Padmakshy Amma and others v. Indira Devi Kunjamma Prabha Devi and Gouri Amma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY, THE 11TH DAY OF DECEMBER 2018 / 20TH AGRAHAYANA, 1940** ## **RSA.No. 138 of 2012 (G)** **AGAINST THE DECREE AND JUDGMENT DATED 27.09.2010 IN AS No. 163/1990 of ADDL.DISTRICT COURT-II, MAVELIKARA** **AGAINST THE DECREE AND JUDGMENT DATED 30.01.1990 IN OS No.26/1985 of MUNSIFF COURT, MAVELIKARA** **APPELLANTS/APPELLANTS/DEFENDANTS 2 TO 5:** - **1 PADMAKSHY AMMA, W/o MADHAVAN THANKAL, EDASSERIL VEEDU, KOTTARKAVU MURI, MAVELIKARA.** - **2 NARAYANAN NAIR, S/o MADHAVAN THANKAL, EDASSERIL VEEDU, KOTTARKAVU MURI, MAVELIKARA.** - **3 UMADEVI, D/o PADMAKSHY AMMA, EDASSERIL VEEDU, KOTTARKAVU MURI, MAVELIKARA.** - **4 ARAVINDAN, S/o PADMAKSHY AMMA, EDASSERIL VEEDU, KOTTARKAVU MURI, MAVELIKARA.** - **BY ADV. SRI.R.RAMADAS** **RESPONDENTS/RESPONDENTS/PLAINTIFFS 1 & 2 AND LRS OF THE ORIGINAL FIRST DEFENDANT:** - **1 INDIRA DEVI KUNJAMMA PRABHA DEVI, DEVI VILASATH VEEDU, KOTTARKAVU, MAVELIKARA, PIN -690101, MAVELIKARA P.O.** - **2 GOURI AMMA, ANANDAVALLY AMMA, SREE BHAVANAM, KOTTARCAVU MURI, MAVELIKARA, PIN -690 101, MAVELIKARA P.O.** **(DIED, LRS RECORDED)** - **3 JAYAPRAKASH, GANGADHARA VILASATHU VEEDU, PUTHIYAKAVU MURI, MAVELIKARA P.O., PIN -690 101.** R.S.A.No.138 of 2012 2 **4 SREEPRAKASH, GANGADHARA VILASATHU VEEDU, PUTHIYAKAVU MURI, MAVELIKARA P.O., PIN – 690 101.** **(IT IS RECORDED THAT THE LEGAL REPRESENTATIVES OF DECEASED 2[nd] RESPONDENT ARE ALREADY IN THE PARTY ARRAY AS RESPONDENTS 3 AND 4, AS PER ORDER DATED 6.4.2017 in VIDE MEMO CF No.5961/2016 DATED 14.10.2016).** **R1 BY ADVS.SMT.SREEDEVI KYLASANATH SMT.N.SUDHA** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A.No.138 of 2012 3 ## **JUDGMENT** Against the concurrent findings rendered in the decree and judgment by both the Munsiff's Court, Mavelikkara, in O.S.No.26/1985 as well as the Additional District Court-II, Mavelikkara, in A.S. No.163/1990, the defendants 2 to 5 came up with this second appeal. It is a suit for redemption of mortgage under Exhibit A3, recovery of possession of immovable property covered by the mortgage with mean profits and for injunction. 2. The case advanced by the plaintiffs is that the second plaintiff who had obtained right, title and interest over the property under two unregistered sale deeds had given the property in mortgage to the first defendant, under Exhibit A3 mortgage, and subsequently the first defendant had given the mortgage right to one Madhavan Thankal. After the death of Madhavan Thankal, it was held by his legal heirs, the wife and children, who were impleaded as defendants 2 to 4. The fifth defendant is the husband of fourth defendant. 3. The concurrent findings rendered by both the Trial Court as well as the First Appellate Court are under challenge mainly R.S.A.No.138 of 2012 4 on the reason that defendants 2 to 4, who were the legal heirs of Madhavan Thankal, were inducted into possession of the property under a mortgage, Exhibit A3, as claimed by plaintiffs. According to them, the properties were originally belonged to 'Edassery Sthanam'. The properties, having an extent of 1 acre 99 cents, were given in lease by the Court of Wards in the year 1952 for a period of one year and after the lapse of one year they continued in possession under the same arrangement and subsequently they have obtained a purchase certificate under Exhibit A14 in the year 1976 from the Land Tribunal, Karunagappally. _Inter alia_ it was also contended that their predecessor-in-interest Madhavan Thankal had occasion to institute two suits – O.S.Nos.3/1962 and 87/1958 against some of the members of the 'Sthanam' and obtained permanent prohibitory injunction. The judgments and the decrees were produced and marked as Exhibits B2 to B5, based on which, it was contended that they were not inducted into possession of the property under any mortgage, but they are holding the property being the legal heirs of Madhavan Thankal who had obtained a leasehold right from the authorized officer of Court of Wards and that subsequently they have obtained Jenm right over the property and hence it is not permissible to evict them R.S.A.No.138 of 2012 5 or to recover the property under the redemption of mortgage, Exhibit A3. It was also contended that the impact of two unregistered sale deeds and transfer in furtherance of said sale deeds in favour of the second plaintiff has not been properly considered by the courts below and that has resulted in miscarriage of justice. 4. Exhibits B2 to B5, two decrees and two judgments, rendered by the Munsiff's Court, Mavelikkara, would clearly show that the contention of plaintiff, Madhavan Thankal, that he had obtained possession over the property by virtue of the lease granted by the authorized officer of Court of Wards was accepted. Exhibit A14 purchase certificate was also relied on by the defendants to show the purchase of jenm right over the property. 5. The specific case advanced by plaintiffs is that the second plaintiff obtained the property from one Krishna Pillai by virtue of an unregistered sale deed of the year 1956, who, in turn, obtained the property by virtue of another unregistered sale deed of the year 1952 from 'Edassery Sthanam'. If the value of immovable property comes to more than Rs.100/-, the sale can only be effected by way of a registered sale deed. Section 17 of the Registration Act mandates that any R.S.A.No.138 of 2012 6 document of title either extinguishing, relinquishing, transferring, conferring, exchanging any right over immovable property, if the value comes to more than Rs.100/-, shall be effected only through a registered document. It goes without saying that the said provision would come into play only when the value of the property comes to more than Rs.100/-. If the value of the property is less than Rs.100/-, there need not be any necessity to effect the transfer by way of a registered document. In so far as the abovesaid two sale deeds are concerned, it requires only registration when the value comes to Rs.100/- or more. The learned counsel for appellants relied on the decision rendered by the Apex Court in **Raghunath and others v. Kedarnath [AIR 1969 SC 1316)** and this Court in **Kuriakose v. Mariam (1962 KLT 792)** in support of his argument that no right or interest will stand conveyed under a document which is compulsorily registerable by virtue of the provisions contained in the Registration Act. The Apex Court had settled the legal position in **Bharat Singh and Others v. Mst.Bhagirathi [1966 KHC 439]** and **Rai Chand Jain v. Miss. Chandra Kanta Khosla [1991 KHC 891]** that the said document can be looked into for collateral purpose showing the relationship in between the parties though it is inadmissible in evidence due to want of R.S.A.No.138 of 2012 7 registration. But, the mandate of registration would come into play only when the value of the property is shown to be Rs.100/- or more. 6. The predecessor-in-interest of Madhavan Thankal in an earlier proceeding in O.A.No.125/1971, renumbered as O.A.No.97/1975, exhibited as A4, applied for getting assignment of jenm right before the Land Tribunal, Mavelikkara, wherein he had admitted that he had came into possession of the property by virtue of an 'otti adharam' (mortgage deed) executed by the first defendant. His deposition was produced and marked as Exhibit A8. The admission contained in Exhibits A4 and A8 regarding the possession of property by the predecessor-ininterest of Madhavan Thankal, under a mortgage is binding on his legal heirs. The admission is clear and unambiguous and entered in Exhibit A4 application for getting assignment of jenm right and he had also deposed in tune with that before the Land Tribunal (Exhibit A8). If that be so, the person who obtained mortgage and possession of the property from a person who had a defective title over the property is estopped from challenging the defective title during the subsistence of possession under the mortgage. Section 116 of the Evidence Act is having two distinct limbs, one is dealing with the estoppel R.S.A.No.138 of 2012 8 on tenant and the other is dealing with estoppel on a licensee who came into possession from a person in possession of property. If the mortgage constitute a permissive possession from the person in possession of property, the estoppel would come into play. The admission made by the predecessor-ininterest by virtue of Exhibits A4 and A8 would sufficiently show that he is a person claiming under the first defendant and he was holding the property as a mortgagee. 7. Of course, in the two earlier suits he had raised a contention that he had obtained a leasehold right also by virtue of order passed by the Court of Wards from the authorized officer for one year from 1952. Even if it is admitted, it can only be an arrangement made by the Court of Wards for the protection and maintenance of the property. It will not affect any preexisting relationship over the property or the liability or obligation attached with the estate. The authority of the authorized officer under the Court of Wards is to make an interim arrangement for the protection of property and to take usufructs. It is only an interim arrangement for a specific period and it will not create any right to hold the property beyond the period of lease and there cannot be any holding over of lease. On termination of the period, the R.S.A.No.138 of 2012 9 interim arrangement will go bringing the parties to their original status. It will not, in any way, affect the preexisting right over the property including the mortgage right. Hence, no claim can be permitted to be raised based on the abovesaid interim arrangement made by authorized officer of Court of Wards for protection and maintenance of the property. 8. Exhibit A14 purchase certificate issued in the year 1976 was also taken up by the defendants stating that they had purchased jenm right from the jenm right holder. But Exhibit A14 purchase certificate is seen issued by the Land Tribunal, Karunagappally. Admittedly the property will not come under the jurisdiction of Land Tribunal, Karunagappally, situated in Kollam District. But the property is situated within the jurisdiction of Land Tribunal, Mavelikkara, in Alleppey District. It is after the dismissal of Exhibit A4 application by the Land Tribunal, Mavelikkara, submitted for getting assignment of jenm right by Madhavan Thankal, Exhibit A14 purchase certificate caused to be issued in his favour from a different Land Tribunal situated in a different district, that too in a suo motu proceedings. High handed foul play is well explicit from the nature of Exhibit A14 document. This would further show the mischievous attempt on the part of the R.S.A.No.138 of 2012 10 predecessor-in-interest of defendant Nos.2 to 4 herein. No records or order pertaining to the issuance of Exhibit A14 purchase certificate was either produced or let in evidence. From the above discussions, it is well clear that the concurrent findings rendered by both the Trial Court and the First Appellate Court do not call for any interference by this Court. No other reasons were brought to the notice of this Court and hence the appeal fails, deserves only dismissal and I do so, but without cost. **Sd/-** **P.SOMARAJAN** **JUDGE** DMR/-