Chathangattu Abbas and Chathangattu Azeez v. Vellayikkotty Ummer and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941** ## **RFA.No.92 OF 2015** **AGAINST THE JUDGMENT AND DECREE IN OS 843/2012 DATED 24-06-2014 OF III ADDITIONAL SUB COURT, KOZHIKODE** ## **APPELLANTS/D4 AND D7:** - **1 CHATHANGATTU ABBAS, AGED 47 YEARS S/O.ATHRUMAN KUTTY, CHATHNGATTU HOUSE, POST MAKKADA, VIA KAKKODI, MAKKADA AMSOM DESOM, KOZHIKODE TALUK 673 611** - **2 CHATHANGATTU AZEEZ, S/O.ATHRUMAN KUTTY, AGED YEARS, CHATHNGATTU HOUSE, POST MAKKADA, VIA KAKKODI, MAKKADA AMSOM DESOM, KOZHIKODE TALUK 673 611** **BY ADVS.** **SRI.K.B.SIVARAMAKRISHNAN SRI.K.SANEESH KUMAR** ## **RESPONDENTS/PLAINTIFFS & D1 TO D3 & 5,6:** - **1 VELLAYIKKOTTY UMMER, AGED 50 YEARS S/O.AHAMMED, VELLAYINGOTTU HOUSE, POST PARAMBIL PIN 673012, KOZHIKODE.** - **2 KOLANGARAKANDY MOOSSA KOYA, AGED 62 YEARS S/O.MAMMED KOYA, SARATH VEETTIL MEETHAL HOUSE, CHELANNUR POST, KAKKODI VIA, PIN 673616.** - **3 KOLANGARAKANDY ABOOBACKER, AGED 52 YEARS S/O.MAMMED KOYA, THALIYANA NILAM HOUSE, POST MAKKADA, PIN 673611** - **4 KOLANGARAKANDY FATHIMA @ PATHU, AGED 49 YEARS D/O.MAMMED KOYA, MATTUVAYAL HOUSE, ERANHIKKAL POST, ELATHUR, KOZHIKODE PIN 673 303** RFA 92/15 2 - **5 PUTHIYAPURYIL KOYA, AGED 67 YEARS S/O.MAMMU, MADATHILTHAZHATH HOUSE, POST MAKKADA, VIA KAKKODI, PIN 673 611** - **6 PUTHIYAPURAYIL ABDURAHIMAN, AGED 64 YEARS S/O.MAMU, PUTHIYAPURAYIL HOUSE, POST MAKKADA, VIA KAKKODI, PIN 673 611** - **7 PUTHIYA PURAYIL ASEES, AGED 61 YEARS S/O.MAMU, PUTHIYAPURAYIL HOUSE, POST MAKKADA, VIA KAKKODI, PIN 673 611** - **8 CHATHANGATTU ATHURUMAN KUTTY, AGED 82 YEARS S/O.AVARANKUTTY, CHATHANGATTU HOUSE, POST MAKKADA, VIA, KAKKODI, MAKKADA AMSOM DESOM, KOZHIKODE TALUK 673611** - **9 KOLANGARAKANDY HASSSAN, AGED 57 YEARS S/O.MAMMED KOYA, KOYAMBRATH MEETHAL HOUSE, POST MAKKADA, VIA, KAKKODI, MAKKADA AMSOM DESOM, KOZHIKODE TALUK 673611** - **10 PUTHIYAPURAYIL ABOOBACKER, AGED 53 YEARS S/O.MAMMU, PUTHIYAPURAYIL HOUSE, POST MAKKADA, VIA, KAKKODI, MAKKADA AMSOM DESOM, KOZHIKODE TALUK 673611** - **11 CHATHANGATTU NASSAR, AGED 42 YEARS S/O.ATHRUMAN KUTTY, POST MAKKADA, VIA KAKKODI, MAKKADA AMSOM DESOM, KOZHIKODE TALUK 673611** - **12 CHATHANGATTU BASHEER, AGED 40 YEARS S/O.ATHRUMAN KUTTY, CHATHANGATUU HOUSE, POST MAKKADA, VIA KAKKODI, MAKKADA AMSOM DESOM, KOZHIKODE TALUK 673 611** **R1-7, R9 BY ADV. SRI.AVM.SALAHUDIN** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA 92/15 3 ## **JUDGMENT** The defendants 4 and 7 in OS No.843/2012, on the files of the III Additional Sub Judge, Kozhikode, are the appellants before this Court. 2. The appellants assail the judgment and decree in the aforementioned suit, as per which, plaint B schedule properties have been ordered to be partitioned among various sharers. According to the appellants, plaint B schedule property was not available for partition since its owner, late Kuttibi Umma, had gifted the same, through Ext.B1 gift deed, in their names. They thus assail the impugned judgment and decree and pray that the same be set aside. 3. I have heard Sri.K.B.Sivaramakrishnan, learned counsel appearing for the appellants and Sri.A.V.M.Salahudeen, learned counsel appearing for respondents 1 to 7 and 9. RFA 92/15 4 4. The suit was filed by respondents 1 to 7, who claim to be the joint owners of plaint B schedule property and they assert that they obtain title to the same through Ext.A1 assignment deed executed by the aforementioned late Kuttibi Umma. As per the plaintiffs, through Ext.A1 assignment deed, late Kuttibi Umma had sold plaint B schedule property to Smt.Khadeejumma, Sri.Abdurahiman Kutty, Smt.Kunhibi and Smt.Pathumma, who were her siblings. The plaintiffs say that Smt.Khadeejumma, Smt.Kunhibi and Smt.Pathumma are now no more, while Sri.Abdurahiman Kutty is still alive, being the 1[st] defendant in the suit. They then explain that plaintiffs 2,3,4 and the 2[nd] defendant are the children of late Khadeejumma, while plaintiffs 5,6,7 and the 3[rd] defendant are the children of late Kunhibi, and the 1[st] plaintiff is the son of late Pathumma. They say that since, as per Ext.A1, plaint B RFA 92/15 5 schedule property was sold by late Kuttibi Umma in favour of her aforementioned siblings and since the properties are now being hold jointly by them, but in possession of the 1[st] defendantSri.Abdurahiman Kutty, they are entitled to have the same partitioned, because the said defendant has refused to accede to their request for such. They state that they had issued Ext.A3 Lawyer's Notice seeking partition, but that Ext.A4 reply notice has been issued to them, wherein, for the first time, they were notified by defendants 4 and 7 that they are claiming exclusive title to the plaint B schedule property on the strength of Ext.B1 gift deed, allegedly executed by late Kuttibi Umma. They say that it is in such circumstances that they have impleaded defendants 4 to 7 in the suit to seek partition of the said property. 5. The records reveal that a written RFA 92/15 6 statement was filed by the 1[st] defendant conceding that late Kuttibi Umma was the owner of plaint B schedule property, but that it is not correct to say that she had sold the same to himself and the aforementioned siblings of hers through Ext.A1. He, in fact, contended that since late Kuttibi Umma was being looked after by him, he is her only heir, entitled to inherit her property and therefore, that there was no requirement on his part to have purchased the property from her. He has also stated therein that Ext.A1 is a fabricated document and consequently, that plaint B schedule property is not partible. He, however, did not mention anything about Ext.B1 in his written statement. 6. The 2[nd] defendant conceded to partition in his written statement; while defendants 4 to 7 filed theirs with the specific averments that, on account on Ext.B1 gift deed executed RFA 92/15 7 by late Kuttibi Umma in the year 2010, plaint B schedule property is not partible. 7. The suit was, thereafter, taken to trial, during which Exts.A1 to A8 on the side of the plaintiffs and Exts.B1 to B5 on the side of the defendants were marked in evidence. Further PW1 and PW2 were examined on the side of the plaintiffs while BW1 and BW2 were examined on the side of the defendants. After evaluation of the evidence and documents available on record, the Trial Court decreed the suit, holding that Ext.A1 is a valid document and therefore, that Ext.B1 gift deed would obtain no legal validity. 8. It is this judgment and decree which is assailed before this Court in this appeal. 9. Sri.K.B.Sivaramakrishnan, learned counsel appearing for the appellants, began his submissions by saying that Ext.A1 has not been properly proved by the plaintiffs and RFA 92/15 8 therefore, that the Trial Court could not have found it to be valid in law. He contented that when one goes through the testimonies of PW1 and PW2, it becomes clear that late Kuttibi Umma had not signed Ext.A1 but that it was created through impersonation. He adds that this is manifest from the evidence of PW2 who says that he does not even remember what happened on the day on which Ext.A1 was executed. He then adds to the afore submissions by saying that, in any event of the matter, when his clients had objected to the validity of Ext.A1, it was upon the plaintiffs to have proved it, but that instead of finding so, the Trial Court shifted the burden of proof on to the shoulders of his clients, thus leading to the conclusion that Ext.A1 is valid in law and consequently, that Ext.B1 cannot obtain force. He thus prays that this appeal be allowed. 10. Sri.A.V.M.Salahudeen, learned counsel RFA 92/15 9 appearing for the respondents 1 to 7 and 9, submits that the afore contentions of the appellants are without basis because the plaintiffs were seeking partition of plaint B schedule property exclusively on the strength of Ext.A1 assignment deed, which is a registered one. He says that it has been well settled by the Hon'ble Supreme Court through a catena of judgments, including in **Jamila Begum v. Shami Mohd [2019(1) KLT 3072] and Kalia Perumal v. Rajagopal & Another [2009(4) SCC** **193]** that the registration of a document reinforces its valid execution and carries the presumption of validity. He says that, therefore, when his clients were relying on Ext.A1, which is concededly a registered document, it is up to the defendants 4 to 7 to prove it to be not valid through cogent and reliable evidence, but that they did not choose to do so nor even take steps to have Exts.A1 RFA 92/15 10 and B1 to be subjected to a forensic examination, since the finger prints of late Kuttibi Umma is available on both these documents. He then contended that it is not required of his clients to disprove Ext.B1, since once Ext.A1 assignment deed was found to be valid, the said document would be rendered otiose since, late Kuttibi Umma-even if she had executed the said document-had no property left with her at the time of its execution. He thus prays that this appeal be dismissed. 11. I have considered the afore submissions and have also examined the materials and evidence available on record very carefully. 12. The contentions of the appellants, as voiced through their learned counsel Sri.K.B.Sivaramakrishnan, is that the evidence of PW1 and PW2 should not have inspired the confidence of the Trial Court, leading to a RFA 92/15 11 conclusion that Ext.A1 is valid in law. He predicates that, as is evident from the testimony of PW2-who is the attesting witness in Ext.A1 assignment deed and who is also the witness who identified late Kuttibi Umma at the Sub Registrar's Office-he does not specifically say that late Kuttibi Umma had signed Ext.A1 or that the other witnesses had signed in her presence. His contention, therefore, is that Ext.A1 is invalid in law and that in the absence of proof being led by the plaintiffs to prove it to be legally tenable, the Trial Court ought not to have accepted the same. 13. As regards PW1 is concerned, the submission on behalf of the appellants is that this witness can only be treated as an interested one, since he himself is seeking the benefit of Ext.A1 leading to the partition of plaint B schedule property. However, it is evident from his testimony that, apart from RFA 92/15 12 himself, the 1[st] defendant is also a beneficiary under Ext.A1, but the said defendant did not take the box at any point of time. This is relevant because, even though the 1[st] defendant avers in his written statement that there was no requirement for late Kuttibi Umma to have sold the property to himself and others through Ext.A1 and that he is her only heir, thus entitled to inherit her entire property, he chose not to offer his testimony or to otherwise substantiate his allegations. This is particularly crucial because, concededly, the 1[st] defendant is the father of the appellants and the 6[th] defendant and it is obvious that they claim exclusive rights over the property, in exclusion to the other sharers. 14. Therefore, when the 1[st] defendant took a contention, without referring to Ext.B1 document in any manner, that he is the sole heir of late Kuttibi Umma, it was certainly RFA 92/15 13 incumbent upon him to have led evidence in support of such assertion and to have proved the same; but the fact that he chose not to do so clearly establishes that he also concedes to the execution of Ext.A1 by late Kuttibi Umma, he being a beneficiary under it. 15. In this context the evidence of PW1 becomes relevant since, as stated above, he is also a beneficiary to Ext.A1 and concedes to the execution of the said document without any reservation. His testimony has not been impeached by the appellants and the 6[th] defendant in any manner and he has stated affirmatively that Ext.A1 was executed by late Kuttibi Umma in his favour and in the names of the other beneficiaries, including the 1[st] defendant. 16. That apart, the suit for partition was laid by the plaintiffs on the basis of Ext.A1; while it was defendants 4 to 7 who opposed it RFA 92/15 14 on the strength of Ext.B1 gift deed. In this regard, it is needless to say that Ext.B1 becomes relevant only if Ext.A1 is shaken, since, as I have already said above, if the former document was validly executed, then late Kuttibi Umma had nothing to be gifted thereafter. Obviously, therefore, the burden of proving that Ext.A1 was a sham document or was one created through impersonation was wholly on the shoulders of the appellants and the 6[th] defendant. Interestingly, during cross examination, PW1 testified that he became aware of Ext.A1 when he received Ext.A3 legal notice from the plaintiffs and that he came to be aware of this document from his own father, namely the 1[st] defendant. He also stated that he and his father are in good terms but that his father did not reply to Ext.A3 notice. He has further stated in his testimony that he was not aware that his father had filed a written RFA 92/15 15 statement on his own and that as per Ext.A1, he is entitled to 1/4[th] rights over the plaint B schedule property. After saying so, PW1 testified that Ext.A1 is forged and created by impersonation, but without explaining why he say so, except by asserting that he and defendants 5 and 6 are in possession of the property, as evidenced through Ext.B4 encumbrance certificate and Ext.B2 and B3 possession certificate and tax receipt respectively. 17. It is, therefore, ineluctable from the evidence and materials available that the factum of Ext.A1 was concededly known by defendants 4 to 6 from their own father, namely the 1[st] defendant, with whom DW1 concedes to be at best of terms. Nowhere in the testimony of DW1 is it stated that the 1[st] defendant has informed him or defendants 5 and 6 that Ext.A1 was a forged document or that it was created by RFA 92/15 16 impersonation. This is vital because, the 1[st] defendant is a beneficiary under Ext.A1 and as long as he did not take the box to contest the validity of Ext.A1, it can only be presumed that defendants 4 to 6 were propping up a case based on Ext.B1 so as to usurp the entire property to the exclusion of the all the others, since, through Ext.A1, the 1[st] defendant would have got only 1/4[th] share over the same. 18. My view as afore is also bolstered by the fact that the 1[st] defendant, in his written statement, asserts that he is the sole heir entitled to the entire property but without explaining how he asserts so; and therefore, the present attempt of the appellants and the 6[th] defendant can only be seen to be a collaborative effort with their father-the 1[st] defendant-to get the entire property to themselves, to the exclusion of the others. 19. I am, therefore, of the view that the RFA 92/15 17 Trial Court has correctly understood the factual perspective involved and has accurately assessed the materials and evidence available, particularly because the mandatory requirements under Section 68 of the Indian Evidence Act having been fully satisfied in this case, through the deposition of PW2, the attesting witness to Ext.A1 and his testimony remains unassailed as regards the execution of the said document. 20. In any event of the matter, as I have already said above, neither the 1[st] defendant nor the 1[st] plaintiff, who are the beneficiaries under Ext.A1, have a case that this document is forged or created by impersonation; and, in fact, the only contention of the 1[st] defendant is that there was no requirement for late Kuttibi Umma to have executed the same. Therefore, the contentions of the appellants and the 6[th] defendant, that Ext.A1 was created RFA 92/15 18 by impersonation, can only be seen to be a story that they have created as a defence to the plea for partition; and consequently that once the Trial Court found Ext.A1 to be valid in law, the axiomatic and resultant position would be that Ext.B1 loses its relevance and is rendered incapable of any forensic support. 21. This is more so because, as rightly pointed out by Sri.A.V.M.Salahudeen, the Hon'ble Supreme Court has declared affirmatively in **Jamila Begum** (supra) and **Kalia Perumal** (supra) that the registration of a sale deed creates a presumption of its validity and that the burden of proof lies on the party challenging it. In the case at hand, it is unequivocally admitted by all sides that Ext.A1 is a registered document but no effort has still been taken by the appellants or the 6[th] defendant to test its validity in any manner, except by posing some questions to PW2, who is RFA 92/15 19 the attesting witness of the document, but whose testimony remains unshaken and firm that late Kuttibi Umma had signed every page of the document and had also presented herself before the Sub Registrar to execute the same in terms of law. Further, no effort has also been taken by the appellants or the 6[th] defendant to either examine the Sub Registrar or to have the document sent for forensic examination and this is germane because, as I have already seen above, the 1[st] defendant-their father-has no case at all that it was created by fraud or impersonation. In the afore circumstances, I see no reason to entertain this appeal or to interfere with the views and conclusions of the Trial Court in the impugned judgment and decree; and consequently, dismiss this appeal, however, without making any order as to costs, taking note of the peculiar circumstances involved and RFA 92/15 20 thus direct the parties to suffer their respective costs. **Sd/-** **DEVAN RAMACHANDRAN** RR **JUDGE**