R.S.A. Nos. 809 & 810 of 2013

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 17[TH] DAY OF NOVEMBER, 2021 / 26TH KARTHIKA, 1943** **RSA NO. 809 OF 2013** **[AGAINST THE JUDGMENT & DECREE DTD.15.2.2013 IN AS 180/2007 OF SUB COURT, PERUMBAVOOR, ERNAKULAM ARISING FROM THE JUDGMENT AND DECREE DTD.10.10.2002 IN OS 44/1997 OF MUNSIFF COURT, PERUMBAVOOR, ERNAKULAM]** **APPELLANTS/APPELLANTS 1 AND 3 TO 5/FIRST PLAINTIFF AND THE LEGAL REPRESENTATIVES OF THE DECEASED SECOND PLAINTIFF:** 1 RAVEENDRAN NAIR, AGED 66 YEARS, S/O NARAYANAN NAIR, KARIPPURATH HOUSE, ELAMBAKAPPILLY KARA, VENGOOR WEST VILLAGE 683575 2 RAJESH, AGED 41 YEARS, S/O RAVEENDRAN NAIR, KARIPPURATH HOUSE, ELEMBAKAPPILLY KARA, VENGOOR WEST VILLAGE, 683575 3 MEERA, AGED 43 YEARS, D/O RAVEENDRAN NAIR, KARIPURATH HOUSE, ELEMBAKAPPILLY KARA, VENGOOR WEST VILLAGE, 683575 4 THARA, AGED 38 YEARS, D/O RAVEENDRAN NAIR, KARIPPURATH HOUSE, ELAMBAKAPPILLY KARA, VENGOOR WEST VILLAGE 683575 BY ADVS.SRI.AJITH VISWANATHAN SRI.P.VISWANATHAN (SR.) ## **RESPONDENTS/RESPONDENT/DEFENDANT:** 1 RAJAPPAN NAIR, (DIED) (LRS IMPLEADED) AGED 77 YEARS NEPHEW OF NARAYANAN NAIR, PERINCHERY MADATHIL PUTHEN HOUSE, KURICHILAKODE KARA, KODANAD R.S.A.No. 809 & 810 of 2013 ..2.. VILLAGE, 683575 (AS PER ORDER DATED 29.09.2016 IN MEMO VIDE CF.397/2016 DATED 13.01.2016 THAT THE DEATH OF THE SOLE RESPONDENT IS RECORDED) ADDL.R2 LATHA RAJU, AGED 48, D/O.RAJAPPAN NAIR, PERINCHERY PUTHEN VEEDU, KODANADU P.O., KURICHELAKODE, PIN CODE-683 544. ADDL.R3 SANAL KUMAR, AGED 42, S/O.RAJAPPAN NAIR, PERINCHERIL PUTHEN VEEDU, VALLIYOORKAVU, MANAMTHAVADI, WAYANAD. (LEGAL REPRESENTATIVES OF THE DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 2 AND 3 AS PER THE ORDER DATED 19.03.2018 IN IA.421/2018.) BY ADV SRI.V.RAJENDRAN (PERUMBAVOOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11.11.2021, ALONG WITH RSA.810/2013, THE COURT ON 17.11.2021 DELIVERED THE FOLLOWING: R.S.A.No. 809 & 810 of 2013 ..3.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 17[TH] DAY OF NOVEMBER 2021 / 26TH KARTHIKA, 1943** **RSA NO. 810 OF 2013** **[AGAINST THE JUDGMENT & DECREE DTD.15.2.2013 IN AS 181/2007 OF SUB COURT, PERUMBAVOOR, ERNAKULAM ARISING FROM THE JUDGMENT AND DECREE DTD.10.10.2002 IN OS 112/1997 OF MUNSIFF COURT, PERUMBAVOOR, ERNAKULAM]** ## **APPELLANTS/FIRST RESPONDENT/FIRST DEFENDANT:** 1 RAVEENDRAN NAIR, (DIED) (LHRS IMPLEADED) AGED 69 YEARS S/O NARAYANAN NAIR, KARIPPURATH HOUSE, ELAMBAKAPPILLY KARA, VENGOOR WEST VILLAGE, PIN CODE-683575 ADDL.A2 RAJESH, AGED 44 YEARS, S/O.LATE RAVEENDRAN NAIR, KARIPPURATH HOUSE, ELAMBAKAPPILLY KARA, VENGOOR WEST VILLAGE, PIN CODE-683575 ADDL.A3 MEERA, AGED 46 YEARS, D/O.LATE RAVEENDRAN NAIR, KARIPPURATH HOUSE, ELAMBAKAPPILLY KARA, VENGOOR WEST VILLAGE, PIN CODE-683 575. ADDL.A4 THARA, AGED 41 YEARS D/O.LATE RAVEENDRAN NAIR, KARIPPURATH HOUSE, ELAMBAKAPPILLY KARA, VENGOOR WEST VILLAGE, PIN CODE-683 575. (LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 AS PER THE ORDER DATED 10.04.2017 IN IA.2620/2016.) BY ADVS. P.VISWANATHAN (SR.) SRI.AJITH VISWANATHAN R.S.A.No. 809 & 810 of 2013 ..4.. ## **RESPONDENTS/APPELLANT AND 2ND RESPONDENT/PLAINTIFF AND** ## **2ND DEFENDANT:** 1 RAJAPPAN NAIR, (DIED) AGED 77 YEARS NEPHEW OF NARAYANAN NAIR, PERINCHERRY MADATHIL PUTHEN HOUSE, KURICHILAKODE KARA, KODANAD VILLAGE,PIN- 683 575. LRS IMPLEADED AS ADDL.RESPONDENTS 3 AND 4 2 NARAYANAN NAIR AGED 70 YEARS NEPHEW OF NARAYANAN NAIR, PERINCHERRY MADATHIL PUTHEN HOUSE, KURICHILAKODE KARA, KODANAD VILLAGE 683575 ADDL.R3 LATHA RAJU, AGED 48, D/O.RAJAPPAN NAIR, PERINCHERRY PUTHEN VEEDU, KURICHELAKODE, PIN-683 544. ADDL.R4 SANAL KUMAR, AGED 42, S/O.RAJAPPAN NAIR, PERINCHERIL PUTHEN VEEDU, VALLIYOORKAVU, MANAMTHAVADI, WAYANAD. (LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 3 AND 4 AS PER THE ORDER DATED 01.02.2018 IN IA.878/2017) BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR)(CAVEATOR) SRI.DINESH R.SHENOY SRI.G.HARIKRISHNAN TRIPUNITHURA SRI.V.RAJENDRAN PERUMBAVOOR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11.11.2021, ALONG WITH RSA.809/2013, THE COURT ON 17.11.2021 DELIVERED THE FOLLOWING: R.S.A.No. 809 & 810 of 2013 **==> picture [22 x 8] intentionally omitted <==** ## **J U D G M E N T ('C.R')** The present regular second appeals are directed against the impugned common judgment and decree dated 15.02.2013 in A.S.Nos.180/2007 and 181/2007 of the Sub Court, Perumbavoor (hereinafter referred to as 'the first appellate court') arising from the judgment and decree dated 10.10.2002 in O.S.Nos. 44/1997 and 112/1997 of the Munsiff's Court, Perumbavoor (hereinafter referred to as 'the trial court'). 2. O.S.No.112/1997 was filed by the plaintiff praying for a decree for cancellation of Ext.A2 sale deed No.1480/1991 executed by the second defendant in favour of the first defendant and for recovery of possession of 62 cents of land devolved upon the plaintiff and the second defendant equally and other consequential reliefs. O.S.No.44/1997 was filed by the first defendant in R.S.A.No. 809 & 810 of 2013 **==> picture [22 x 8] intentionally omitted <==** O.S.No.112/1997 seeking damages and consequential permanent prohibitory injunction, restraining the plaintiff in O.S.No.112/1997 from interfering with his possession over the plaint schedule property. 3. Both the suits were tried together treating O.S.No.112/1997 as the leading case. The parties are hereinafter referred to as referred in O.S.No.112/1997 unless otherwise stated. 4. The trial court found that the evidence available on record are not sufficient to prove the damages alleged in O.S.No.44/1997 and that the plaintiffs have failed to locate the exact boundaries, lie and extent of the plaint schedule property in O.S.No.44/1997. Thus, the trial court dismissed the suit for permanent prohibitory injunction and damages. At the same time, the trial court found that the plaintiff in O.S.No.112/1997 was aware of R.S.A.No. 809 & 810 of 2013 ..7.. the execution of Exts.A2, B3 and B4, when he came back to his native place in the year 1993. The trial court further held that the dispute with respect to the property including the plaint schedule property was settled in mediation and on the basis of such settlement, Ext.B1 partition deed was executed. The trial court took the view that the plaintiff has relinquished his claim over the plaint schedule property by accepting Exts.A2, B3 and B4. 5. Assailing the common judgment and decree passed in O.S.Nos. 44/1997 and 112/1997, the plaintiff and the defendants filed A.S.Nos. 181/2007 and 180/2007 respectively before the first appellate court. The first appellate court held that the execution of Ext.A2 sale deed without taking recourse through the due process of law is void and the same cannot confer any title upon the first defendant. Hence, the first appellate court passed a R.S.A.No. 809 & 810 of 2013 ..8.. decree setting aside Ext.A2 sale deed. Consequential recovery of possession of the plaint schedule property was also granted. Accordingly, the decree passed by the trial court in O.S.No. 112/97 was set aside. A.S.No.181/2007 was allowed and A.S.No.180/2007 was dismissed. 6. The plaintiff's case was that he was the owner to the extent of one-half share of the land in dispute along with his brother- the second defendant. The plaintiff was not in station for a long time. He was residing at Mananthavady. In 1993, when he visited his native place, in order to get share over his property, he came to know that the second defendant had already executed Ext.A2 sale deed in favour of the first defendant. In Ext.A2, it is stated that when the whereabouts of the plaintiff have not been known for several years, he is presumed to be dead. According to the plaintiff, he had never sold the land. The R.S.A.No. 809 & 810 of 2013 **==> picture [22 x 8] intentionally omitted <==** sum and substance of his contention is that the sale to the extent of his share did not confer any right on the first defendant. Hence, O.S.No.112/1997 was filed for cancellation of Ext.A2 sale deed executed by the second defendant in favour of the first defendant and consequential recovery of possession of 62 cents of land devolved upon the plaintiff and second defendant jointly. 7. The main contention of the first defendant is that he purchased the plaint schedule property from the second defendant for valuable consideration and he was a bona fide purchaser for the value. The plea of limitation was raised as the suit has been filed three years after the cause of action arose. It was contended that the period of limitation for avoiding or cancelling the sale deed was three years under Article 59 of the Limitation Act. In the alternative, the first and second defendants pleaded R.S.A.No. 809 & 810 of 2013 ..10.. estoppel, ouster and adverse possession. The first defendant thus filed O.S.No.44/1997 against the plaintiff seeking permanent prohibitory injunction and damages. 8. R.S.A.No.809/2013 was admitted on 26.09.2013 and this Court issued notice on the following question of law formulated in the memorandum of second appeal to the respondents:- _“A) Whether the courts below were correct in refusing to grant the relief of damages and injunction by discarding the evidence of a witness in the light of other corroborating evidences and circumstances and especially when the possession and extent of the plaint schedule property is not disputed by the parties?_ _B) Whether the courts below erred in law in not granting damages as claimed by the plaintiffs especially when the commission report indicates the extent of damage caused and also when there is corroborating evidence to show that the plaintiffs had made the said plantations and also as to show the identity of the persons who committed the said illegal acts?_ _C) Whether the courts below failed to conclude in law that the defendant had committed the breach of_ R.S.A.No. 809 & 810 of 2013 ..11.. _the compromise agreement, which is evident from his subsequent conduct, based on which the previous suit had been withdrawn by the plaintiffs and hence he was liable to pay damages to the plaintiffs?”_ R.S.A.No.810/2013 was admitted on 26.09.2013 and this Court issued urgent notice on the following question of law formulated in the memorandum of second appeal to the respondents:- “A) Whether the lower appellate court was right in reversing the decree passed by the trial court on the basis of the pleadings and materials on record and granting a decree setting aside Exhibit A2 sale deed when there are materials to show that the said sale deed was executed by the 2[nd] defendant in favour of the 1[st] defendant is on the bonafide belief that the plaintiff is no more and supported by adequate consideration especially when there are no vitiating circumstances as pleaded? B)Whether the lower appellate court was justified in denying the presumption available to the 2[nd] defendant under Section 108 of the Indian Evidence Act merely on the ground that he had not initiated any legal proceedings for taking benefit of such presumption? C)Whether the lower appellate court was right in R.S.A.No. 809 & 810 of 2013 **==> picture [28 x 8] intentionally omitted <==** not holding that the plaintiff was estopped in law from laying claim over the plaint schedule property when he had impliedly relinquished his claim over the said properties and acquiesced or condoned with the previous acts of the 2[nd] defendant?” 9. Heard Sri.Ajith Viswanathan, learned counsel for the appellants and Sri.V.Rajendran Perumbavoor, the learned counsel for the respondents. 10. The learned counsel for the appellants contended that Ext.A2 was a registered document in accordance with registration rules. According to the learned counsel for the appellants, when a suit is filed for cancellation of a registered sale deed, it is governed by Article 59 of the Limitation Act and the period of limitation is three years. It was urged that the plaintiff had positively asserted that he came to know about the sale deed in 1993 and the suit was filed only in 1997, which was beyond limitation. According to the learned counsel R.S.A.No. 809 & 810 of 2013 **==> picture [28 x 8] intentionally omitted <==** for the appellant, a suit for cancellation of document has to be filed in respect of an instrument which is void or voidable within three years from the date of knowledge of the document. 11. Per contra, the learned counsel for the respondents urged that the sale deed executed in favour of the first defendant is held to be void as the second defendant has no legal authority to presume the civil death of the plaintiff under the scheme of the Evidence Act. It was contended that the first defendant has no legal authority to purchase the property owned by the plaintiff presuming the factum of death of the plaintiff, who is alive. It was contended that the first defendant's plea that he was a bona fide purchaser is not legally correct. According to the learned counsel, the plea of adverse possession and limitation is set up to get over the illegal R.S.A.No. 809 & 810 of 2013 **==> picture [28 x 8] intentionally omitted <==** action done by the second defendant in favour of the first defendant. It was urged that no limitation is applicable in respect of a document, which is void in nature. 12. It is pertinent to note that the issue of limitation to a document falls under two categories, a voidable document and a void document. It is clear from Article 59 of the Limitation Act that it deals with the cancellation of an instrument. The period of limitation to cancel or set aside an instrument or decree or for the rescission of a contract is 3 years with effect from the date when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first becomes known to him. The cancellation of instrument is dealt with under Section 31 of the Specific Relief Act, 1963 and it reads as under:- R.S.A.No. 809 & 810 of 2013 ..15.. **“31. When cancellation may be ordered** .— (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.” A reading of the aforesaid provision makes it clear that suit for cancellation could be filed both in respect of an instrument, which is void or voidable. 13. The Apex Court in the decision reported in **Prem Singh and others** v. **Birbal and other** [(2006) void or 5 SCC 353], dealing with the difference between voidable instrument is held as under:- “ _15. Section 31 of the Specific Relief Act, 1963 thus, refers to both void and voidable document. It provides for a discretionary relief._ R.S.A.No. 809 & 810 of 2013 ..16.. _16. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non-est in the eye of law, as it would be a nullity._ _17. Once, however, a suit is filed by a plaintiff for cancellation of a transaction, it would be governed by Article 59. Even if Article 59 is not attracted, the residuary Article would be._ _18. Article 59 would be attracted when coercion, undue influence, misappropriation or fraud which the plaintiff asserts is required to be proved. Article 59 would apply to the case of such instruments. It would, therefore, apply where a document is prima facie valid. It would not apply only to instruments which are presumptively invalid. [See Unni & Anr. vs. Kunchi Amma & Ors. (1891) ILR XIV Mad.26) and_ Sheo Shankar Gir vs. Ram Shewak Chowdhri & Ors _. [(1897) ILR XXIV Cal. 77]._ _19. It is not in dispute that by reason of Article 59 of the Limitation Act, the scope has been enlarged from old Article 91 of 1908 Act. By reason of Article 59, the provisions contained in Articles 91 and 114 of 1908 Act had been combined._ _20. If the plaintiff is in possession of a property, he may file a suit for declaration that the deed is not binding upon him but if he is not in possession thereof, even under a void transaction, the right by way of adverse possession may be claimed. Thus, it is not correct to contend that the provisions of the Limitation Act would have no application at all in the event the transaction is held to be void.”_ ## Considering the above, it is clear that when a document is R.S.A.No. 809 & 810 of 2013 ..17.. obtained by collusion, fraud or undue influence, then the document is voidable and will have to be challenged within a period of limitation as provided under Article 59 of the Limitation Act. 14. In the case on hand, as indicated earlier, the plaintiff has challenged Ext.A2 sale deed on the ground that Ext.A2 was executed by the second defendant in favour of the first defendant on 16.07.1991 stating that the plaintiff was dead. However, the second defendant was not able to prove that he was not alive on the date of Ext.A2. Hence, Ext.A2 is certainly void. 15. It is settled proposition of law that a suit for declaration and for recovery of possession or for recovery of possession alone is maintainable within 12 years from the date, when the possession of the defendant becomes adverse to the plaintiff. Hence, the suit for recovery of R.S.A.No. 809 & 810 of 2013 **==> picture [28 x 8] intentionally omitted <==** possession is perfectly maintainable. 16. The second defendant has no legal authority to presume the death of the plaintiff under Sections 107 and 108 of the Evidence Act. Sections 107 and 108 of the Evidence Act are rules of evidence. If an issue arises as to the date or time of death, the same shall have to be determined on evidence, direct or circumstantial by the court and not by way of assumption or presumption. The burden of proof lay on the defendant, who makes assertion of death having taken place on a given date. In the case on hand, the plaintiff is alive. The legal principles formulated by the Supreme Court under Sections 107 and 108 of the Evidence Act are stated in the decision reported in **LIC of India** v. **Anuradha** [(2004)3 SCR 629]. In paragraph 14 of the judgment, it is stated as under:- “14. On the basis of the abovesaid authorities, R.S.A.No. 809 & 810 of 2013 ..19.. we unhesitatingly arrive at a conclusion which we sum up in the following words. The law as to presumption of death remains the same whether in Common Law of England or in the statutory provisions contained in Sections 107 and 108 of the Indian Evidence Act, 1872. In the scheme of Evidence Act, though Sections 107 and 108 are drafted as two Sections, in effect, Section 108 is an exception to the rule enacted in Section 107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108 , subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person who's life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. So long as the dispute is R.S.A.No. 809 & 810 of 2013 **==> picture [28 x 8] intentionally omitted <==** not raised before any forum and in any legal proceedings the occasion for raising the presumption does not arise.” 17. In the case at hand, the question did not raise in a Court, Tribunal or before an authority, who is called upon to decide as to whether the plaintiff is alive or dead. Hence, the presumption of civil death as pleaded by defendants 1 and 2, is not applicable. 18. In view of the above, it is clear that Ext.A2 is void _ab initio_ and a decree for setting aside the same would not be necessary. It is _non est_ in the eye of law. 19. The first appellate court reversed the finding of the trial court and rightly held that Ext.A2 was void. Thus, the sale deed had been held to be invalid. The possession of the property was taken by the first defendant pursuant to Ext.A2 void document. He had no title to the R.S.A.No. 809 & 810 of 2013 **==> picture [28 x 8] intentionally omitted <==** property. Since he was put in possession based on Ext.A2 void document, Art.65 of the Limitation Act is applicable and the limitation to file a suit would be 12 years. In the **vs** decision reported in **Ajudh Raj And Ors Moti, S/O Mussadi** [(1991)3 SCC 136], the Apex Court held that the suit would be governed under Article 65 of the Limitation Act. 20. The plaintiff claims recovery of possession of the property on the strength of his title. By Ext.A2, the property was sold to the first defendant by his own brother on untenable reasons. The first and second defendants relied on Ext.A2 sale deed, which is void and _non est_ in law. Even without cancellation of the document, it is a nullity and void ab initio. Recovery of possession is on the strength of title. Cancellation of document is sought for to get clear title to his property. The plea of estoppel, ouster R.S.A.No. 809 & 810 of 2013 **==> picture [28 x 8] intentionally omitted <==** and adverse possession is set up just to wriggle out of an illegal act done by the second defendant in favour of the first defendant, which lacks bona fides. Necessary ingredients to substantiate the plea of adverse possession are absolutely lacking in this case. There is also no reliable evidence to substantiate the plea of estoppel as held by the first appellate court in paragraphs 26 and 27 of its judgment. The substantial questions of law formulated in the above Regular Second Appeals are answered as above. For the above reasons, the appeals are dismissed. The findings recorded by the first appellate court are confirmed. There would be no order as to costs. Pending applications, if any, stand closed. Sd/- **N.ANIL KUMAR** , JUDGE MBS/