Lakshmi v. Sankarankutty and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 2ND DAY OF JULY 2014/11TH ASHADHA, 1936** ## **RSA.No. 19 of 2014 (B)** **-------------------------------[A.S.NO.73/2010 OF THE III ADDITIONAL DISTRICT COURT, THRISSUR, O.S.NO. 973/2009 OF THE PRINCIPAL MUNSIFF COURT,THRISSUR]** **..........** ## **APPELLANT/RESPONDENT NO.1/DEFENDANT NO.3:** **---------------------------------------------------------------------------** **LAKSHMI, AGED 50 YEARS, D/O.VADAKKEPURAKKAL RAMANKUTTY, W/O.MADHAVAN, RESIDING AT ANTHIKKATT HOUSE, KUTTUR DESOM AND VILLAGE- 680 013, TRICHUR TALUK AND DISTRICT.** **BY ADVS.SRI.N.SUBRAMANIAM, SRI.M.S.NARAYANAN, SRI.P.T.GIRIJAN, SMT.USHA NARAYANAN.** **RESPONDENTS 1 TO 3/APPELLANTS/PLAINTIFFS 1 TO 3/RESPONDENTS 4 TO 7/ RESPONDENTS 1,3,4 & 5/ DEFENDANTS 1,4,5 & 6:** **--------------------------------------------------------------------------------------------------------------------** **1. SANKARANKUTTY, AGED 45 YEARS, S/O.RAMANKUTTY, VADAKKEPURAKKAL HOUSE, PERUVANKULANGARA DESOM, OLLUR VILLAGE, TRICHUR TALUK AND DISTRICT - 680 306.** ## **2. AMBIKA, AGED 41 YEARS,** - **W/O.SHAJU, VADAKKEPURAKKAL HOUSE, PERUVANKULANGARA DESOM, OLLUR VILLAGE, TRICHUR TALUK AND DISTRICT - 680 306.** ## **3. RAJAN, AGED 39 YEARS,** - **S/O.RAMANKUTTY, VADAKKEPURAKKAL HOUSE, PERUVANKULANGARA DESOM, OLLUR VILLAGE, TRICHUR TALUK AND DISTRICT- 680 306.** ## **4. KESAVAN, AGED 53 YEARS,** - **S/O.VELAYUDHAN, PADIYOOR HOUSE, KALLUR DESOM AND VILLAGE, MUKUNDAPURAM TALUK AND THRISSUR DISTRICT -680 317.** **Prv.** ## **R.S.A. NO.19/2014 - B:** ## **5. OMANA, AGED 47 YEARS,** - **W/O.KESAVAN, D/O.VADAKKEPURAKAL RAMANKUTTY, PADIYOOR HOUSE, KALLUR DESOM AND VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT - 680 317.** - ***6. GOPI, AGED 43 YEARS, *(DIED) S/O.RAMANKUTTY, VADAKKEPURAKKAL HOUSE, PERUVANKULANGARA DESOM, OLLUR VILLAGE, TRICHUR TALUK AND DISTRICT - 680 306.** **7. KOCHANIYAN, AGED 42 YEARS, S/O.RAMANKUTTY, VADAKKEPURAKKAL HOUSE, PERUVANKULANGARA DESOM, OLLUR VILLAGE, TRICHUR TALUK AND DISTRICT - 680 306.** ***APPELLANTS AND R1,R2,R3,R5 & R7 ARE RECORDED AS LEGAL REPRESENTATIVES OF DECEASED R6. AS PER ORDER DTD. 07/04/14 VIDE MEMO C.F. 745/2010 DT. 31/01/14.** **R1 TO R3 BY ADVS. SMT.K.P.SANTHI,** **SRI.R.JAYAKRISHNAN (MUTHUKULAM), R4 & R5 BY ADVS.SMT.P.K.PRIYA, SMT.MONCY FRANCIS, SRI.SURAJ PHILIP JACOB, SRI.ANZIL ZACHARIAH.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02-07-2014, ALONG WITH R.S.A. NO.23/2014 AND CONNECTED CASES,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. Nos. 19, 23, 310 & 311 of 2014 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 02[nd] day of July, 2014 ## **J U D G M E N T** Two suits namely O.S.No.4108 of 2004 and O.S No. 973 of 2009 were jointly tried and disposed of by a common judgment by the Principal Munsiff Court, Thrissur. Among them, O.S.No.4108 of 2004 was a suit for partition while the other suit was for cancellation of Ext.B1, sale deed. 2. After trial, both the suits were dismissed. Plaintiffs in the suit carried the matter in appeal so also the second defendant in the suit. The lower appellate court after independent evaluation of the material, dismissed the appeal confirming judgment and decree of the trial court. 3. The facts absolutely necessary for the disposal of these appeals are as follows: The parties and facts are hereinafter referred to as they are available in O.S.No.4108 of 2004. ## **R.S.A. Nos. 19, 23, 310 & 311 of 2014** **-2-** 4. The plaintiff in the said suit and defendants 2 to 5 are the children of one Thanka. The first defendant is the husband of said Thanka and the 6[th] defendant who got impleaded at a later point of time in the partition suit is the husband of the third defendant. The property which was the subject matter of suit for partition admittedly belonged to Thanka and she having obtained it under Ext.A1 dated 25.04.1984. Thanka died on 24.05.2002. Claiming to be the heirs of Thanka, initially the suit was laid. 5. Then the 3[rd] defendant raised a contention that at the time of death of Thanka, she had no subsisting right over the suit property as it had been already assigned to her husband who came on record as additional 6[th] defendant by virtue of Ext.B1 document dated 28.07.2001. 6. That prompted plaintiffs in the partition suit to lay the other suit namely O.S.No.973 of 2009 seeking cancellation of Ext.B1 document. The partition suit as well as the suit for cancellation of Ext.B1 document was resisted ## **R.S.A. Nos. 19, 23, 310 & 311 of 2014** **==> picture [18 x 9] intentionally omitted <==** by defendants 1, 3, 5 and 6. It is seen that the second defendant sailed along with the plaintiffs. 7. The contesting defendants contended that Thanka had executed Ext.B1 document in favour of the 6[th] defendant who had absolute right and was in possession and enjoyment of the property and the plaintiffs in the suit had no manner of right over the same. 8. On the basis of above pleadings, issues were raised and the parties went to trial. The evidence consists of the testimony of PW1 and documents marked as Exts. A1 and A2 from the side of the plaintiffs. The contesting defendants had DW1 examined and Exts. B1 to B6 were marked from their side. Ext. C1 is the Commissioners report. 9. On an appreciation of the evidence in the case, both the courts came to the conclusion that the allegations against the execution of Ext.B1 sale deed by Thanka in favour of the 6[th] defendant was not substantiated and the ## **R.S.A. Nos. 19, 23, 310 & 311 of 2014** **==> picture [18 x 9] intentionally omitted <==** courts below came to the conclusion that it is a valid and binding document. Therefore, the courts below came to the conclusion that at the time of death of Thanka, she had no subsisting right over the property and therefore, suit will have to fail. The grounds urged to assail Ext.B1 sale deed was also not established. Consequently, the suit for cancellation of document was also dismissed. 10. Aggrieved by the dismissal of the suits, plaintiffs and the second defendant have come in appeal. 11. The learned counsel appearing for the appellants pointed out that though property stood in the name of Thanka having acquired it under Ext.A1 document, plaintiffs as well as defendants 1 to 5 were residing under a common roof and treated the property as their joint property and thus it had acquired the character of jointness and it could not be said that at the relevant time, Thanka had exclusive title to the property. It was also contended that both the courts below have attached considerable importance to the fact **-5-** ## **R.S.A. Nos. 19, 23, 310 & 311 of 2014** that one of the attesters to Ext.B1 sale deed in favour of the 6[th] defendant is the second defendant in the suit who is the appellant in R.S.A. Nos. 19 and 23 of 2014 before this Court. The learned counsel went on to point out that it is well settled that the attester need not know the contents of the document and it is contended on behalf of the appellant that Ext.B1 is vitiated by the principle of _non est factum_ . Thanka was made to believe that she was being taken to the Sub Registrar's Office in relation to a mortgage transaction and it was not made known to her that she was executing a sale deed. 12. Notice was issued at the time of admission and the contesting respondents are represented by a counsel. It was pointed out by the learned counsel for the respondents that there is absolutely no basis for the above contentions at all. As regards the conversion of individual property to joint ownership, it has no legs to stand on in the light of the Joint HIndu Family System (Abolition) Act in Kerala, as no joint ## **R.S.A. Nos. 19, 23, 310 & 311 of 2014** **-6-** family property exists thereafter. Further, there is no such pleading in the plaint and no such issues were raised before the trial court. Therefore, there has no legs to stand. 13. The learned counsel for the respondent pointed out that Thanka and her sister Karthiayani who also owned property, had mortgaged the property which they obtained under Ext.A1 partition deed to a Bank and availed of a loan. That loan was wiped away using the funds of the 6[th] defendant and that is the reason for the assignment of the property in his favour. It is significant to notice according to the learned counsel that the second defendant is an attesting witness to the document. The 6[th] defendant came on record in the partition suit in the year 2005 pointing out the sale deed in his favour and the challenge to Ext. B1 sale deed was made only in 2009. That being clearly barred by limitation. Thus viewed from any angle, according to the learned counsel, there is absolutely no merit in any of the contentions raised by the appellants. ## **R.S.A. Nos. 19, 23, 310 & 311 of 2014** **-7-** 14. It must be said that there is considerable force in the submissions made by the learned counsel for the respondents. Though the joint family as such may not have been abolished by the Act in Kerala, the concept of joint family property no longer exists and the property obtained by Thanka as per Ext.A1 document is her individual property over which she had exclusive title and interest. She was free to deal with it as she likes. In the absence of joint family property, the concept of conversion also cannot stand scrutiny. Further, as rightly pointed out by the learned counsel for the respondents that there were no such pleadings in the plaint to the effect that it was a joint property. In the light of the said fact, the decisions cited by the learned counsel for the appellant reported in **Dhuma Khan v. Commissioner of Consolidation & others** [1997 All India High Court Cases 3048], **Rukaiya Begum v. Fazalur Rahman & others** [1998 Patna 1] and **Shukrulla & others v. Mt.Zuhara Bibi & others** [1932 Allahabad ## **R.S.A. Nos. 19, 23, 310 & 311 of 2014** **-8-** 512] need no elucidation. 15. From a reading of the pleadings as extracted in the judgments of the courts below, it would appear that the main contention regarding the execution of Ext.B1 document was that Thanka did not have the required state of mind to execute the document as she was mentally and physically ill. Both the courts below have found that there is absolutely no evidence to establish the said fact. Further, the contention of the plaintiffs and the supporting defendant was that Thanka was made to believe that she was executing a mortgage document while she was made to execute a sale deed. 16. One fact that thus become very clear that she was capable of executing the document at that point and she suffered from no mental or physical incapacity. It is come out in evidence that the property was mortgaged to a Bank as could be seen from Ext. B3. Ext. B5 is the release deed by which the mortgage was redeemed. The 6[th] defendant ## **R.S.A. Nos. 19, 23, 310 & 311 of 2014** **-9-** has a case that it was utilizing his funds that the mortgage was redeemed. Both the courts below have found that this claim made by the 6[th] defendant is not seen challenged at all. At any rate, none of the plaintiffs or the defendants who claimed partition, have a case that they had contributed anything for the redemption of the mortgage. Therefore the courts below were inclined to accept the version given by the 6[th] defendant that it was utilizing his funds that the mortgage were redeemed. No objection could be taken to the said finding. 17. The reliance placed on the principle of _non est factum_ also cannot enure to the benefit of plaintiffs. As rightly noticed by the courts below, the document was not executed in the Bank but it was executed in the Sub Registrar's Office which would have been unusual in the case of a release of mortgage. Both the courts below have given cogent and convincing reasons for coming to the conclusion that Ext.B1 document is a valid and binding ## **R.S.A. Nos. 19, 23, 310 & 311 of 2014** **-10-** document and suffers from no infirmity. 18. Apart from the above facts, it also needs to be noticed that findings entered into by the courts below are based on the appreciation of evidence in the case and it is not shown that the findings are either perverse or contrary to evidence on record warranting interference under Section 100 of C.P.C. These appeals are without merits and are accordingly dismissed. There will no order as to costs. Sd/- **P.BHAVADASAN JUDGE** ds //True Copy// P.A. To Judge