Padmavathy Amma v. Pankajakshi Amma Santhakumari Amma and others (SA No. 235 of 1996(C)), High Court of Kerala at Ernakulam

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : ## THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 SA.No. 235 of 1996(C) ----------------------------------- AS.295/1989 of D.C & SESSIONS COURT, TRIVANDRUM OS.751/1987 of PRL.M.C., NEYYATTINKARA .................... APPELLANT/1st RESPONDENT/PLAINTIFF: PADMAVATHY AMMA, KUNCHUVEEDU, PARASSALA DESOM, PARASSALA VILLAGE, NEYYATTINKARA TALUK. BY ADV. SRI.M.RAJASEKHARAN NAYAR SRI.G.MADHAVAN NAIR RESPONDENTS/APPELLANT & OTHER R2 TO R4: 1. PANKAJAKSHI AMMA SANTHAKUMARI AMMA, VIYANNOORKONOTHU MECHARI VEEDU, THATTIYOOR DESOM, PERUMKADAVILA VILLAGE, NEYYATTINKARA TALUK. 2. GOURI PILLA PANKAJAKSHI AMMA, DO. DO. 3. VASUDEVAN NAIR SREEKANTAN NAIR, DO. DO. 4. VASUDEVAN NAIR RADHAKRISHNAN NAIR, DO. DO. ADV. SRI.G.S.REGHUNATH FOR R1 SRI.R.S.KALKURA THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- S.A.No.235 of 1996 -------------------------- ## **JUDGMENT** Plaintiff in O.S.No.751/1987 on the file of Principal Munsiff's Court, Neyyattinkara is the appellant. Defendants are the respondents. Appellant instituted the suit seeking a decree for declaration of title, possession and permanent prohibitory injunction and also for putting up the boundary. 2. Plaint schedule property is twenty six cents in Sy.No.636/1C of Perumkadavila Village of Neyyattinkara Taluk, which is described as plot MNPOEB, as marked in Exhibit A3(a) plan in O.S.No. 292/1965 on the file of Principal Munsiff's Court, Neyyattinkara. Appellant claims right, title and possession over the property under Exhibit A1 sale deed dated 2.3.1965. It is contended that immediately after the purchase of the property, Ramakrishna Pillai, the predecessor in interest of SA 235/96 2 the respondents, instituted O.S.No.292/1965 seeking a decree for declaration that there is no property as described in plaint D schedule therein, which is claimed as part of the property covered by Exhibit A1 sale deed herein and therefore, appellant has no right or title over the said property. When that suit was pending, Ramakrishna Pillai died and the respondents, being the widow and children, got themselves impleaded as additional plaintiffs. By Exhibit A2 judgment dated 10.8.1973, learned Munsiff dismissed the suit finding that plot MNPOEB is in the possession of the first defendant and respondents have no right or title over that property. It was contended by the appellant in the plaint that even after the said judgment, respondents are attempting to trespass into the property and they are to be restrained by a permanent injunction and title of the appellant is to be declared and she is to be permitted to put up a boundary. SA 235/96 3 3. Only the first respondent resisted the suit. First respondent contended that Exhibit A1 sale deed is ab initio void, as there is no property lying adjacent to the property of the first respondent and first respondent is not a party to O.S.No.292/1965. She was not aware of the said suit and the judgment and decree in that suit are not binding on her. Though first respondent was aged twenty years on 30.3.1973, when the legal heirs in O.S.No.292/1965 were impleaded, first respondent was shown as a minor represented by the mother and as appellant was not impleaded as a major in the suit, the judgment and decree are not binding on her and appellant is, therefore, not entitled to the decree as prayed for. 4. Learned Munsiff framed the necessary issues. On the side of the appellant, Exhibits A1 to A4(a) were marked and on the side of the first respondent, Exhibit B1 was marked. SA 235/96 4 5. Learned Munsiff found that O.S.No.292/1965 was filed by Ramakrishna Pillai, under whom respondents claim right and title over the property. In O.S.No.292/1965, the court, after recording the evidence, found that plaint D schedule property therein, which is the plaint schedule property herein, belongs to the appellant herein and plaintiffs in O.S.No.292/1965 have no right over the same. Though first respondent contended that she was impleaded as a minor represented by the mother, when, in fact, she was a major, no material was produced to substantiate that case. Exhibit A2 judgment does not show that first respondent was impleaded as a minor. Learned Munsiff, based on Exhibit A2 judgment, granted a decree in favour of the appellant. 6. First respondent challenged that judgment and decree before District Court, Thiruvananthapuram in A.S.No.295/1989. Learned Additional District Judge received copy of the decree in O.S.No. SA 235/96 5 292/1965 as an additional evidence under Order XLI Rule 27 of Code of Civil Procedure and held that first respondent was impleaded as a minor represented by the mother and Exhibit B1 SSLC Book shows that on the date, when she was impleaded, she was aged nineteen years and five months and therefore, she is not a minor. Relying on the decision of the Apex Court in **Chengalvaraya Naidu v. Jagannath** (AIR 1994 SC 753), learned Additional District Judge found that as the decree was obtained showing first respondent as a minor, when, in fact, she was a major, the decree is to be treated as a nullity, as it is the result of fraud and therefore, Exhibit A2 judgment is not binding on the first respondent and hence, the decree granted, based on Exhibit A2 judgment, is unsustainable. Appeal was allowed and the suit was dismissed. It is challenged in this second appeal. 7. Second Appeal was admitted and notice was issued formulating the following substantial SA 235/96 6 questions of law: 1. Was the court below justified in finding that first respondent was a major on the basis of the materials which were not part of the evidence in the case and in such circumstances, is not the lower appellate court acted on extraneous consideration and irrelevant considerations? 2. Exhibit A2, the suit was filed by the father of the first respondent and after his death, application to implead the legal heirs were filed by the mother and children and in such circumstances, is not Exhibit A2 judgment binding on the first respondent and whether finding of the first appellate court that it is not binding is not illegal? 3. When the application is filed under Order XXII Rule 3 of Code of Civil Procedure by the legal heirs to get themselves impleaded, are they entitled to contend that the decree is invalid? 8. Learned counsel appearing for the appellant and first respondent were heard. 9. Appellant is claiming title over the plaint schedule property under Exhibit A1 sale deed. Suit is filed for declaration of title, possession and fixation of boundary and for permanent prohibitory injunction. Only the first respondent, the original second defendant, contested the suit. Defence is SA 235/96 7 that Exhibit A10 is ab initio void, as there is no property as described in Exhibit A1 and therefore, appellant is not entitled to a decree as prayed for. In the plaint itself, appellant contended that father of the first respondent had filed O.S.No. 292/1965 contending that there is no property as claimed by the appellant under Exhibit A1 and a decree for declaration to that effect was sought. By Exhibit A2 judgment, the suit was dismissed. Exhibit A2 judgment shows that suit was dismissed after recording the evidence and based on Exhibit A3(a) plan, where under the property covered by Exhibit A1 was identified as plot MNPOEB in Sy.No. 636/1C. Though that suit was filed by Ramakrishna Pillai, Exhibit A2 judgment itself shows that when the suit was pending, Ramakrishna Pillai died and his widow and children filed I.A.No.460/1973 under Order XXII Rule 3 of Code of Civil Procedure to get themselves impleaded as additional plaintiffs to prosecute the suit further. As per order dated SA 235/96 8 30.3.1973, they were impleaded as additional plaintiffs 2 to 7. Though learned Munsiff, based on Exhibit A2 judgment, found that case of the first respondent that she was a major on 30.3.1973 and she was impleaded as a minor represented by the mother is not proved, learned Additional District Judge, based on the decree produced at the appellate stage, found that first respondent was impleaded as a minor represented by the mother. But, learned Additional District Judge, ignoring the fact that it was a suit instituted by the father of the first respondent and on his death, the mother, along with the children, filed an application to get themselves impleaded and got themselves impleaded as additional plaintiffs and contested the suit, held that as first respondent was a major and was impleaded as a minor, the decree is a nullity because it is vitiated by fraud. It is not known how Exhibit A2 judgment and decree could be termed as vitiated by fraud, when SA 235/96 9 it was the mother of the first respondent, who filed the application for impleading herself and her children, representing that her daughter, the first respondent, as a minor. It is to be bone in mind that when the plaintiff died, additional plaintiffs, his widow and children, got themselves impleaded and contested the suit. Even if first respondent was a major and was wrongly shown as a minor, it cannot be said that the judgment and decree is vitiated by fraud because there was substantial representation of all the legal heirs by the mother. Exhibit A2 judgment establishes that mother had contested the suit and even the original plaintiff was examined as PW3 and five witnesses were altogether examined on the side of the plaintiffs. It is based on the said evidence, after the suit was contested by the legal heirs of the original plaintiff, the suit was dismissed by Exhibit A2 judgment. When the appellant cannot be found fault for impleading the first respondent as SA 235/96 10 a minor and that application was filed by the widow of the plaintiff in O.S.No.292/1965 and she contested the suit thereafter, it cannot be said that Exhibit A2 judgment is vitiated by fraud. Therefore, Exhibit A2 judgment is binding on the additional plaintiffs, including the first respondent herein, so long as she has not challenged the judgment. If that be so, learned Additional District Judge grossly erred in setting aside the judgment of the learned Munsiff. 10. By Exhibit A2 judgment, learned Munsiff had already found that the property obtained by the appellant under Exhibit A1 is plot MNPOEB and it has been in the possession of the appellant. The only contention raised by the first respondent is that there is no property as described in Exhibit A1 and therefore, the suit is not maintainable. When it is already found in the suit, instituted by the father of the first respondent and continued after the death of the father by the widow and SA 235/96 11 children, that the property covered by Exhibit A1 is plot MNPOEB, as demarcated by the Commissioner in Exhibit A3(a) plan, appellant is entitled to a decree declaring his title and possession over the said property on the strength of Exhibit A1. She is also entitled to get a decree for putting up boundary as has been granted by the learned Munsiff. The judgment and decree passed by the learned District Judge are illegal and can only be set aside. Appeal is allowed. Judgment and decree passed by Additional District Judge, Thiruvananthapuram in A.S.No.295/1989 is set aside. The judgment and decree passed by Principal Munsiff, Neyyattinkara in O.S.No.751/1987 is restored. Appellant is entitled to her costs. 28[th] January, 2010 (M.Sasidharan Nambiar, Judge) tkv SA 235/96 12 M.Sasidharan Nambiar, J. -------------------------S.A.No.235 of 1996 -------------------------- ## **JUDGMENT** 28[th] January, 2010