N. Ravikumar v. N. Anil Kumar and Suvarna Anil Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **FRIDAY, THE 2[ND] DAY OF JUNE 2023 / 12TH JYAISHTA, 1945** ## **RSA NO. 326 OF 2021** **AGAINST THE JUDGMENT AND DECREE DATED 1.10.2013 IN AS 25/2013 OF HONORABLE DISTRICT COURT,PATHANAMTHITTA WHICH IS AGAINST JUDGMENT AND DECREE DATED 31.10.2011 IN OS.414/2010 OF THE HONORABLE MUSNIFF** **COURT,ADOOR** ## **APPELLANTS/RESPONDENTS/DEFENDANT NO.2 AND 3:** **1 N. ANIL KUMAR, AGED 54 YEARS S/O. NANU, RESIDING AT PANACHILAMKANDATHIL SREESAILAM, ADOOR, PATHANAMTHITTA** **2 SUVARNA ANILKUMAR, AGED 46 YEARS W/O. N. ANILKUMAR, RESIDING AT PANACHILAMKANDATHIL, SREESAILAM, ADOOR, PATHANAMTHITTA** **BY ADV BINDU SREEKUMAR** ## **RESPONDENT/APPELLANT/PLAINTIFF:** **N. RAVIKUMAR, AGED 46 YEARS S/O. NANU, RESIDING AT PANCHILAMKANDATHIL SREESAILAM, ADOOR, PATHANAMTHITTA.** **IT IS RECORDED THAT THE RESPONDENT IS REPRESENTED IN RSA 326/2021 BY HIS POWER OF ATTORNEY HOLDER, MR.RAJASEKHARA PILLAI, AGED 61 YEARS, S/O.NARAYANA PILLAI, KARAMEL VEEDU, KUNNIDA MURI, ENADIMANGALAM VILLAE, ADOOR TALUK, PATTANAMTHITTA DISTRICT, KERALA STATE [AADHAR NO.5813 4412 5388], AS PER ORDER DATED 02.06.2023 VIDE MEMO DATED 21.10.2021 IN RSA 326/2021** **BY ADVS. (R1 BY POA) JACOB P.ALEX JOSEPH P.ALEX MANU SANKAR P.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON** **02.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NO. 326 OF 2021** **2** ## **`T.R.RAVI, J.`** ``` ---------------------------------------- RSA No.326 of 2021 ``` ``` ------------------------------------------- Dated this the 02[nd]day of June, 2023 ``` ## **`JUDGMENT`** ``` The appeal is preferred against the judgments and decrees of the Court below in OS.No.414/2010 of Munsiff's Court, Adoor and AS.No.25/2013 of District Court, Pathanamthitta. The suit was filed by the respondent for cancellation of a cancellation deed which had been executed by the mother of the respondent. The mother who was the 1[st] defendant had obtained the properties as per partition deed No.2516/1988 and release deed No.551/1989. Ten years later, the mother executed a settlement deed in favour of the respondent/plaintiff. In the year 2006, a cancellation deed was executed as deed No.1773/1/06 whereby the settlement deed was cancelled unilaterally by the mother of the respondent. The suit was filed in these circumstances. The Trial Court decreed the suit by granting a declaration of title and possession to the plaintiff over the plaint schedule property ``` **RSA NO. 326 OF 2021** **3** ``` and by adjudging the cancellation deed No.773/1/2006 of Pandalam SRO as ab initio null and void. The Court also granted a decree for permanent prohibitory injunction restraining the defendants from creating any fraudulent documents and committing any act of waste in the property. Against the denial of a decree for mandatory possession, the respondent filed AS.No.25/2013. The District Court, Pathanamthitta by judgment dated 01.10.2013 allowed the appeal and modified the decree by granting a decree for mandatory injunction directing defendants 2 and 3 to vacate the building in the plaint schedule property within three months and on failure, ordering that the plaintiff is entitled to get the order enforced through process of Court. It is against the appellate judgment that the second appeal is preferred. ``` ``` 2. Heard Smt.Bindu Sreekumar, counsel for the appellants. The counsel for the appellants submits that no notice was issued to the appellants and this fact is evident from the records of the Courts. It is submitted that no opportunity was afforded for defending the suit. It is seen from the ``` **RSA NO. 326 OF 2021** **4** ``` judgment of the Trial Court that the defendants were set ex- parte. However, in the appeal, the judgment shows that an Advocate was appearing for the respondents. The 1[st] respondent in the appeal who is the mother died only subsequent to the flng of the appeal. It is seen from the proceedings before the execution Court that the execution proceedings have been pending from 24.07.2014 and the parties were represented and the second appeal is preferred much after the parties entered appearance in the execution Court. That may no longer be relevant, since the delay in flng the appeal has already been condoned. I am not impressed by the contention that since the parties could not appear before the Court below, they should be afforded another chance at this stage. ``` ``` 3. The law regarding cancellation deeds executed unilaterally is no longer res integra. A learned Single Judge of this Court considered the issue in the judgment in Pavakkal Noble John v. State of Kerala & Ors. reported in [2010 (3) KLT 941] and held that such unilateral cancellation is ``` **RSA NO. 326 OF 2021** **5** ``` impermissible. The judgment in Noble John (supra) was carried in appeal before a Division Bench. While the appeal was pending, the issue again came up before another Division Bench of this Court and in the decision in Hamsa P.A. v. District Registrar General, Kozhikode & Ors. [2011 (3) ``` ``` KHC 342], the Division Bench categorically held that the cancellation deed executed in such a manner is a meaningless transaction and void and non est. The Division Bench had relied on the judgment of the Apex Court in Thotta Ganga Laxmi v. Government of Andra Pradesh [2011 (3) KLT ``` ``` 345 (SC)]. At the time when the Division Bench rendered the judgment in Hamsa (supra), apparently, the decision of the Hon'ble Supreme Court had not been reported. The judgment of the Supreme Court in Thotta Ganga Laxmi (supra) was rendered in a case that arose from the State of Andhra Pradesh and was challenging a Full Bench judgment of the High Court of Andhra Pradesh. The Supreme Court categorically held that after having executed a registered document transferring property in favour of another person, the same cannot be ``` **RSA NO. 326 OF 2021** **6** ``` cancelled unilaterally and such transaction is a meaningless transaction and void and non est. The appeal filed against the judgment in Noble John (supra) came up for consideration much later, before a Division Bench of this Court, and in the judgment in Santhosh Antonio S.Netto v. Joshy Thomas & ``` ``` Ors. reported in [2020 (3) KLT 408], this Court upheld the decision of the learned Single Judge. That being the legal position, no purpose will be served even by remanding the matter, since the respondent will be entitled to succeed as the cancellation deed is a nullity even without a declaration by a Court. ``` ``` 4. Faced with the situation, the counsel for the appellants submitted that since the 1[st] appellant is infected by cancer and the daughters are awaiting their marriage, sufficient time may be granted for vacating the premises. The counsel for the respondent submitted that the Court may fix a reasonable time for vacating the premises. ``` `5. In the result, the second appeal fails and is dismissed.` `The appellants shall file an affidavit before the Execution Court` **7** ## **RSA NO. 326 OF 2021** ``` undertaking to vacate the premises by 30.12.2023. The execution proceedings already initiated shall be kept in abeyance till 30.12.2023. The affidavit as directed above shall be filed within two weeks from today. The parties will bear their respective costs. ``` ## **`Sd/-`** ``` T.R.RAVI JUDGE ``` ``` sn ``` **RSA NO. 326 OF 2021** **8** ## **APPENDIX OF RSA 326/2021** ## **PETITIONER'S ANNEXURES** |**ANNEXURE A1**|**CERTIFIED COPY OF THE ORDER IN EA 17/15 IN EP**| |---|---| ||**44/14 IN OS 414/10 DATED 16-2-2021 PASSED BY**| ||**THE MUNSIFF COURT ADOOR**| |**ANNEXURE A2**|**TRUE COPY OF THE ORDER DATED 10-03-2021**| ||**PASSED BY THE HON HIGH COURT OF KERALA**| |**ANNEXURE A3**|**MEDICAL RECORDS OF CANCER TREATMENT OF THE**| ||**1ST APPELLANT DATED 3-3-2021 ISSUED BY THE**| ||**ALAPPUZHA MEDICAL COLLEGE**| |**RESPONDENT'S ANNEXURES**|| |**ANNEXURE R1(A)**|**CERTIFIED COPY OF THE PROCEEDINGS IN EP NO.**| ||**44 OF 2014 BEFORE THE MUNSIFF'S COURT, ADOOR**|