A.S Nos.108 of 1997 & 258 of 1997

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 20TH DAY OF MARCH 2017/29TH PHALGUNA, 1938** ## **AS.No. 108 of 1997 (E)** ## **-----------------------** ## **AGAINST THE JUDGMENT AND DECREE IN OS.372/1992 of PRINCIPAL SUB COURT,NORTH PARAVUR DATED 29-11-1995 APPELLANTS/PLAINTIFFS 2 TO 5:** **-----------------------------** **1. MATHAI, S/O YACOB,SON OF YACOB, MOOKKANAMCHERI, IRINGOLE, PERUMBAVOOR VILLAGE.** **2. SALI, D/O YACOB, -DO- -DO-** **3. ANI, D/O YACOB, -DO- -DO-** **4. ELIAMMA, W/O YACOB, -DO- -DO-** **BY ADV. SRI.DINESH R.SHENOY** **RESPONDENTS/(PLAINTIFF & DEFENDANTS 5 AND 6) -----------------------------------** **1. THOMAS, S/O PAILY, KULAPPURAM, KEEZHILLAM KARA, RAYAMANGALAM VILLAGE (DIED)** **2. BABY, S/O SARAMMA, KUNNATHU VEETTIL, KEEZHILLAM KARA, RAYAMANGALAM VILLAGE.** **3. K.I MARY, D/O SARAMMA, KUNNATHU VEETTIL, THRIKKALANGOOR KARA, MULAVOOR VILLAGE.** - **ADDL.R4. BABU K THOMAS, KOLLAPPURAM, KEEZHILLAM KARA(P.O), RAYAMANGALAM VILLAGE.** **5. ROY K THOMAS, -DO- -DO-** **6. BIJU K THOMAS, -DO- -DO-** **7. BINDU K THOMAS, -DO- -DO-** **8. TEENA BABY, MAMBAKKAT HOUSE, IRAPURAM (P.O), MUZHUVANNOOR.** **9. ANNAMMA, W/O THOMAS, KULAPPURAM, KEEZHILLAM KARA, RAYAMANGALAM VILLAGE,** **R1 BY ADV. SRI.N.D.PREMACHANDRAN R4-R8 BY ADV. SRI.JOHN K GEORGE ADV. SRI. K.S.ARUN KUMAR ADV.SRI.S.SREEDEV** **AS.No. 108 of 1997 (E)** **-----------------------2-** **LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 4 TO 8 AS PER ORDER DATED 20.3.2013 IN I.A 2128/2010.** **LEGAL HEIR OF DECEASED 1ST RESPONDENT IS IMPLEADED AS ADDITIONAL 9TH RESPONDENT VIDE ORDER DATED 2.2.2017 IN I.A 499/2016.** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 27-02-2017, ALONG WITH AS. 258/1997, CMC. 16/1997, THE COURT ON 20.03.2017 DELIVERED THE FOLLOWING:** **'C.R'** ## **V.Chitambaresh & Sathish Ninan, JJ.** **============================== A.S Nos.108 of 1997 & 258 of 1997 ========================== Dated this the 20[th] day of March, 2017** ## **JUDGMENT** ## **Sathish Ninan, J** 1. These appeals arise from the common judgment in a suit for declaration and a suit for partition. A.S No.258 of 1997 is filed by the plaintiffs, challenging the dismissal of O.S.No.28 of 1994 which is for a declaration that Ext.A1 gift deed is void and for recovery of possession. A.S.No.108 of 1997 is filed by the very same appellants challenging the decree and judgment in O.S.No.372 of 1992 which is a suit for partition in which they are defendants. 2. The plaint schedule property originally belonged to Mathai, the predecessor in interest of the plaintiffs in O.S.No.28 of 1994. As per Ext.A1 gift deed, the property was gifted by him to one Thomas and Saramma. The said Thomas and the legal heirs of Saramma are the defendants in O.S.No.28 of 1994. On the allegation A.S Nos.108/1997 &258/1997 2 that the said Mathai was fraudulently caused to execute Ext.A1 gift deed by the said donees making him believe that he was executing a deed cancelling a will, the said O.S No.28 of 1994 is filed by Yacob son of the said Mathai, challenging Ext.A1 gift and seeking a declaration that it is void. There is a further relief of recovery of possession from the defendants. The suit was originally filed on 16.12.1988 as P.O.P.11 of 1988 before the Munsiff's Court, Perumbavoor which was later numbered as O.S.16 of 1990 and thereafter transferred to Sub Court, Perumbavoor and renumbered as O.S.28 of 1994. Saramma, the second defendant in the suit died pending the proceedings and her children were impleaded as additional defendants 3 and 4. Pending suit, on 21.12.1991 they executed Ext.A6 release deed in favour of the legal heirs of Yacob the son of Mathai who are plaintiffs 2 to 5 in O.S No.28 of 1994, since Yacob A.S Nos.108/1997 &258/1997 3 the son of Mathai who was the 1[st] plaintiff in O.S.28 of 1998 died pending the suit, releasing whatever rights the said Saramma had obtained under Ext.A1 in their favour. O.S No.372 of 1992 is filed by Thomas the other donee under Ext.A1 gift claiming partition of his ½ share over the properties on the strength of Ext.A1 gift deed. 3. The court below upheld the validity of Ext.A1 gift deed and consequently dismissed O.S No.28 of 1994; a preliminary decree for partition is passed in O.S No.372 of 1992. The said judgment is assailed in these appeals. 4. The dispute in the suits centers around the genuineness of Ext.A1 gift deed dated 15.12.1983 executed by Mathai to Thomas and Saramma. For the sake of convenience, the person who assails the gift is referred to as 'plaintiff' and Thomas, one of the donees who supports the gift is referred to as A.S Nos.108/1997 &258/1997 4 'defendant'. The contention of the plaintiff is that the gift deed is void since the executant, his father, was caused to sign that document on the impression that he is executing a cancellation deed, cancelling Ext.A2 will executed by him on 10.10.1983. The contention of the defendant is that the challenge against the document is highly belated and it is barred by limitation in terms of Article 59 of the Limitation Act. 5. Essentially the contention of the plaintiff is that there has been misrepresentation as to the character of Ext.A1 document. Law is well settled that a document caused to be executed by misrepresentation as to the character of the document is void (See **Ningawa** - **v. Byrappa Shiddppa Hireknrabar and Others** (AIR 1968 SC 956) **, Smt.Bismillah v. Janeshwar Prasad and Others** ([1990] 1 SCC 207) **, Dularia Devi v. Janardan Singh and Others** (AIR 1990 Suppl. SCC 216) **and Prem Singh and** A.S Nos.108/1997 &258/1997 5 ## **Others v. Birbal and Others** ([2006] 5 SCC 353). If it is found that Ext.A1 is vitiated by misrepresentation as to the very character of the document, then, as noticed above, the document is void. The plaintiff need not seek for setting aside the same. Here, the suit is one for recovery of possession contending that Ext.A1 is void. Though there is a prayer for a declaration that Ext.A1 is void, since the document is under law, void, all that the plaintiff need to seek for is the prayer for recovery of possession. The suit is governed by Article 65 of the Limitation Act and it cannot be held that the suit is barred by limitation. 6. The learned counsel for the defendant would contend that the suit challenging Ext.A1 gift deed is barred by resjudicata in view of Ext.A5 judgment passed in O.S No.129 of 1985 which was confirmed in Ext.B16 appeal. According to him, though the suit which culminated in Ext.A5 judgment was one for injunction A.S Nos.108/1997 &258/1997 6 simplicitor, an issue was raised therein regarding the validity of the gift deed and that since a finding has been entered into therein upholding the validity of the gift, the challenge against Ext.A1 raised in the present suit is barred by re _s judicata_ . No doubt, the proposition of law urged by the learned counsel is correct. Even if the earlier suit be one for injunction simplicitor, if an issue on title was raised and decided therein, the same operates as _res judicata_ in the subsequent suit on title ( **Sulochana Amma v. Narayanan Nair** ([1994] 2 SCC 14) and **Ramachandra Dagudu Sanavane (Dead) by Lrs. and Others v. Vidhu Hira Mahar (Dead) by Lrs. and Others** ([2009] 10 SCC 273). The learned counsel for the plaintiff would submit that in Ext.A5 judgment, the right of the plaintiff to agitate regarding the validity of the gift deed in a separate suit was specifically left open and hence the bar of _res judicata_ will not apply. A.S Nos.108/1997 &258/1997 7 As could be noticed, though in Ext.A5 judgment the trial court after entering a finding as to the validity of the gift deed observed that right of the parties to establish title on the strength of the gift deed is left open, on appeal, the appellate court proceeded to consider the validity and genuineness of the gift deed afresh on evaluation of the entire evidence and as per Ext.B16 judgment entered into a finding upholding the gift. The appellate court in its judgment did not leave open a further right to agitate afresh the issue of validity of the gift deed. It would be more appropriate to mention that nothing was stated about the observation made by the trial court which purported to leave open the right to challenge the validity of the gift afresh. The question would be, would the said observation made by the trial court survive after the passing of the appellate court judgment. The answer centers around the principle of A.S Nos.108/1997 &258/1997 8 merger. It has been the subject of deliberations in umpteen number of judgments of the Apex Court. - 7.The doctrine of merger has been explained in Corpus Juris Secundum, Vol.LVII, pp.1067-68, thus: “To merge” means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality.” ## 8. In **S.Shanmughavel Nadar v. State of T.N. and Another** ([2002] 8 SCC 361) the Apex Court has observed that on confirmation, reversal or modification of the judgment of a lower forum by a superior forum, the operative part, i.e., the mandate or decree merges. When the superior forum confirms the judgment for different reasons than the one assigned by the lower forum, what merges is the operative part of the order and not the A.S Nos.108/1997 &258/1997 9 reasoning of the subordinate forum. It was further observed that in certain cases the reasons for decision can also be said to have been merged if the appellate forum either adopted, reiterated or recorded an express approval of the reasoning of the lower forum. ## 9. In P.Ramanatha Aiyar's Law Lexicon, 4[th] Edn., Page 3044 it is explained thus: “ The word 'merger' generally is defined as absorption of a thing of less importance by a greater, whereby the lesses ceases to exist but the greater is not increased and rights are said to be merged when the same person who is bound to pay, is also entitled to receive.” ## 10. When there is a complete merger, the judgment of the inferior court practically gets effaced and what survives is only the judgment in appeal. It would be apt to refer to the observations of the Apex Court in **Amba Bai and Others v. Gopal and Others** ([2001] 5 SCC A.S Nos.108/1997 &258/1997 10 ## 570 - paragraph 11). 11. “11. If the judgment or order of an inferior court is subjected to an appeal or revision by the superior court and in such proceedings the order or judgment is passed by the superior curt determining the rights of parties, it would supersede the order or judgment passed by the inferior court. The juristic justification for such doctrine of merger is based on the common law principle that there cannot be, at one and the same, more than one operative portion governing the subject matter and the judgment of the inferior court is deemed to lose its identity and merges with the judgment of the superior court. In the course of time, this concept which was originally restricted to appellate decrees on the ground that an appeal is continuation of the suit, came to be gradually extended to other proceedings like revisions and even the proceedings before quasi-judicial and executive authorities.” 12. As observed by the Apex Court, there could not be more than one operative orders governing the subject matter at one and the same time. It is only the A.S Nos.108/1997 &258/1997 11 judgment in appeal into which the trial court judgment has sunk into, that survives. In **Gandhara Palo v. Revenue Divisional Officer and Another** ([2011] 4 SCC 602), it has been held that once the judgment of the lower court merges into the judgment of the Apex Court, after merger there is no judgment of the lower court in existence. In **Commissioner of Income-Tax, Bombay v. M/s.Amirtlal Bhogilal and Co.** (AIR 1958 SC 868) it was observed that there could be no doubt that once an appellate court modifies or reverses the decision of the original authority, it is obvious that it is the order of the appellate authority that would be effective, and then the question was posed as to what could be the effect if the appellate authority merely confirms the decision of the lower authority. The Apex Court held that on affirmation of the decision by the appellate authority, the original decision merges in the appellate decision and the A.S Nos.108/1997 &258/1997 12 appellate decision alone subsists and operates. However, that part of the order of the original authority which did not form the subject matter of the appeal before the appellate authority could not be said to have been effaced by the principal of merger. In **State of Madras v. Madurai Mills Co. Ltd.** (AIR 1967 SC 681) the Apex Court has held that the doctrine of merger is not a doctrine of rigid and universal application and cannot be said that wherever there are two orders, one by the inferior Tribunal and the other by the superior Tribunal passed in appeal or revision, there is fusion or merger of two orders irrespective of the subject matter of appellate or revisional order and the scope of the appeal or revision contemplated by a particular statute. In **Kunhaymmed and Others v. State of Kerala and Another** ([2000] 6 SCC 359) after elaborate consideration on the issue of merger, the Apex Court in paragraph 44 of the judgment has A.S Nos.108/1997 &258/1997 13 formulated various principles; the ones which are relevant for the present lis are extracted hereunder: “44. To sum up our conclusions are: (i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law. (ii) ......... (iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution, the Supreme Court may reverse, modify or affirm the judgment decree or order A.S Nos.108/1997 &258/1997 14 appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.” 13. From the above, it is clear that if the subject mater that was under consideration by a lower forum was taken in appeal and the very same subject matter was reconsidered by the appellate forum and judgment passed thereon, judgment of the lower forum merges into that of the appellate forum and ceases to survive. However, if the entire subject matter was not carried in appeal and is not the subject thereof, it cannot be said that there is complete merger of the judgment of the lower forum into that of the appellate forum. In the latter case it would be possible that in so far as that portion of the subject matter that was not taken up before the appellate forum, the judgment of the lower forum survives. A.S Nos.108/1997 &258/1997 15 14. In the instant case, the question regarding validity of Ext.A1 gift though considered by the trial court, observed that it could be agitated between the parties in a separate suit. In the appeal against the said judgment and decree, the appellate court reassessed the entire evidence on record and came to the conclusion upholding the validity of the gift. The appellate court did not make any reservation as was made by the trial court. It is not a case falling within the exception to the general rule of merger laid down by the Apex Court as referred to supra. Since the very issue was reconsidered by the appellate court and a finding was entered into, it is only the appellate court judgment that survives. Going by the judgment of the appellate court, the issue regarding validity of the gift is concluded. Therefore, it cannot but be held that the finding regarding validity of the gift therein constitutes _res judicata_ in the A.S Nos.108/1997 &258/1997 16 present suit. Hence we hold that the present suit is barred by _res judicata_ . In the result, the appeals fail and are dismissed. No costs. Sd/- **V.Chitambaresh, Judge** Sd/- **Sathish Ninan, Judge** vdv