JACINTHA DUNCAN v. SUB-REGISTRAR, ERNAKULAM & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **THURSDAY, THE 26TH DAY OF SEPTEMBER 2013/4TH ASWINA, 1935** ## **WP(C).No. 14375 of 2013 (V)** ## **----------------------------** ## **PETITIONER:** **-------------------------** **JACINTHA DUNCAN,AGED 63 YEARS,W/O.JOHN DUNCAN, KALLUVILA VEETTIL, KOTTIYAM P.O,KOLLAM-691 591 REPRESENTED BY POWER OF ATTORNEY HOLDER ALDI PREMAN, AGED 58 YEARS, S/O.AUGUSTINE, LENTHAPARAMBIL, 34/704,BEENA ANJUMANA ROAD, EDAPALLY, KOCHI-682 024** **BY ADV. SRI.PEARSON S.FERNANDEZ** **RESPONDENTS:** **------------------------------** **1. THE SUB- REGISTRAR, ERNAKULAM,PIN-682 016** **2. THE DISTRICT REGISTRAR (GENERAL) ERNAKULAM-682 016** **3. THE VILLAGE OFFICER, ELAMKULAM VILLAGE, KADAVANTHARA,** **ERNAKULAM DISTRICT-682 020** **4. THE STATE PUBLIC INFORMATION OFFICER & ADDITIONAL TAHSILDAR, KANAYANNUR TALUK,ERNAKULAM DISTRICT-682 011** **5. THE STATE PUBLIC INFORMATION OFFICER & DEPUTY TAHSILDAR (ELECTION), KOLLAM TALUK, KOLLAM DISTRICT,PIN-691 001** **6. SEBASTIAN,AGED 59 YEARS, S/O.DEVASSY, PADAYATTIL HOUSE, POOTHRIKKA P.O, PERUMBAVOOR, KUNNATHUNADU TALUK,PIN-683 540** **R1 TO R5 BY GOVERNMENT PLEADER SMT. K.A.SANJEETHA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD** **ON 26-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 14375 of 2013 (V)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** **EXT.P1:TRUE COPY OF THE SALE DEED NO 22/1995 OF ERNAKULAM SRO DTD 26/12/1994 EXT.P2:TRUE COPY OF THE SALE DEED NO 5465/2012 OF ERNAKULAM SRO DTD 31/12/2012 EXT.P3:TRUE COPY OF THE PETITION SUBMITTED BY THE HUSBAND OF THE PETITIOENR TO THE IST RESPONDENT EXT.P3(I):TRUE COPY OF THE PETITION SUBMITTED BY THE HUSBAND OF THE PETITIOENR TO THE 2ND RESPONDENT EXT.P4:TRUE COPY OF THE PETITION SUBMITTED BY THE HUSBAND OF THE PETITIONER TO THE 3RD RESPONDENT EXT.P5:TRUE COPY OF THE ORDER DTD 28/5/2013 PASSED BY THE FOURTH RESPONDENT ON EXT P-4 EXT.P6:TRUE COPY OF THE LETTER IN RESPONSE TO EXT P3 PETITION SENT TO THE PETITIONER EXT.P7:TRUE COPY OF THE REPLY LETTER DTD 14/5/2013 ISSUED BY THE 4TH RESPONDENT IN REPLY TO THE APPLICATION UNDER RIGHT TO INFOMATION ACT, 2005 SUBMITTED FOR THE PETITIONER EXT.P8:TRUE COPY OF THE LETTER DTD 29/5/2013 OF 5TH RESPONDENT IN REPLY TO THE APPLICATION UNDER THE RIGHT IN INFORMATION ACT, 2005 SUBMITTED FOR THE PETITIONER EXT.P9:TRUE COPY OF THE VOTER'S ID CARD OF THE PETITIONER ISSUED BY THE ELECTION COMMISSION OF INDIA** **EXT.P10:TRUE COPY OF THE ENQUIRY REPORT OF THE SECOND RESPONDENT, DATED 1/6/2013 IN RESPONSE TO EXHIBIT P-3(I) IS PRODUCED HEREWITH EXT.P11:TRUE COPY OF THE POWER OF ATTORNEY REGISTERED AS DOCUMENT NO.319/2013 OF ERNAKULAM SRO** **EXT.P12:TRUE COPY OF THE COMPLAINT DATED 25/4/2013 SUBMITTED BY THE HUSBAND OF THE DE-JURE PETITIONER BEFORE THE STATION HOUSE OFFICER, ERNAKULAM TOWN SOUTH POLICE STATION** **2/-** **sts** **-2-** **WP(C)NO.14375/2013** **EXT.P12(A) TRUE COPY OF THE C.M.P.NO.1172/2013 FILED BY THE DE-FACTO PETITIONER ON 29/4/2013 BEFORE THE HON'BLE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.** **RESPONDENT(S)' EXHIBITS:** **EXT.R1(A). TRUE COPY OF THE ELECTORAL IDENTITY CARD BEARING NO.KL/10/033/772195** **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **P.R. RAMACHANDRA MENON, J.** ======================== W.P.(C). No. 14375 of 2013 -------------------------------------------Dated this the 26[th] day of September, 2013 ## **JUDGMENT** The petitioner is before this Court seeking for a declaration for Ext.P2 Sale Deed bearing No. 5465/2012 stated as executed in the name of the petitioner, to be struck down from the records of the SRO Ernakulam, in the 1[st] Book in Volume 2457 at pages 229 to 232, for the reason that the same has been generated by virtue of a fraudulent exercise impersonating the petitioner by somebody behind the curtain. 2. The petitioner is the owner of 0.33 Ares in Sy. No. 811/2 and 3.276 Ares of land in Sy.No. 811/3 in Elumkulam Village, which is covered by Ext.P1 Sale Deed and ever since the execution of the said deed, the petitioner was enjoying the property with exclusive possession, absolute ownership and clear and marketable title, also remitting the basic tax. The petitioner, by virtue of the employment of her husband at Behrain, was staying abroad and later in the year 2013, she came back with an intent to construct a residential building in the above property. W.P.C. No.14375 of 2013 -2- The petitioner was really shocked to know, as putforth by a neighbour, that, the owner of the property was somebody else, by virtue of Ext.P2 Sale Deed stated as executed on 31.12.2012. The petitioner made detailed enquiries, when it was given to understand that, somebody had impersonated the petitioner and Ext.P2 document was created causing the same to be registered by the 1[st] respondent. 3. Met with the situation, the husband of the petitioner filed Ext.P3 complaint before the 1[st] respondent for cancelling the disputed document and approached the 2[nd] respondent by filing Ext.P3(i) for granting the necessary relief. Since mutation of the property was also caused to be made in the meanwhile, the husband of the petitioner filed Ext.P4 petition before the 3[rd] respondent, who conducted an enquiry and submitted a detailed report to the Tahsildar, virutally in support of the case projected by the petitioner. Based on the said document, the mutation was cancelled by the Tahsildar, as per Ext.P5 order dated 28.05.2013, directing the Village Officer to effect necessary corrections in the Village records. 4. While so, the petitioner was let known by the 1[st] W.P.C. No.14375 of 2013 -3- respondent, as per Ext.P6, that there was no provision under the Registration Act/Rules to cause Ext.P2 to be cancelled by the 1[st] respondent and that, it was open for the petitioner to approach the competent Court of law to get necessary relief. This made the petitioner to approach this Court by filing this writ petition. 5. Since the notice issued to the 6[th] respondent could not be served upon him, substituted service by way of paper publication was ordered. In spite of effecting such publication, since the 6[th] respondent did not choose to appear before this Court, the service of notice was declared as complete, as per order dated 04.09.2013. 6. A counter affidavit has been filed by the 1[st] respondent, referring to the course and events, also producing a copy of the Electoral ID Card bearing No. KL/10/033/772195 of the executant of Ext.P2 as Ext.R1(a). The course pursued by the 1[st] respondent to have the matter considered and finalized by issuing notice to the 6[th] respondent is also described therein. But the notice issued through post was returned unserved. The crux of the counter affidavit shows that, the petitioner was required to appear before the 1[st] respondent for further enquiry along with W.P.C. No.14375 of 2013 -4- the witnesses and that steps are going on. 7. A reply affidavit has been filed by the petitioner explaining the facts with regard to the subsequent developments. The 2[nd] respondent conducted an enquiry as to the issue and has arrived at a clear finding that, the document registered by way of Ext.P2 was pursuant to an act of impersonation. Accordingly, the case projected by the petitioner has been certified as correct and since the impersonator as well as the witnesses are very much responsible for the event, it was recommended that the matter be referred to the District Superintendent of Police for taking appropriate action in respect of the offence involved. A copy of the said report has been produced as Ext.P10 along with the reply affidavit. 8. In the course of further proceedings, the petitioner filed an I.A. No. 11825 producing a copy of the Power of Attorney as Ext.P11, a copy of the complaint preferred before the Police as Ext.P12 and another complaint preferred before the concerned Magistrate's Court as P12(a). The learned counsel submits that, the complaint preferred before the Magistrate's Court has already been forwarded to the Police for investigation under Section 156 W.P.C. No.14375 of 2013 -5- (3) of the Cr.P.C. 9. After hearing the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents, this Court finds that, the pleadings raised by the petitioner with regard to the nature of execution of Ext.P2 by deploying fraudulent means stands vindicated. It is settled law that, fraud and justice do not co-exist and fraud vitiates everything, as made clear by the Apex Court as per the decision reported in **United India Insurance Company Ltd.** v. **Rajendra Singh & Others (2000 (3) SCC 581)** . This is more so, in view of the fact that, in spite of the paper publication, the 6[th] respondent/the impersonator has not chosen to appear before this Court. So also, a specific finding has been rendered by the 2[nd] respondent/District Registrar, vide Ext.P10, in this regard. This being the position, Ext.P2 document created by deploying fraud is no more liable to be sustained in any manner. 10. Accordingly, Ext.P2 is set aside. This Court finds support from the law declared by this Court in the decision reported in **Malayala Manorama Co. Ltd.** v. **Assistant Commissioner** ( **2006 (4) KLT 235)** to have exercised the W.P.C. No.14375 of 2013 -6- discretionary jurisdiction of this Court under Article 226 in such circumstance. The 1[st] respondent is directed to take appropriate steps for effecting necessary correction in the relevant records as to the course and events. It is open for the Police to investigate the matter further, in connection with the offence involved; with regard to which no orders do require to be passed by this Court, more so when, no such relief has been sought for and the authorities of the Police have not been impleaded in the party array. The writ petition stands allowed to the said extent. No cost. ## **P.R. RAMACHANDRA MENON, JUDGE.** kp/-