Ammini Kuruvila and others v. Kunjumol Charly and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 16[TH] DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943 FAO (RO) NO. 7 OF 2020** **AGAINST THE JUDGMENT DATED 3/12/2019 IN AS 193/2015 OF DISTRICT COURT, ERNAKULAM JUDGMENT AND DECREE DATED 11/09/2015 IN O.S.NO.140/2011 OF SUB COURT, MUVATTUPUZHA** **APPELLANTS/RESPONDENTS 1 TO 5 IN A.S.NO.193/2015/DEFENDANTS 1 TO 5 IN O.S.NO.140/2011:** 1 AMMINI KURUVILA, AGED 78 YEARS W/O.LATE A.P.KURUVILA, ANACHIRA HOUSE, KOTHAMANGALAM, ERNAKULAM DISTRICT-686691 2 SAJI KURUVILA @ SAJI BAIJU AGED 56 YEARS D/O.LATE A.P.KURUVILA AND W/O.BAIJU PAUL, ANACHIRA HOUSE, KOTHAMANGALAM, ERNAKULAM DISTRICT-686691, REP BY BROTHER AND POWER OF ATTORNEY HOLDER BIJI A. KURUVILA, ANACHIRA HOUSE, KOTHAMANGALAM, ERNAKULAM DISTRICT686691 3 SUJI KURUVILA @ SUJI ITTAN AGED 52 YEARS D/O.LATE A.P. KURUVILA AND W/O.M.G.ITTAN ANACHIRA HOUSE, KOTHAMANGALAM, ERNAKULAM DISTRICT-686691, REP BY BROTHER AND POWER OF ATTORNEY HOLDER BIJI A KURUVILA, ANACHIRA HOUSE, KOTHAMANGALAM, ERNAKULAM DISTRICT686691 4 AGI KURUVILA AGED 52 YEARS D/O.LATE A.P. KURUVILA AND W/O. CHERIAN JOSEPH, ANACHIRA HOUSE, KOTHAMANGALAM, ERNAKULAM DISTRICT686691, REP BY BROTHER AND POWER OF ATTORNEY HOLDER BIJI A KURUVILA, ANACHIRA HOUSE, KOTHAMANGALAM, ERNAKULAM DISTRICT-686691 5 BIJI A KURUVILA AGED 46 YEARS S/O.A.P.KURUVILA, ANACHIRA HOUSE, KOTHAMANGALAM, ERNAKULAM DISTRICT-686691 ## **FAO (RO) NO. 7 OF 2020 2** BY ADVS. M.P.RAMNATH SRI.P.RAJESH (KOTTAKKAL) SMT.S.SANDHYA SRI.BEPIN PAUL SRI.SHALU VARGHESE SRI.S.DEEPAK SRI.ANTONY THARIAN ## **RESPONDENTS/APPELLANTS & RESPONDENTS 6 TO 16 IN** ## **A.S.NO.193/2015/PLAINTIFFS & DEFENDANTS 6 TO 13 IN** ## **O.S.NO.140/2011:** 1 KUNJUMOL CHARLY, AGED 72 YEARS D/O. ANNAMMA PAULOSE, RESIDING AT PUTHURAN, TC 12/44 PATTOM VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT-695004 2 VALSA JOY AGED 64 YEARS RESIDING AT KOCHERRY HOUSE, IRINGOLE.P.O, PERUMBAVOOR683542 3 DR JOHN GEORGE EMMATTY AGED 71 YEARS RESIDING AT EMMATTY HOUSE, 6/23 LURDPURAM ROAD, THRISSUR-680005 4 BABU KURUVILA AGED 65 YEARS S/O.KURUVILA, ERANDAKKA THOTTATHIL, KADATHY.P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT 5 MERCY KURUVILA AGED 63 YEARS D/O.KURUVILA, ERANDAKKA THOTTATHIL, KADATHY.P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT 6 SHABU KURUVILA AGED 62 YEARS S/O.KURUVILA, ERANDAKKA THOTTATHIL, KADATHY.P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT 7 SHEEJA KURUVILA, AGED 55 YEARS D/O.KURUVILA, ERANDAKKA THOTTATHIL, ## **FAO (RO) NO. 7 OF 2020 3** KADATHY.P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN-686673 8 VALSA GEORGE,AGED 75 YEARS W/O.GEORGE A PAULOSE, ANACHIRA HOUSE, NELLIKUZHI.P.O, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN-686691 9 ANU GEORGE,AGED 55 YEARS D/O.GEORGE, ANACHIRA HOUSE, NELLIKUZHI.P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN-686691 10 SUNU GEORGE,AGED 53 YEARS D/O.GEORGE, ANACHIRA HOUSE, NELLIKUZHI.P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN-686691 11 GINU GEORGE AGED 51 YEARS S/O.GEORGE, ANACHIRA HOUSE, NELLIKUZHI.P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN-686691 12 ANNICE ANIL AGED 62 YEARS RESIDING AT PALATHINKAL HOUSE, M9 DEEPTHI NAGAR 2ND STREET, MUTTAMBALAM.P.O., KOTTAYAM 13 GUGU GEORGE,AGED 43 YEARS RESIDING AT EMMATTY HOUSE, 6/23 LURDPURAM ROAD, THRISSUR-680005 14 GULA GEORGE,AGED 39 YEARS RESIDING AT EMMATTY HOUSE, 6/23 LURDPURAM ROAD, THRISSUR-680005 R1, R2, R3 & R12 BY ADVS. SRI.G.P.SHINOD SRI.GOVIND PADMANAABHAN SHRI.AJIT G ANJARLEKAR SRI.SHINDO VARGHESE FOR R8, R10 & R11 THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 16.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **FAO (RO) NO. 7 OF 2020 4** **CR** ## **JUDGMENT** A suit for partition was dismissed by the trial court on the ground that Ext.A3 gift deed and Ext.A4 sale deed are invalid. Ext.A4 sale deed is of the year 1981 (9.7.1981) and the prior document, Ext.A3 gift deed is of the year 1969 (29.12.1969). The plaintiffs claims that their predecessor-in-interest Annamma Paulose obtained the property by virtue of Ext.A4 sale deed based on an earlier document of gift, Ext.A3. The contention of the defendants is that Ext.A3 gift deed is _ab initio_ void and never came into effect and as such, the sale deed executed based on Ext.A3 gift deed has no legal validity. 2. Indisputably, no suit for setting aside Ext.A3 gift deed and subsequent sale deed was filed at any point of time within the period of limitation or till date. Even in the present suit, no counter claim was raised for any relief of declaration, ## **FAO (RO) NO. 7 OF 2020 5** except a contention that Ext.A3 gift deed is invalid and not came into effect due to non-compliance of requirement of attestation by two witnesses as mandated under Section 123 of the Transfer of Property Act. 3. The trial court accepted the contention raised by the defendants and found that both Exts.A3 gift deed and Ext.A4 sale deed are invalid and dismissed the suit for partition without a counter claim for the said relief, that too, overlooking the period of limitation. The first appellate court went along with the trial court and committed the very same mistake and found that there is no valid gift deed as claimed under Ext.A3 and as such, the subsequent sale under Ext.A4 is also invalid, but remanded the case back to the trial court to address the genuineness of Ext.B8 Will of the year 1983, against which the plaintiffs came up in appeal. The essential questions came up for consideration are: (1)Whether a registered deed of gift and subsequent deed of sale can be ## **FAO (RO) NO. 7 OF 2020 6** avoided under Section 123 of the Transfer of Property Act without the intervention of a competent court? (2) What would be the legal position when the document of gift appears to be signed by two attesting witnesses? (3) What would be the legal effect of a registered sale deed of the property covered by an earlier gift deed, if it was allowed to continue for a long period more than the period of limitation without any challenge and what would be legal effect of the delivery of possession of property effected in furtherance of the deed of sale, even if the prior title deed, the gift was found to be invalid? (4) Whether the trial court and the first appellate court are justified in concluding that both the documents are invalid overlooking the period of limitation, that too, without a properly instituted suit? 4. It is a suit for partition of the year 2011, wherein no counter claim was raised challenging ## **FAO (RO) NO. 7 OF 2020 7** the validity of either Ext.A3 gift deed of the year 1969 or the subsequent sale of the year 1981 (Ext.A4). But both the documents were allowed to continue without a suit instituted for either setting aside those documents or its cancellation or for a declaration, for a period of more than 40 years (as on the date of present suit). No challenge was raised against the gift deed or its validity at any point of time on the abovesaid alleged ground of noncompliance of mandate under Section 123 of the Transfer of Property Act. It is so unfortunate that in the present suit also, no such relief was raised by way of counter claim or no separate suit was filed in that behalf. But both the courts below entered into a finding in a simple suit for partition that the abovesaid two documents are invalid. 5. In order to execute a valid gift deed, there should be two attesting witnesses. In Ext.A3, there are two attesting witnesses. Even a persual of the said document would clearly show that there are two ## **FAO (RO) NO. 7 OF 2020 8** attesting witnesses to the document. The contention raised by the defendants is that one among them is a scribe and not an attesting witness. It is not the number of attesting witnesses, which is under challenge, but the status of one of the witnesses, who according to the defendants, is only a scribe and not an attesting witness. A document of gift having only one attesting witness would be void _ab initio_ , but when there are atleast two attesting witnesses to the document, the document would not stand as _ab initio_ void on the ground that one among the witnesses did not possess the required _animus_ _testandi_ . A deed of gift having only one witness would be void _ab initio_ and a nullity in its very inception, but a deed of gift having two witnesses would not by itself stand _ab initio_ void or a nullity in its very inception on the ground that one among the attesting witnesses did not possess the required _animus testandi_ , for which there should be an adjudication in a properly instituted suit for ## **FAO (RO) NO. 7 OF 2020 9** declaration. There are lot of differences between a document which is ab initio void or nullity in its very inception, which can be either avoided or ignored by the parties without the intervention of a competent court from that of a voidable document at the option of any of the parties to which adjudication by a competent court is an indispensable requirement and in the absence of a properly instituted suit within the permissible period of limitation, the document would stand valid and legal. 6. The document involved in the instant case is not a deed of gift having only one witness to its execution, but the dispute is only with respect to the status of the second witness, who according to the plaintiffs, is only a scribe and not an attesting witness, for which, no suit for declaration was filed within the period of limitation, but allowed the document to continue without any challenge for a period of more than 40 years as on the date of present suit and now more or less 52 years elapsed. ## **FAO (RO) NO. 7 OF 2020 10** When the document appears to have been executed with two attesting witnesses, it cannot be avoided or ignored without the intervention of court and without adjudication of the disputed status of the witnesses, for which, necessarily there should be a suit for declaration. The said question cannot be agitated or adjudicated in a suit for simple partition,unless there is a properly instituted suit or counter claim for declaratory relief in that behalf. Both the courts below hence committed a very serious mistake by adjudicating the said issue, which was not available in that suit. 7. Further, the status of two witnesses to the document has been given in the document by giving serial numbers 1 and 2 under the caption “witnesses”. This would show that the word “witnesses” was incorporated referring to both the witnesses shown under that caption. One among the attesting witnesses may be a document writer or a scribe and there is no legal impediment for any scribe or a document writer ## **FAO (RO) NO. 7 OF 2020 11** to stand as an attesting witness and there is no wrong in subscribing their special status either as a scribe or as a document writer. The legal position would be different when one person alone is signed as a witness to the document and other one signed in a different capacity of scribe, document writer or in any other capacity in the document, but when there is more than one witness and they were brought together under one caption “witnesses to the document” by giving serial numbers 1,2, 3 and so on, it would appear that they have subscribed their signature as attesting witnesses to the document, though one among them had shown his special status of a scribe or a document writer. In the latter case, the document would not stand _ab initio_ void or null in its very inception, but would be voidable at the option of the party concerned, for which there should be a properly instituted suit for its adjudication. Then it is a matter of rule of evidence and interpretation and construction of document. Necessarily, there should ## **FAO (RO) NO. 7 OF 2020 12** be adjudication on the disputed issue by a competent court in a properly instituted suit within the period of limitation, for which, an extended period of 12 years will be available under Article 65 of the Limitation Act as laid down by this Court in ## **Gopakumar and Others v. Kamalakshy Purushothaman and Others (2019(3)KHC 478).** 8. Yet another serious mistake committed by the first appellate court and the trial court is well evident from the fact that the alleged status of the attesting witnesses was taken into consideration after the lapse of more or less 42 years, that too, after the death of both the attesting witnesses. The lapse of more than 42 years and the death of both the attesting witnesses by that time were not even addressed. It is so unfortunate that both the trial court and the first appellate court failed to consider the legal impact of Section 90 of the Evidence Act, which is extracted below for reference: **FAO (RO) NO. 7 OF 2020 13** ## “ **9** _**0. Presumption as to**_ ## _**documents thirty years old**_ _Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested._ _**Explanation –** Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin, probable._ _This explanation applies also to section 81.”_ 9. Where a document is more than 30 years old or an ancient document, there is a presumption that it is genuine and had been executed by the person, who appeared on the face of it have executed it and it would imply that the persons who had subscribed their signature on their behalf had the authority except ## **FAO (RO) NO. 7 OF 2020 14** the authority based on any agency. Such a presumption is available in the case of attestation also by virtue of Section 90 of the Evidence Act. The presumption available is that it was duly executed and attested by the person by whom it purports to have been executed and attested. But at the same time, such presumption cannot be extended when the document itself is signed by an agent and not by the testator, wherein the presumption under Section 90 cannot be extended so as to prove the agency and cannot be substituted in the place of proof that he was the duly authorised agent to execute the document. The legal position is very much settled by a Three Judge Bench of the Apex Court in **Harihar** **Prasad Singh and another v. Deonarain Prasad and** **others ( AIR 1956 SC 305)** . Further, the question of fraud, undue influence, coercion etc. in connection with the execution of a document would also stand outside the purview of Section 90 of Evidence Act, but the burden lies on the caveator (see Bharpur ## **FAO (RO) NO. 7 OF 2020 15** Singh and Ors. v. Shamsher Singh AIR 2009 SC 1766). But the instant case is standing on a different footing since the document under challenge is not a Will or Codicil, though it is a document required by law to be attested and there is no necessity to call for any one of the attesting witnesses in proof of execution, and as such, the parties are not governed by either Section 69 or 71 of the Evidence Act, except in a case wherein the due execution of the document brought under challenge by the person, who purported to have executed the document. Necessarily, both the trial court and the first appellate court ought to have considered the application of Section 90 of the Evidence Act especially in view of the death of both the attesting witnesses and the lapse of more than 42 years and unless there is evidence to rebut the presumption, the court is always justified in drawing a presumption that the document is properly attested by two witnesses signed in the document. ## **FAO (RO) NO. 7 OF 2020 16** 10. The fact that the gift deed was acted upon by exercising the right and ownership over the property by executing a registered deed of transfer by way of sale in the year 1981 was also overlooked by both the courts below. Till that time, nobody came up with any suit challenging its validity and by that time, a period of 12 years elapsed. The possession of property given under the gift deed and under the subsequent sale deed and its legal consequences was also not addressed. 11. The sale deed, Ext.A4, was executed in the year 1981 by the donee under Ext.A3 gift deed. It is a registered sale deed. No relief of setting aside the sale deed and no relief of declaration sought by the defendants in the suit either by way of counter claim or by way of separate suit and the time available for setting aside the document or for declaration stood hopelessly barred even as on the date of suit of partition. The legal impact of a registered sale deed was not even discussed anywhere ## **FAO (RO) NO. 7 OF 2020 17** in the impugned judgment by both the courts below, though it is a sale deed of the year 1981 duly executed by the donee under Ext.A3 gift deed of the year 1969. When delivery of possession was effected in furtherance of the sale deed, it would amount to notice to all concerned. 12. There is no much dispute with respect to the fractional interest entitled by the parties, when it was found to be partible and left out by their predecessor-in-interest Annamma Paulose. The court below ought to have passed a preliminary decree by allowing partition by metes and bounds and separation of 1/7[th] share each to the plaintiffs 1 to 3 and 1/7[th] share jointly to plaintiffs 4 to 6 in the suit. It is well within the jurisdiction of this court to pass a preliminary decree without ordering further remand and hence, a preliminary decree for partition of 1/7[th] share each to the plaintiffs 1 to 3 and 1/7[th] share jointly to plaintiffs 4 to 6 by metes and bounds is hereby granted. The parties shall apply for passing **FAO (RO) NO. 7 OF 2020 18** final decree within 90 days before the trial court and the suit will stand adjourned sine die. The appeal will stand allowed accordingly. Sd/- **P.SOMARAJAN** **JUDGE** sv