Bhaskaran v. Sobha and Sivasankara Pillai

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 7[TH] DAY OF MARCH 2022 / 16TH PHALGUNA, 1943 RSA NO. 292 OF 2008 ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 19.12.2007 IN RFA 142/2003 OF II ADDITIONAL DISTRICT COURT,KOLLAM AGAINST THE JUDGMENT AND DECREE IN OS 740/1999 OF MUNSIFF ``` ## **`COURT, KARUNAGAPPALLY`** ## **`APPELLANT/RESPONDENT/PLAINTIFF:`** ``` BHASKARAN, ERAMALIL, THOTTINUVADAKKUM MURI, CHAVARA VILLAGE, KOLLAM. BY ADV SRI.A.JANI(KOLLAM) ADV S RADHAKRISHNAN ``` ## **`RESPONDENTS/APPELLANTS/DEFENDANTS:`** - `1 SOBHA, THAMARATHIL PADINJATTATHIL, CHERUSSERYBHAGOM MURI, CHAVARA VILLAGE, KOLLAM.` - `2 SIVASANKARA PILLAI OF DO. DO. BY ADV SRI.C.RAJENDRAN` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 292 OF 2008 ``` ..2.. ## **JUDGMENT** The decree and judgment dated 19.12.2007 passed by the Additional District Court – II, Kollam in RFA No.142/2003, which arose from the decree and judgment dated 24.07.2003 in O.S.No.740/1999 passed by the Munsiff’s Court, Karunagappally, are under challenge in this appeal. 2. The plaintiff in O.S.No.740/1999 of the Munsiff’s Court, Karunagappally is the appellant. The defendants in the original suit are the respondents. 3. Material facts relevant for the adjudication of the appeal are as follows:- 3.1 The plaintiff/appellant instituted the original suit for a permanent prohibitory injunction in respect of the plaint schedule property having an extent of 8 cents comprised in Re-survery No.260/19 of Chavara Village against the defendants. The plaintiff/appellant pleaded that he is the absolute owner in possession of the plaint ``` RSA NO. 292 OF 2008 ``` ..3.. schedule property. The defendants were residing in a shed in 2 cents of property situated on the south of the plaint schedule property. They constructed a foundation basement on their property. According to the plaintiff, the defendants were making an attempt to trespass into the plaint schedule property. After the institution of the suit, the plaintiff incorporated amendments in the plaint and prayed for a declaration of his absolute right over the property and a mandatory injunction directing the defendants to vacate the building in the plaint schedule property. 3.2 The respondents/defendants resisted the suit contending that the plaintiff has no right, title or possession over the property. According to the respondents/defendants, the execution of sale deed No.1938/1998 [Ext.A1] in favour of the appellant/plaintiff and defendant No.1 is not correct. The plaint schedule property never came to the possession of the plaintiff. The defendants, along with their family, were residing in a ``` RSA NO. 292 OF 2008 ``` ..4.. shed in the plaint schedule property. They had demolished the shed and started the construction of a house therein. To complete the construction, defendant No.1 borrowed a sum of Rs.69,000/- from the plaintiff. The house warming ceremony was conducted on 26.05.1998. On the date of the house warming ceremony, the defendants paid an amount of 23,800/- to the plaintiff as part payment of the amount borrowed from him. The plaintiff insisted for additional security for the balance amount to be paid to him. Therefore, defendant No.1 was forced to execute a document in favour of the plaintiff by coercion and undue influence. The document was not supported by any consideration. The plaintiff has no cause of action to institute the original suit. 4. The parties went to trial. PWs 1 and 2 were examined and Exts. A1 to A5 were marked on the side of the plaintiff. DWs 1 and 2 were marked on the side of the defendants. Exts. C1 and C2 were marked as Court Exhibits. ``` RSA NO. 292 OF 2008 ``` ..5.. 5. The Trial Court decreed the suit in favour of the plaintiff, declaring the title of the plaintiff over the property and directed the defendants to vacate the plaint schedule property and the building situated thereon by way of a mandatory injunction. 6. The defendants challenged the decree and the judgment of the Trial Court in RFA No.142/03. The First Appellate Court reversed the decree and judgment passed by the Trial Court. The plaintiff filed this Regular Second Appeal, being aggrieved by the judgment and decree of the First Appellate Court. 7. This Court, on 27.03.2008, admitted the appeal on the following substantial question of law:- “When the respondents did not establish that Ext.A1 registered sale deed is vitiated by fraud or undue influence whether on the evidence the First Appellate Court was justified in holding that Ext.A1 was not intended to be acted upon as a sale deed and appellant has no title to the property covered under Ext.A1.” 8. Heard Shri. A. Jani, the learned counsel appearing for the appellant/plaintiff and Shri. C. ``` RSA NO. 292 OF 2008 ``` ..6.. Rajendran, the learned counsel appearing for the respondents/ defendants. 9. The case of the appellant/plaintiff is that he is the absolute owner in possession of the plaint schedule property. According to the appellant/plaintiff, he has acquired title over the plaint schedule property as per Ext.A1 title deed dated 28.05.1998. The plaintiff pleaded that the defendants were residing in a shed in 2 cents of property situated on the southern side of the plaint schedule property. On 02.11.1998, the defendants came to the house of the plaintiff and told him that they were going to vacate the shed and requested him to allow them to reside in the building situated in the plaint schedule property. He turned down the request made by the defendants and so they are living in inimical terms with him thereafter. 10. The plaintiff instituted the Original Suit for a permanent prohibitory injunction against the defendants. After the institution of the suit, the defendants trespassed ``` RSA NO. 292 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** upon the property and started residing in the plaint schedule property. So the plaintiff incorporated amendments in the plaint and prayed for declaring his title over the plaint schedule property and for a mandatory injunction directing the defendants to vacate the building. 11. The challenge of the defendants is that the plaintiff has no title over the plaint schedule property. Defendant No.1 was forced to execute Ext.A1 as there was a financial transaction between the plaintiff and defendant No.1 in connection with the construction of the building in the plaint schedule property. The First Appellate Court relied on the following reasons to record the finding that the plaintiff failed to establish title over the property:- (a) There is absolutely no mention regarding the building in Ext.A1. (b) The consideration shown in the document is only Rs.7500/-. (c) The plaintiff himself had admitted that on the day on which the house warming ceremony of the defendants was conducted, the plaintiff had received a sum of Rs.23,800/-, leading to the conclusion that it was ``` RSA NO. 292 OF 2008 ``` ..8.. received as part payment of the amount originally borrowed by defendant No.1 to the plaintiff. 12. The learned counsel for the appellant/plaintiff contended that non-mention of the building in Ext.A1 will not affect the acquisition of the title of the plaint schedule property by the plaintiff as pleaded. He has further contended that the defendants failed to plead and establish coercion and undue influence. The learned counsel further contended that paucity of consideration in the title deed is not a ground to conclude that the same was not genuinely executed. 13. Per contra, the learned counsel for the respondents/defendants submitted that the defendants could establish sufficient pleadings and evidence to establish that Ext.A1 was executed by way of coercion and undue influence. 14. Ext.A1 is a registered document stated to have been executed by defendant No.1 in favour of the plaintiff in respect of the plaint schedule property. The plaint ``` RSA NO. 292 OF 2008 ``` ..9.. schedule property is described as 8 cents of property and a building therein. Admittedly, in Ext.A1, there is no mention of the building. The learned counsel for the plaintiff contended that though the building is not narrated in the description of the property in Ext.A1, with the transfer of the property in Ext.A1, a registered document, the right of the first defendant over the building would also pass with the transfer of the property as the building comes under the expression ‘attached to earth’. As per Section 8 of the Transfer of Property Act, 1882, unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof and such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth. Section 3 of the Transfer of Property Act,1882, defines the expression ``` RSA NO. 292 OF 2008 ``` ..10.. ## ‘attached to the earth’, as follows:-. ## **“3.Interpretation clause:- xxxxxx** ## **xxxxxxx** “attached to the earth” means-- - (a) rooted in the earth, as in the case of trees and shrubs; - (b) imbedded in the earth, as in the case of walls or buildings; or - (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached;” The building or the land will be treated as ‘attached to the earth’ as per the above definition. So, with the execution of Ext.A1 sale deed, the building in the land covered by Ext.A1 was also passed to the plaintiff/transferee. So the finding of the First Appellate Court that non-mention of the building in Ext.A1 title deed is one of the grounds to impeach its genuineness cannot be accepted. 15. The learned counsel for the appellant relied on the decision of this Court in **Kodiyan and Others v. Karambi** [2007 KHC 5303], wherein the principles declared by the Apex Court in **Suresh Chand v. Kundan** ``` RSA NO. 292 OF 2008 ``` ..11.. **(Dead) By Lrs. And others** [2001 KHC 1231] was followed, to substantiate his contention. This Court held that in view of the definition of the term ‘attached to the earth’ in Section 3 read with Section 8 of the Transfer of Property Act,1882, even if the title deed or the schedule of property attached thereto does not mention that the house in the property, which is the subject of transfer, is also transferred, the transferee will get title to the house situated in the property, unless the house is specifically excluded from the transfer. The defendants have no case that the house was specifically excluded when Ext.A1 title deed was executed. 16. The next aspect to be considered is whether the defendants could establish the plea of undue influence and coercion in the execution of Ext.A1. The defendants pleaded that as defendant No.1 failed to repay the amount borrowed by her from the plaintiff, she was forced to execute Ext.A1. The pleading regarding undue influence is to the effect that the plaintiff insisted her not ``` RSA NO. 292 OF 2008 ``` **==> picture [26 x 8] intentionally omitted <==** to inform the factum of execution of Ext.A1 to defendant No.2. As per Order VI Rule 4 of the Code of Civil Procedure,1908, in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms appended to the Code, particulars (with dates and items if necessary) shall be stated in the pleading. This Court is of the view that the defendants have not set up the pleading regarding coercion and undue influence as required by the statutory provisions. Respondents/defendants failed to specifically plead the ingredients of coercion as defined in Section 15 of the Indian Contract Act, 1872. In the case of undue influence also, the defendants failed to raise the pleadings in conformity with the statutory requirements. The resultant conclusion is that the defendants failed to establish the plea of coercion and undue influence. 17. Another ground relied on by the First Appellate ``` RSA NO. 292 OF 2008 ``` **==> picture [26 x 8] intentionally omitted <==** Court is that the consideration shown in the document is low. It is trite that the paucity of consideration is not a ground to impeach the genuineness of a registered deed. 18. Moreover, Ext.A1, being a registered document, always carries the presumption that it is genuine. In **Prem Singh v. Birbal** [(2006) 2 KLT 863 (SC)], the Apex Court held that there is a presumption that a registered document is validly executed. The registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In **Vimal Chand Ghevarchand Jain and Ors. v. Ramakant Eknath Jadoo** [(2009) 5 SCC 713], the Apex Court held that a registered deed of sale carries the presumption that the transaction was a genuine one and that if the execution of the sale deed is proved, the onus is on the defendant to prove that the deed is not executed and it was a sham document. 19. The resultant conclusion is that the First Appellate Court failed to draw necessary inferences and ``` RSA NO. 292 OF 2008 ``` **==> picture [26 x 8] intentionally omitted <==** presumptions as to the facts of the case. The First Appellate Court was not justified in holding that Ext.A1 was not intended to be acted upon as a sale deed. The judgment and decree passed by the Additional District Court -II, Kollam, in RFA No.142/2003 are only to be set aside. The substantial question of law is answered in favour of the appellant/plaintiff. 20. In the result, this Regular Second Appeal is allowed. The judgment and decree passed by the Additional District Court -II, Kollam dated 19.12.2007 in RFA No. 142/2003 are set aside. The judgment and decree dated 24.07.2003 passed by the Munsiff’s Court, Karunagappally in O.S.No.740/1999 are restored. The parties are directed to bear their respective costs. Pending interlocutory applications, if any, stand closed. Sd/- **K. BABU, JUDGE** kkj