RFA No. 318 of 2008

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945** **RFA NO. 318 OF 2008** **AGAINST THE JUDGMENT DATED 19.12.2007 IN OS NO.76 OF 1998 OF ADDITIONAL SUB COURT, PALAKKAD** **-----** ## **APPELLANT/PLAINTIFF:** **1 SUMANGALA, (DIED)*[1] AGED 40 YEARS, D/O.KANNAMANI, RESIDING AT MALLANCHALLA,PERUMATTY VILLAGE, P.O. KUTTIPALAM, CHITTUR TALUK, PALAKKAD DISTRICT.** ## ***[1] ADDL. A2 & A3 IMPLEADED** **ADDL. A2 CHENTHAMARA, SON OF UNNIKRISHNAN, AGED 67 YEARS, RESIDING ATMAYOORAM, MALLAMNCHALLA, KUTTIPPALAM, PALAKKAD 678101.** **ADDL. A3 JINCY C, D/O.CHENTHAMARA, AGED 34 YEARS, RESIDING AT MAYOORAM, MALLAMNCHALLA, KUTTIPPALAM, PALAKKAD 678101.** ## ***[1] (LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL. A2 & ADDL. A3, VIDE ORDER DATED 22.06.2023 IN I.A.NO. 2/2022).** **BY ADVS.** **S.EASWARAN P.MURALEEDHARAN (IRIMPANAM) K.V.RAJESWARI P.SREEKUMAR (THOTTAKKATTUKARA)** **RFA NO. 318 OF 2008 -2-** ## **RESPONDENT/2ND DEFENDANT:** - **1 THANKA, (DIED)*[2]** **AGED 73 YEARS,** - **D/O.VELAYUDHAN, RESIDING AT KARINJALIPALLAM, CHITTUR TALUK, PALAKKAD DISTRICT.** ## ***[3] ADDL. R2 & R9 IMPLEADED** - **2 SATHYAN, SON OF APPU, KACHERIMEDU, CHITTUR,PALAKKAD- 678101.** **3 KUTTAMANI, SON OF KUPPELAN, PANNIPERUMTHALYIL HOUSE, THEKKE DESOM CHITTUR, PALAKKAD - 678101.** - **4 SMT.RAJESWARI WIFE OF SUNIL, RESIDING AT 12/323, “GOPIKA” KACHERIMETTIL CHITTUR, PALAKKAD 678101.** - **5 SHRI.DINESHKUMAR, SON OF SASIKUMAR , 8/326, THOTTAPPALLI HOUSE, P.O.MEENAKSHIPURAM - 678530.** - **6 SMT.SHALI, WIFE OF DINESHKUMAR -DO-** - **7 SANTHOSHKUMAR, SON OF NATARAJAN, AMBALAPARAMBIL HOUSE, PATTAMCHERRY-678532** - **8 SMT.SHAKKEELA, BSMILLAH HOUSE, KADAVANKOD, THATTAMANGALAM. PALAKKAD-678102.** - **9 SMT.GEETHA, WIFE OF RADHAKRISHNAN, YESODHA HOUSE, VEMBRA PERUMATTI P.O., NANNIYOD, CHITTUR , PALAKKAD-678102.** ## **RFA NO. 318 OF 2008 -3-** ## ***[3] [ADDITIONAL R2 TO R9 IMPLEADED AS PER THE ORDER DATED 23/12/2010 IN IA 4517/10]** ## ***[2] ADDL. R10 TO R14 IMPLEADED** **ADDL.R10 SMT.RAMADEVI W/O.VASU, KARIMBATH HOUSE, THEKKUMURI, KARUKAMANI, CHITTUR COLLEGE P.O., PALAKKAD-678104** - **ADDL.R11 VIJAYALAKSHMI W/O.KRISHNANKUTTY, KARIMBATH HOUSE, THEKKUMURI, KARUKAMANI, CHITTUR COLLEGE P.O., PALAKKAD-678104.** - **ADDL.R12 RATHIDEVI,** **KARIMBATH HOUSE, THEKKUMURI, KARUKAMANI, CHITTUR COLLEGE P.O., PALAKKAD-678101** **ADDL.R13 JAYANANDHAN KARIMBATH HOUSE, THEKKUMURI, KARUKAMANI, CHITTUR COLLEGE P.O., PALAKKAD- 678101** **ADDL.R14 SACHIDHANANDHAN** **KARIMBATH HOUSE, THEKKUMURI, KARUKAMANI, CHITTUR COLLEGE P.O., PALAKKAD- 678101.** ## ***[2 ] (LEGAL HEIRS OF THE DECEASED R1 ARE IMPLEADED AS ADDL R10 TO R14, AS PER ORDER DATED 24.08.2023 IN I.A.NO.01/2022).** **BY ADVS. SRI.K.MOHANAKANNAN SRI.P.BABU KUMAR K.P.BALAGOPAL SMT.A.R.PRAVITHA SRI.P.YADHU KUMAR H.BADARUDDIN A.R.GANGADAS** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A. No.318 of 2008 = = = = = = = = = = = = = = = = = = Dated this the 18[th] day of March, 2024** ## **J U D G M E N T** Challenging the preliminary decree in a suit for partition, the plaintiff is in appeal. 2. One Velayudhan and Kunja had three children, Ponnamala, Thanka and Devu alias Devayani. Kunja is the 1[st] defendant. Plaintiff is the daughter of late Ponnamala. Thanka is the second defendant and Devu is the third defendant. On the death of Velayudahan, they entered into Ext.A1 Partition Deed. Plaint schedule item No.1 is the ‘E’ schedule property in Ext.A1. The said property was kept in common for all the sharers. Plaint item No.2 is the 'A' schedule in Ext.A1. It was allotted to Kunja. She died pending the suit and item 2 was included in the suit by amendment. These items were sought to be partitioned. Partition was also sought with regard to the share of Kunja in plaint item No.1. R.F.A. No.318 of 2008 -: 2 :- 3. Defendants 2 and 3 contended that Kunja had executed Ext.B3 Release Deed and Ext.B9 Settlement Deed in their favour whereunder, the entire plaint item No.2 which belonged to Kunja, and also the share of Kunja over plaint item No.1 were assigned in their favour. 4. The plaintiff amended the suit raising challenge against Ext.B3 and Ext.B9. It was alleged that the documents are fabricated. 5. The trial court held the documents to be genuine and passed a preliminary decree accordingly. The plaintiff challenged the decree before this Court in RFA 217/2003. This Court set aside the judgment and remanded the matter granting opportunity to the parties to adduce evidence with regard to Ext.B3 and Ext.B9 documents. Thereafter, the trial court upheld the documents and preliminary decree was passed in tune thereof. It is challenging the same that this appeal has been filed. R.F.A. No.318 of 2008 -: 3 :- 6. Heard learned counsel on either side. 7. The points that arise for determination in this appeal are :- _(i) Is the finding of the trial court with regard to proof of Ext.B3 Release Deed and Ext.B9 Settlement Deed, sustainable on the evidence on record?_ _(ii) Has there been violation of the interim order of injunction granted by this Court on IA 2101/2008 and if so what are the consequential directions called for?_ 8. The suit was remanded as per order in RFA No.217/2003 for proof of Exts.B3 and B9 documents. Thereafter, the defendant examined DW3 the Head Clerk of the Sub Registry Office and DW4 who was the witness in both the documents. Though the plaintiff contended that the first defendant did not have sound disposing state of mind at the time of execution of the documents (Exts.B3 and B9) and that she had become paralysed about six years prior to her death in the year 1998, there is R.F.A. No.318 of 2008 -: 4 :- lack of evidence in the said regard. The only evidence adduced in support of the said contention was the oral evidence of PW2 who is the niece of Kunja. Though he claimed that Kunja was admitted at the Government Hospital, Chittoor and that she was under the treatment of one Dr. Sudevan at Chittoor, no evidence is adduced in the said behalf. The said Doctor was not examined. Kunja was arrayed as the first defendant in the suit. There was no allegation that she was not having sufficient mental capacity. There was no request to appoint a guardian for the first defendant. She had appeared in the proceedings on her own. Therefore, the said contention of the plaintiff cannot be sustained. 9. To prove the execution of the documents, DW4 was examined. He is a witness to both Exts.B9 and B3. He deposed about the execution and attestation. The trial court chose to accept the evidence of DW4, and held that due execution of the documents have been proved. R.F.A. No.318 of 2008 -: 5 :- However, as contended by the learned counsel for the appellant, the trial court omitted to take note of few contradictions in the evidence of witnesses. The documents in question indicate that Kunja had put a mark similar to the alphabet 'O' as her signature in Exts.B3 and B9. But, as DW1, the second defendant denied that the mark seen in Ext.B9 is the signature of the first defendant. She also deposed that D1 does not know how to write and she only affixes thumb impression. So also, DW1 claims that she and the first defendant along with the witnesses went to the office of the document writer at about 4.00 pm, whereas DW4 the attesting witnesses would depose that he went to the office of the document writer at 11.00 am. Therefore, there is some contradiction in the evidence. This has not been taken note of by the trial court. Of course, the document writer as DW2 deposed that, if the executant does not know to write, his thump impression is taken in the R.F.A. No.318 of 2008 -: 6 :- document, or he is made to put a circle mark or some other mark. The relevant deposition reads thus :- “Ipô-¡v hn-Zym-`ym-kw Cñm-¯-Xn-\mepw H-¸n-Sp-hm³ A- dn-bm-¯-Xn-\mepw tað-]-d-ª 2366/96 sâ sk-änð-saâ v B-[m-c-¯nð Xm³ Ip-ô-bp-sS ssI-¿nð t]-\ ]n-Sn-¨v Fñm t]-Pp-I-fnepw Ip-ô F-óv F-gp-Xn-b-Xn-\v A-Sp-¯mbn Ipô-sb sIm-ïv H-cp A-S-bm-fw C-Sp-hn-¸n-¨n-«p-ÅXmWv.” 10. Exts.B5 and B6 are the image print copies of filing sheets maintained at the Sub-registry, of Exts.B3 and B9 documents. The copies were admitted in evidence after comparing with the original. Exts.B7 and B8 true copy of the thumb impression registers containing the thumb impression affixed at the time of registration. Though the thumb impression of Kunja was not forwarded for expert opinion, by the mere production of the registers, the Court proceeded to assume that the thumb impression is that of Kunja. The finding of the trial court cannot be sustained on the materials. R.F.A. No.318 of 2008 -: 7 :- 11. The second defendant died pending this appeal and her legal heirs were impleaded as respondents 10 to 14. The 12[th] respondent has filed a suit as OS 177/2008 before the Sub Court, Palakkad claiming that the third defendant who died on 03.07.2005 had executed a Will bequeathing her rights over the properties in his favour. The trial of the said suit is stayed by this Court. The question regarding the devolution of rights of the third defendant will depend on the finding on the genuineness of the said Will. A finding on the proof of Exts.B3 and B9 documents will decide the share of the 3[rd] defendant over the properties. Ext.B9 was executed on 10.07.1996 and Ext.B3 was executed on 15.02.1997. The first defendant died on 31.07.1998. The examination of DW4 viz. the witness to Exts.B3 and B9, was only in November 2007 that is after several years. Both Exts.B3 and B9 contain the mark 'O' denoting the execution of the document by the first defendant. Evidence need be R.F.A. No.318 of 2008 -: 8 :- taken with regard to the Will claimed to have been executed by the third defendant. Details regarding the thump impression of Kunja is available. There could be an expert opinion on that. Pointing out the above circumstances the learned counsel for the respondents pray that an opportunity may be granted to adduce further evidence regarding proof of Exts.B3 and B9 documents. 12. Considering the totality of the circumstances and having due regard to the pendency of O.S. 177/2008 which presently stands stayed under Section 10 of Code of Civil Procedure in the light of pendency of this appeal, I am of the opinion that a further opportunity can be afforded to the parties to adduce evidence with regard to Exts.B3 and B9 documents. The suit could be tried along with O.S. 177/2008. 13. Now coming to the issue of violation of the order of injunction passed by this Court in IA R.F.A. No.318 of 2008 -: 9 :- 2101/2008, the application was one filed seeking injunction against alienation of the properties. This Court had on 29.05.2008 granted an interim order as prayed for in the application. In spite of the same, Annexures-A2 and A3 Sale Deeds bearing Nos.2933/2009 and 2934/2009 respectively, were executed by the second defendant. Application was filed under Order XXXIX Rule 2A of the Code of Civil Procedure for violating the order of injunction. It was contended by the respondent that the order of injunction was not communicated, consequent to which she was not aware of the order. Hence there is no violation, it is argued. 14. From the proceedings it is seen that, this Court had called for a report from the registry regarding communication of the order. The report revealed that there had been an omission in the registry in communicating the order of injunction. However, it is noticed that, the appellant had on 11.08.2009 filed IA R.F.A. No.318 of 2008 -: 10 :- 2816/2009 for a prohibitory injunction to restrain the respondents from committing waste in the property. The application was ordered on 18.08.2009 after hearing of both sides. In paragraph 7 of the affidavit filed in support of the said application, the order of injunction passed on 29.05.2008 in IA 2108/2008, restraining alienation, was specifically mentioned. The alienation under Exts.A2 and A3 were thereafter on 26.09.2009 and 29.09.2009. Therefore, the respondents cannot be heard to say that they were not aware of the order of restraint on alienation passed in IA 2101/2008. It is brought to the notice of this Court that there had been further alienations in respect of the property. All the assignees have been impleaded as additional respondents in this appeal. The alienations have been made in the teeth of the order of injunction by this Court and in utter disregard to the same. The Apex Court has repeatedly held that such alienations R.F.A. No.318 of 2008 -: 11 :- cannot pass any valid title or interest. The conveyances are void.[ _**See Vidur Impex & Traders (P) Ltd. v. Tosh Apartments (P) Ltd., (2012) 8 SCC 384 ,Jehal Tanti v. Nageshwar Singh, (2013) 14 SCC 689**_ ]. Accordingly, all alienations made after 11.08.2009 in respect of the plaint schedule properties are declared void. The remedy of the purchasers, if aggrieved, lies in seeking compensation and damages against the vendor. Resultantly, this appeal is allowed. The decree and judgment of the trial court are set aside. The suit is remanded back to the trial court for disposal afresh. The suit shall be tried along with O.S. 177/2008 pending on its files. I am sure that the trial court will make every endeavour to expedite the suits. Parties to appear before the trial court on 26.03.2024. Sd/- ## **SATHISH NINAN** **JUDGE** kns/- //True Copy// P.S. to Judge