Kunhokkara Kumaran and others v. Kunhokkara Narayanan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933** **SA.No. 666 of 1999(D)** **--------------------------------** **AS.NO.56/1996 of SUB COURT, KOYILANDY OS.NO.24/1995 of MUNSIFF-MAGISTRATE COURT, PERAMBARA** **....................** ## **APPELLANT(S)/ RESPONDENTS/ DEFENDANTS 1 TO 3** **---------------------------------------------------------------------------------** - ***1. KUNHOKKARA KUMARAN, SON OF ARIYAN, MENHANYAM** - **AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.(DIED)** **2. KUNHOKKARA KALLIANI, W/O.KUMARAN, MENHANYAM AMSOM DESOM, KOZHIKODE DISTRICT.** **3. OTTAKANDATHIL PARAKKUTHAZHA BALAKRISHNAN, CHANGAROTH AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.** - ***SUPPL.APPELLANTS 4 TO 7 IMPLEADED AS ADDL.APPELLANT** - ***A4: SHOBHANA, D/O.LATE KUNHOKKARA KUMARAN, MENHANYAM AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.** - ***A5: SHEEBA, D/O. LATE KUNHOKKARA KUMARAN, -DO- -DO-** - ***A6: SHIJIN, S/O.LATE KUNHOKKARA KUMARAN, -DO- -DO-** - ***A7: SHITHA, D/O.LATE KUNHOKKARA KUMARAN, -DO- -DO-** - ***SUPPLEMENTAL APPELLANTS 4 TO 7 IMPLEADED AS THE LEGAL HEIRS OF DECEASED FIRST APPELLANT AS PER ORDER IN I.A.NO.1107/06 DATED 14/6/06.** - **BY ADV. SRI.P.K.SURESH KUMAR** - **SRI.K.P.SUDHEER** ## **RESPONDENT(S)/ APPELLANT/ PLAINTIFF** **---------------------------------------------------------------** - ***1. KUNHOKKARA NARAYANAN, SON OF THEYYON, RESIDING AT ANNAKOTTAN CHALIL, CHAKKITTAPPARA VILLAGE, PILLA PERUVANNA DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.(DIED)** **sts** **2/-** **-2-** ## **S.A.NO.666/1999** - ***2. KELANPOYIL KUNHIRAMAN, CHANGAROTH AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.(DELETED)** - ***3. PUNNACHALIL DAMODARAN, CHANGAROTH AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.(DELETED)** - **NAME OF R2 & R3 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 16/10/08 IN I.A.NO.2142/08 IN RSA.** - ***ADDL.RESPONDENTS 4 TO 7 IMPLEADED AS ADDL.RESPONDENTS** - **R4: VILASINI, W/O.NARAYANAN, ANNAKOTTAN CHALIL, CHAKKITTAPPARA VILLAGE, PILLA PERUVANNA DESOM, KOYILANDY TALUK, KOZHIKODE.** - ***R5: SHYNI, D/O.NARAYANAN, -DO- -DO-** - ***R6: SHEENA, D/O. NARAYANAN, -DO- -DO-** - ***R7: SHIJU, S/O.NARAYANAN, -DO- -DO-** - ***ADDL.RESPONDENTS 4 TO 7 IMPLEADED AS THE LEGAL HEIRS OF DECEASED 1 RESPONDENT AS PER ORDER ORDER IN** - **I.A.NO.1036/01 DATED 14/6/06.** **R1 & R4 TO R7 BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/12/2011, ALONG WITH WPC NO. 35669 OF 2003 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 666 of 1999 & W.P.(C) No.35669 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of December, 2011. ## **JUDGMENT** Defendants 1 to 3 in O.S.24 of 1995 before the Munsiff/Magistrate Court, Perambra are the appellants. They suffered a decree for injunction at the hands of the lower appellate court. Parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit property admittedly belonged to the mother of the plaintiff and the first defendant namely, Korumbi. The plaintiff is the son of Korumbi through her second husband and the first defendant is the son of Korumbi through her first husband. According to the plaintiff, as per Ext.A1 gift deed dated 20.7.1994 his mother had gifted the suit property to him and he was therefore in absolute possession and enjoyment of the same. Defendants 1 to 3 have no manner of right over the suit S.A.666/99 & W.P.(C)35669/03. 2 property. According to the plaintiff, on 19.2.1995 the defendants attempted to trespass into the plaint schedule property it was successfully prevented due to the timely action of the plaintiff and the people in the locality. Apprehending further trespass, the suit was laid. 3. The first defendant resisted the suit. It was pointed out by him that the gift deed produced was not executed by Korumbi. According to him, on the death of Korumbi, the plaint schedule property had been devolved equally on the plaintiff and first defendant. Claiming that the plaintiff has no cause of action against him, he prayed for a dismissal of the suit. 4. Based on the above pleadings, the following issues are seen raised by the trial court: - _“1. Whether the plaintiff is in possession of the plaint schedule property?_ _2. Whether the plaintiff has got title to the plaint schedule property?_ _3. Whether the cause of action alleged is true?_ S.A.666/99 & W.P.(C)35669/03. 3 ## _4. What relief?_ _Additional Issue No.5 : Whether plaintiff is entitled to any order of injunction?_ _Issue No.4 is redrafted as follows: Relief and costs.”_ 5. The trial court had directed the plaintiff to pay court fee under Section 27(1) of the Court Fees and Suits Valuation Act as the issue of title arose for consideration in the suit. The plaintiff did not comply with the said direction. The evidence adduced in the case consists of the testimony of P.Ws.1 to 3 and documents marked as Exts.A1 to A from the side of the plaintiff. The contesting defendants had D.W.1 examined. The trial court on an evaluation of the materials before it found that since possession was based on Ext.A1 gift deed and since no court fee had been paid by the plaintiff for adjudicating the issue of title, that could not be considered and therefore the plaintiff has not established his exclusive possession over the suit property and accordingly the suit was dismissed. The plaintiff carried the matter in S.A.666/99 & W.P.(C)35669/03. 4 appeal as A.S.56 of 1996 before the Sub Court, Koyilandy. The lower appellate court found that the execution of the gift deed had been proved and holding that the plaintiff is in possession of the suit property decreed the suit reversing the judgment and decree of the trial court. That brings defendants 1 to 3 before this court. 6. Notice is seen issued on the following questions of law: _“(i) Whether the lower appellate court was right in upholding the validity of a gift deed, which has not been signed by the donor on its last page?_ _(ii) Whether a valid transfer has effected as per the gift deed in question as its execution was not done as stipulated by S.123 of the Transfer of Property Act?_ _(iii) Is not the absence of signature at the end of the gift deed fatal to its validity and whether the dictum in the decision reported in 1999(1) K.L.T. 425 dealing with a case of absence of signature on one of the middle pages of a Will has any application to a case like the former?_ S.A.666/99 & W.P.(C)35669/03. 5 _(iv) Whether the Court below was right in decreeing the suit for injunction without examining the question of possession on the basis of independent evide_ 7. Learned counsel appearing for the appellants pointed out that the lower appellate court was not justified in going into the issue of title when court fee under Section 27(c) alone has been paid and inspite of direction to pay court fee, the plaintiff has not complied with the said direction. Learned counsel emphasized that when the question of title cannot be gone into, then the question of possession based on title too does not arise. Learned counsel then referred to the decision relied on by the lower appellate court to hold that the Will is duly executed by Korumbi. It was pointed out that the decisions so relied on by the lower appellate court are relating to a Will and the facts of the said decisions reveal that infact the executor himself had admitted execution of the Will. In this case, it was not so. Going by the provisions of law, it would appear S.A.666/99 & W.P.(C)35669/03. 6 that the gift deed has to be in writing and has to be registered if the valuation is more than Rs.100/-. The lower appellate court has erred in applying the principle evolved in **Baburajan v. Parukutty** (1999(1) K.L.T. 425). Learned counsel relied on the decision reported in **Marci Celine D'Souza v. Renie Fernandez** (1998(1) K.L.T. 888) to prove that execution of the Will is proved. Learned counsel also pointed out that in the case on hand, the plaintiff stands on a fiduciary relationship in relation to his mother and if that be the case when the execution of the gift deed is challenged, the burden is on the plaintiff to prove that it was infact executed by Korumbi and it was not vitiated by any circumstance. For the said proposition, learned counsel relied on Section 111 of the Indian Evidence Act and also the decision reported in **Krishnan Mohan Kul v. Pratima Maity** ((2004) 9 SCC 468). According to the learned counsel, the last page of the gift deed contains the description of the property and that page has not been S.A.666/99 & W.P.(C)35669/03. 7 signed by Korumbi and it is clear that the testator had no intention to gift the property to the plaintiff. Learned counsel also drew the attention of this court to Section 122 of the Transfer of Property Act and contended that a reading of the provision will reveal that Ext.A1 is not a properly executed Will and it could not have been relied on by the courts below. 8. Learned counsel appearing for the respondent contended that in a suit for injunction, only the question of possession is to be considered and the question of title does not arise for consideration. It is also pointed out that infact the first defendant has subsequently filed a suit for partition, which is pending. At best, what could be said is that the issue of title can be gone into in that suit and in the case on hand only the question of possession needs to be considered. Learned counsel also pointed out that the court below has found that the plaintiff has established his possession and also the execution of Ext.A1 gift deed. In S.A.666/99 & W.P.(C)35669/03. 8 fact referring to the evidence of D.W.1 it was pointed out that he admits that the signature contained in the first four pages of Ext.A1 is that of Korumbi and the mere fact that there has been an omission to sign page 4 will not vitiate the gift deed. Learned counsel also pointed out that the lower appellate court has considered all the relevant aspects and that it has come to the conclusion that the plaintiff has made out a case. Attention was also drawn to the fact that in the written statement the contention was that Korumbi had never signed Ext.A1 at all. 9. Learned counsel went on to point out that the finding that the plaintiff is in possession of the plaint schedule property is a finding of fact and no substantial question of law arises for consideration in this appeal and it is only to be dismissed. 10. The lower appellate court was not justified in going into the question of title for the simple reason that even inspite of the order to pay court fee under Section S.A.666/99 & W.P.(C)35669/03. 9 27(a), the plaintiff did not comply with the order and continued the suit by paying court fee under Section 27(c). The trial court has therefore noticed that the basis of the claim of possession of the plaintiff was Ext.A1 document and therefore the question of title did arise for consideration and the plaintiff had to pay court fee under Section 27(a) and having not done so, the trial court held that the question of title cannot be gone into. 11. The lower appellate court though did not actually raise an issue regarding title, did consider whether the plaintiff has title to the suit property. The lower appellate court appears to have omitted to note that no court fee has been paid under Section 27(a). 12. The lower appellate court has considered the issue in detail and found that due execution of Ext.A1 is also proved and therefore the plaintiff has title to the suit property. In the light of the fact that no court fee under Section 27(a) has been paid, the question of title did not S.A.666/99 & W.P.(C)35669/03. 10 arise for consideration and the finding on Ext.A1 was quite unnecessary. Independently of title the lower appellate court ought not to have considered the question of possession. 13. Now the question is whether independent of title, possession of the plaintiff has been proved. As already noticed, the lower appellate has not raised an issue regarding title for consideration, but has only raised an issue regarding possession of the suit property. Though possession is found in pursuance to Ext.A1 document, the fact remains that the plaintiff is residing in the building in the property and defendants 1 to 3 are residing elsewhere. May be that dehors Ext.A1, the plaintiff and the first defendant may occupy the status of co-owners. Viewed from that angle, finding regarding Ext.A1 might have been necessary. But whatever that be, in a suit for injunction only question of possession arise for consideration. In the case on hand, the question regarding genuineness of Ext. A1 does S.A.666/99 & W.P.(C)35669/03. 11 not arise for consideration. More so, since a separate suit for partition has been filed. 14. In the facts of the case, it is therefore unnecessary to go into the question of title, since, we are only concerned with the question of possession. Admittedly the plaintiff is residing in the property and if that be so, the finding of the lower appellate court that the plaintiff has possession over the suit property cannot be found fault with. 15. However, a finding on Ext.A1 and the question of title remains to be considered in a suit for partition and the decision on the question of title and the genuineness of Ext.A1 is not germane for consideration in the case on hand. 16. Therefore it is felt that the question of title to the property and the validity of the gift deed can be considered in the partition suit and the finding in this suit for injunction will not preclude the parties from agitating the said issues in the partition suit said to have been filed by the first defendant. S.A.666/99 & W.P.(C)35669/03. 12 In the result, this appeal is dismissed observing that the finding regarding Ext.A1 and the question of title is left open to be decided in the partition suit. Parties will be entitled to agitate the question of title and the validity of the gift deed in the partition suit by adducing appropriate evidence. ## W.P.(C) 35669 of 2003 In the light of the judgment in S.A.666 of 1999, nothing remains to be considered in the writ petition. The writ petition becomes infructuous and it is dismissed. **P. BHAVADASAN, JUDGE** sb.