Peroothayil Narayanan and Others v. Gangadharan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944** **RSA NO. 1105 OF 2006** **AGAINST THE JUDGMENT IN AS 3/2003 OF SUB COURT, KOYILANDY OS 21/1999 OF MUNSIFF COURT, KOYILANDY** **-----** ## **APPELLANTS/APPELLANTS/PLAINTIFFS 2 TO 7:** 1 PEROOTHAYIL NARAYANAN, S/O.KANARAN, CHERUVATH KANDY HOUSE, MOODADI AMSOM, DESOM,, KOYILANDY TALUK. 2 PEROOTHAYIL DEVI, D/O. -DO- -DO-. 3 PEROOTHAYIL SARASA, D/O. -DO- -DO-. 4 C.K. CHANDRI, W/O. RAMOTTY, CHERUVATH KANDY HOUSE, MOODADI AMSOM, DESOM, KOYILANDY TALUK. 5 C.K. SHAJI S/O. RAMOTTY, -DO- -DO-. 6 C.K. JISHA D/O.RAMOTTY -DO- -DO-. BY ADVS. SRI.R.K.MURALEEDHARAN R.K.MURALEEDHARAN R.PARTHASARATHY ## **RESPONDENTS:** 1 GANGADHARAN, S/O.KUNHIMANNAN, CHERUVATHKANDY HOUSE, MOODADI AMSOM, DESOM, KOYILANDY TALUK. 2 KUNHIKANNAN, S/O. CHATHU, MOTHATTIL THAZHA, PALLIKKARA AMSOM, DESOM, KOYILANDY TALUK. **RSA NO. 1105 OF 2006 -2-** - 3 THAYYIL NARAYANI, D/O. NARAYANAN, IRINGAL AMSOM, AYANIKKAD DESOM, KOYILANDY TALUK. - 4 TEENA, D/O. GANGADHARAN CHERUVATHKANDY HOUSE, MOODADI AMSOM, DESOM, KOYILANDY TALUK. - 5 RISHMA, D/O. GANGADHARAN DO. DO. - 6 SAJITHA, -DO- -DO-. - 7 KOTAKKAT SATHIAN, S/O. KORAN MOODADI AMSOM, DESOM, KOYILANDY TALUK. - 8 GANAPATHYKANDY NARAYANAN NAIR, S/O.KUNHACHI AMMA, KALOOR ILLATH HOUSE, VIYYUR AMSOM, PULIYANCHERY. - ***** 9 PUTHANPURAYIL MUKUNDAN, S/O.KUNHIKANARAN, KURUVANGAD AMSOM, PERUVATTOOR DESOM, KOYILANDY TALUK. (STRUCK OFF) ## *[ **THE NAME OF THE 9TH RESPONDENT IS STRUCK OFF FROM THE PARTY ARRAY VIDE ORDER DATED 21.06.2007 IN IA.971/2007.]** - 10 MENOKI VEETTIL RAGHAVA NAIR, S/O. NARAYANI AMMA, VIYYUR AMSOM, KOLLAM DESOM, KOYILANDY TALUK. - 11 PEROOTHAYIL ACHUTHAN, S/O. KANARAN, VANMUGHAM AMSOM, VEEMANGALAM DESOM, REPRESENTED BY POWER OF ATTORNEY POVATHYKANDY PRAMEELA, W/O. ACHUTHAN, MOODADI AMSOM, DESOM, KOYILANDY TALUK. - 12 PEROOTHAYIL KALLIANI, D/O. KANARAN, -DO- -DO-. BY ADVS. SRI.ZUBAIR PULIKKOOL SRI.K.PRAVEEN KUMAR SRI.T.G.RAJENDRAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = RSA No.1105 of 2006** **= = = = = = = = = = = = = = = = = = Dated this the 1[st] day of November, 2022** ## **J U D G M E N T** The suit for declaration that Settlement Deeds Nos.921 of 1997 and 923 of 1997 are vitiated by fraud and impersonation, and for prohibitory injunction, was dismissed by the courts. The plaintiffs are in appeal. 2. The plaint schedule property belonged to one Kanaran. Under Ext.A1 Gift Deed of the year 1978, he gifted the property to his son Kunhikannan. Kunhikannan is unheard of for more than 20 years and is presumed to be dead. Plaintiffs are the brothers of Kunhikannan. The suit is filed alleging that they got information that two settlement deeds bearing Nos.921/1997 and 923/1997 have been caused to be executed in respect of Kunhikannan’s property through impersonation and fraud. Under the said settlement deeds, the property is claimed to have been gifted to defendants 4 to 6. The first **RSA No.1105 of 2006** **==> picture [34 x 10] intentionally omitted <==** defendant is Kanaran's brother's son and defendants 4 to 6 are the children of the first defendant. It is accordingly that the suit was filed. 3. Defendants 1, 4, 5 and 6 in their joint written statement denied the allegation. 4. The trial court held that the burden of proof is on the plaintiffs to prove that Kunhikannan was not alive when the settlement deeds were executed and that the documents are bad for impersonation and fraud. It was held that the plaintiffs failed to discharge their burden. The said finding was affirmed in appeal. 5. Heard learned counsel Sri.Parthasarathi R. on behalf of the appellants-plaintiffs, Sri.T.G.Rajendran and Sri.Subair on behalf of the contesting respondents on the following substantial question of law :- - “ _Were the courts right in having ignored the evidence of_ _DW1, the wife of Kunhikannan while considering the presumption under Section 108 of the Indian Evidence Act ?”_ **RSA No.1105 of 2006** -: 3 :- 6. The suit is filed on the definite allegation that, Kunhikannan was unheard of for a period of at least 20 years prior to the date of institution of the suit and is presumed dead. They allege that on the date of execution of the Settlement Deeds 921/1997 and 923/1997, the alleged executant-Kunhikannan was no more. Section 108 of the Indian Evidence Act reads thus:- _“_ _**108. Burden of Proving that person is alive who has not been heard of for seven years-** Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it”_ 7. PW1 is the son of the first plaintiff. The original first plaintiff was no more by that time. PW1 has spoken to that, Kunhikannan was unheard of for the past 35 years. PW2 is a friend of Kunhikannan. He had **RSA No.1105 of 2006** -: 4 :- attended the marriage of Kunhikannan and had subscribed his signature as a witness in the marriage register. The certified copy of the register is marked as Ext.A4. PW2 has deposed that Kunhikannan is unheard of for the past 38 to 40 years and that he had not even attended the funeral of his parents, or any other functions in the family. 8. The wife of Kunhikannan is the third defendant in the suit. She had filed a written statement supporting the plaintiffs. She was examined as DW1. She deposed that her marriage with Kunhikannan was in the year 1961 and that they lived together only for a period of three years and thereafter Kunhikannan is unheard of. In her cross-examination there is not even a suggestion that she and Kunhikannan were not on good terms. If Kunhikannan was alive, she would have been the best person to speak about the same. In _**Mary v. Zacharia and Company Ltd. (1967 KLT 1082),**_ while dealing with the **RSA No.1105 of 2006** -: 5 :- question of presumption of death and burden of proof in terms of Section 108 of the Indian Evidence Act, this Court held that, when a person is continually absent for a period of seven years, unheard of by persons who would naturally have received intelligence from him, he is presumed to be dead and the burden of proving that he is alive is shifted to the person who affirms that he is not dead. If alive, it is only probable that Kunhikannan would have contacted his wife DW1. Therefore, she is the best person to speak about the whereabouts of Kunhikannan. She has deposed that Kunhikannan is unheard of for more than 30 years. The evidence of DW1 ought not have been lightly brushed aside. Her evidence is very much relevant for the issue, more so in the light of the judgment in _**Mary v. Zacharia and Company Ltd.(supra).**_ Substantial question of law is answered accordingly. 9. The evidence of PWs.1 and 2 and DW1 prima facie show that Kunhikannan was unheard of for the past more **RSA No.1105 of 2006** -: 6 :- than 20 years. In spite of the same, absolutely no evidence was adduced from the side of the defendants. They did not even care to mount the witness box to swear that Kunhikannan is alive. Document Nos.921/1997 and 923/1997 are required to be attested. None of the witnesses were examined to prove the documents in terms of Section 68 of the Indian Evidence Act. For some reason, the defendants refrained from examining any of the witnesses to the documents. 10. Therefore, the circumstances and the evidence on record indicate that, Kunhikannan was unheard of for the past more than 20 years. Consequently, the presumption of death in terms of Section 108 of the Indian Evidence Act is liable to be drawn. The material evidence as above were overlooked by the courts. 11. Added to all this is Ext.A7, the report of a scientific expert on the thumb impression found in the disputed documents compared with that in Ext.A4 marriage **RSA No.1105 of 2006** -: 7 :- register. It is the allegation of the plaintiffs that, the second defendant was the person who impersonated Kunhikannan. In Ext.A7 report, the expert has concluded that, the thumb impressions found in the disputed documents does not tally with the thumb impression of Kunhikannan as found in Ext.A4 marriage register. It was further opined that the thumb impression of the second defendant had striking similarity with the thumb impression on the disputed documents. This corroborates the evidence of the witnesses referred to supra. Though the learned counsel for the respondent-defendant would challenge the admissibility of Ext.A7, the expert's report, noticeably Ext.A7 was admitted in evidence without any objection. The documents having been admitted in evidence, it cannot be contended that without examining the experts, document could not have been marked. Objections regarding mode of proof of documents are to be urged at the time of admitting the **RSA No.1105 of 2006** -: 8 :- document in evidence. It having not been done, it could not have been urged later. ( _**See Gopal Das v. Sri Thakurji (AIR**_ _**1943 PC 83), R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P.Temple and Anr. [AIR 2003 SC 4548]**_ , _**Lachhmi Narain Singh (D) through L.Rs. And Ors. v. Sarjug Singh (Dead) through L.Rs. And Ors. 2021 SCC OnLine SC 606**_ ). 12. That apart, as held by the Apex Court in _**Jaspal Singh v. State of Punjab AIR 1979 SC 1708**_ , study on thumb impression is an exact science and does not admit of any mistake or doubt. Ext.A7 report indicates the points of similarities and dissimilarities in the thumb impressions referred to the expert for opinion. In _**Parukkutty Amma & Another v. Thankam Amma & Others, 2004 (1) KLT**_ _**991, Kannan v. Nanu, (1989) 2 KLT 288**_ **,** it was observed that it is within the discretion of the court to insist upon examination of the expert or to accept the expert's evidence on thumb impression without examining him. If the defendants were dissatisfied with Ext.A7 report of **RSA No.1105 of 2006** -: 9 :- the expert, it was always open for them to examine the expert and disprove his report. Such a course was not resorted to. As noticed above, there is total lack of evidence from the side of the defendants. The plaintiff has succeeded in discharging the burden. In the absence of any contra evidence, and also on the basis of the supporting evidence of the expert, Ext.A7, it could only be found that document Nos.921/1997 and 923/1997 are vitiated by impersonation and fraud. The judgment and decree of the courts below are liable to be set aside. In the result, the decree and judgment of the courts below are set aside. It is declared that Kunhikannan is presumed to be dead. Settlement deeds No.921/1997 and 923/1997 are vitiated by fraud and impersonation, and are not binding on Kunhikannan and his estate. Defendants 1, 2 and 4 to 6 are restrained by a decree of prohibitory injunction from interfering with the possession and enjoyment of the properties by the **RSA No.1105 of 2006** -: 10 :- plaintiffs. Parties to bear their respective costs. The R.S.A. is allowed as above. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge