Ammini v. Ramani and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL TUESDAY, THE 29TH DAY OF NOVEMBER 2016/8TH AGRAHAYANA, 1938 SA.No. 102 of 2002 (D) ----------------------- AGAINST THE JUDGMENT & DECREE DATED 17-08-2001 IN AS 43/2000 of PRL.SUB COURT,THRISSUR AGAINST THE JUDGMENT & DECREE DATED 31-07-1997 IN OS 784/1995 of III ADDL. MUNSIFF COURT, THRISSUR APPELLANT(S)/APPELLANT/PLAINTIFF: -------------------------------- AMMINI, AGED 68 YEARS,(DIED) W/O.PULIPARAMBIL CHENNANKUTTY, VENGINISSERY VILLAGE AND DESOM, THRISSUR TALUK, THRISSUR DISTRICT. ## SUPPLEMENTAL 2ND APPELLANT: P.C.GOPI @ MADHAVAN, AGED 56 YEARS, S/O. PULIPARAMBIL CHENNANKUTTY, RESIDING AT KANNAPPULLY HOUSE, PANANIYAM DESOM, PARALAM VILLAGE, THRISSUR TALUK, THRISSUR-680575. (LEGAL HEIR OF THE DECEASED SOLE APPELLANT IMPLEADED AS SUPPLEMENTAL 2ND APPELLANT AS PER ORDER DATED 12.8.13 IN IA 2118/13) BY ADVS. SRI.C.S.DIAS SRI.N.K.SUBRAMANIAN RESPONDENT(S)/RESPONDENTS NOS. 2 TO 5/LRS OF DECEASED DEFENDANT IN OS 784/95 : ------------------------------------------------------- 1. RAMANI, W/O.LATE KUNHAYYAPPAN, KUNNAPPULLY HOUSE, PANANIYAM DESOM, PARALAM VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. 2. VIJAYAN, S/O.LATE KUNHAYYAPPAN, KUNNAPPULLY HOUSE, PANANIYAM DESOM, PARALAM VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. 3. DASAN, S/O.LATE KUNHAYYAPPAN, KUNNAPPULLY HOUSE, PANANIYAM DESOM, PARALAM VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. .....2 SA.No. 102 of 2002 2 4. SUDHI (MINOR), S/O.LATE KUNHAYYAPPAN, KUNNAPPULLY HOUSE, PANANIYAM DESOM, PARALAM VILLAGE, THRISSUR DISTRICT, REP. BY HIS MOTHER AND GUARDIAN, RAMANI- 2ND RESPONDENT. R2 BY ADV. K.J.VARGHESE R3 BY ADV. SRI.DINESH MATHEW J.MURICKEN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29-112016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OKB ## K.HARILAL, J. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ S.A. No.102 of 2002 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 29[th] day of November, 2016 ## JUDGMENT ~ ~ ~ ~ ~ The appellant is the plaintiff in O.S.No.784/1995 on the files of the Munsiff's Court, Thrissur. The above suit was one for cancellation of Ext.A2 sale deed executed by the appellant in favour of the defendant. It is the case of the plaintiff that she had borrowed an amount of Rs.40,000/from the defendant in the year 1987 and she had been paying interest for the said amount to the defendant. When she approached the defendant, in the year 1991, for paying the entire balance interest, he insisted for execution of a mortgage deed as security for the loan transaction between the plaintiff and the defendant. Thus, at the instance of the defendant, she executed Ext.A2 sale deed on the belief that it was a mortgage deed only. In the year 1995, she sent a lawyer notice asking the defendant to receive the loan amount and in response to that notice the defendant sent a reply stating false allegations and from SA.102/02 **:2:** the reply she came to know that she had executed Ext.A2 sale deed under the impression that it was a mortgage deed. In that circumstance, she was constrained to file the aforesaid suit seeking cancellation of Ext.A2 sale deed. 2. Per contra, the defendant contended that the transaction under Ext.A2 was an absolute sale and the sale deed was executed after knowing fully well that it was a sale deed and not a mortgage deed as contended by the plaintiff. He had given sufficient consideration to Ext.A2 sale deed to the plaintiff. It is also contended that from 1980 onwards, the defendant is in exclusive possession and enjoyment of the plaint schedule property and he has been paying tax for the same from 1990 onwards. The plaintiff never borrowed any amount form the defendant and there was no occasion for the defendant to make a false document. 3. On the aforesaid rival pleadings, both parties adduced evidence consisting of oral testimony of PWs.1 to 4 and DWs.1 and 2, Exts.A1 to A6, B1 to B8 and C1. After SA.102/02 **:3:** considering the evidence on record, the trial court dismissed the suit. In appeal, the appellate court also confirmed the findings of the trial court and dismissed the appeal. The concurrent findings whereby the courts below rejected the case of the appellant/defendant are under challenge in this Regular Second Appeal. 4. Heard the learned counsel for the appellant and the learned counsel for the respondents. 5. Though this appeal is filed on various grounds challenging the findings whereby the courts below rejected the case of the plaintiff, the substantial question of law framed for consideration in this appeal is that whether the courts below are justified in finding that the valuation and court fee paid are not correct. 6. Going by the judgment passed by the trial court, the trial court considered the issue whether the valuation and court fee paid are correct or not. The plaintiff has valued the property for Rs.6,000/- and paid the court fee for the same. But the defendant contended that the valuation is not correct and the court fee paid is not SA.102/02 **:4:** sufficient as the plaintiff herself in her plaint admitted that the property would fetch a market value of Rs.50,000/-. According to the defendant, the present market value will come to Rs.30,000/-. Therefore, the defendant contended that the court fee should have been paid at Rs.30,000/-. After considering the decisions laid down by this Court in Krishnan Damodaran v. Padmanabhan Parvathy [1972 KLT 774] and in [1996 (2) KLT 161] the court below found that for cancellation of document, the valuation of the property should be on the market value of the property on the date of filing the suit. According to the plaintiff, the market value of the property is Rs.6,000/- and according to the defendant the market value will come to Rs.30,000/-. The courts below found that any how the market value of the property will come to Rs.30,000/- or more and the court fee paid is only Rs.6.000/-. Thus, the court fee paid is not sufficient. The said finding was upheld by the appellate court in appeal also. 7. The learned counsel for the respondent fairly SA.102/02 **:5:** cited Satheedevi v. Prasanna and Another [2010 (2) KLT 475] and submits that the aforesaid issue now stands settled by the Apex Court overruling the decisions rendered by this Court earlier. Going by the decision in Satheedevi 's case (supra), it is seen that the Apex Court had overruled Krishnan Damodaran v. Padmanabhan Parvathy [1972 KLT 774], P.K.Vasudeva Rao v. Hari Menon [1981 KLT 763], Pachayammal v. Dwaraswamy Pillai [2006 (3) KLT 527], Appikunju Meerasayu v. Meeran Pillai [1964 KLT 895], Uma Antherjanam v. Govindaru Namboodiripad and Others [1966 KLT 1046] and Smt.Narbada v. Smt.Aashi [AIR 1987 Rajasthan 162]. In the above decision, the Apex Court held that for cancellation of decrees, documents, sale deed etc. the court fee payable is the value shown in the document and not the market value of the property. Therefore it can be concluded that the court fee paid by the plaintiff in the suit is correct and the courts below went wrong by finding that the court fee paid is insufficient. Thus, the suit is maintainable before the trial court also. Thus, the substantial question of law framed in this Appeal is SA.102/02 **:6:** ## answered accordingly. 8. Even though the suit was maintainable, the main point, whether there are sufficient pleadings and evidence on record to conclude that Ext.A2 was obtained by the defendant by misappropriation, was found against the plaintiff. The courts below meticulously considered the above point, on the basis of the pleadings and evidence. After analysing the pleadings the courts below found that there is no pleading as mandated under Order 6 Rule 4 of the C.P.C. On a perusal of the averments in the plaint, this Court also concurs with the above finding of the courts below. 9. Coming to evidence, the trial court meticulously evaluated the evidence consisting of the oral testimony of P.Ws.1 to 4, D.Ws.1 and 2, Exts.A1 to A6, B1 to B8 and C1 and arrived at a finding that Ext.A2 sale deed was executed without any kind of misrepresentation as alleged by the plaintiff. Being a Regular Second Appeal this Court is not inclined to reappreciate the aforesaid evidence. In the absence of any kind of perversity, I do not find any reason SA.102/02 **:7:** to interfere with such finding. No other question of law arises for consideration. Thus, this Appeal is devoid of merits. Hence this Regular Second Appeal is dismissed. All pending interlocutory applications will stand closed. Sd/K.HARILAL, Judge. okb