Mercy Mathew v State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ## **`FRIDAY, THE 16[TH] DAY OF JUNE 2023 / 26TH JYAISHTA, 1945`** ## **`WP(C) NO. 37875 OF 2022`** ## **`PETITIONER:`** ``` MERCY MATHEW, AGED 59 YEARS, D/O LATE SHRI MATHAI OUSEPH, R/O PATHIYAMATTATHIL HOUSE, KURAVILANGAD P.O. KOTTAYAM-686 633 AND AADHAR NO. 886638351453. THROUGH HER NEXT FRIEND JOHNY MATHEW, AGED 56 YEARS, S/O LATE SHRI MATHAI OUSEPH, R/O OF A-9, FIRST FLOOR, SOUTH CITY - 2, GURUGRAM - 122 018, AADHAR NO. 8651 2573 6643 AND MOBILE NO. IS 8368194708. E-mail:johnymathew66@gmail.c om BY ADV MERCY MATHEW ,(Party-In-Person) ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.` - `2 THE DISTRICT REGISTRAR, UNDER THE REGISTRATION ACT 1908. OFFICE OF THE REGISTRAR, COLLECTORATE, KOTTAYAM - 686 002.` ``` 3THE SUB-REGISTRAR, (MR. PURUSHOTHAMMA PISHARADI) OFFICE OF THE SUB REGISTRAR, KURAVILANGAD - 686 633. 4MR. JOSHY MATHEW, AGED 46 YEARS, S/O. LATE SRI.MATHAI, PATHIYAMATTATHIL HOUSE, KURAVILANGADU, KOTTAYAM - 686 633. 5MR. BIJU, S/O V.T. THOMAS, VATTAM KUZHI THADATHIL, KURAVILANGAD P.O., KOTTAYAM - 686 633. 6MR. APPU JOSE, VALAYANANICKAL HOUSE, KURAVILANGAD P.O.,KOTTAYAM - 686 633. 7MR. TOMISH IGNATIOUS AND MRS. ALPHONSA MATHEW, (BOTH HUSBAND AND WIFE), MALIYEKKAL HOUSE, KURAVILANGAD P.O, KOTTAYAM - 686 633. BY ADVS. JOSE JOSEPH (MANNAR) SIBY CHENAPPADY A.KRISHNAN ANEESH JAMES ANU GEORGE AIBEL MATHEW SIBY ELANA ROSE SIBY SMT.PREETHA.K.K, SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 16.06.2023, ALONG WITH WP(C).37890/2022, 38021/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) Nos.37875/2022, 37890/2022 and 38021/2022 2 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` ``` FRIDAY, THE 16[TH] DAY OF JUNE 2023 / 26TH JYAISHTA, 1945 ``` ``` WP(C) NO. 37890 OF 2022 ``` ## **`PETITIONER:`** ``` MERCY MATHEW, AGED 59 YEARS, D/O LATE SHRI MATHAI OUSEPH, R/O PATHIYAMATTATHIL HOUSE, KURAVILANGAD P.O. KOTTAYAM – 686 633 AND AADHAR NO. 886638351453 THROUGH HER NEXT FRIEND JOHNY MATHEW, AGED 56 YEARS, S/O LATE SHRI MATHAI OUSEPH, R/O OF A-9, FIRST FLOOR, SOUTH CITY - 2, GURUGRAM - 122 018, AADHAR NO. 8651 2573 6643 AND MOBILE NO. IS 8368194708. E-mail:johnymathew66@gmail.c om BY ADV MERCY MATHEW REPRESENTED BY JOHNY MATHEW(Party-In-Person) ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2THE DISTRICT REGISTRAR, UNDER THE REGISTRATION ACT 1908. OFFICE OF THE REGISTRAR, COLLECTORATE, KOTTAYAM - 686 002. 3THE SUB-REGISTRAR, (MRS. P.A. LEELAMONI) OFFICE OF THE SUB REGISTRAR, KURAVILANGAD - 686 633. 4MR. JOSHY MATHEW, AGED 46 YEARS, S/O. LATE SRI.MATHAI, PATHIYAMATTATHIL HOUSE, KURAVILANGADU, KOTTAYAM - 686 633. 5THE GENERAL MANAGER, PALA URBAN CO-OPERATIVE BANK, PALA P.O., KOTTAYAM. BY ADV P.C.HARIDAS SRI.T.JAYAN, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.06.2023, ALONG WITH WP(C).37875/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) Nos.37875/2022, 37890/2022 and 38021/2022 3 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. FRIDAY, THE 16[TH] DAY OF JUNE 2023 / 26TH JYAISHTA, 1945 WP(C) NO. 38021 OF 2022`** ## **`PETITIONER:`** ``` MERCY MATHEW, AGED 59 YEARS, D/O LATE SHRI MATHAI OUSEPH, R/O PATHIYAMATTATHIL HOUSE, KURAVILANGAD P.O. KOTTAYAM – 686 633 AND AADHAR NO. 886638351453. THROUGH HER NEXT FRIEND JOHNY MATHEW, AGED 56 YEARS, S/O LATE SHRI MATHAI OUSEPH, R/O OF A-9, FIRST FLOOR, SOUTH CITY-2, GURUGRAM - 122 018, AADHAR NO. 8651 2573 6643 AND MOBILE NO. IS 8368194708. E-mail:johnymathew66@gmail.com BY ADV MERCY MATHEW, (Party-In-Person) ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2THE DISTRICT REGISTRAR, UNDER THE REGISTRATION ACT 1908. OFFICE OF THE REGISTRAR, COLLECTORATE, KOTTAYAM - 686 002. 3THE SUB-REGISTRAR, (MR. PURUSHOTHAMMA PISHARADI) OFFICE OF THE SUB REGISTRAR, KURAVILANGAD - 686 633. 4MR. JOSHY MATHEW, AGED 46 YEARS, S/O. LATE SRI.MATHAI, PATHIYAMATTATHIL HOUSE, KURAVILANGADU, KOTTAYAM - 686 633. 5MRS. JESSYMOL UTHUPPAN, W/O PUTHANPURAYIL PHILIP, KISHAKKUM BHAGAM KARAYIL, ETTUMANOOR P.O., KOTTAYAM – 686 631. 6MR. BENNY SEBASTIAN, PATHIYAMATTATHIL HOUSE, KURAVILANGAD P.O., KOTTAYAM - 686 633. BY ADVS. ANEESH JAMES JIJO THOMAS M.D.BEENA SMT.PREETHA.K.K, SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 16.06.2023, ALONG WITH WP(C).37875/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) Nos.37875/2022, 37890/2022 and 38021/2022 4 ## JUDGMENT ## [WP(C) Nos.37875/2022, 37890/2022 and 38021/2022] These writ petitions are filed by one Mercy Mathew, through her next friend who claims to be her brother. These writ petitions seek to set aside certain documents executed by the aforesaid Mercy Mathew in favour of the party respondents in these cases on the ground that those documents record a fraudulent transaction. The aforesaid Mercy Mathew is stated to be 100% dumb and deaf by birth, unmarried and illiterate and therefore, it is alleged that she is incapable of entering into any transaction and that she does not comprehend the nature of any transaction that may have been entered into in her name. (All the exhibits marked in this judgment are as they are marked in WP(C) No.38021 of 2022). 2. The next friend of the petitioner, who appears party-inperson, would submit that the petitioner, a deaf and dumb person, was in possession and enjoyment of the properties in question. It is submitted that the 4[th] respondent, another brother of the petitioner, took advantage of the disability of the petitioner and forced her and their father to execute certain settlement deeds (which are in WP(C) Nos.37875/2022, 37890/2022 and 38021/2022 5 question in WP(C) No.38021 of 2022), in favour of himself and proforma defendants (the next friend of the petitioner herein and his son). It is submitted that the said settlement deeds were executed in favour of proforma defendants, only to avoid any dispute that would arise in future from the part of these proforma defendants. It is submitted that the petitioner along with their mother was also forced by the 4[th] respondent to execute sale deeds (which are the subject matters in WP(C) Nos.37890 & 37875 of 2022), in favour of the 4[th] respondent himself and one Mr.Biju (5[th] respondent in WP(C) No.37875 of 2022), respectively. It is further submitted that, pursuant to judgment of this court in WP(C) No.11818 of 2022, an application was made to District Registrar and the District Registrar vide Ext.P5 order, found out that alleged transactions were carried out/transfers were made, and that, nowhere in any of the deeds executed, has it been mentioned or recorded that the petitioner herein (one of the parties to the alleged deeds) is deaf and dumb. It is contended that the Registering Officer was bound to enquire whether the document was executed by the person by whom it purports to have been executed and also satisfy himself as to the identity of the persons appearing before him. Placing reliance on ## WP(C) Nos.37875/2022, 37890/2022 and 38021/2022 6 Ext.P5 order, it is contended that the 3[rd] respondent failed to conduct proper enquiry before registration of said deeds, as required by law. Further, he also placed reliance on the judgment of the Supreme Court in A.V.Papayya Sastry and others v. Government of Andhra Pradesh and others [AIR 2007 SC 1546] to contend that a judgment, decree or order is obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of law and that a judgment, decree or order by the first court or by the final court has to be treated as nullity by every court, superior or inferior and that it can be challenged in any court, at any time, in appeal, revision, writ petition or even in collateral proceedings. 3. The learned counsel appearing for the answering respondent (5[th] respondent in WP(C) No.37875 of 2022) would submit that he is a bonafide purchaser of one among the alleged properties and that the issues raised herein are essentially family disputes between the siblings. It is submitted that the factual aspects as to alleged incapacity of the petitioner and all other allegations raised are purely civil in nature and that it cannot be adjudicated by a writ court. It is further submitted that none of the fundamental rights or legal rights are infringed and therefore, that the writ WP(C) Nos.37875/2022, 37890/2022 and 38021/2022 7 petition is not maintainable and is liable to be dismissed. 4. I have considered the contentions raised. 5. Having regard to the facts and circumstances of the case, I am of the view that the petitioner is not entitled to any relief under Article 226 of the Constitution of India. I am afraid that the reliance placed by the next friend of the petitioner on the judgment of the Supreme Court in A.V.Papayya Sastry (supra) is completely misplaced. A registration of a document does not qualify as a judgment, decree or order obtained from the court, tribunal or authority. It is the law laid down in the aforesaid judgment that when a judgment, decree or order obtained by playing fraud is pressed into service in other proceedings, it will be open to the court, tribunal or authority to hold that the judgment, decree or order obtained by playing fraud will not have any force and will not be binding as a precedent or as barring a fresh suit or other proceedings on the same cause of action. A document registered under the provisions of the Registration Act can no doubt be challenged on the ground that it is vitiated by fraud on account of any incapacity on the part of the person executing the document. But a writ petition under Article 226 of the Constitution of India is not the appropriate WP(C) Nos.37875/2022, 37890/2022 and 38021/2022 8 remedy for seeking such relief. 6. There are provisions in the Rights of Persons with Disabilities Act,2016 (hereinafter referred to as ‘the Act’) for appointment of guardian, if the petitioner is unable to take legally binding decisions. Section 14 of the Act reads as follows: “14. Provision for guardianship.—(1) Notwithstanding anything contained in any other law for the time being in force, on and from the date of commencement of this Act, where a district court or any designated authority, as notified by the State Government, finds that a person with disability, who had been provided adequate and appropriate support but is unable to take legally binding decisions, may be provided further support of a limited guardian to take legally binding decisions on his behalf in consultation with such person, in such manner, as may be prescribed by the State Government: Provided that the District Court or the designated authority, as the case may be, may grant total support to the person with disability requiring such support or where the limited guardianship is to be granted repeatedly, in which case, the decision regarding the support to be provided shall be reviewed by the Court or the designated authority, as the case may be, to determine the nature and manner of support to be provided. Explanation. —For the purposes of this sub-section, “limited guardianship” means a system of joint decision which operates on mutual understanding and trust between the guardian and the person with disability, which shall be limited to a specific period and for specific decision and situation and shall operate in accordance to the will of the person with disability. (2) On and from the date of commencement of this Act, every guardian appointed under any provision of any other law for the time being in force, for a person with disability shall be deemed to function as a limited guardian. (3) Any person with disability aggrieved by the decision of the designated authority appointing a legal guardian may prefer an appeal to such appellate authority, as may be notified by the State Government for the purpose.” 7. The provisions in the Act may have to be invoked to ## WP(C) Nos.37875/2022, 37890/2022 and 38021/2022 9 appoint a guardian for the petitioner. The brother of the petitioner cannot by his own assertion initiate proceedings claiming to be the ‘next friend’ of the petitioner especially when he himself and his son are also beneficiaries under certain documents executed by the petitioner. These writ petitions will therefore stand dismissed, with the above observation. Sd/GOPINATH P. JUDGE DK ## WP(C) Nos.37875/2022, 37890/2022 and 38021/2022 ## 10 ## **`APPENDIX OF WP(C) 37875/2022`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`DISABILITY CERTIFICATE ISSUED BY GOVERNMENT`| ||`COLLEGE, KOTTAYAM DATED 19.2.2020`| |`Exhibit P2`|`SALE DEED NO. 2317/2010 OF SUB-`| ||`REGISTRAR,KURAVILANGAD.`| |`Exhibit P3`|`PHOTOCOPY OF NOTICE U/S 80 DATED 29.1.2021`| ||`& 25.5.2022 ISSUED BY THE NEXT FRIEND OF`| ||`PETITIONER.`| |`Exhibit P4`|`COPY OF THE JUDGEMENT DATED 19.5.2022 IN`| ||`W.P.C 11818 OF 2022 ISSUED BY HON'BLE KHC`| |`Exhibit P5`|`COPY OF ORDER ISSUED BY OF RESPONDENT NO.`| ||`2.`| ## WP(C) Nos.37875/2022, 37890/2022 and 38021/2022 ## 11 ## **`APPENDIX OF WP(C) 37890/2022`** ``` PETITIONER EXHIBITS Exhibit P1DISABILITY CERTIFICATE ISSUED BY GOVERNMENT MEDICAL COLLEGE, KOTTAYAM DATED 19.2.2020 Exhibit P2SALE DEED 1070/2006 DT 04.05.2006 Exhibit P3SALE NOTICE FOR SALE OF IMMOVABLE PROPERTIES DATED 27.11.2020 ISSUED BY RESPONDENT NO. 5 Exhibit P4PHOTOCOPY OF NOTICE U/S 80 DATED 29.1.2021 ISSUED BY THE NEXT FRIEND OF PETITIONER Exhibit P5COPY OF THE JUDGEMENT DATED 19.5.2022 IN W.P.(C) 11818 OF 2022 ISSUED BY HON'BLE KHC Exhibit P6COPY OF ORDER ISSUED BY RESPONDENT NO. 2 ``` WP(C) Nos.37875/2022, 37890/2022 and 38021/2022 12 ## **`APPENDIX OF WP(C) 38021/2022`** ``` PETITIONER EXHIBITS Exhibit P1DISABILITY CERTIFICATE ISSUED BY GOVERNMENT MEDICAL COLLEGE, KOTTAYAM DATED 19.2.2020 Exhibit P2SALE DEED NO. 1106/2005, 1107/2005 AND 1108/2005 DATED 28.3.2005 (EXHIBIT NO. P- 2/1) OF SUB-REGISTRAR, KURAVILANGAD Exhibit P3PHOTOCOPY OF NOTICE U/S 80 DATED 29.1.2021 ISSUED BY THE NEXT FRIEND OF PETITIONER. Exhibit P4COPY OF THE JUDGEMENT DATED 19.5.2022 IN W.P.(C) 11818 OF 2022 ISSUED BY HON'BLE KHC Exhibit P5COPY OF ORDER ISSUED BY RESPONDENT NO. 2. ```