court after proper enquiry, the trial court shall ensure that enjoyment of the existing building is not affected and that the excess land if any, to which the appellant is entitled is allotted to her from that portion of property belonging to the 3rd respondent and situated towards the western side of the building in plaint B schedule, after leaving sufficient space on the immediate west of that building for its proper and convenient enjoyment. It is also directed that if on measurement, any portion of the building in plaint B schedule is found to be overlapping into athe portion to which the appellant is found entitled, trial court shall make necessary adjustments in allotting the land to the appellant so that the building is not affected, at the same time ensuring that the extent to which appellant is found entitled, is given to her. 


25. I have found that appellant is not entitled to seek cancellation of Ext.B1, assignment deed. But that finding cannot put an end to the claim made by the appellant as it requires investigation. Having regard to the circumstances stated, I am inclined to give the appellant opportunity to amend the plaint and seek appropriate reliefs instead of cancellation of Ext.B1, with consequential/alternative reliefs as circumstances warranted. 


26. The substantial questions of law framed are answered accordingly. Resultantly, this Second Appeal is allowed by way of remand as under: 

i. While no interference is required with the finding of the courts below as to the claim of appellant regarding exclusive possession of plaint A and B schedules and that the building in the property was constructed by her, the dismissal of the suit as per judgment and decree of learned Munsiff, Aluva in O.S.No.14 of 2006 as confirmed by the learned Additional District Judge, North Paravur in A.S.No.33 of 2008 is set aside. 
ii. O.S. No.14 of 2006 is remitted to the court of learned Munsiff, Aluva for fresh decision after giving the appellant opportunity to amend the plaint and seek appropriate reliefs in the light of the observations made above. Needless to say that on such amendment, respondent will get opportunity to file additional written statement in answer to the amended plaint. 
iii. If so advised and applied for by the appellant, learned Munsiff shall appoint an Advocate Commissioner to ascertain the total extent of land available to the appellant and the 3rd respondent (or to the 1st respondent, consequent to Ext.B1, as the case may be) and identify the 9 cents and 4.500 cents in Sy.No.405/12 referred to in Ext.A1 and allotted to the share of appellant and Lakhsmikutty Amma. 
iv. Trial court shall determine the extent of excess land if any, available for division. Such excess land if any, shall be divided among the appellant and the 3rd respondent (or the 1st respondent, consequent to Ext.B1, as the case may be) equally. 
v. Trial court shall ensure that the half share in the excess land if any found by it to which the appellant is entitled, is allotted to her on the western side of the existing building after leaving sufficient space on the immediate west of the building for its proper and convenient enjoyment. 
vi. Trial court shall ensure that in case any portion of the building overlaps into the property to which the appellant is found entitled, necessary adjustment shall be made so that the building is not affected and that much extent of land overlapping into the property of the appellant shall be allotted to the appellant elsewhere as indicated above. 
vii. Parties shall appear in the trial court on 30.06.2012. In case the 3rd respondent does not appear, trial court shall issue summons to her for her appearance. 


All pending interlocutory applications will stand dismissed. 


THOMAS P.JOSEPH, Judge. cks 


1-10 of 18