Aravinda Raja v. D. Aravindakshan & Aditya Rana

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932** **FAO.No. 102 of 2010() -------------------------------(OS.NO.1065/2007 OF PRINCIPAL SUB COURT, ERNAKULAM) ......** **APPELLANT (S): PLAINTIFF;** **--------------------------------------------** **ARAVINDA RAJA, S/O.LATE D.ARAVINDAKSHAN, AGED 42 YEARS, GEMINI, PRA-5, PADIVATTOM, EDAPALLY P.O., KOCHI-682 024.** **BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE, BY ADV. SRI. MOHAN PULICKAL, SRI.REJI GEORGE, SMT.AMRUTHA VIDYADHARAN.** **ADDL.DEFENDANT NO.2: RESPONDENT:** **-------------------------------------------------------------** **1. D.ARAVINDAKSHAN, S/O.LATE DAMODHARAN, AGED 71 YEARS, TC 44/1470, MONYVILA, SRIVARAHAM, MANACAUD P.O., THIRUVANANTHAPURAM (DIED).** **2. ADITYA RANA, MINOR, REPRESENTED GURADIAN S.DEEPA, W/O.ANIL ROY, AGED 35 YEARS, SREEDEEPAM, KOTTAPPURAM, PARAVUR P.O., RESIDING AT FLAT J-9B, ROYAL GARDENS, OPPOSITE MILMA DIARY, TRIPUNITHURA.** **R1 BY ADV. SRI.M.R.ANANDAKUTTAN R2 BY ADV. SRI. VARGHESE C.KURIAKOSE** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 102 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - **C.R.** Dated this the 2nd day of November, 2010. ## **JUDGMENT** ## Bhavadasan, J, The plaintiff in O.S. 1065 of 2007 before the Sub Court, Ernakulam, who suffered an order to have the plaint returned to him under Order 7 Rule 10(a) for presentation before the proper court, is the appellant. 2. Sri. Aravindakshan and Sudha Syamala had two sons, Aravinda Rana and Aravinda Raja. Aravinda Rana predeceased his parents and left behind his wife Deepa and son Adithya Rana. Sudha Syamala is also no more. 3. It appears that Sri. Aravindakshan gifted two items of property to the plaintiff in the suit as per gift deed No.25/2007 dated 5.1.2007 of Paravur Sub FAO.102/2010. 2 Registry. One of the items of the property had an extent of 2.80 Ares in Sy. No.310/12 situated in Kottappuram Village, Kollam Taluk. The second item had an extent of 4.96 Ares comprised in Sy. No.145/13A of Edappally South Village, Ernakulam. In pursuance to the gift, it is alleged that the properties were taken possession by the donee and he has effected mutation. Ever since then, the properties have been treated as his own by the donee. 4. According to the plaintiff, it came to his knowledge and notice that later Sri. D.Aravindakshan, the defendant in the suit, had executed document No.1047/2007 cancelling gift deed No.25/2007 in favour of the plaintiff in the suit. According to the plaintiff, the said cancellation had no effect in law and does not bind him at all. Since it casts a cloud on his title, it needs to be set aside. He therefore laid the suit for the following reliefs: FAO.102/2010. 3 _“a. To have Deed No.1047/2007 dated 16.5.2007 of Paravur Sub Registry adjudged void and cancelled_ . _b. To pass a decree for perpetual injunction against the defendant restraining him from dealing with the scheduled properties in any manner whatsoever on the basis of Deed No.1047/2007 dated 16.5.2007 of Paravur Sub Registry.”_ 5. Since one of the properties covered by the cancellation deed is in Ernakulam, the suit was laid before the Sub Court, Ernakulam. 6. In the suit, the defendant, Aravindakshan, entered appearance and filed his written statement. Initially, he did not raise a question regarding the territorial jurisdiction of the Ernakulam Sub Court to try the suit. Issues were raised on 18.6.2008 and the balance court fee was paid by the plaintiff. The defendant had filed I.A. 280 of 2008 under Order 18 Rule 16 of the Code of Civil Procedure for his examination at 4 FAO.102/2010. his residence by a commission. That was allowed and the evidence of Aravindakshan was also taken as D.W.1 on 29.6.2008. According to the plaintiff, thereafter Aravindakshan filed three interlocutory applications, namely, I.A. Nos. 7241 of 2008, 7242 of 2008 and 7243 of 2008. I.A. 7241 of 2008 was to consider and decide the question regarding the territorial jurisdiction of the Ernakulam Sub Court to entertain the suit. I.A. 7242 of 2008 was for raising an additional issue regarding jurisdiction. It so happened that the I.As were allowed even though counter affidavits were filed by the plaintiff. Later on Aravindakshan died and second additional defendant was brought on the party array. The second defendant being a minor, he was represented by his mother, who had remarried and had another child in that wedlock. At the instance of the defendants, I.A. challenging the jurisdiction of the Ernakulam Sub Court to try the case was posted for hearing. FAO.102/2010. 5 7. The main contention of the defendant seems to be that the suit is one under Section 31 of the Specific Relief Act and it has nothing to do with the property. It was contended on behalf of the defendant that the cancellation deed was executed and registered in the Paravur Sub Registry office, therefore the suit being one for cancellation of the deed, has to be filed in a court at Kollam. 8. The court below accepted the contention raised by the second defendant and directed return of the plaint. 9. Learned counsel for the appellant challenges the above order pointing out that the court below had not adverted to the law or the facts of the case in the proper perspective and that has resulted in miscarriage of justice. The court below ought to have noted that two other suits pending before the courts in Kollam were transferred to the Ernakulam Sub Court to FAO.102/2010. 6 be tried along with this suit pending in that court, since the issues involved were the same and the decision in one suit could have impact on the other. Learned counsel also pointed out that the additional defendant himself had filed a suit before the Ernakulam Sub Court in relation to the properties covered by the gift deed in favour of the plaintiff. Learned counsel went on to contend that the reasons given for directing return of plaint cannot be justified in law and the law applied is incorrect. Learned counsel drew the attention of this court to Sections 16 and 17 of the Code of Civil Procedure and pointed out that the suit as instituted is perfectly maintainable before the Sub Court, Ernakulam. 10. Per contra, learned counsel appearing for the respondents contended that the court below has applied the law correctly and has come to the right conclusion. According to learned counsel, the suit does not involve determination of any right regarding any FAO.102/2010. 7 immovable property, but is only concerned with the cancellation of the cancellation deed said to have been executed by D.Aravindakshan. Therefore, according to learned counsel, Sections 16 and 17 have no application and it is Section 20(c) of CPC which applies. In support of his contention, learned counsel relied on the decision reported in **Malabar Industrial Co. Ltd. v. John Anthraper** (1986 K.L.T. 409). 11. We are afraid we cannot agree with the contention taken by the respondents in this appeal. To appreciate this issue, some facts may be necessary. Two suits in relation to the very same properties involved in the present suit had been filed before the Munsiff's Court at Trivandurm and the Munsiff's Court at Paravur. O.S.222 of 2009 was filed before the Munsiff's Court, Trivandrum and O.S. 40 of 2009 before the Munsiff's Court, Paravur. According to the plaintiff in O.S. 1065 of 2007, those suits were based on a FAO.102/2010. 8 fabricated joint will said to have been executed by the late parents of the plaintiff in the suit. So also the second defendant had filed O.S. 218 of 2009 before the Ernakulam Sub Court challenging the validity of the gift in favour of the plaintiff in the suit. On a motion by the plaintiff by way of Tr.P(C) 83 of 2009, he sought transfer of the other two suits to Ernakulam Sub Court for joint trial with O.S. 1065 of 2007. The Division Bench of this court, after elaborately considering the matter, directed transfer of the case pending before the Munsiff's court, Trivandrum and Paravur to Sub Court, Ernakulam, where O.S. 1065 of 2007 was pending. 12. The court below seems to have been greatly impressed by the fact that the suit falls under Section 31(2) of the Specific Relief Act. According to the court below, since the cancellation deed was executed within the jurisdiction of the Paravur Sub Registry office and since the court at Ernakulam cannot issue a FAO.102/2010. 9 direction to that Sub Registry Office, the suit should have been filed before the courts at Kollam. The reasoning, to say the least, is perverse. 13. Obviously, the court below has not adverted to the reliefs sought for in the suit, which has already been extracted. As rightly pointed out by the learned counsel for the appellant, one fails to understand as to how the court below could have said that no right in relation to a property is the subject matter of adjudication in the suit. In saying so, the court below has omitted to note the second relief prayed for in the suit. Moreover, it cannot be disputed that the effect of cancelling the gift deed is that the property to which the plaintiff till then had title becomes defective. 14. Sections 16 and 17 of the CPC reads as follows: FAO.102/2010. 10 _“_ _**16. Suits to be instituted where subjectmatter situate** .- Subject to the pecuniary or other limitations prescribed by any law, suits-_ _(a) for the recovery of immovable property with or without rent or profits,_ _(b) for the partition of immovable property,_ _© for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,_ _(d) for the determination of any other right to or interest in immovable property,_ _(e) for compensation for wrong to immovable property,_ _(f) for the recovery of movable property actually under distraint or attachment,_ _shall be instituted in the Court within the local limits of whose jurisdiction the property is situate:_ _Provided that the suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court_ FAO.102/2010. 11 _within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain._ _**17. Suits for immovable property situate** .-_ _**within jurisdiction of different Courts** Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate:_ _Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such Court.”_ Section 20(c) reads as follows: _**“20. Other suits to be instituted where defendants resides or cause of action arises.-** Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-_ _............ .........._ FAO.102/2010. 12 _© the cause of action, wholly or in part, arises.”_ 15. In the decision reported in **Malabar Industrial Co. Ltd.'s case** (supra), a totally different issue was considered. The issue considered there was regarding the question of application of Section 16 proviso. In the said suit, though a right to immovable property was involved, it was seen that the decree that could be passed in the suit could be enforced by the personal obedience. It was held that it is not necessary that the suit should be laid in the place where the property was situated. It is not possible to understand how the principle laid down in the said decision can have any application to the present case. 16. Section 31 of the Specific Relief Act reads as follows: FAO.102/2010. 13 _“ .-_ _**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) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.”_ 17. On going through Section 31, it is not possible to understand the logic behind the decision of the court below that by virtue of Section 31(2) it could not be said that the Sub Court at Ernakulam can have jurisdiction to try the suit. It is extremely difficult to 14 FAO.102/2010. understand Section 31(2) as a provision conferring statutory power on any court. In short, the territorial jurisdiction of the court cannot be determined as per Section 31(2). 18. Now one may come back to Sections 16 and 17. These two provisions relate to suits claiming rights on an immovable property. Section 16 is very clear to the effect that in cases relating to immovable property, the suit shall be instituted within the limits of whose jurisdiction the property is situated. Section 17 deals with a situation where a suit is laid seeking relief respecting or compensation for wrong done to immovable property situate within the jurisdiction of different courts. Then the suit could be instituted in any court within the local limits of whose jurisdiction any portion of the property is situate. 19. The gift deed in favour of the plaintiff in the suit, document No.25/2007 takes in two properties, FAO.102/2010. 15 one of which is in the jurisdiction of the Ernakulam Sub Court. Deed No.1047 of 2007 cancels deed No.25/2007. Obviously, the result of the canellation is that the right of the plaintiff in the suit properties is affected. It is not possible to accept the contention raised by the learned counsel for the respondent that the present suit does not involve any right to immovable property and it is solely concerned with the cancellation of a registered document. 20. It is well settled that the fact that the document assailed throws a cloud on the title of the plaintiff is sufficient to justify a suit under Section 31. When the plaintiff has an apprehension that unless the document in question is set aside, it may be used against him in future, is sufficient to give him a cause of action. in the case on hand, if the cancellation deed is allowed to stand, that affects his title to the suit properties and therefore necessarily he has to get rid of FAO.102/2010. 16 that document, and that document relates to two items of properties covered by the gift deed in favour of the plaintiff, one of which is situate within the jurisdiction of Sub Court, Ernakulam. 21. In the decision reported in **Harshad Chiman Lal v. DLF Universal Ltd** . ((200) 7 SCC 791) the application of Sections 16 and 20 of the CPC was considered. It was held in the said decision that Section 20, since it is the residuary provision, can have application only if the case does not fall within the ambit of Sections 15 to 19 of the CPC. This, according to the decision, is clear from the opening words of Section 20, subject to the limitations imposed by the section. In the case on hand, going by the relief portion extracted in the beginning, it could be seen that the right to immovable property is involved. 22. Apart from the above fact, the court below ought to have noticed that suits, which were pending FAO.102/2010. 17 before the Trivandrum Sub Court and Kollam Sub Court were transferred to Sub Court, Ernakulam to be tried along with the suit involved in this proceedings. It is true that an observation in the order, which resulted in transfer of the two suits, as regards O.S. 1065 of 2007, the original court may decide the question of jurisdiction. 23. But unfortunately, we are constrained to observe that the said observation has been abused in this case. It is more shocking to see that the interest of the minor is sacrificed for prolonging the litigation. We are constrained to say so because apart from the fact that the minor himself has filed O.S. 218 of 2009 before the Sub Court, Ernakulam, it is disclosed that the minor, who is currently staying with her mother, also is residing at Ernakulam, i.e., all the parties are residing at Ernakulam. 24. One cannot omit to note that the issue was considered long after the evidence had commenced. FAO.102/2010. 18 The reasons given for ordering return of the plaint are totally unsustainable in law. In the result, we allow this appeal, set aside the impugned order and direct the court below to try and dispose of the suit in accordance with law and in the light of what have been stated above. Though we feel that exemplary costs should have been imposed on the respondents in this case, we refrain to do so since it affects the estate of the minor. Thottathil B. Radhakrishnan, Judge P. Bhavadasan, Judge sb.