Dr. P.K. Rajan and K. Savithri v Baburajan and Jyothi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 26TH DAY OF AUGUST 2019 / 4TH BHADRA, 1941** ## **RFA.No.536 OF 2011** **AS 303/09 TRANSFERRED FROM DISTRICT COURT, KOLLAM, AS PER ORDER DATED 22.03.11 IN RFA 581/09** **AGAINST THE JUDGMENT DATED 30.07.2009 IN OS NO.420/2003 OF ADDL. SUB COURT, KOLLAM** **-----** ## **APPELLANTS/PLAINTIFFS:** **1 DR.P.K.RAJAN, AGED 70 YEARS, S/O KUNJU PILLAI, SWAPNA, M.C. 767, VADAKKUMBHAGOM STREET, KOLLAM EAST VILLAGE. (DIED) 2 K. SAVITHRI, AGED 65 YEARS, HOUSEWIFE, W/O P.K RAJAN, SWAPNA, M.C. 767, VADAKKUMBHAGOM STREET, KOLLAM EAST VILLAGE.** ## *** ADDL. A3 IMPLEADED** **ADDL.A 3 S.R. SREEJA, AGED 45 YRS, D/O LATE P.K RAJAN, R/AT, 'SWAPNA', VRA -169, VADAKKUMBHAGOM, KOLLAM -1.** *** [THE LEGAL HEIR OF THE DECEASED 1ST APPELLANT IS IMPLEADED AS ADDL A3 VIDE ORDER DTD 19/7/13 IN IA 1259/13]** **BY ADVS. SRI.T.KRISHNAN UNNI (SR.) SRI.A.B.MOHANAKUMAR** ## **RESPONDENTS/DEFENDANTS:** **1 BABURAJAN, AGED 52 YEARS, S/O SANKARAN THAMBURU, THEKKEVILA STREET.** **RFA.No.536 OF 2011** **-2-** **2 JYOTHI, AGED 44 YEARS, TEACHER, W/O BABURAJAN, -DO-** **** ADDL. R3 & R4 IMPLEADED** **ADDL.R 3 S.R.SREERAJ, S/O LATE P.K RAJAN, R/AT, 'SWAPNA', VRA -169, VADAKKUMBHAGOM, KOLLAM -1.** **ADDL.R 4 MANOJA, D/O LATE P.K RAJAN, R/AT, 'SWAPNA', VRA -169, VADAKKUMBHAGOM, KOLLAM -1.** **** [THE LEGAL HEIRS OF THE DECEASED 1ST APPALLENT ARE IMPLEADED AS ADDL R3 & R4 VIDE ORDER DTD 19/7/13 IN IA 1259/13]** **R1 & R2 BY ADV. SRI.P.JACOB VARGHESE (SR.) R1 & R2 BY ADV. SMT.P.LISSY JOSE. R1 & R2 BY ADV. SRI.S.SANTHOSH KUMAR** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20.08.2019, ALONG WITH RFA.581/2009, RFA.502/2011, THE COURT ON 26.08.2019 DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 26TH DAY OF AUGUST 2019 / 4TH BHADRA, 1941** ## **RFA.No.581 OF 2009** **AGAINST THE JUDGMENT DATED 30.07.09 IN OS 44/2003 OF ADDITIONAL SUB COURT, KOLLAM** ## **-----** ## **APPELLANTS/PLAINTIFFS:** **1 DR.P.K.RAJAN, S/O.KUNJUPILLAI, SWAPNA, VADAKKUMBHAGOM, KOLLAM. [DIED] 2 K.SAVITHRI, W/O.P.K.RAJAN, SWAPNA, VADAKKUMBHAGOM, KOLLAM.** - **ADDL. A3 IMPLEADED** **ADDL. A3 S.R. SREEJA, AGED 45, D/O THE LATE P.K.RAJAN, R/A 'SWAPNA', VRA - 169, VADAKKUMBHAGOM, KOLLAM-1.** **BY ADVS. SRI.T.KRISHNANUNNI (SR.) SRI.A.B.MOHANAKUMAR** ## **RESPONDENTS/DEFENDANTS:** **1 BABURAJAN, THAMBURU, MUNDAKKAL, KOLLAM.** **2 JYOTHI, W/O.BABURAJAN, THAMBURU, MUNDAKKAL, KOLLAM.** **3 S.R.SREEJITH, SWAPNA, VADAKKUMBHAGOM, KOLLAM, PRESENT ADDRESS ASHOK NAGAR PO, KARNATAKA.** **RFA.No.581 OF 2009 -2-** ## *** ADDL. R4 AND R5 IMPLEADED** **ADDL. R4 S.R.SREERAJ, R/A 'SWAPNA', VRA - 169, VADAKKUMBHAGOM, KOLLAM-1.** **ADDL. R5 MANOJA, R/A 'SWAPNA', VRA - 169, VADAKKUMBHAGOM, KOLLAM-1** *** [LEGAL HEIRS OF THE DECEASED 1ST APPELLANT ARE IMPLEADED AS ADDL. A3 AND ADDL. R4 & ADDL. R5 VIDE ORDER DATED 19.07.2013 IN IA 1100/2013].** **R1 & R2 BY ADV. SRI.P.JACOB VARGHESE (SR.) R1 & R2 BY ADV. SMT.P.LISSY JOSE.** **R1 & R2 BY ADV. SRI.S.SANTHOSH KUMAR** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20.08.2019, ALONG WITH RFA.502/2011, RFA.536/2011, THE COURT ON 26.08.2019, DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 26TH DAY OF AUGUST 2019 / 4TH BHADRA, 1941** ## **RFA.No.502 OF 2011** **AS 284/09 TRANSFERRED FROM DISTRICT COURT, KOLLAM, AS PER ORDER DATED 22.03.11 IN RFA 581/09** **AGAINST THE JUDGMENT DATED 30.07.2009 IN OS NO.82/2006 OF ADDL. SUB COURT, KOLLAM** **-----** ## **APPELLANTS (ADDL. DEFENDANTS 1 & 2 IN OS 82/06):** **1 P.K.RAJAN, AGED 70 YEARS, S/O.KUNJU PILLAI, RESIDING AT “SWAPNA” VADAKKUMBHAGAM, KOLLAM (DIED)** **IT IS RECORDED THAT THE 1ST APPELLANT IS NO MORE, VIDE ORDER DATED 20.02.13.** **2 SAVITHRI, AGED 65 YEARS, W/O.P.K.RAJAN, “SWAPNA”, VADAKKUMBHAGAM, KOLLAM.** - **ADDL. A3 IMPLEADED** **3 S.R.SREEJA, AGED 45 YEARS, D/O. LATE P.K.RAJAN, RESIDING AT “SWAPNA”, VRA - 169, VADAKKUMBHAGAM, KOLLAM-1** *** [LEGAL REPRESENTATIVE OF DECEASED 1ST APPELLANT IS IMPLEADED AS ADDITIONAL 3RD APPELLANT AS PER ORDER DATED 19.07.13 IN IA 1270/13]** **BY ADVS. SRI.T.KRISHNAN UNNI (SR.) SRI.A.B.MOHANAKUMAR** **RFA.No.502 OF 2011 -2-** **RESPONDENTS (PLAINTIFFS 1 & 2 IN OS 82/06):** **1 BABU RAJAN, AGED 59 YEARS, S/O.SANKARAN, THAMBURU, THEKKEVILA CHERI, MUNDAKKAL VILLAGE, KOLLAM TALUK.** **2 SMT.JYOTHI, AGED 52 YEARS, W/O.BABURAJAN, THAMBURU, THEKKEVILA CHERI, MUNDAKKAL VILLAGE, KOLLAM TALUK. 3 S.R.SREERAJ, S/O.DR.P.K.RAJAN, ORIGINALLY BELONGING TO M.C.767/XVI, SWAPNA, VADAKKUMBHAGAM, KOLLAM.** **NOW ON EMPLOYMENT AND RESIDING AT FLAT NO.E.702, KRISHNA APARTMENTS, PLOT NO.10, SECTOR-36, KANOTHE, NAVI MUMBAI-410209.** ## **** ADDL. R4 IMPLEADED** **ADDL. R4 MANOJA, D/O DR.P.K.RAJAN, R/A 'SWAPNA', VRA-169, VADAKKUMBHAGOM, KOLLAM-1** **** [LEGAL REPRESENTATIVE OF DECEASED 1ST APPELLANT IS IMPLEADED AS ADDITIONAL 4TH RESPONDENT AS PER ORDER DATED 19.07.13 IN IA 1270/13]** **R1-2 BY ADV. SMT.P.LISSY JOSE. R1-2 BY ADV. SRI.S.SANTHOSH KUMAR R1-2 BY ADV. SRI.P.JACOB VARGHESE (SR.) R3 BY ADV. SRI.P.RADHAKRISHNAN R3 BY ADV. SRI.MADHU RADHAKRISHNAN** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20.08.2019, ALONG WITH RFA.581/2009, RFA.536/2011, THE COURT ON 26.08.2019 DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J. = = = = = = = = = = = = = = = = = = RFA Nos.536, 502 of 2011 & 581 of 2009** ## **= = = = = = = = = = = = = = = = = = Dated this the 26[th] day of August, 2019** ## **J U D G M E N T** Three suits were jointly tried and disposed of by a common judgment. The same is assailed in these appeals. The following are the suits and the appeals therefrom:- |**Sl.**<br>**No.**|**Number of**<br>**suit**|**Plaintiffs**|**Defendants**|**Relief claimed**|**Proceedings**<br>**before this**<br>**Court**| |---|---|---|---|---|---| |1|O.S.44/03|1. P.K.Rajan<br>2. K.Savithri|1. Baburajan<br>2. Jyothi<br>3. S.R.Sreejith|Declaration of<br>title<br>and Injunction|RFA 581/09| |2|O.S.420/03|1. P.K.Rajan<br>2. K.Savithri|1. Baburajan<br>2. Jyothi|Injunction<br>against forceful<br>eviction|RFA 536/11| |3|O.S.82/06|1. Baburajan<br>2. Jyothi|1. S.R.Sreejith<br>2. P.K.Rajan<br>3. K.Savithri|Recovery of<br>arrears of rent|RFA 502/11| 2. The subject matter involved in these litigations is 3 Ares and 18 square metres equivalent to 8.5 cents with the residential building situated thereon. The property admittedly belonged to P.K.Rajan and Savithri (hereinafter RFA Nos.536, 502 of 2011 & 581 of 2009 :- 2 :- referred to as the “plaintiffs”). They executed Ext.A10 Sale Deed No.3961/96 in favour of Baburajan and Jyothi (hereinafter referred to as the “defendants”). O.S.44/03 is filed by the plaintiffs contending that, they had borrowed amounts from defendants and from strangers, and to shield the property from creditors and to secure the debt payable to the plaintiffs, Ext.A10 Sale Deed was executed in favour of the plaintiffs. Ext.A10 was in fact a sham document. It was agreed that, when the debt due to the defendants are repaid, a document will be registered in favour of the plaintiffs cancelling Ext.A10. According to the plaintiffs, the suit O.S.44 of 2003 seeking declaration of their title is necessitated since the defendants assert title over the property on the strength of Ext.A10. Sreejith, the third defendant impleaded therein as the son of the said Rajan and Savithri. 3. In OS 420/03, the plaintiffs seek for a prohibitory injunction against defendants, from RFA Nos.536, 502 of 2011 & 581 of 2009 :- 3 :- forcefully evicting them from the plaint schedule property. 4. According to the defendants, Ext.A10 is an outright sale in its true sense. On conveyance of the property to them under Ext.A10, the defendants sought for some time to vacate the premises and accordingly they were permitted to reside in the building under Ext.B4 rent deed in favour of Sreejith, the son of the plaintiffs. Since they failed to vacate the building, rent control proceeding was initiated as RCP 11/99. In execution of the order of eviction, the plaintiffs and their son were evicted therefrom. The suit O.S.82/06 is filed by the defendants (Baburajan and Jyothi), against the plaintiffs and their son Sreejith for recovery of arrears of rent. 5. The trial court upheld Ext.A10 sale deed. It was held that the suit O.S.44/03 is barred by limitation. O.S.44/03 and O.S.420/03 were dismissed and O.S.82/06 was decreed, against which these appeals by the plaintiffs (P.K.Rajan and Savithri). RFA Nos.536, 502 of 2011 & 581 of 2009 :- 4 :- 6. Heard learned Senior Counsel Sri.T.Krishnanunni and Sri.A.B.Mohanakumar on behalf of the appellants and Sri.S.Santhosh Kumar on behalf of the respondents. 7. O.S.44/03 which is a suit for declaration of title is the main suit. The relief claimed therein is for declaration of the plaintiffs' title on finding that Ext.A10 is only a security document. They have also prayed for a decree for prohibitory injunction against alienation. The trial court held that the suit being one for declaration, Article 58 of the Limitation Act applies, and the suit filed beyond three years from the date of accrual of the cause of action is barred by limitation. In terms of Article 58 of the Limitation Act, time begins to run from the date on which the right to sue first accrues. 8. Learned counsel Sri.Mohanakumar would vehemently contend that the suit is not one for a mere declaration but contains a prayer for injunction also, and the cause of action arises RFA Nos.536, 502 of 2011 & 581 of 2009 :- 5 :- only on infringment of the right or on a threat regarding infringment of the right. He relies on the decision of the Apex Court in C. Mohammad Yunus v. Syed Unnissa and others [AIR 1961 SC 808] . This view has been reiterated in various pronouncements and it would suffice to mention Manuel Vivera v. Union of Anglo Indian Associations, Cochin & Others [2016 (2) KHC 298] and Kurian E. Kalathil v. KSEB, TVM & Anr. [2014 (1) KHC 149] . Therefore, the question is, was there an infringment of the plaintiffs right and if so when, or when did the threat of infringment of their right occur first, and is the suit filed within three years therefrom. Ext.A10 is dated 01.11.1996. According to the plaintiffs, Ext.A10 was not intended to be operative as a sale. They came to know that the defendants fraudulently effected mutation and changed the registry in their names regarding the property and the building and it was questioned by them. If that be so, then the cause of action had accrued to them in the year 1996 itself and the RFA Nos.536, 502 of 2011 & 581 of 2009 :- 6 :- suit filed in 2003 is barred by limitation. It is the further allegation of the plaintiffs that they got knowledge that preparations are being made by the defendants to forcibly evict the plaintiffs from the property whereupon they filed OS 359/1998 before the Munsiff's Court (re-numbered as O.S.420/2003) for prohibitory injunction against forcible eviction. The cause of action alleged in the said suit is the threat by the defendants on 25.03.1998 to evict the plaintiffs from the property. Therefore, at least as on 25.03.1998, the plaintiffs were aware that the defendants are asserting title over the property on the strength of Ext.A10 sale deed. They got knowledge regarding infringment of their right and regarding threat of infringment of their right. That gave rise to a cause of action and the right to sue for declaration. Going by the cause of action as alleged in the plaint, the right to sue has first accrued even as on the date of execution of Ext.A10. At any rate, time began to run from the RFA Nos.536, 502 of 2011 & 581 of 2009 :- 7 :- date on which they got knowledge regarding effecting of mutation in the revenue and municipal records and at least from 25.03.1998 when they had knowledge of the threat of eviction by the defendants, and the suit filed in the year 2003 is hopelessly barred by limitation. Though a feeble attempt is made to bank upon Section 17 of the Limitation Act, there is no such plea or any evidence that they were fraudulently kept out of knowledge of their rights or that with ordinary diligence they could not have discovered the fraud. The finding of the trial court on the issue of limitation is only to be upheld and I do so. 9. Though the suit is liable to be dismissed on the finding on limitation, since the trial court has proceeded to consider the other issues, I deem it proper to look into the correctness or otherwise of the said findings. As noticed supra, the relief claimed in OS 44/03 is for declaration of plaintiffs title on entering a finding that Ext.A10 is only a security document. Relying on the RFA Nos.536, 502 of 2011 & 581 of 2009 :- 8 :- judgment of the Privy Council in Tyagaraja Mudaliyar and Anr. v. Vedathanni [AIR 1936 PC 70] , and of this Court in Bhaskaran Nair v. Habeeb Mohammed [AIR 2002 Ker.308] , Kavukutty v. Baby [2015 (5) KHC 642] and George & Anr. v. Annakutty & Ors. [2017 (4) KLJ 620], the learned counsel Sri. Mohanakumar submitted that Section 92 of the Evidence Act is not a bar to prove that Ext.A10 was a fictitious or nominal transaction and was not intended as a sale. Further, referring to Thiruvenkidam v. Quilon Pencil Factory [ 1990 (2) KLT 327] he contends that the existence of a separate oral agreement for re-conveyance can also be proved. 10. It is not be noted that the plaint averments are to the effect that, Ext.A10 is executed only as a security, that it is a sham document, and that there was an oral agreement to re-convey the property to the plaintiffs. The very contention that Ext.A10 is executed as a security by itself indicates that the document is valid. RFA Nos.536, 502 of 2011 & 581 of 2009 :- 9 :- Unless it is a valid document, it cannot operate as a security. It must be in the said background that the plaintiff has pleaded that there is an oral agreement for re-conveyance. However, such an oral agreement has not been proved by the plaintiffs; that apart, the suit does not contain a relief seeking to have the agreement specifically enforced. Once the plaintiffs contend that Ext.A10 is a security document and that there is an agreement for re-conveyance, necessarily the plaintiffs have to institute a suit for specific performance of the said agreement to have the property re-conveyed (See: Moosa v. Moideen [2001 (1) KLT 183] . As noticed supra, the plaintiffs also allege that Ext.A10 is only a sham document. That plea does not go along with the contention that Ext.A10 is a security document followed by an agreement for re-conveyance. Therefore, the very frame of the suit is defective and the suit has to fail for the said reason. 11. Now coming to the merits of the plaintiffs RFA Nos.536, 502 of 2011 & 581 of 2009 :- 10 :- case, as noticed, the contention of the plaintiff is that a sale as such, was not intended. However, Exts.B2 and B3 paper publications cut at the very root of their case. Exts.B2 and B3 are advertisements effected in Malayala Manorama and Kerala Kaumudi dailies dated 27.09.1996 and 26.09.1996 respectively, with regard to the intended sale of the property. In OS 420/03, the plaintiffs filed a replication, paragraph 6 of which reads thus:- “Due to heavy financial tight, the plaintiffs decided to dispose of the plaint schedule property along with the building in order to liquidate all their liabilities. Hence, the newspaper advertisement was given.” 12. Plaintiffs admit of having given the advertisements for sale. Therefore, the contention of the plaintiffs that they did not intend to sell the plaint schedule property fails. Exts.B2 and B3 advertisements are on 27.09.1996 and 26.09.1996, and Ext.A10 sale deed is on 01.11.1996. The RFA Nos.536, 502 of 2011 & 581 of 2009 :- 11 :- proximity in time of Ext.A10 to Exts.B2 and B3 paper publications probabilises the genuineness of Ext.A10 sale. 13. According to the defendants, on seeing Exts.B2 and B3 paper publications, they approached the plaintiffs for sale of the property, which resulted in Ext.A10 sale. Though the plaintiffs had proposed to vacate the building and shift to Mangalore along with their son Sreejith where he was working, since he was not able to arrange a house at Mangalore to accommodate his parents they were permitted to reside in the building for few months. It is accordingly that Ext.B4 rent deed was executed in favour of Sreejith. On the refusal to vacate the building, the defendants approached the Rent Control Court for eviction in RCP 11/99 and delivery was effected. In the Rent Control Proceedings though Sreejith disputed the title of the defendants herein, the same was found to be not RFA Nos.536, 502 of 2011 & 581 of 2009 :- 12 :- a bona fide denial of title. Pursuant to Ext.A10 Sale Deed, tax for the property and the building are paid since the year 1996 i.e. immediately after the sale as evidenced by Ext.B8 series and Ext.B10 series tax receipts. The prior sale deed relating to the property has also been produced by the defendants as Ext.B13. If Ext.A10 was not intended to as a sale and was not intended to take effect, the prior title deed would not have been handed over and tax paid. 14. Though there is a contention that the prior title deed was with the Kollam Co-operative Bank and that the same was got released by the defendants without authority, the evidence of PW1 who is the Manager of the Bank, along with Ext.X1 series loan ledger proves that the release to the first defendant was with due authority. The trial court noticed that there is an endorsement in the ledger with respect to the authorisation given by RFA Nos.536, 502 of 2011 & 581 of 2009 :- 13 :- the plaintiffs to the first defendant. Therefore, the said contention also fails. 15. To conclude, even on merits there is no material to find that Ext.A10 sale deed was not intended as a sale or that it is a sham document or that it has not taken effect. The finding of the trial court that Ext.A10 is a valid document is founded on materials and is hereby affirmed. The dismissal of O.S.44/03 is accordingly, confirmed. 16. Having found that Ext.A10 is a valid sale, as a necessary corollary it follows that the plaintiffs are not entitled for the injunction sought for. The trial court has rightly dismissed OS 420/03. 17. Coming to OS 82/06, there is no case that the arrears of rent as claimed has been paid. Since it is held that possession of the building was on the basis of Ext.B4 rent deed, the rent as mentioned therein is liable to be paid. The trial RFA Nos.536, 502 of 2011 & 581 of 2009 :- 14 :- court has rightly granted a decree for recovery of arrears of rent. The same does not call for any interference. The appeals lack merit and are accordingly dismissed. **Sd/SATHISH NINAN JUDGE** kns/- //True Copy// P.S. To Judge