Parameswaran Pillai Madhavan Nair Kunathukuzhiveed v Parvathy Pillai Radhamma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY, THE 25TH DAY OF JUNE 2019 / 4TH ASHADHA, 1941** **RSA.No.81 of 2005** **AGAINST THE JUDGMENT AND DECREE DATED 22-05-2004 IN AS 101/1997 of SUB COURT, NEYYATTINKARA** **AGAINST THE JUDGMENT AND DECREE DATED 11-04-1997 IN OS 515/1995 of I ADDITIONAL MUNSIFF COURT, NEYYATTINKARA** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** ***1 PARAMESWARAN PILLAI MADHAVAN NAIR KUNNATHUKUZHIVEEDU, KOTTUKAL DESOM, KOTTUKAL VILLAGE, NEYYATTINKARA TALUK. (DIED)** **(IT IS RECORDED THAT 2ND APPELLANT AND SOLE RESPONDENT ARE THE LR'S OF HE DECEASED 1ST APPELLANT AS PER ORDER DATED 04.03.2009 IN MEMO CF.1088/2009.)** **2 MADHAVAN NAIR SHAJI , KUNNATHUKUZHI VEEDU, KOTTUKAL DESOM , KOTTUKAL VILLAGE, NEYYATTINKARA TALUK.** **BY ADVS.** **SRI.MURALI PURUSHOTHAMAN SRI.DEEPU LAL MOHAN SRI.P.M.BENZIR** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** - **1 PARVATHY PILLAI RADHAMMA,** **RAKKALTHOTTATHU PARVATHY VILASOM BUNGLOW, KARUMKULAM DESOM, HAVING ALSO ATTARAMMOOLA MELE PUTHEN VEEDU, KOTTUKAL DESOM, KOTTUKAL PAKUTHY.** ****ADDITIONAL 2ND RESPONDENT 2 PARVATHI PILLAI INDIRA AMMA, RAKKALTHOTTATHU PARVATHY VILASOM BUNGLOW, KARUMKULAM DESOM, HAVING ALSO ATTARAMMOOLA MELE PUTHEN VEEDU, KOTTUKAL, DESOM, KOTTUKAL PAKUTHY.** **(ADDITIONAL R2 IS IMPLEADED AS PER ORDER DATED 06/04/2018 IN IA 1406/2009)** **RSA.No.81 of 2005 2** ## **ADDITIONAL R3 TO ADDL.R5:** **ADDL. SHRI.RAJAN, R3 S/O.RAMACHANDRAN, KOTTUKALKONAM WARD NO.11, KUZHIVILA HOUSE, KOTTUKAL VILLAGE, ANDHIYOOR DESOM, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM-695 509.** **ADDL. SHRI.JITHIN S.K., R4. S/O.SHRI.L.SASI,SREEPURATH J.S.NIVAS, KOTTUKAL VILLAGE, KAZIVOOR DESOM, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM-695 526.** **ADDL. SHRI SAJIN S.K R5. S/O.SHRI.L.SASI,SREEPURATH J.S.NIVAS, KOTTUKAL VILLAGE, KAZIVOOR DESOM, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM-695 526.** **(ADDITIONAL R3 TO R5 ARE IMPLEADED AS PER ORDER DATED 22.05.2019 IN IA.1148/2018)** **BY ADVS. SRI.V.R.KESAVA KAIMAL-R5 SRI.AJESH. M.R.-R2 SRI.G.S.REGHUNATH-R1** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA.No.81 of 2005 3** ## **JUDGMENT** The defendant came up with this appeal, aggrieved by the concurrent finding and the decree and judgment of both the Trial Court (I Addl.Munsiff Court, Neyyattinkara) in O.S.No.515/1995 and the First Appellate Court (Sub Court, Neyyattinkara) in A.S.No.101/1997, by which a suit for setting aside the document Ext.A6 was granted besides the consequential relief of injunction and declaration of title thereof. 2. The subject matter of the suit, the plaint schedule, originally belong to the plaintiff. Earlier she has settled the property in the name of her husband. Subsequently she opted to file a suit to set aside the earlier settlement deed, on the ground of undue influence etc. and the suit was decreed and the document was consequently set aside. Later on there was a re-union and while they were residing together, again she had executed another document Ext.A6 in favour of her husband on ## **RSA.No.81 of 2005 4** 15/10/1988. The suit was filed by her for setting aside the said document on vitiating ground. Firstly that it was obtained by her husband by playing fraud on her. Secondly by exercising undue influence by taking benefit of his dominant position being the husband. The said suit was filed only in the year 1995, after the lapse of more than 6 years from the date of execution of the document, that is on 15/10/1988. The question of limitation was raised in both the courts below and both the courts below found that the suit is not barred, by holding that she came to know about the actual nature of the document only on a subsequent date as alleged by her. Against the above said concurrent finding, the defendant came up with this appeal. 3. The questions came up for consideration are: (i) What is the period of limitation available to a document to be set aside and from which date onwards it would commence? (ii) In so far as the executant is concerned what would be the date of notice of execution and what would be the time **RSA.No.81 of 2005 5** available for bringing up a suit to set aside the same on any vitiating grounds? (iii) A document of sale if it is found to be vitiated either by fraud or by undue influence would be a void document from its very inception and what would be the legal character of such a document at its very inception. 4. There may not be any quarrel on the legal position that the time available for setting aside the document a registered deed of assignment/alienation of immovable property is three years as per Article 59 of the Limitation Act. Then comes the question from which date onwards the time began to run. In so far as executant of a registered document is concerned, the very factum of its execution and registration would amount to notice as there is a direct information regarding the execution of a particular document and its registration though the party may not aware of the real nature of the document. In so far as nature of document is concerned, once the executant had the notice that he had executed and registered a document it would amounts to notice. **RSA.No.81 of 2005 6** What is relevant the notice of factum of execution and its registration and not the content of the document. The expression “when a person is said to have notice” under Section 3 of the Transfer of Property Act, would cover direct notice as well as constructive notice and any omission to make an enquiry or search with respect to the document or its contents which he ought to have been done also amounts to notice. The definition given under Section 3 to the said expression is extracted below for reference: _[" a person is said to have notice" of a fact when he actually knows that fact, or when, but for willful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it._ _Explanation I.-Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been_ **RSA.No.81 of 2005 7** _filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:"_ 5. As far as an executant is concerned though the document shrouded by any vitiating circumstance such as undue influence, fraud, coercion, threat, he should bring up a suit within a period of 3 years as mandated under Article 59 of the Limitation Act, from the date of notice. The time began to run from the date of its execution and registration, as against the executant and she cannot come and say that she was not aware of the contents of the document and it was obtained under a vitiating circumstance, after the lapse of the period of limitation available to challenge the said document under any of such ground. The suit was instituted after the lapse of more than 6 years and hence stood as hopelessly barred by limitation. 6. The learned counsel for the respondent submitted that in so far as fraud is concerned it is standing on a different footing and it would make the document as void and there is no necessity **RSA.No.81 of 2005 8** to sue for setting aside the document and took reliance from _**Indian Bank v. Satyam Fibres (India)**_ _**(P) Ltd.(1996 (5) SCC 550).**_ The relevant portion of paragraph 23 is extracted below for reference” _23. "Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that court. Similarly, where the court is, misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order"_ 7. Yet another decision was also relied on by the learned counsel rendered in _**A.V.Papayya Sastry and others v. Govt. of A.P. and others(2007(4) SCC**_ _**221),**_ what is dealt with in that decision in paragraph 21 to 27 is the fraud played on a court in obtaining a collusive decree and judgment. It would be a nullity and non est in the eye of law, when the fraud was brought out. It is really dealing with the fraud played on court in obtaining a decree cannot be equated with that of a document executed by the party under a vitiating circumstances. ## **RSA.No.81 of 2005 9** 8. The Apex Court had considered the nature of document and mandated that it should be set aside, presumably on the reason that the document would not stand as a void in its very inception. If a document is void in its very inception, there need not be any necessity for setting aside the document or its cancellation and it can be very well ignored as nothing will flow out from a void document either legal or otherwise. 9. The very fact that on an earlier occasion a settlement deed in favour of the husband was set aside by a decree by instituting a suit by the wife itself will show that she has already suffered some mischief from the hands of her husband on an earlier occasion in obtaining a settlement deed. This would show that she had not taken sufficient care in executing another document of alienation in favour of her husband subsequent to the earlier decree. In any view of the matter as discussed earlier, it is not at all necessary to go into any of the vitiating circumstance or grounds available for setting aside the document as the relief to set ## **RSA.No.81 of 2005 10** aside the document stood as hopelessly barred by limitation. Both the court below went wrong in applying the principles governing limitation, especially Article 59 of the Limitation Act, with the assistance of constructive notice as embodied under Section 3 of Transfer of property Act, especially to the expression “ when a person is said to have notice”. The decree and judgment of both the Trial Court and the First Appellate Court hence liable to be set aside, I do so, by allowing this appeal. The appeal is allowed. The decree and judgment of both the Trial Court and the First Appellate Court are hereby set aside. The suit is dismissed. Considering the nature of dispute, both the parties are directed to suffer their respective costs of entire proceedings right from the suit till the second appeal. ## **Sd/-** ## **P.SOMARAJAN** ## **JUDGE** msp