Kunjan Vasanthakumar v. Baby Geetha and Kunjan Santhagopan and Latha Nivas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 5TH DAY OF JULY 2012/14TH ASHADHA 1934** **SA.NO. 773 OF 2001 ( )** **----------------------------------AS.58/1995 OF III ADDITIONAL DISTRICT COURT, KOLLAM OS.308/1993 OF MUNSIFF COURT, KARUNAGAPPALLY** **APPELLANT/1[ST] RESPONDENT/PLAINTIFF:** **-------------------------------------------------------------** **KUNJAN VASANTHAKUMAR, RECHANAYIL, CLAPPANA SOUTH MURI, CLAPPANA VILLAGE FROM VALIYA VEEDU.** **BY ADVS.SRI.C.M.MOHAMMED IQUABAL SRI.S.SHAJI** ## **RESPONDENTS/APPELLANTS/RESPONDENT/DEFENDANT:** **-----------------------------------------------------------------------------------** **1. BABY GEETHA, RESHMA NIVAS, KANNIMEL CHERI, KILIKOLLOOR VILLAGE, KOLLAM TALUK FROM PANICKASSERY PUTHEN VEEDU, CLAPPANA NORTH MURI, PERINAD VILLAGE.** ## **2. KUNJAN SANTHAGOPAN, LATHA NIVAS, CLAPPANA NORTH MURI, PERINAD VILLAGE.** **BY ADV. SRI.P.B.SURESH KUMAR R1** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05-07-2012, ALONG WITH SA. 774/2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== S.A. Nos.773 & 774 of 2001 ==================================== Dated this the 05[th] day of July, 2012** ## **J U D G M E N T** These Second Appeals are brought from the common judgment and decree of the court of learned Third Additional District Judge, Kollam in A.S. Nos.58 and 59 of 1995 which arose from the common judgment and decree of learned Munsiff, Karunagappally in O.S. Nos.308 and 384 of 1993. O.S. No.308 of 1993 is for a declaration of title and possession and for fixation of eastern boundary of the suit property. First defendant in O.S. No.308 of 1993 filed O.S. No.384 of 1984 against the plaintiff in O.S. No.308 of 1993 and his mother, Dakshayani Amma for a declaration that document No.1269 of 1973 (Ext.A1) is not binding on her and for prohibitory injunction. Parties are referred as plaintiff and defendants as in O.S. No.308 of 1993 which was taken as the leading case and in which the parties adduced evidence. 2. Dispute concerns title and possession of 14 cents. It is admitted by both sides that the said 14 cents along with other items originally belonged to the Panickassery Tarwad. According to the plaintiff, when the said Tarwad was in possession and ## **S.A. Nos.773 & 774 of 2001** ## -: 2 :- enjoyment of the 14 cents, that property was sold by the revenue authorities for revenue arrears and was purchased by one Kithu. Kithu assigned the said 14 cents to Kunjan Raman, father of the plaintiff (husband of the first defendant in O.S. No.384 of 1993) as per Ext.B18, assignment deed of the year 1105ME (Ext.B1 is its certified copy). On Kunjan Raman dying intestate the said 14 cents devolved on the first defendant in O.S. No.384 of 1993. She executed Ext.A1, assignment deed No.1269 of 1973 in favour of the plaintiff. Thus plaintiff claimed to be the owner in possession of the said property. He wanted a declaration regarding his title, possession and fixation of eastern boundary of the said property. 3. First defendant denied the title and possession claimed by the plaintiff. She admitted that the 14 cents originally belonged to the Panickassery Tarwad. She also admitted that there was a revenue sale of the 14 cents in favour of Kithu but contended that Kunjan Raman acquired the said 14 cents from Kithu for the benefit of the Tarwad and returned the said property to the benefit and enjoyment of the Tarwad. While so, there was a partition of the properties belonging to the Tarwad as per Ext.B2, partition deed of 1112ME wherein the 54 ## **S.A. Nos.773 & 774 of 2001** ## -: 3 :- cents (including the 14 cents which is the subject matter of these suits) was allotted to Sreedhara Panicker and his brother, Bhaskara Panicker. Bhaskara Panicker released his right in the 54 cents to Sreedhara Panicker. Sreedhara Panicker executed gift deed No.366 of 1974 in respect of 13 cents in Sy. No.1913 and 15 cents in Sy. No.1911 in favour of the first defendant. By Ext.B7, settlement deed Sreedhara Panicker gifted 12 cents in Sy. No.1913 to the 1[st] defendant and the 14 cents in Sy. No.1913 (suit property) was gifted to Prathapa Panicker, brother of the first defendant. The said Prathapa Panicker sold the said 14 cents to the first defendant as per Ext.B8, assignment deed. Thus 1[st] defendant claimed to be the owner in possession of the 14 cents. 4. Learned Munsiff accepted the case of the plaintiff and declared his title and possession of the 14 cents. First defendant was restrained by a decree for prohibitory injunction from trespassing into the said property. O.S. No.384 of 1993 ended in a dismissal. 5. First defendant challenged that common judgment and decree in A.S. Nos.58 and 59 of 1995. The first appellate court, reversing the decision of the trial court held that the first defendant is the owner in possession of the 14 cents and ## **S.A. Nos.773 & 774 of 2001** ## -: 4 :- accordingly declared that Ext.A1, assignment deed No.1269 of 1973 does not bind the 14 cents and that the first defendant has title and possession of the 14 cents. Consequence was a dismissal of O.S. No.308 of 1993 and a decree as prayed for in O.S. No.384 of 1993. That common judgment and decree of the first appellate court are under challenge in these appeals on the following substantial questions of law: (i) Whether confirmation in terms of Revenue Recovery Act declares pre-existing right and title to the property mentioned? (ii) Did not the first appellate court err in holding that the attestor to a document is presumed to have knowledge about the contents of the document? (iii) Did not the first appellate court err in holding that title to a property purchased in revenue sale did not pass, unless and until sale sannath is registered? 6. It is contended by learned counsel for the plaintiff in ## **S.A. Nos.773 & 774 of 2001** ## -: 5 :- O.S. No.308 of 1993 that the finding of the first appellate court regarding title and possession is erroneous. According to the learned counsel, the first appellate court was under a wrong impression that the sale sannath issued by the revenue authorities required compulsory registration under Sec.17(2)(xii) of the Registration Act (for short, “the Act”). It is pointed out by the learned counsel that Sec.17(2) of the Act exempts from registration transactions referred to in clauses (i) to (xii). It is also pointed out by the learned counsel that once the revenue sale is complete, title passes and the mere fact that no sale sannath is issued is of no consequence. Reliance is placed on the ## decision in **Thankam and others v. Damodaran and** **others** (1976 KLT 526). 7. A further contention the learned counsel has advanced is that the mere fact that in Ext.B2, partition deed of 1112ME executed between members of the Panickasserry Tarwad there is reference to allotment of 54 cents including the disputed 14 cents in favour of Sreedhara Panicker and his brother, Bhaskara Panicker, would not affect the title and possession of Kunjan Raman over the 14 cents he acquired from Kithu as per Ext.B18, assignment deed of the year 1105ME. It is pointed out ## **S.A. Nos.773 & 774 of 2001** ## -: 6 :- by the learned counsel that the said kunjan Raman who is the husband of the 1[st] defendant in O.S. No.384 of 1993 (who is a party in Ext.B1) is not a party to Ext.B2, partition deed and hence the mere fact that he happened to be an attestor in that document is not sufficient to bind him with the transactions referred to in Ext.B2. It is the contention of the learned counsel that Kunjan Raman being a mere attestor in Ext.B2, cannot be imputed with knowledge of contents of Ext.B2. Since by Ext.B1, Kunjan Raman has acquired title and possession of the property, it could be conveyed only by another registered instrument. There is no deed involving Kunjan Raman or any of his legal representatives assigning the 14 cents in favour of the first defendant or any of his predecessors-in-interest. A further contention the learned counsel has advanced is that Ext.B2 would show that plaintiff is in possession and enjoyment of the 14 cents. In view of Ext.B11, judgment in O.S. No.35 of 1989 and Ext.B12, the appellate judgment arising from Ext.B11, judgment, the 1[st] defendant is precluded from contending, on the principle of res judicata, that she has title and possession of the 14 cents. Learned counsel contended that the first appellate court has proceeded on a wrong basis in holding that first defendant has ## **S.A. Nos.773 & 774 of 2001** -: 7 :- title and possession of the property. The learned counsel prayed that judgment and decree of the first appellate court be reversed and that of the trial court be restored. 8. The learned counsel for the first defendant contended that Exts.B11 and B12 will not operate as res judicata against the contention raised by the first defendant. It is contended that O.S. No.35 of 1989 was filed by the 1[st] defendant against the brother of the plaintiff. Plaintiff is not claiming any right, title or interest, under his brother who was the defendant in O.S No.35 of 1989. It is also contended that in the appeal arising from Exts.B11, judgment the first defendant did not pursue her claim for title over the 14 cents (as against the brother of the plaintiff), the said question was left undecided and the first appellate court being satisfied that the 1[st] defendant is in possession and enjoyment of the 14 cents granted a decree for injunction with respect to that item also. 9. The further argument advanced is that though the 14 cents was the subject matter of revenue sale and purchased by Kithu, circumstances show that Kithu purchased the property and later, Kunjan Raman, the husband of the first defendant in O.S. No.384 of 1993 got it assigned, for and on behalf of the ## **S.A. Nos.773 & 774 of 2001** ## -: 8 :- Panickassery Tarwad. This fact is evidenced by Ext.B2, partition deed of 1112ME. Exhibit B2 would show that apart from being an attestor to that document, Kunjan Raman had taken a lead role in the allocation of properties among members of the Panickassery Tarwad and hence he could not plead ignorance of the partition of properties including the 14 cents as per Ext.B2. It is contended that Kunjan Raman had released his right over the suit property (14 cents) in favour of the Panickassery Tarwad in consideration of his mortgage liability over some other items being released and hence he was estopped from contending that he had title and possession of the property so that his wife, the first defendant in O.S. No.384 of 1993 could inherit the suit property on his death and convey it to the plaintiff. According to the learned counsel, the first defendant in O.S. No.384 of 1993 in the above circumstances is estopped from claiming that she has inherited right, title and interest over the suit property consequent to the death of her husband and execute Ext.A1, assignment deed in favour of the plaintiff. 10. Dispute concerns title and possession of the 14 cents. Exhibit B18 is the assignment deed of the year 1105ME executed by Kithu in favour of Kunjan Raman (Ext.B18, the original ## **S.A. Nos.773 & 774 of 2001** ## -: 9 :- document was produced by the first defendant. Its certified copy is Ext.B1). It is stated in Ext.B18 that the 14 cents was purchased by Kithu in the revenue sale and the sale was confirmed in his name. Exhibit B18 states that Kithu had not obtained the sale sannath and that he had not taken delivery of the property. Kithu states in Ext.B18 that Kunjan Raman, the assignee could obtain the sale sannath and take delivery of the property. 11. So far as a revenue sale is concerned, even in the absence of a sale sannath issued in favour of the purchaser, title would pass by the auction sale as decided by this Court in ## **Thankam and others v. Damodaran and others** (supra). Therefore the mere fact that no sale sannath was issued to Kithu would not show that he had not acquired right over the property. But it is relevant to note from Ext.B18 that Kithu was not issued sale Sannath; nor had he taken possession of the property. Possession of the property, notwithstanding the revenue sale stood with the Panickasserry Tarwad. 12. Then the question is whether Kunjan Raman, the assignee under Ext.B18 got possession of the property? Assuming that by Ext.B18 he got title over the property, there is no evidence to show that he took possession of the property. ## **S.A. Nos.773 & 774 of 2001** ## -: 10 :- On the other hand, Exhibit B2, partition deed would show that Kunjan Raman had not got possession of the property. What is recited in Ext.B2 is that the 54 cents (which takes in the suit property - 14 cents) comprised in Sy. Nos.1913 and 1911 was allotted to Sreedhara Panicker and his brother, Bhaskara Panicker (with right to possess and enjoy it). It is stated in Ext.B2 that Kunjan Raman, the husband of party No.5 (first defendant in O.S. No.384 of 1993) had released all his right over the 14 cents to the Tarwad on account of his love and affection to that Tarwad. It is revealed from Ext.B2 that while doing so, Kunjan Raman had acquired an advantage, i.e., a release of the mortgage liability he had over certain other properties. Going by Ext.B2 it would appear that the assignment taken by Kunjan Raman was for the benefit and interest of the Tarwad and he ultimately released whatever right he had to the Tarwad which continued to be in possession of the property notwithstanding the revenue sale and assignment under Ext.B18. 13. True that Kunjan Raman is not a party in Ext.B2, but he is the first attestor. Normally an attestor cannot be imputed with knowledge of contents of the document. But that need not be the situation in all and every situation. This Court in **Mary** **S.A. Nos.773 & 774 of 2001** ## -: 11 :- **George v. Lilly** (2009 [1] KLT 265) has held that the general proposition that an attestor to an instrument cannot ordinarily be presumed to know the contents of the instrument is unassailable but that is not an inflexible rule. If the attestor is a close relative of the party to the transaction, he cannot feign ignorance of the contents of the document. Kunjan Raman is the husband of the 1[st] defendant in O.S. No.384 of 1993 who is party No.5 in Ext.B2. Apart from that close relationship Kunjan Raman had with the parties to Ext.B2, it is also revealed from Ext.B2 that he played a lead role in the allocation of various items referred to in Ext.B2 to the parties therein. 14. Exhibit B2 or the recitals therein are not under challenge and there is also no reason to think at this distant point of time that the recitals in Ext.B2 concerning involvement of Kunjan Raman was made in the year 1112ME with any ulterior motive as the dispute arose between the parties only years later. Therefore the recitals in Ext.B2 would stand. 15. In the light of the recitals in Ext.B2 and the close relationship Kunjan Raman had with the parties to Ext.B2 and in particular, party No.5 (his wife), he could not plead ignorance of the contents of Ext.B2. Further in my view he is estopped from ## **S.A. Nos.773 & 774 of 2001** ## -: 12 :- contending that he continued to have right, title or interest in the property pursuant to Ext.B18, assignment deed. For while the property is disposed of as per Ext.B2, he has gained an advantage, i.e., release of his mortgage liability over other items. Section 35 of the Transfer of Property Act deals with the doctrine of election and states that when a person professes to transfer property which he has no right to transfer, and as part of the same transaction confers any benefit on the owner of the property, such owner must either elect to confirm such transfer or to dissent from it. In the latter case he shall relinquish the benefit so conferred, and the benefit so relinquished shall revert to the transferor or his representative as if it had not been disposed of. 16. No doubt, a partition is not a transfer but is only an adjustment of rights between co-owners. But so far as Kunjan Raman is concerned, he cannot say that there is no dispossession of his property under Ext.B2 since he is not a co-owner of the properties dealt with as per Ext.B2. Hence so far as Kunjan Raman is concerned, the property he claims to have acquired as per Ext.B18 is disposed of as per Ext.B2 and the same instrument conferred a benefit to him - release of his mortgage liability. There is no case or evidence that Kunjan Raman had relinquished ## **S.A. Nos.773 & 774 of 2001** ## -: 13 :- that benefit. If that be so, I must take that the disposition of the property which stood in the name of Kunjan Raman as per Ext.B18, made under Ext.B2 was accepted and acted upon by him in which case neither he nor his legal heirs could turn round and contend that he continued to be the owner of the said property. 17. I must also notice that in Ext.B18, assignment deed in favour of Kunjan Raman the consideration is stated as Rs.50/-. If that be, so it is saved from the requirement of a registered instrument to transfer the property. In other words, there could be an oral relinquishment of the right as well. Exhibit B2, in the circumstances I have stated can be taken as indicating a disposition of the suit property consented to and agreed by Kunjan Raman in favour of the Panickassery Tarwad which was subjected to partition as per Ext.B2. 18. The learned counsel for the plaintiff is correct in his argument that the first appellate court went wrong in holding that the sale sannath (pursuant to the revenue sale in favour of Kithu) required registration in view of Sec.17(2)(xii) of the Act. A reading of Sec.17 would show that sub-sec.(1) deals with the nontestamentary instruments which require compulsory registration and sub-sec.(2) deals with the exceptions thereunder. Clause (xii) ## **S.A. Nos.773 & 774 of 2001** ## -: 14 :- of sub-sec.(2) deals with a sannath under a revenue sale. Therefore a sannath under a revenue sale did not require registration. 19. Yet another argument the learned counsel for the plaintiff advanced is that the first defendant in O.S. No.308 of 1993 is precluded from setting up title and possession over the 14 cents in view of Exts.B11 and B12. 20. First defendant filed O.S. No.35 of 1989 against the brother of the plaintiff (second defendant in O.S. No.308 of 1993). In that suit, a reading of Ext.B11, judgment would show that first defendant had claimed title and possession of the total extent of 54 cents including the 14 cents in dispute. By Ext.B11, judgment the trial court refused to grant declaration and injunction with respect to the 14 cents (plaintiff who claimed tit5le and possession of the 14 cents as per Ext.A1, or his mother who executed that document were not parties in O.S. No.35 of 1989) and relief of declaration and injunction was confined to the rest of the property - 40 cents. 21. First defendant challenged Ext.B11, judgment in the appellate court. Exhibit B12 is the judgment. It is seen from paragraph 9 of that judgment that when the appeal came up for ## **S.A. Nos.773 & 774 of 2001** ## -: 15 :- hearing, counsel for the 1[st] defendant (plaintiff in O.S. No.35 of 1989 and appellant in Ext.B12) claimed that the 1[st] defendant is not pressing the prayer for declaration of title over the 14 cents. That submission was recorded and the appellate court held that it was not necessary for that court to decide on the title claimed by the 1[st] defendant as regards the said 14 cents. It is further seen from Ext.B12 that claim of the 1[st] defendant that she is in possession of the entire 54 cents including the 14 cents was accepted by the appellate court and the decree for prohibitory injunction granted by the trial court was extended to the said 14 cents also. 22. Now the argument of the learned counsel for the plaintiff is that Exts.B11 and B12 will operate as res judicata against the first defendant. I am afraid, that argument of the learned counsel cannot be accepted. The reason is that whatever be the finding entered in Ext.B11, that judgment is not in existence since it has merged with Ext.B12, judgment of the appellate court and hence for all practical purposes only Ext.B12 could be referred to. So far as Ext.B12 is concerned, it is seen as aforesaid, that the first defendant had not pressed for a decision on the title she claimed over the 14 cents (against the brother of ## **S.A. Nos.773 & 774 of 2001** ## -: 16 :- the plaintiff) and hence that question was not considered. In other words the appellate court has left undecided in O.S. No.35 of 1989 the claim of title made by the first defendant over the 14 cents. Hence Ext.B12, judgment cannot operate as res judicata as against the 1[st] defendant. A further fact which dissuades me from accepting the plea of res judicata so far as Ext.B12, judgment is that the plaintiff is not claiming right, title or interest over the 14 cents under any of the parties in O.S. No.35 of 1989. Hence also Ext.B12, judgment cannot be operate as res judicata. 23. It is pointed out by the learned counsel for the first defendant that the original of the assignment deed of the year 1105ME in favour of Kunjan Raman (Ext.B18) was produced by her. The reply argument of the learned counsel for the plaintiff is that the said document was in the custody of the second defendant in O.S. No.384 of 1993 who is the brother of the plaintiff and who acted in collusion with the first defendant and handed over the document. But apart from suggesting so, there is no evidence in that line. 24. Thus the evidence on record would show that Kunjan Raman had no heritable right over the suit property at the time of ## **S.A. Nos.773 & 774 of 2001** ## -: 17 :- his death since it had, even during his lifetime passed to the Tarwad and the property was dealt with by the members of the Tarwad as per Ext.B2 in the circumstances I have stated above. If that be so, by Ext.A1, assignment plaintiff could not acquire any right over the suit property. 25. It is seen from Exts.B2 and B6 to B8 that Sreedhara Panicker got exclusive right over the 54 cents including the 14 cents pursuant to Ext.B2, partition deed, release deed executed by Bhaskara Panicker and the 14 cents came to Prathapa Panicker as per Ext.B7. By Ext.B8, the said Prathapa Panicker sold the said 14 cents to the first defendant. Thus she got title over the property. 26. So far as possession claimed by parties is concerned I referred to Ext.B18 and the evidence to say that the purchaser in revenue sale, Kithu had not taken possession of the property, that his assignee, Kunjan Raman is not shown to have taken possession of the property and that possession remained with the Tarwad. That possession, by virtue of Exts.B2 and B6 to B8 came to the first defendant. Exhibit A2 relied on by the learned counsel for the plaintiff would not show that the plaintiff or his predecessors-in-interest - the first defendant in O.S. No.384 of ## **S.A. Nos.773 & 774 of 2001** ## -: 18 :- 1993 or her husband, Kunjan Raman got possession of the property. Thus the evidence on record would show that the first defendant has possession of the property. 27. The learned counsel for the first defendant pointed out that in Ext.A3, copy of Will executed by the late Kunjan Raman he has not dealt with the 14 cents which indicated that he had no title or possession over the property. That argument cannot be accepted since it has come in evidence that Kunjan Raman had properties other than those dealt with in Ext.A3. All those properties are not dealt with as per Ext.A3. Hence merely because the suit property is not being dealt with under Ext.A3, it cannot be said that Kunjan Raman had no title over the said property. 28. In the light of the discussion I have made I am inclined to agree with the findings entered by the first appellate court as to the title and possession of the disputed property. 29. The Substantial questions of law framed are answered accordingly. The Second Appeals fail and are dismissed. Parties shall ## **S.A. Nos.773 & 774 of 2001** -: 19 :- bear their costs. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv