K.K. Ramakrishnan v Thankamani and Ammukutty

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 20TH DAY OF AUGUST 2013/29TH SRAVANA, 1935** ## **AS.NO. 469 OF 2002 ( )** ## **----------------------------------O.S. NO.711 OF 1995, SUB COURT, PALAKKAD** ## **APPELLANT(S)/1ST DEFENDANT:** **------------------------------------------------** ## **K.K. RAMAKRISHNAN S/O. KUTTIPAZHANAN, KUNNUMPURAM HOUSE, MUNDOOR VILLAGE POOTHANUR AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT.** ## **BY ADV. SRI.MAJNU KOMATH** ## **RESPONDENT(S)/PLAINTIFF/RESPONDENT/2ND DEFENDANT:** **----------------------------------------------------------------------------------------** ## **1. THANKAMANI** **KUNNUMPURAM HOUSE, MUNDOOR VILLAGE, POOTHANUR AMSOM PALAKKAD TALUK, PALAKKAD DIST.** ## **2. AMMUKUTTY, AGED 59,** ## **W/O. THEETHAN, MANGATTUPADIKKAL, KINAVALLUR AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT.** **R,1 BY ADV. SRI.T.C.SURESH MENON R,R1 & R2 BY ADV. SRI.T.C.SURESH MENON** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== A.S. No.469 of 2002 ==================================== Dated this the 20[th] day of August, 2013** ## **J U D G M E N T** This appeal arises from the judgment and decree dated 04.07.2002 in O.S. No.711 of 1995 of the Sub Court, Palakkad. 2. The suit property originally belonged to Kuttipazhanan. On his death it devolved on the appellant, second respondent and Lakshmi, mother of the 1[st] respondent. First respondent claimed that on the death of Lakshmi, her 1/3[rd] share in the suit property devolved on her. On that premise the 1[st] respondent filed O.S. No.711 of 1995 for partition and separate possession of her 1/3[rd] share claiming that she is in possession of the property with the appellant and the 2[nd] respondent. 3. Appellant contended that the 1[st] respondent has no subsisting right or interest in the suit property since her 1/3[rd] share in the suit property was released in favour of the appellant as per Ext.B1, release deed dated 02.01.1993. He claimed to have got release of the share of the 2[nd] respondent also as per Ext.B2. In view of that contention the 1[st] respondent got the plaint amended to incorporate a prayer for cancellation of Ext.B1, release deed. **A.S. No.469 of 2002** -: 2 :- 4. Learned Sub Judge found that Ext.B1, release deed is not valid since the 1[st] respondent had not executed that document aware of its contents, ordered cancellation of Ext.B1 and directed partition of the property between the appellant and respondents. So far as right claimed by the 2[nd] respondent-2[nd] defendant is concerned, learned Sub Judge directed that division of the property between the appellant and 2[nd] respondent will be subject to result of litigation between the appellant and 2[nd] respondent as to the validity of Ext.B2. First defendant is aggrieved and has preferred this appeal. 5. The following points arise for a decision. (i) Whether finding of learned Sub Judge as to the validity of Ext.B1, release deed is legally correct? (ii) Whether the 1[st] respondent has any subsisting right in the suit property to claim partition and separate possession? 6. Learned counsel for the appellant contended that finding of learned Sub Judge as to the validity of Ext.B1 is erroneous. It is argued that the further finding that the 1[st] respondent was illiterate and was not able to understand ## **A.S. No.469 of 2002** ## -: 3 :- contents of Ext.B1 is not correct. Learned counsel argued that evidence of the 1[st] respondent as P.W.1 and her witness as P.W.2 cannot be believed particularly as learned Sub Judge has expressed doubt regarding the veracity of a portion of evidence given by P.W.2. It is argued that due execution, attestation and registration of Ext.B1 are spoken to by the appellant as D.W.1 and the attesting and identifying witness as D.W2. In the circumstance, learned Sub Judge was not right in ordering cancellation of Ext.B1 and directing partition of the property between the appellant and the 1[st] respondent. Learned counsel argued that though the 2[nd] respondent had filed O.S. No.142 of 1996 in the Munsiff's Court, Palakkad seeking cancellation of Ext.B2, the plaint was returned for presentation in the proper court and thereafter the appellant had no information about any re-presentation of the plaint. According to the learned counsel litigation between the appellant and 2[nd] respondent has come to an end leaving Ext.B2 unassailed. 7. Learned counsel for the 1[st] respondent contended that there is sufficient evidence to show that the 1[st] respondent is an illiterate lady and that contents of Ext.B1 were not read over to her as it ought to have been. It is also contended that Ext.A1, **A.S. No.469 of 2002** -: 4 :- unregistered agreement for sale dated 15.11.1992 and Exts.A3 and B1 which were executed and registered on the same day are to be read together. It is the case of the appellant that the 1[st] respondent was financially not capable of paying the sale consideration for assignment of land covered by Ext.A3 and hence in part consideration, the 1[st] respondent agreed to release her 1/3[rd] share in the suit property and consequently Ext.B1 was executed. But there is no reference in Exts.A1 and A3 about the said transaction. Learned counsel has placed reliance on the decisions in **Prabhakaran v. Anthappan (1986 KLT SN 58 Case No.95), Pailoth v. Kunjuvareed (1986 KLT 1390)** and **Mary George v. Lilly** (2009(1) KLT 265 [paragraph 9]). The further argument is based on the sale consideration shown in the impugned document. It is argued that it amounts to fraud on registration as held by this Court in **Gopalakrishnan** **v. Srinivasan** (2010(2) KLT 216). Learned counsel argues that once Ext.B1 goes, the 1[st] respondent has 1/3[rd] share in the suit property as rightly found by the learned Sub Judge and that requires no interference. 8. The crucial question for a decision is regarding the due execution, attestation and registration of Ext.B1. That, **A.S. No.469 of 2002** -: 5 :- Ext.B1 is signed by the 1[st] respondent is not disputed by her also, her case being that at the time of execution of Ext.A3, the appellant made her sign Ext.B1 without revealing its contents on the premise that Ext.B1 is necessary to evidence execution of Ext.A3. 9. First respondent when examined as P.W1 claimed that she studied only upto 1-2[nd] standard and does not know reading or writing Malayalam. She claimed that contents of Ext.B1 were not read over and explained to her. P.W.2 is examined to substantiate that case. He is a witness in Ext.A1, the undisputed agreement dated 15.11.1992. As per that agreement, 1[st] respondent was to purchase another item of property belonging to the appellant. Pursuant to that agreement the appellant executed Ext.A3, sale deed in favour of the 1[st] respondent. P.W.2 claimed that he was present at the time of execution and registration of Exts.A3 and B1 on 02.01.1993. The appellant told P.W.2 not to disclose contents of Ext.B1 to the 1[st] respondent and hence he refused to sign Ext.B1 as a witness. He claimed that contents of Ext.B1 were not read over and explained to the 1[st] respondent. 10. Contra evidence regarding execution of Ext.B1 is given ## **A.S. No.469 of 2002** -: 6 :- by the appellant as D.W.1. D.W.2 is the first identifying and attesting witness in Ext.B1. He claimed that contents of Ext.B1 was read over and explained to the 1[st] respondent and thereafter the 1[st] respondent has signed the document. 11. So far as due execution of Ext.B1 is concerned, as aforesaid, signature of the 1[st] respondent as executant is not disputed. Then the question is whether the 1[st] respondent is an illiterate lady as claimed by her and contents of Ext.B1 were read over and explained to her? In that matter evidence let in by the parties is contradictory. 12. Appellant who is the paternal uncle of the 1[st] respondent stated as D.W1 that the 1[st] respondent has studied upto the 4[th] standard. When the 1[st] respondent was questioned about the school in which she studied, she gave evasive answers. Even if it is assumed that the 1[st] respondent has studied only upto 1-2[nd] standard as she claimed, question is whether she was capable of understanding the contents of Ext.B1? From Exts.A1 and A3, it is clear that the 1[st] respondent was in the habit of executing and taking documents. It is not as if the 1[st] respondent was ignorant about the process of executing documents. First respondent was well aware of the procedure for **A.S. No.469 of 2002** -: 7 :- execution of documents. Her version that she was not told about contents of Ext.B1 and while executing Ext.A3, she was made to sign Ext.B1 has to be understood and appreciated in the above backdrop. 13. First respondent says as P.W1 that she learned about Ext.B1 at the office of the Advocate (while prosecuting O.S. No.711 of 1995). I must notice that Exts.A3 and B1 are executed and registered on the same day. Exhibit B1 contains the endorsement by the Registrar as to its registration. Under Section 34 of the Registration Act, there is a statutory duty cast on the Registrar to enquire from the executant as to the execution of the document. First respondent when examined as P.W1 stated that she was asked by the Sub Registrar whether she has signed Ext.B1. 'Due execution' of a document does not mean merely signing the document but executing the document as such. Thus the endorsement made by the Sub Registrar in Ext.B1 that formalities for registration are complied is prima facie evidence that the Sub Registrar had questioned the 1[st] respondent as to the due execution of Ext. B1. I must also notice that D.W.2 is the attesting and identifying witness in Ext.A3, the assignment deed taken by the 1[st] respondent. It is **A.S. No.469 of 2002** -: 8 :- difficult to believe that for the purpose of executing Ext.B1, D.W.2 has sided with the appellant. 14. According to the appellant, the 1[st] respondent wanted to purchase an item of property belonging to him and lying adjacent to the suit property for constructing a house. That led to Exts.A1 and A3. It is the further case of the appellant that since the 1[st] respondent was not able to pay the entire sale consideration she agreed to release her 1/3[rd] right in the suit property and execute Ext.B1. 15. Going by the recitals in Exts.A1 and A3 regarding sale consideration it does not tally with that version of the appellant. But that does not mean that I must find against execution of Ext.B1 if otherwise it could be upheld. The decisions in **Prabhakaran v. Anthappan, Pailoth v. Kunjuvareed and Mary George v. Lilly** (supra) relied on by the learned counsel for the 1[st] respondent have no application to the facts of this case 16. So far as evidence of P.W.2 is concerned, it is doubtful whether he was even present at the time of execution of Exts.A1, A3 and B1. Learned Sub Judge was also doubtful about that as revealed by what is stated in paragraph 17 of the judgment. There, it is stated that P.W.2 was swearing that he **A.S. No.469 of 2002** -: 9 :- came to the office of the document writer and the appellant was giving instructions for preparation of the release deed without the knowledge of the 1[st] respondent but the presence of P.W2 in the office of the document writer is not spoken by the 1[st] respondent as P.W.1. It is relevant to note that the 1[st] respondent never in her evidence as P.W1 stated about presence of P.W2 at the office of the document writer at the time of executing Exts.A1 and B1. Moreover, version of P.W.2 that the appellant asked him not to disclose contents of Ext.B1 to the 1[st] respondent appears to be quite improbable. If the appellant wanted contents of Ext.B1 to be kept out of notice of the 1[st] respondent, he would not have, in the normal course disclosed that to P.W2 who figures as a witness in Ext.A1. That version of P.W.2 cannot be accepted even with a handful of salt. 17. According to the the 1[st] respondent, herself and Kunju Ezhuthachan came to the office of the document writer at 9.00 am (on 02.01.1993) and the appellant came there at about 12 noon. But P.W.2 would say that all of them went together to the office of the Sub Registrar. That version of P.W.2 also does not tally with the version of the 1[st] respondent. In the above circumstances version of P.W2 about his presence in the office of the document **A.S. No.469 of 2002** ## -: 10 :- writer on 02.01.1993 when Exts.A3 and B1 were executed cannot be believed. 18. On the other hand, there is evidence of D.W.2 who is the attesting and identifying witness in Ext.B1 and the first attesting witness in Ext.A3. I stated that the 1[st] respondent has no quarrel with Ext.A3 where D.W.2 also figures as an attesting witness. It is natural that D.W.2 happened to be a witness in Ext.A3 and B1 which were executed and registered at the same place the same day. In the circumstances evidence of D.W2 assumes importance. He stated that contents of Ext.B1 were read over and explained to the 1[st] respondent and thereafter the 1[st] respondent executed that document. 19. Learned counsel for the 1[st] respondent contended that while in Ext.A1, agreement for sale extent of the property referred is 4 cents, in Ext.A3, it is 5½ cents and it is the version of the appellant that what was intended to be sold was 9½ cents. I am not inclined to attach much weight for that since that is only a discrepancy regarding extent of property conveyed as per Ext.A3 which has no direct or indirect application of the question involved in the suit. 20. It is difficult to think that the 1[st] respondent who ## **A.S. No.469 of 2002** ## -: 11 :- was aware of the contents of Ext.A3 either by herself reading it or the contents being read over to her failed to understand contents of Ext.B1 executed and registered the same day. She is not a novice in the matter of executing document. 21. Registration of a document is a solemn procedure. A registered document cannot be ignored so easily for the mere asking. It requires sufficient evidence to show that the document was got executed fraudulently. The 1[st] respondent is not so illiterate that she was unable to understand contents of the document she executed. In that situation, plea of 1[st] respondent that she was unaware of contents of Ext.B1 cannot be accepted. In the light of the above I am not unable to uphold finding of the learned Sub Judge as regards due execution and attestation of Ext.B1. 22. It follows that by Ext.B1, the 1[st] respondent has conveyed her share in the suit property to the appellant. If that be so, the 1[st] respondent has no subsisting right in the suit property to claim partition and separate possession. 23. So far as the claim of the 2[nd] respondent is concerned, learned Sub Judge has passed a decree as revealed from the operative portion of the judgment and made it subject to the suit **A.S. No.469 of 2002** ## -: 12 :- filed by the 2[nd] respondent. 24. While learned counsel for the appellant submitted that by order dated 30.10.1999 plaint in O.S. No.142 of 1996 filed by the 2[nd] respondent was returned for presentation in the proper court and thereafter the appellant has no intimation about that, learned counsel for the 1[st] respondent submitted that he has no information about that. At any rate it is not necessary to go into that question in this appeal. What is required is to make it clear that the decree for partition passed by the learned Sub Judge between the appellant and the 2[nd] respondent will be subject to the result of the suit if any filed or pending between the appellant and the 2[nd] respondent or to be filed by the 2[nd] respondent. Resultantly the appeal is allowed as under: (i) Judgment and preliminary decree dated 04.02.2002 in O.S. No.711 of 1995 of the Sub Court, Palakkad allowing the 1[st] respondent to get 1/3[rd] share in the suit property and separate possession thereof are set aside. (ii) The suit to the extent it concerns the 1[st] respondentplaintiff will stand dismissed. (iii) It is made clear that the preliminary decree for ## **A.S. No.469 of 2002** -: 13 :- partition passed by the learned Sub Judge among the appellant and the 2[nd] respondent will be subject to the result of the suit filed or pending if any between the appellant and the 2[nd] respondent or to be filed by the 2[nd] respondent. (iv) It is also made clear that in case the 2[nd] respondent succeeds in such suit 2/3[rd] share in the suit property will go to the appellant. (v) Parties shall suffer their costs in the appeal. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv