ABDULKADHER v. VIJAYAN AND OTHERS

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 16[TH] DAY OF FEBRUARY 2022 / 27TH MAGHA,** **1943** ## **RFA NO. 346 OF 2014** **AGAINST THE DECREE AND JUDGMENT DATED 11.3.2014 IN OS** **111/2006 ON THE FILE OF SUB COURT, MANJERI** **APPELLANT/1ST PLAINTIFF:** **ABDULKADHER, AGED 48 YEARS, S/O.POOLAKKAL KARIMBANAKKAL MUHAMMED, KARUMARAKKAD AMSOM, DESOM, P.O.AKKOD, ERNAD TALUK. BY ADVS. SRI.M.DEVESH SRI.K.C.KIRAN SMT.MEENA.A.** ## **RESPONDENTS/RESPONDENTS 2 TO 8 AND 3RD PLAINTIFF:** - **1 VIJAYAN, AGED 68 YEARS, S/O.VALIYAPARAMBIL APUKKUTTAN, KANIMANGALAM VILLAGE, CHIYYARAM DESOM, P.O.CHIYYARAM, THRISSUR TALUK, PIN-680 026.** - **2 UMMUBARKATH, AGED 58 YEARS, W/O.MUHAMMED, D/O.CHAKKEERI AHAMMEDKUTTY, KARUMARAKKAD AMSOM DESOM, P.O.AKKOD, ERNAD TALUK, PIN-673 640.** - **3 AHAMMED KABEER, AGED 36 YEARS S/O.P.K.MUHAMMED, -DO- -DO-** - **4 P.K.SAREENA, AGED 43 YEARS, D/O.P.K.MUHAMMED, -DO- -DO-** - **5 SAJITHA FATHIMA, AGED 41 YEARS, D/O.P.K.MUHAMMED, -DO- -DO-** - **6 RASHEEDALI, AGED 39 YEARS, S/O.AAVUTHODI BEERAN, -DO- -DO-** R.F.A. No.346 of 2014 & con. cases -: 2 :- **7 ISLAMIC CENTER, VIRIPPADAM, REPRESENTED BY PULLISSERI KUNHIMUHAMMED'S SON MUSTHAFA HUDAVI, AGED 41 YEARS, -DO- PIN-673 640. 8 SADIYA BACKER, AGED 38 YEARS, D/O.ABOOBACKER, W/O.DECEASED MUHAMMED AYYOB, PARAVAKKAL HOUSE, TIRUR TALUK, KLARI AMSOM AND DESOM, P.O.EDARIKKODE -676 501. BY ADVS. SRI.S.SREEKUMAR (SR.) R1 SRI.BALAKRISHNA IYER SR. R2,R3 SRI.P.B.KRISHNAN R2, R3 T.SETHUMADHAVAN (SR.) R5 SRI.P.M.NEELAKANDAN R2, R3 SRI.DINESH R.SHENOY R6,R7 SRI.P.K.MOHANAN R8 SRI.P.B.SUBRAMANYAN R2, R3 SRI.M.MUHAMMED SHAFI R2,R3 SRI.P.MARTIN JOSE R1 SRI.P.PRIJITH R1 PREETHI. P.V. R5 M.V.BALAGOPAL R5** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING** **ON 16.02.2022, ALONG WITH RFA.692/2016 AND RFA.693/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.F.A. No.346 of 2014 & con. cases -: 3 :- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 16[TH] DAY OF FEBRUARY 2022 / 27TH MAGHA,** # **1943** **RFA NO. 692 OF 2016** **AGAINST THE JUDGMENT IN OS 25/2010 OF SUB COURT, MANJERI** **APPELLANT/1ST DEFENDANT IN O.S.25/2010:** **ABDULKADHER, S/O.POOLAKKAL KARIMPANAKKAL MUHAMMED, AGED 42 YEARS, KARUMARAKKAD AMSOM, DESOM, AKKODE(PO), KONDOTTY TALUK, MALAPPURAM DIST BY ADV M.DEVESH** **RESPONDENTS/PLAINTIFFS AND DEFENDANTS NO.3 AND 4 IN O.S.25/2010:** - **1 MUHAMMED, (DIED) S/O.POOLAKKAL KARIMBANAKKAL KADER HAJI KARUMARAKKAD AMSOM, DESOM, AKKODE (PO) KONDOTTY TALUK, MALAPPURAM DIST** - **2 UMMUBARKETH W/O LATE P.K MUHAMMED, D/O CHAKKEERI AHAMMEDKUTTY, AGED 54 YEARS, KARUMARAKKAD AMSOM, DESOM, AKKODE (PO) KONDOTTY TALUK, MALAPPURAM DIST** - **3 SAKKIRA D/O NARIMADA MUHAMMED HAJI, AGED 36 YEARS, KONDOTTY AMSOM, KOLATHUR DESOM, KONDOTTY TALUK, MALAPPURAM DIST** R.F.A. No.346 of 2014 & con. cases -: 4 :- **4 SADIYA D/O PARAVAKKAL ABBOBACKER, W/O POOLAKKAL KARIMPANAKKAL MOHAMMED AYOOB AGED 33 YEARS, KARUMARAKKAD AMSOM, DESOM, KONDOTTY TALUK, MALAPPURAM DIST BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 16.02.2022, ALONG WITH RFA.346/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.F.A. No.346 of 2014 & con. cases -: 5 :- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 16[TH] DAY OF FEBRUARY 2022 / 27TH MAGHA,** **1943** **RFA NO. 693 OF 2016** **AGAINST THE JUDGMENT IN OS 26/2010 OF SUB COURT, MANJERI** **APPELLANT/1ST PLAINTIFF IN O.S.NO.26/2010:** **ABDUL KHADAR, AGED 42 YEARS, S/O POOLAKKAL KARIMPANAKKAL MOHAMMED, KARUMARAKKAD AMSOM, DESOM AKKODE P.O, KONDOTTY TALUK, MALAPPURAM DISTRICT BY ADV M.DEVESH** ## **RESPONDENTS/DEFENDANTS NO.2 TO 14 AND SUPPLEMENTAL 3RD** **PLAINTIFF IN O.S.NO.26/2010:** - **1 THE DISTRICT EDUCATIONAL OFFICER, MALAPPURAM, MALAPPURAM AMSOM, ERANAD TALUK** - **2 ISLAMIC CENTER, VIRIPPADAM REPRESENTED BY PULLISSEERI KUNHIMUHAMMED'S SON MUSTHAFA HUDAVI, AGED 36 YEARS, KARUMARAKKAD AMSOM, DESOM, AKKODE P.O, KONDOTTY TALUK** - **3 THE STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, MALAPPURAM, MALAPPURAM AMSOM, ERANAD TALUK, MALAPPURAM DISTRICT** - **4 UMMUBARKETH W/O LATE P.K MUHAMMED, D/O CHAKKEERI AHAMMED KUTTY, AGED 57 YEARS, KARUMARAKKAD AMSOM, DESOM AKKODE P.O, KONDOTTY TALUK, MALAPPURAM DISTRICT** R.F.A. No.346 of 2014 & con. cases -: 6 :- - **5 SAREENA, D/O LATE P.K MUHAMMED, AGED 40 YEARS, KARUMARAKKAD AMSOM, DESOM, AKKODE P.O, KONDOTTY TALUK, MALAPPURAM DISTRICT** - **6 SAJITHA FATHIMA, D/O LATE P.K MUHAMMED, AGED 37 YEARS, KARUMARAKKAD AMSOM, DESOM, AKKODE P.O, KONDOTTY TALUK, MALAPPURAM DISTRICT** - **7 AHAMMED KABEER S/O LATE P.K MUHAMMED, AGED 33 YEARS, KARUMARAKKAD AMSOM, DESOM, AKKODE P.O, KONDOTTY TALUK, MALAPPURAM DISTRICT** - **8 P.K AYISSA W/O SAID, AGED 72 YEARS, ANTHANATH HOUSE, KOODATHAYI AMSOM, DESOM, KOODATHAYI PO., KOZHIKKODE TALUK, KOZHIKKODE DISTRICT.** - **9 AHAMMEDKUTTY HAJI, S/O SIYYADI HAJI, AGED 88 YEARS, PUTHENPURAYIL HOUSE, PARAPPANPOYIL PO, RAROTH AMSOM, ANDONA DESOM, KOZHIKKODE TALUK,KOZHIKKODE DISTRICT.** - **10 MUHAMMED BAPPU S/O AHAMMED KUTTY HAJI AGED 47 YEARS PUTHENPURAYIL HOUSE, PARAPPANPOYIL PO, RAROTH AMSOM, ANDONA DESOM, KOZHIKKODE TALUK,KOZHIKKODE DISTRICT.** - **11 P.T.PATHUKUTTY ALIAS KUNHU W/O KUNHAYIN, AGED 57 YEARS, THOTTATHIL HOUSE, POONOOR AMSOM, KOLIKKAL DESOM, POONOOR PO, KOZHIKKODE TALUK, KOZHIKKODE DISTRICT.** - **12 PT.JAMEELA W/O MOIDEENKUTTY HAJI, AGED 53 YEARS, THOTTATHIL HOUSE, KOODATHAYI PO, KOODATHAYI AMSOM, DESOM, KOZHIKKODE TALUK, KOZHIKKODE DISTRICT** - **13 P.T LAILA W/O K.C .MUHAMMEDMON AGED 49 YEARS, K.C HOUSE, EANGAPPUZHA PO, EANGAPPUZHA AMSOM, DESOM, KOZHIKODE TALUK, KOZHIKKODE DISTRICT** - **14 SADIYA BACKER, W/O POOLAKKAL,KARIMPANAKKAL MOHAMMED AYOOB, AGED 33 YEARS, PARAVAKKAL HOUSE, KLARI AMSOM, DESOM, EDARIKKODE, TIRUR TALUK, MALAPPURAM DIST.** R.F.A. No.346 of 2014 & con. cases -: 7 :- **BY ADVS. SRI.DINESH R.SHENOY R2 SRI.P.B.KRISHNAN R7 & R4 SRI.SABU GEORGE R7 SRI.P.B.SUBRAMANYAN R7 SRI P.M.NEELAKANDAN R7** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 16.02.2022, ALONG WITH RFA.346/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.F.A. No.346 of 2014 & con. cases -: 8 :- **P.B.SURESH KUMAR & C.S.SUDHA, JJ. -----------------------------------------------** ## **R.F.A No.346 of 2014** **and R.F.A Nos.692 and 693 of 2016 ----------------------------------------------Dated this the 16[th] day of February, 2022** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** Among these appeals, R.F.A No.346 of 2014 is one preferred against the decree and judgement in O.S.No. 111 of 2006 on the file of the Subordinate Judge's Court, Manjeri. Similarly, R.F.A Nos.692 and 693 of 2016 are preferred against the decrees and judgements in O.S.No.25 of 2010 and O.S.No.26 of 2010 respectively on the file of the very same Court. As the issues arose for consideration in the suits were closely interlinked, they were tried together, permitting the parties to let in evidence in O.S.No.111 of 2006, and disposed of by a common judgement. Since the suits from which the appeals arose were tried together and disposed of by a common judgement, these appeals are also disposed of by this common judgement. Parties and properties are referred to in R.F.A. No.346 of 2014 & con. cases -: 9 :- this judgment, as they appear in O.S.No.111 of 2006, as done by the court below in the impugned judgment. 2. O.S.No.111 of 2006 was initially a suit for cancellation of an assignment deed executed by the first defendant in favour of the second defendant in respect of the plaint A schedule property and for prohibitory injunction restraining the first defendant from alienating plaint D, E, F, G, H and I schedule properties. The third defendant is the wife of the first defendant and the plaintiffs are the children of defendants 1 and 3. 3. During the pendency of the suit, the first defendant died. On the death of the first defendant, the suit was amended and converted as one for partition in respect of the originally scheduled properties as also a few other items of properties additionally included in schedules J, K, L, M, N, O and P of the suit at the time of amendment. In the light of the prayer for partition sought in the suit, the remaining siblings of the plaintiffs were arrayed in the suit at the time of amendment as defendants 4 to 6. In addition, two strangers were arrayed as defendants 7 and 8 in the suit at the time of amendment purportedly as persons claiming interest in some of the items of properties sought to be partitioned. R.F.A. No.346 of 2014 & con. cases -: 10 :- 4. There was an earlier suit before the Munsiff's Court, Manjeri instituted by the defendants 1 and 3 as O.S.59 of 2006 seeking a decree of prohibitory injunction restraining the plaintiffs and their spouses from entering into the plaint B schedule property. This was one of the suits withdrawn to the file of the Subordinate Judge's Court, Manjeri, renumbered as O.S.No.25 of 2010 and tried along with O.S.No. 111 of 2006. 5. There was yet another suit before the Munsiff's Court, Manjeri filed by the plaintiffs as O.S.No.107 of 2006 for a declaration that a document executed by the first defendant in favour of the eighth defendant in respect of plaint C schedule property is null and void. This suit was also withdrawn to the file of the Subordinate Judge's Court, Manjeri, renumbered as O.S.No.26 of 2010 and tried along O.S.No. 111 of 2006. 6. The plaintiffs have also filed a suit before the Subordinate Judge's Court, Manjeri as O.S.No.51 of 2006 for cancellation of a document executed by the first defendant in favour of the third defendant in respect of plaint B schedule property and for injunction and the said suit was also tried along with O.S.No.111 of 2006. 7. The case set out by the plaintiffs in O.S.No.111 of 2006 is that the plaint A schedule property is the tarawad R.F.A. No.346 of 2014 & con. cases -: 11 :- property of the plaintiffs and that assignment deed No.1244 of 2006 executed by the first defendant in respect of plaint A schedule property in favour of the second defendant is a fraudulently created sham document for defeating the interests of the plaintiffs in the said property. Defendants 1 and 3 contested the suit contending, _inter alia,_ that the plaint A schedule property absolutely belonged to the first defendant and he had absolute rights over the said property including the right to alienate the same. When the suit was amended and a decree for partition was sought on the death of the first defendant, the third defendant filed an additional written statement contending that the plaintiffs have no right in the suit properties except in the properties described in schedules E, F, G, H, M and O to the suit. 8. Pending disposal of O.S.No.111 of 2006, the second plaintiff died and his wife got herself impleaded as additional third plaintiff in the said suit. 9. The case set out by defendants 1 and 3 as plaintiffs in O.S.No.25 of 2010 is that the first defendant is the owner of the suit property therein viz, plaint B schedule property; that they are in absolute possession and enjoyment of the same and that the plaintiffs are attempting to intrude R.F.A. No.346 of 2014 & con. cases -: 12 :- into their possession. 10. The case set out by the plaintiffs in O.S.No.26 of 2010 is that the first defendant was not competent to alienate the suit property therein viz, plaint C schedule property and the aided school therein, without obtaining permission of the competent authority under Section 6 of the Kerala Education Act and that the document executed by the first defendant in favour of the eighth defendant in respect of the plaint C schedule property and the school building is therefore void. 11. The case set out by the plaintiffs in O.S.No.51 of 2006 for cancellation of the document executed by the first defendant in favour of the third defendant in respect of plaint B schedule property is that this document is vitiated by undue influence and coercion. 12. On the side of the plaintiffs, the first plaintiff gave evidence as PW1 and proved Exts.A1 to A36 documents. No evidence was adduced on the side of the defendants. Exts.B1 to B25 were the documents marked on the side of the defendants. 13. The trial court decreed O.S.No.111 of 2006 in part declaring the 1204/4608 right of the first plaintiff, R.F.A. No.346 of 2014 & con. cases -: 13 :- 252/4608 right of the third plaintiff, 744/4608 right of the third defendant, 1204/4608 right of the fourth defendant and 602/4608 right each of defendants 5 and 6 over the plaint E, F, G, M and O schedule properties. The relief sought in respect of plaint P schedule movables was declined. The relief claimed in respect of the remaining items of properties was declined holding that the same are properties either already alienated or included in the remaining schedules. Out of the remaining suits, O.S.Nos.51 of 2006 and 26 of 2010 were dismissed and O.S.No.25 of 2010 was decreed restraining the plaintiffs and the spouse of the first plaintiff from entering into the plaint B schedule property. 14. R.F.A.No.346 of 2014 is by the first plaintiff challenging the decree and judgment in O.S.No.111 of 2006 insofar as he was declined the relief sought in respect of the properties other than the properties described in schedules E, F, G, M and O, R.F.A.No.692 of 2016 is by the first plaintiff challenging the decree and judgment in O.S.No.25 of 2010 and R.F.A.No.693 of 2016 is by the first plaintiff challenging the decree and judgment in O.S.No.26 of 2010. There is no appeal against the decree and judgment in O.S.No.51 of 2006. 15. Heard the learned counsel for the parties on R.F.A. No.346 of 2014 & con. cases -: 14 :- either side. 16. Although the pleadings of the plaintiffs in the suits as regards the ownership of the properties were ambiguous, it was clarified by the first plaintiff in the proof affidavit that all the properties belonged to the first defendant, the father of the plaintiffs. 17. The learned Senior Counsel for the first plaintiff who is the appellant in all the appeals raised arguments only in respect of plaint A, B and C schedule properties, obviously since the plaint schedule properties excluding the properties in respect of which reliefs sought for by the plaintiffs have been granted, are properties transferred by the first defendant and the plaintiffs have given up the challenge against the documents created in respect of the same except in the case of plaint A, B and C schedule properties. 18. As noted, the plaint B schedule property is one belonged to the first defendant. It is in respect of the said property that the first defendant along with his wife, the third defendant, instituted O.S.No.59 of 2006 (re-numbered as O.S No.25 of 2010) before the Munsiff's Court, Manjeri seeking a decree of permanent prohibitory injunction against the plaintiffs. O.S.No.51 of 2006 before the Subordinate Judge's R.F.A. No.346 of 2014 & con. cases -: 15 :- Court, Manjeri is a subsequent suit filed by the plaintiffs seeking a decree cancelling Ext.A14 executed by the first defendant in favour of the third defendant. As noted, O.S.25 of 2010 was decreed and O.S.No.51 of 2006 was dismissed. Even though an appeal is preferred against the decree and judgment in O.S.25 of 2010, there is no appeal against the decree and judgment in O.S.No.51 of 2006. Insofar as the challenge in O.S.No.51 of 2006 against Ext.A14 document executed by the first defendant in favour of the third defendant was repelled and the said decision has become final, we do not find any infirmity in the decision of the court below insofar as it declined relief sought by the plaintiffs in O.S.No.25 of 2010 in respect of the plaint B schedule property. 19. Plaint C schedule property is also one that belonged to the first defendant. As far as the said property is concerned, the case set out by the plaintiffs in O.S.No.26 of 2010 is that the same belonged to the grandfather of the plaintiffs; that the grandfather of the plaintiffs had established a school in the said property; that the grandfather has three children other than the first defendant; that on the death of the grandfather of the plaintiffs, the first defendant has assigned the said property to the eighth defendant in terms of R.F.A. No.346 of 2014 & con. cases -: 16 :- Ext.A15 assignment deed without obtaining sanction of the competent authority under the Kerala Education Act and that the document executed by the first defendant in favour of eighth defendant in respect of the said property is null and void. The first and eighth defendants filed joint written statement in O.S.No.26 of 2010 contending that the assignment deed in respect of the plaint C schedule property executed by the first defendant in favour of the eighth defendant is valid and supported by consideration. The court below found that the plaint C schedule property belonged to the grandfather of the plaintiffs and that the eighth defendant has not only purchased the rights held by the first defendant, but also the rights held by the remaining legal representatives of the grandfather of the plaintiffs and that the plaintiffs have therefore no subsisting rights in the property. It is in the light of the said decision that the court below declined relief to the plaintiffs in respect of plaint C schedule property in O.S.No.111 of 2006. 20. The argument advanced by the learned counsel for the first plaintiff in the appeal preferred against the decree and judgment in O.S.No.26 of 2010 is that the documents obtained by the eighth defendant in respect of the R.F.A. No.346 of 2014 & con. cases -: 17 :- plaint C schedule property are void inasmuch as the previous permission of the competent authority in writing under Section 6 of the Kerala Education Act was not obtained for the said purpose. There is no restriction in Section 6 of the Kerala Education Act for transferring the ownership of any school. Section 6 restricts only alienation of the property of a school, for, in such a case, the working of the school will be adversely affected. When a school is transferred as a going concern, the restriction does not apply [See **Kunjulekshmi v. Krishnan Unnithan** , 1992 KHC 190 and **Manager v. D.P.I.,** 2010 (4) ILR 706]. There is, therefore, no merit in the appeal preferred against the decision of the court below in O.S.No.26 of 2010. 21. There is no dispute to the fact that the plaint A schedule property belonged to the first defendant. Ext.A1 is the document in terms of which the first defendant assigned his rights over the plaint A schedule property to the second defendant. According to the plaintiffs, the plaint A schedule property is worth several lakhs and Ext.A1 document has been executed by the first defendant in favour of the second defendant for a nominal amount of Rs.1 lakh and the same is a fraudulently created sham document to defeat the rights of the plaintiffs over the same. Elaborate arguments have been R.F.A. No.346 of 2014 & con. cases -: 18 :- advanced by the learned Senior Counsel for the first plaintiff in respect of the claim of the plaintiffs over plaint A schedule property. It was pointed out by the learned counsel that the plaint A schedule property measures 2 acres 53 cents and earlier when a portion of the same was acquired by the Government for a public purpose, the first defendant had received several lakhs of rupees by way of compensation. It was also pointed out by the learned counsel that despite execution of Ext.A1, the property continued to be in the possession of the first defendant and after a few days, the second defendant re-transferred the property to the fourth defendant for a consideration of Rs.1,10,000/-. According to the learned counsel, there is absolutely no reason for the first defendant to transfer the said property to the second defendant for a nominal consideration of Rs.1 lakh and obtain it back after some time in the name of his son, the fourth defendant, if the intention of the first defendant was not to ensure that on his death, his legal representatives do not get any right over the same. 22. On a query from the court as to the _locus standi_ of the plaintiffs to institute a suit to cancel Ext.A1 assignment deed, the learned Senior Counsel conceded that R.F.A. No.346 of 2014 & con. cases -: 19 :- the plaintiffs had no right over the plaint A schedule property at the time of institution of the suits since plaint A schedule property absolutely belonged to the first defendant. He however contended that insofar as the first defendant died pending suit, the plaintiffs being two among his legal representatives, the right of the plaintiffs to challenge the correctness of Ext.A1 assignment deed on his death cannot be questioned. 23. Even though the plaintiffs had no _locus standi_ to challenge Ext.A1 assignment deed when the suit was instituted, technically, the learned Senior Counsel for the first plaintiff is right in contending that the plaintiffs would have acquired a right in the plaint A schedule property on the death of the first defendant, if Ext.A1 document was not executed by the first defendant. As such, even though the _locus standi_ of a person to institute a suit is one to be examined with reference to the date of institution of the suit, having regard to the facts and circumstances of the case, we are of the view that it is only appropriate to deal with the issue relating to the entitlement of the plaintiffs to claim reliefs in respect of the plaint A schedule property on merits, rather than disposing of the suit technically on an issue of _locus standi_ . R.F.A. No.346 of 2014 & con. cases -: 20 :- 24. Let us therefore examine the question as to whether there is any merit in the challenge of the plaintiffs against Ext.A1 assignment deed. The relevant pleadings in the plaint read thus: “അനനനയയ A പട�ക വഹകള� സയബന�ച�ടത�ന�യ അത�ൽ ന�ന�യ acquire ള�യ� 70 ളസൻറ ഭ"മ�ക 1 -ആയ പപത� മത'ര� സബ തകനടത�യ�ൽ തബനധ�പ�ച L.A.R.25/95 നമർ തകസ�ൽ ആളക A പട�ക വഹക��ള70 ളസന റ�ന ഭ.മമനയ സയഖന 1 -ആയ പപത� കകപറ�യ�ട�ണ . ഇപതയ�യ വ�- പ�ട�ച അനനനയയ A പട�ക ന�സനര വ�-യ ക വ�റത അനനനയകനർക�ള ഭനവ�യ�ള- തതർചകൾ ഇലനതനക�വനൻ ഏത ന�-യ�-�യ അനനനയയ A പട�ക വഹക��തടതനള9ന പറയ�നത ത.റനധനരവ�യ ക:പത�മവ�യ പപത�കൾ fraud practice ള�യ യ അനനനയകനർക ഭ"മ�കൾ ക�ടര�ളതന ദ�ര�ത<ശയ കര�ത�യ�യ ന�ർമ�ച ക:പത�മ -കനമന9 യഥനർത��ൽ അനനനയപട�ക വഹകൾ ആധനരപപകനരയ കകമനറയ ള�യ�കളയന 2 -ആയ പപത�ക കകവശയ ളകനട�ക�കതയന ള�യ ട�ല. ബ�നനമ�യനയ�ടന9 ഈ ആധനരയ നടന�ട�ളത . അനനനയകനർക ഈ വഹകൾ ഒര� കന-��യ -ഭ�കര�ളതന ദ�ര�ത<ശയ മനപതമന9 ഈ ത.റനധനര ന�ർമ�കനൻ 1 -ആയ പപത�ളയ തപപര�പ�ചത Benami Transaction prohibition Act - ള- fiduciary capacity യ�ൽ വര�ന ഒര� കകമനറവ�മന9 . യഥനർത��ൽ B പട�ക വഹകള� സയബന�ച 3 -ആയ പപത�യ�ളട തപര�ൽ ന�സനരമനയ വ�- കന9�ച ഒര� ക:ത:മ തരഖ ന�ര മ�ച�ട�ളതന9 . ഇത പപകനരയ 2 -ആയ പപത� 1 -ആയ പപത�ക പപത�ഫ-യ ളകനട�ക�കളയന വസ കകമനറയ ള�യ�കളയന ഉണനയ�ട�ല. 2 -ആയ പപത�ക യഥനർത��ൽ വഹകൾ യനളതനരനവശനവ�മ�ല. ഇത�ളആദനയയ എട�ക�നത�യ ഇതപനൾ 3 -ആയ പപത�യന9 . R.F.A. No.346 of 2014 & con. cases -: 21 :- ളതങ , വനഴ, കവ�ങ ത�ടങ�യ ഫ-വ:കങ��ള വഹക��ൽ ന�ന�യ ആദനയയ എട�ക�നത 1, 3 പപത�ക�ന9 . ഇത�ളനലനയ പ�റളമ A പട�ക വഹക��-ന9 1 -ആയ പപത�കവകനശളപട ഈർചമ�ല സ�ത�ള�യ�നത . ഈ ഈർചമ�ല�ന ളറ ക-സൻസ കകമനറയ ള�യ�കളയന 2 -ആയ പപത�ക ഈ ഈർചമ�ല നട��പര��യതമന ഇല. പപത�കൾ fraud practice ള�യ യ അനനനയകനളര തതനൽപ�ക9ളമന ഉത<ശ�ന-�യ ളരജ�സ തപടഷൻ ആകO�ത-യ�യ റ"ൾസ�ള-യ�യ വനവസകൾളകത�രനയ�യ എടവണപനറ സ.റ.ആ 2006 ള- 1244 -ആയ നമർ ആധനര പപകനരയ ഭ"മ� 1 -ആയ പപത� 2 -ആയ പപത�ക കകമനറയ ള�യ�കളയന പപത�ഫ-യ കകപറ�കതയന ഉണനയ�ട�ല. ത�കച�യ അനനനയകനർക ഈ വഹകൾ ക�ടര�ളതന ഒര� ദ�ര�ത<ശയ മനപതതമ ഉള". ഈ സനഹ�രന��ൽ തകനടത�യ�ൽ അനനനയയ തബനധ�പ�ക�കയലനളത മറ� മനര Qങ��ലനളത വന�ര�ക�ന�. 1 ഉയ, 3 ഉയ പപത�കൾ തമ�ൽ തനര�ട കകമനറയ ള�യ�നത ത�നദനയ ള�യളപട�യ എനത�നന-ന9 2 -ആയ പപത�യ�ളട തപര�ൽ ഇപപകനരയ ആധനരയ എഴ�ത�യ�ട�ളത . ഈ സനഹ�രന��ൽ ഈ ആധനരയ ന�യമപപകനരമ�ണനയ ആധനരമളലന�യ ളരജ�സ തപടഷൻ ആകO�ത-യ�യ QവളRന റ�ന ളറ ന�-വ�-�ള ന�യമങള�യ�യ ത�നദനയ ള�യ�ന9 ഈ കകമനറയ നടനളതന ബഹ�മനനളപട തകനടത�ളയ തബനധനളപട���വനൻ ഈ അനനനയയ തബനധ�പ�ക�നതന9 .” As noted, the plaint A schedule property is one that absolutely belonged to the first defendant. Since the first defendant was free to dispose of the property in any manner he likes, a transfer of the same cannot be impugned on the ground of R.F.A. No.346 of 2014 & con. cases -: 22 :- inadequate consideration. As seen from the extracted portion of the pleadings of the plaintiffs in the plaint, the plaintiffs allege at one place that it is a benami transaction and at another place, they allege that the transaction is a fraudulent one. In support of the case that it is a benami transaction, the plaintiffs also allege that notwithstanding the execution of Ext.A1 assignment deed, the first defendant continued to be in possession of the property. 25. Benami transaction is a transaction, in terms of which one person transfers right over a property to another for the consideration provided by a third party. The case on hand cannot therefore be considered as a benami transaction. Of course, if one transfers a property ostensibly to another without there being any intention to transfer the same, the transaction may amount to a sham transaction and in the case of a sham transaction, a suit could be filed claiming reliefs in respect of the property by a person who would have inherited the property, but for the transaction. As revealed from the extracted pleadings of the plaintiffs, the plaintiffs neither have such a case in the plaint nor have they adduced any evidence in that regard. On the other hand, the case pleaded by the plaintiffs is that the same is a fraudulent transaction created by R.F.A. No.346 of 2014 & con. cases -: 23 :- the first defendant to prevent the plaintiffs from claiming any right over the said property on his death. An absolute owner of a property cannot have any impediment in law in transferring the property to any person in any manner he likes for any consideration. Such transactions cannot be styled as fraudulent, even if the intention in effecting the transfer is for the purpose of preventing his legal representatives on his death from inheriting the same. That apart, the evidence tendered by PW1 in his chief-examination as regards the challenge against Ext.A1 would only show that there are suspicious circumstances surrounding the execution of Ext.A1. The relevant portion of the evidence tendered by the first plaintiff as PW1 in his chief-examination reads thus: “ഈ തകസ�ള- എ പട�ക വഹകള� സയബന�ച� ഒനനയ പപത� രണനയ പപത�യ�ളട തപര�ൽ ഒര� ക:പത�മ-കനയ എഴ�ത�യതനയ� കന9�നത ഈ ആധനര��ന�ള സനഹ�രനയ എനനള9തനന ആര�ളട ആവശനപപകനരമന9 ഈ ആധനരയ ന�ർമ�ചളതതനന യനളതനന�യ തളന വനകമല. ഈ വഹക��-�ള മരമ�ല�ന ളറ ക-സൻസ ഇതപനഴ�യ മര�ച ഒനനയ പപത�യ�ളട തപര�-ന9 . സനമനനനയ നലന�-യ�ൽ രനമനനട�കര സUകനരനപപനക റ.സ�ള ഈ തVനകOർ O.S.111/06 രണനയ പപത� ഈ മരമ�ല�യ മറ�യ വനങ�വനന�ള കര9ളമളനതനന ആധനരയ ളകനണ വനകമല.” R.F.A. No.346 of 2014 & con. cases -: 24 :- For the reasons aforementioned, we do not find any merit in the arguments advanced by the learned counsel concerning the claim of the first plaintiff over the plaint A schedule property as well. The appeals, in the circumstances, are devoid of merits and the same are, accordingly, dismissed. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** ds 08.02.2022