Kesava Pillai and others v. Kesavan Purushothaman and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 19TH JANUARY 2011 / 29TH POUSHA 1932 SA.No. 3 of 2002 --------------------------- AS.23/1999 of SUB COURT, NEDUMANGAD OS.252/1991 of ADDL.MUNSIFF COURT,NEDUMANGAD .................... ## APPELLANTS/APPELLANTS/PLAINTIFFS: 1. KESAVA PILLAI, SOMASEKHARAN NAIR, RESIDING AT KAVUVILA VEEDU, NEAR SAINIKA SCHOOL, CHANTHAVILA, KAZHAKOOTTAM VILLAGE, CHIRAYINKIL TALUK. ## 2. RUGMINI PILLAI, OMANA AMMA, RESIDING AT CHANTHAVILA, JANAKI MANDIRAM, KIZHUVALAM, CHIRAYINKIL VILLAGE. 3. RUGMINI PILLAI SUKUMARI AMMA, RESIDING AT POURNAMI, THALIYAL, KARAMANA, IRANIMUTTOM VILLAGE. 4. RUGMINI PILLAI THANKAMMA, RESIDING AT KUNNUMPURATH VEEDU, CHERIYA THOLICODE, PERINGAMALA VILLAGE, NEDUMANGAD. BY ADV. SRI.P.PARAMESWARAN NAIR ## RESPONDENTS/RESPONDENTS/DEFENDANTS: 1. KESAVAN PURUSHOTHAMAN, RESIDING AT MANGOMKOTTU KIZHAKKUMKARA PUTHEN VEEDU, CHERIYA THOLICODE, PERINGAMALA VILLAGE, NEDUMANGAD TALUK. 2. D.KRISHNAN THAMPI, HINDU, RESIDING AT PUTHIYA VEEDU, NEAR KALLADA KALLAYAM, KARAKULAM VILLAGE, NEDUMANGAD. (DIED) ## ADDITIONAL RESPONDENTS IMPLEADED 3. RAMACHANDRAN NAIR, S/O LATE KRISHNAN THAMPI, PUTHIYA VEEDU, KALPADATHAZHE, MATUTHOOR, KALLAYAM P.O., NEDUMOM. ## 4. RAVEENDRAN NAIR, DO. DO. DO. ## 5. VIJAYAMMA, D/O. DO. THATTATHUMALA, KILIMANOOR. Impleaded as per order dated 16.11.2009 in CMP 1088/2002. THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------------------- S.A.No.3 of 2002 ------------------------------------- ## **JUDGMENT** Plaintiffs in O.S.No.252/1991 on the file of Additional Munsiff's Court, Nedumangad are the appellants. Respondents are the defendants. The suit was instituted for redemption of Exhibit A1 mortgage and for recovery of possession of plaint schedule property. Exhibit A1 mortgage deed was executed on 10.8.1971 by Ramachandran Nair in favour of first respondent. The suit was instituted by the appellants, who are the brother and sisters of Ramachandran Nair, claiming that Ramachandran Nair was employed in a company at Bangalore and while so, no information was received from him since 1974 by any of his relatives and he was a bachelor and parents of Ramachandran Nair is no more and as close relatives of Ramachandran Nair, including the appellants, they have no information of him for more than seven years and hence, it SA 3/02 2 is to be presumed that he is no more. As the legal heirs of Ramachandran Nair, appellants contended that they are entitled to redeem the mortgage. 2. Respondents resisted the suit contending that Ramachandran Nair is still alive and therefore, appellants are not entitled to redeem the mortgage. It is contended that on 26.9.1979 Ramachandran Nair executed Exhibit B1 agreement for sale in favour of first rspondent and in such circumstances, they are entitled to the protection provided under Section 53A of Transfer of Property Act. 3. Learned Munsiff, on the evidence of PW1, the third appellant and first defendant as DW1 and two other witnesses on the defence side, Exhibits A1, B1 and C1, dismissed the suit holding that appellants failed to establish that Ramachandran Nair is no more and therefore, they are not entitled to redeem the mortgage. Appellants challenged the judgment before Sub Court, Nedumangad in A.S.No. 23/1999. Learned Sub Judge, on re-appreciation of evidence, confirmed the findings of the learned Munsiff and SA 3/02 3 dismissed the appeal. It is challenged in this second appeal. 4. Learned counsel appearing for the appellants was heard. 5. Argument of the learned counsel is that appellants are the brother and sisters of Ramachandran Nair and if Ramachandran Nair was alive, they would have definitely heard him and evidence of PW1 establishes that none of the relatives heard Ramachandran Nair for more than seven years prior to the institution of the suit and in such circumstances, findings of the courts below are not sustainable. Learned counsel argued that as respondents would allege that Ramachanedran Nair is alive, under Section 108 of Indian Evidence Act, it is their burden to establish that Ramachandran Nair is alive and as there is no evidence to prove the same, findings of the courts below are unsustainable and as Exhibit A1 mortgage is redeemable, courts below should have granted the decree. Reliance was placed on the decision of Full Bench of this Court in **Appula Vadhyar v. Venketeswara Vadhyar** (1970 KLT 976) in SA 3/02 4 support of the contentions. 6. The only question that arises for consideration is whether appellants are entitled to institute a suit for redemption of a mortgage executed by Ramachandran Nair, their brother, as his legal heirs. Appellants are entitled to institute a suit only if Ramachandran Nair is no more. Their case is that as they did not hear Ramachandran Nair for the last more than seven years and so, it is to be presumed that he is no more. Argument of the learned counsel is that evidence of PW1 and DW3 establish that none of the relatives heard Ramachandran Nair for the last seven years and in such circumstances, it is for the respondents to prove that he is alive. 7. Ramachandran Nair was admittedly an employee of CEL Company at Bangalore. If Ramachandran Nair had not attended the company after 1974, as claimed by the appellants, they could have produced records to establish that fact. Similarly, if Ramachandran Nair did not attend the company, the benefits available to him would have been SA 3/02 5 claimed by the appellants. There is no evidence to prove any of these facts. The presumption provided under Section 108 of Indian Evidence Act arises only if the conditions provided therein are satisfied. The Section provides that when the question is whether a man is alive or dead and it is proved that he has not been heard for seven years, by those who would naturally have heard him, if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. Therefore, there should be acceptable evidence to prove that Ramancahdran Nair was not heard for seven years by those who would have naturally heard him, if he was alive. Courts below, on the evidence of PW1 and DW3, found that their evidence estaboish that even if Ramachandran Nair is alive, they would not have heard him. It is a finding of fact. If so, based on their evidence, presumption under Section 108 of Indian Evidence Act cannot be drawn. The Full Bench decision in **Appula Vadhyar's case** (supra) has no application on the facts of this case. I find the appreciation of evidence by the courts SA 3/02 6 below was proper. Hence, it warrants no re-appreciation. Learned counsel appearing for the appellants submitted that if appellants could establish now that Ramachandran Nair is no more, dismissal of the suit may not prevent them from claiming redemption. If appellants could establish that Ramachandran Nair is no more and they are the legal heirs of Ramachandran Nair, dismissal of the suit by itself will not prevent them from seeking redemption. As no substantial question of law is involved in this appeal, appeal is dismissed. 16[th] February, 2011 tkv (M.Sasidharan Nambiar, Judge) SA 3/02 7 M.Sasidharan Nambiar, J. ---------------------------------------S.A.No.3 of 2002 ----------------------------------------- **JUDGMENT** 16[th] February, 2011