B. Raju and others v Rita Abro and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY,THE 03RD DAY OF APRIL 2019 / 13TH CHAITHRA, 1941** **RSA.No. 436 of 2005** **AGAINST THE DECREE AND JUDGMENT IN AS 169/2001 of I ADDITIONAL DISTRICT COURT, ERNAKULAM DATED 14-07-2004** **AGAINST THE DECREE AND JUDGMENT IN OS 142/1998 of ADDITIONAL SUB COURT, KOCHI DATED 31-01-2001** ## **APPELLANTS/RESPONDENTS/DEFENDANTS:** - **1 B.RAJU (DIED), S/O LATE BHASKARAN, C.C.X/1121, NEAR DHARMASAALA, AMARAVATHI, FORT COCHIN VILLAGE, KOCHI TALUK.** - **2 JYOTHI AGED 43 YEARS D/O. LATE BHASKARAN, C.C.X/1121,NEAR DHARMASAALA,, AMARAVATHI, FORT COCHIN VILLAGE, KOCHI TALUK.** - **3 KANAKA, AGED 41 YEARS D/O. LATE BHASKARAN, C.C.X/1121, NEAR DHARMASAALA, AMARAVATHI, FORT COCHIN VILLAGE, KOCHI TALUK.** - **4 BHAGATH SINGH AGED 37 YEARS S/O. LATE BHASKARAN, C.C.X/1121, NEAR DHARMASAALA,, AMARAVATHI, FORT COCHIN VILLAGE, KOCHI TALUK.** - **5 SUKRITHA AGED 39 YEARS D/O. LATE BHASKARAN, RESIDING AT C.C.X/1121, NEAR DHARMASAALA, AMARAVATHI,FORT COCHIN VILLAGE, KOCHI TALUK.** - **6 VINOD AGED 35 YEARS S/O. LATE BHASKARAN, RESIDING AT C.C.X/1121, NEAR DHARMASAALA, AMARAVATHI,FORT COCHIN VILLAGE, KOCHI TALUK.** **BY ADVS. SRI.T.H.ABDUL AZEEZ SRI.K.P.MAJEED** RSA No.436/2005 2 ## **RESPONDENTS/APPELLANTS/PLAINTIFFS & 7TH DEFENDANT:** - **1 RITA ABRO, AGED 51 YEARS W/O. LATE ANTONY ABRO, VELIATH HOUSE,C.C.23/1190, JANATHA ROAD, NAZARATH, COCHIN-2 FROM C.C.IX/25,, VELI FORT KOCHI, NOW RESIDING AT 15/1438, JANATHA ROAD, KOCHI-2.** - **2 BONIFACE ABRO, AGED -- YEARS, S/O. LATE ANTONY ABRO VELIATH HOUSE, C.C.23/1190, JANATHA ROAD,NAZARATH, COCHIN-2 FROM C.C.IX/25, VELI FORT KOCHI,, NOW RESIDING AT 15/1438, JANATHA ROAD,KOCHI-2.** - **3 BENEDICT ABRO, AGED ABOUT – YEARS, S/O. LATE ANTONY ABRO VELIATH HOUSE, C.C.23/1190, JANATHA ROAD,NAZARATH,, COCHIN-2 FROM C.C.IX/25,VELI FORT KOCHI,, NOW RESIDING AT 15/1438, JANATHA ROAD, KOCHI-2.** - **4 PAUL ABRO, AGED ABOUT YEARS S/O. LATE ANTONY ABRO, VELIATH HOUSE,CC.23/1190,, JANATHA ROAD, NAZARATH, COCHIN-2 FROM C.C.IX/25,, VELI, FORT KOCHI, NOW RESIDING AT 15/1438,, JANATHA ROAD, KOCHI-2.** - **5 SYBLE CARMALIN ABRO, AGED ABOUT YEARS D/O. LATE ANTONY ABRO, W/O. S.A. FURTIL, RESIDING AT III/386, CHEMBUMUKKU, KAKKANADU, THRIKKAKKARA.** - **6 ADDL.6 STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANADU.** **BY ADVS. SRI.A.BALAGOPALAN FOR R1 TO R4 SRI.K.C.CHARLES FOR R1 TO R4 SRI.T.M.RAMAN KARTHA FOR R5** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA No.436/2005 3 ## **JUDGMENT** A suit for declaration that Exts.A2 and A3 documents are null and void and for recovery of possession ended in dismissal in the trial court. But it was reversed in appeal by the First Appellate Court by granting a decree as prayed for in favour of the plaintiffs. Aggrieved by the said decree and judgment, the defendants came up with this appeal. 2. The subject matter of the suit comes to 3 cents of property originally belonged to the father of 7th defendant, the husband of the first plaintiff and the father of the remaining plaintiffs. Ext.A2 is the gift deed executed by the father in favour of the 7[th] defendant who is the daughter born in his first wedlock. It was executed on 25.5.1986. He passed away on 30.10.1986 just after the execution of Ext.A2 sale deed in favour of the 7[th] defendant daughter. She in turn sold the property to the first defendant and his mother under Ext.A3 sale deed dated 11.6.1986. It is thereafter the plaintiff on 20.3.1997 instituted the RSA No.436/2005 4 suit as an indigent suit. On dismissal of the suit by the trial court, an appeal was also filed as an indigent appeal. 3. It seems to be unfortunate that the First Appellate Court has overturned the settled legal position regarding admission of a gift in evidence and misinterpreted Section 68 of the Evidence Act. Section 68 of the Evidence Act is extracted below for reference : ## “ **68. Proof of execution of document** **required by law to be attested** - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving the execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 ( 16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.” RSA No.436/2005 5 4. In so far as a Will or Codicil is concerned, it is necessary to call for one of the attesting witnesses to prove its execution if they are amenable to the process of court. But no such mandate can be extended to a gift deed unless its execution was specifically denied by the person by whom it purports to have been executed. The learned counsel for the respondents relied on the decision drawn in **Laxmanan K. v. Thekkayil Padmini and Others ( 2008 KHC 6999)** in support of his argument that there should be compliance of the mandate under the main section by summoning one of the attesting witnesses to prove the due execution of the Will even though it is not specifically denied by the person by whom it purports to have been executed. 5. In fact in Laxman's case (supra) the question of necessity of examining one of the attesting witnesses when the deed was disputed by the person by whom it purports to have been executed not raised. What is held in paragraph 27 and 28 of the said judgment did not speak anything about the mandatory requirement of summoning a witness to prove a deed of gift unless the same was specifically denied by the RSA No.436/2005 6 person by whom it purports to have been executed. No such question was raised. Hence there is no merit in the argument advanced in that behalf. They have obtained a certified copy of the document and the same was produced and marked as Ext.A2. It may be on the reason that the original will be with the purchaser on execution of Ext.A3 sale deed of the year 1986 i.e on 11.6.1986. A production of original or registered copy of the original gift deed would initially discharge the burden lies on the beneficiary under the document to prove its due execution and it is not at all necessary to summon any attesting witness to prove the document of gift unless its execution was disputed or denied by the person by whom it purports to have been executed. 6. The suit is hopelessly barred by limitation as it was filed in the year 1997 more specifically on 20.3.1997 as an indigent suit inspite of the fact that strangers were inducted into the property and possession was delivered based on the sale deed executed in the year 1986 i.e. on 11.6.1986 under Ext.A3. It is strange enough that the plaintiffs advanced a case that they are the person who were RSA No.436/2005 7 inducted into possession of property by the father under a tenancy arrangement. The falsity is writ large on its face that they have no case that they have continued the tenancy relationship with them subsequent to the death of their father and used to receive rent or premium from them. The suit was instituted after the lapse of 11 years and what actually happened for the long period of 11 years with respect to the alleged tenancy not made mentioned or whispered any where in the plaint. This would show the mischievous intention on the part of the plaintiffs to bring up a suit of this nature after the expiry of 11 years by advancing a case that strangers were inducted into possession of the property by the father as tenant under him. Their conduct and long lapse of 11 years would sufficiently show the mischievous intention on the part of the plaintiffs in bringing up a suit of this nature after the expiry of 11 years. On the other hand, they themselves had admitted delivery of possession or parting with possession of property by the 7[th] defendant to the beneficiary under Ext.A3, the first defendant and his mother. They have not made any enquiry with RSA No.436/2005 8 respect to their possession for a long period of 11 years and that itself would amount to constructive notice by virtue of application of Section 3 of the Transfer of Property Act especially to the expression 'when a person said to have notice'. Any abstention from making any enquiry or search which ought to have been done or gross violation would itself amount to constructive notice of the transfer under Ext.A3 and as such the plaintiffs cannot shut their eyes to the factum of delivery of property. The suit stood as hopelessly barred by limitation. As discussed earlier, the mischievous intention on the part of the plaintiffs to bring up the suit after 11 years by advancing falsity with respect to the possession held by the beneficiary under Ext.A3 cannot be tolerated and condoned and should be answered with exemplary cost. 7. In order to prove that gift deed was vitiated, none of the witnesses to the said document was summoned by the plaintiffs though they contended that Ext.A2 gift deed was executed under vitiating circumstance and that the donor was not having sufficient mental capacity or disposing state of mind at that time. But RSA No.436/2005 9 none of the witnesses to the said document or the sub registrar who came to the hospital for the purpose of getting the document registered has not been examined. The two witnesses who introduced the executant to the sub registrar was also examined. In fact there is nothing to show that Ext.A2 gift deed was executed under a vitiating circumstance. As discussed earlier, such question is not available as the suit stood as hopelessly barred by limitation. 8. Another argument was also advanced by the learned counsel for the plaintiffs/respondents based on the Will executed by the father and letters of Administration subsequently obtained by the plaintiffs based on the Will. So many properties were included in the Will. The main contention is that the 7[th] defendant had not disclosed the execution of Ext.A2 gift deed at the time of letters of administration. I could not find any obligation attached to the 7[th] defendant to disclose the execution of Ext.A2 gift deed pertaining to some property belonged to the father at the time of issuance of letters of administration which stands for administration of debt and liabilities of the testator. RSA No.436/2005 10 Hence non-raising of execution of Ext.A2 gift deed at that time is not fatal to the case advanced by the plaintiffs. 9. Yet another strange aspect came to my notice that the appeal and the suit was filed by an indigent person. No direction was issued to recover the court fee from the plaintiff as mandated under Order 32 Rule 10 and Rule 14 of C.P.C. by the First Appellate Court and the trial court. Hence the Registry is directed to intimate the defect in the decree and judgment of the trial court and the First Appellate Court regarding recovery of court fee payable by the indigent person and recover the court fee payable to the respective courts from the plaintiffs. In the result, the appeal is allowed. The decree and judgment of the First Appellate Court is set aside and the decree of the trial court is restored by dismissing the suit. Considering the nature of the dispute, the parties are directed to suffer their respective costs. ## **Sd/-** sv ## **P.SOMARAJAN,JUDGE** RSA No.436/2005 11