R.S.A.No.610/2023

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` MONDAY, THE 1[ST] DAY OF APRIL 2024 / 12TH CHAITHRA, 1946 RSA NO. 610 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 22.12.2022 IN AS NO.6 OF 2015 OF ADDITIONAL DISTRICT COURT, TIRUR ARISING OUT OF THE ORDER/JUDGMENT DATED 28.11.2014 IN OS NO.86 OF 2010 OF SUB COURT, TIRUR ``` ## **`APPELLANTS/APPELLANTS/PLAINTIFFS:`** - **`1 THAHIRA AGED 67 YEARS W/O MUHAMMED KUTTY, RESIDING AT ELAVENCHERIL HOUSE, KOTT KALLINGAL P.O, TIRUR TALUK, MALAPPURAM DISTRICT,, PIN – 676101.`** - **`2 FATHIMA AGED 63 YEARS W/O MOHAMMED ALI, RESIDING AT PUTHUKAYILVALAPPIL,POOKAITHA,THALAKKAD,VENGALLUR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN – 676102.`** - **`3 MARIYAM. P AGED 65 YEARS`** ``` W/O MUHAMMED KUTTY.M, RESIDING AT MADAMMAL, KARATHUR, KODAKAL P.O, THIRUNAVAYA, TIRUR TALUK, MALAPPURAM DISTRICT, PIN – 676108. ``` - **`4 AYISHA AGED 58 YEARS`** ``` D/O PADINHARE PEEDIKAKKAL ABDULLAKUTTY @ BAVA MASTER'S RESIDING AT ILLATHIL, PERUNTHALLUR VP PURAM P.O, TRIPARANGODE, TIRUR TALUK, MALAPPURAM, PIN - 676102 ``` - **`5 KADEEJA PALALISSERI AGED 56 YEARS D/O PADINHARE PEEDIKAKKAL ABDULLAKUTTY @ BAVA MASTER'S, RESIDING AT KAKKIDITHAIVALAPPIL, CHAMRAVATTOM, CHAMRAVATTOM P.O, TRIPRANGODE, TIRUR TALUK, MALAPPURAM DISTRICT, PIN – 676102.`** - **`6 MUHAMMED MUSTHAFA. P AGED 60 YEARS`** ``` S/O RAYINKUTTY, RESIDING AT PILASSERY HOUSE, PERUNTHALLUR, TRIPRANGOD, VETTOM-PALLIPPURAM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN – 676102. ``` R.S.A.No.610/2023 2 - **`7 ABOOBACKER. P, AGED 58 YEARS`** ``` S/O RAYINKUTTY ALIAS BAVA, RESIDING AT PILALISSERYHOUSE, PERUNTHALLUR, TRIPARANGODE, VETTOM-PALLIPURAM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN – 676102. ``` - **`8 USMAN AGED 45 YEARS S/O RAYINKUTTY ALIAS BAVU, RESIDING AT PILALISSERI,PERUNTHALLUR, VPPURAM, TRIPRANGODE VETTOM -PALLIPURAM, MALAPPURAM, PIN – 676102.`** - **`9 UMMER.P AGED 48 YEARS S/O RAYINKUTTY ALIASBAVU,RESIDING AT PILALISSERI,PERUNTHALLUR, VP PURAM, TRIPRANGODE VETTOM-PALLIPURAM, MALAPPURAM, PIN – 676102.`** - **`10 SAINABA P AGED 53 YEARS W/O ABDUL RASHEED P, RESIDING AT PARAPPURATHHOUSE,EZHUR, PULLIKKAPARAMBU, TIRUR TALUK, MALAPPURAM DISTRICT, PIN – 676101.`** - **`11 ALI.P AGED 42 YEARS S/O RAYINKUTTY, RESIDING AT PILALISERY HOUSE, PERUNTHALLUR, VP PURAM P.O TRIPARANGODE, MALAPPURAM DISTRICT, PIN – 676102.`** ``` BY ADVS. J.R.PREM NAVAZ SUMEEN S. IRSHAD K.K. O.MOHAMED BASIL KOYA THANGAL MUHAMMED SWADIQ N.KRISHNA PRASAD ``` ## **`RESPONDENTS/RESPONDENTS/DEFENDANTS:`** - **`1 KALLIYATH ABDUL GAFOOR KALLIYATH STEEL, PANNIYANKARA, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN – 673003.`** - **`2 KALLIYATH MUHAMMED NOORISHA, KALLIYATH STEEL TRADERS, KALLIYATH BUILDING, MAMANGALAM, KOCHI, ERNAKULAM DISTRICT, PIN – 682025.`** R.S.A.No.610/2023 3 ``` 3DR. KALLIYATH HYDARALI VRC HOSPITAL, VETTAM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN – 676502. ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14.03.2024, THE COURT ON 01.04.2024 DELIVERED THE FOLLOWING: ``` **==> picture [409 x 483] intentionally omitted <==** R.S.A.No.610/2023 4 _**“C.R”**_ ## _**A.BADHARUDEEN,J.**_ _--------------------------------------------------------R.S.A No.610 of 2023_ _--------------------------------------------------------Dated this the 1[st] day of April, 2024_ ## _**J U D G M E N T**_ Plaintiffs in O.S.No.86/2010 on the files of Sub Court, Tirur have filed this appeal challenging decree and judgment in the above case dated 28.11.2014 as confirmed by the verdict dated 22.12.2022 in A.S.No.06/2015 on the files of Additional District Court, Tirur. Respondents are the defendants in O.S.No.86/2010. 2. Heard the learned counsel for the appellants/plaintiffs on admission. Perused the trial R.S.A.No.610/2023 5 court as well as the appellate court. 3. I shall refer the parties in this Second Appeal as to their status before the trial court as 'plaintiffs' and 'defendants' hereinafter for convenience. 4. Plaintiffs filed the Suit seeking partition of the plaint B schedule property contending that the same originally belonged to Padinhare Peediyekkal Abdullakutty alias Bava Master and his sisters Mammeriakutty Umma, Thayummakutty Umma and Ayisakutty Umma as per kanam assignment deed No.1706/1935 of SRO Tirur. According to the plaintiffs, the sisters of Abdullakutty alias Bava Master released their right over the property in favour of their brother Abdullakutty @ Bava Master and at the time of R.S.A.No.610/2023 6 death of Abdullakutty @ Bava Master, he was the absolute owner of the plaint B schedule property. 5. Defendants 1 to 3 appeared and filed written statement. They disputed description of plaint B schedule property and also raised a specific contention that no such property is available for partition. The specific contention raised by defendants was that Abdullakutty @ Bava Master had obtained property on the strength of release deed No.231/1957 and later he assigned the same in favour of the defendants as wakf property and permanently dedicated the same to the wakf. Therefore, plaint B schedule property is not partible. 6. Plaintiffs filed rejoinder after the defendants filed joint written statement denying execution of R.S.A.No.610/2023 7 document No.747/1982, whereby defendants asserted creation of wakf in respect of the said property. 7. Trial court ventured the matter. PW1 was examined and Ext.Al was marked on the side of the plaintiffs. DW1 was examined and Exts.B1(a) to B2(b) were marked on the side of the defendants. 8. The specific case raised by the defendants before the trial court was that after the death of Abdullakutty alias Bava Master, the property left after wakf was devolved upon his legal heirs, children and wife. Thereafter all the legal heirs of Abdullakutty alias Bava Master assigned their right over the property to the defendants as per document Nos.533/1982, 581/1982, 686/1982, 550/1982 and 747/1982. Ext.X1 is the joint surrender deed dated 19.03.1982 No.747/1982 of S.R.O, R.S.A.No.610/2023 8 Tirur and Ext.X2 is another joint surrender deed dated 19.03.1982 No.581/1982 of S.R.O. Tirur. Trial court considered the genuineness of Exts.X1 and X2 which were executed in the year 1982, i.e 28 years before the filing of the present Suit. The trial court found that when the 2[nd] plaintiff Smt.Fathima was examined as PW1 and she was confronted with Exts.X1 and X2 documents, she admitted signatures of Suhara and Fathima found in Ext.X2 document, though denied signatures of other persons in Ext.XI document. When the learned counsel for the defendants confronted the signature of PW1 alone in page 6 of Ext.X1, PW1 admitted her signature also. She also admitted that attesting witnesses to Ext.X1 and X2 were one and the same. The attesting witnesses to Ext.X1 and X2 are none other than the R.S.A.No.610/2023 9 father in law of the sister of the plaintiff's husband and he is now no more. PW1 admitted further that second attestor in Ext.X1 is Puthukayil Muhammad alias Bava, son of Kunhahammad, who is the first attesting witness in Ext.X2 and he is the father of the plaintiff's husband. PW1 deposed that Muhammad alias Bava also died. It is relevant to note that in this case, as perceivable from Exts.X1 and X2, registered surrender deeds executed by the plaintiffs, 28 year before the filing of the Suit, they had permanently dedicated the property to the defendants and later this Suit was filed suppressing the above documents raising plea of partition. Even PW1 admitted that properties are in possession of the defendants. It is settled law that a registered document carries a presumption as to its genuineness, particularly, R.S.A.No.610/2023 10 when the executants themselves created `Waqf' by executing registered documents. 9. In this connection a short question arises for consideration is the legal effect of creating a `Waqf'? Creation of Waqf property means permanently dedicating the property to the Almighty and such permanent dedication is not liable to be revoked. Thus the plaintiffs, who dedicated the plaint schedule property permanently, could not claim any independent right over the same, as their personal property. 10. In the decision of the Apex Court reported in [2018 KHC 7002 : AIR 2019 SC 72 : 2019 (2) SCC 727], _**Jamila Begum (d) thr. Lrs. v. Shami Mohd. (d) thr. Lrs. and Another**_ ; where the Apex Court held that a registered document carries with it a presumption that it R.S.A.No.610/2023 11 was validly executed and it was for the party challenging the genuineness of the transaction to show that the transaction is not valid in law. 11. Thus it was found by the trial court as well as the appellate court that plaint B schedule property is the property in the ownership and possession of defendants as per Exts.X1 and X2 documents executed by the legal heirs of Abdullakutty @ Bava Master. Therefore, partition claimed by the plaintiffs ignoring Exts.X1 and X2 could not be allowed as rightly found by the trial court as well as the appellate court. Therefore the said verdicts do not require any interference and there is no substantial question of law arises to admit and maintain this appeal. R.S.A.No.610/2023 12 12. In order to admit and maintain a Second Appeal, substantial question of law necessarily to be formulated by the High Court within the mandate of Order XLII Rule 2 Read with Section 100 of C.P.C. 13. In this case, the learned counsel for the appellants failed to raise any substantial question of law warranting admission of the Second Appeals. Order XLII Rule 2 provides thus: _**"2. Power of Court to direct that the appeal be heard on the question formulated by it** .-At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the defendant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100."_ 14. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this R.S.A.No.610/2023 13 Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that R.S.A.No.610/2023 14 nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 15. In the decision in **[2020 KHC 6507: AIR 2020 SC 4321 2020 (10) SCALE 168], Nazir Mohamed v. J. Kamala and Others** reported in the Apex Court held that: _The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722.**_ R.S.A.No.610/2023 15 16. In a latest decision of the Apex Court reported in [2023 (5) KHC 264 : 2023 (5) KLT 74 SC], Government of Kerala v. Joseph, it was held as under: _For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court._ 17. The legal position is no more res-integra on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C, the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to R.S.A.No.610/2023 16 be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as S.109 of the Code or Art. 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. R.S.A.No.610/2023 17 18. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. 19. In the result, this appeal is found to be meritless and the same is dismissed without being admitted. All the interim orders in this Second Appeal stand vacated and all pending Interlocutory Application stand dismissed. _Sd/-_ _(_ _**A.BADHARUDEEN, JUDGE** )_ _rtr/_