T.A. GOPALAKRISHNAN and AJAYAN v. SREEDHARAN, OMANA, KUMARI and SUMATHY

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 22ND DAY OF AUGUST 2012/31ST SRAVANA 1934 RSA.No. 1057 of 2012 () ----------------------AS.94/2010 of I ADDL.DISTRICT COURT, THRISSUR OS.1966/2007 of II ADDL.MUNSIFF COURT,THRISSUR APPELLANT(S)APPELLANTS//DEFENDANTS 1 AND 2: ----------------------- 1. T.A.GOPALAKRISHNAN S/O. THAIVALAPPIL AYYAPPAKUTTY, CHETTPUZHA DESOM, PULLAZHI VILLAGE, THRISSUR TALUK. ## 2. AJAYAN S/O. THAIVALAPPIL AYYAPPAKUTTY, CHETTPUZHA DESOM, PULLAZHI VILLAGE, THRISSUR TALUK. BY ADVS.SRI.S.V. BALAKRISHNA IYER (SR) SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.B.SUBRAMANYAN RESPONDENT(S)/RESPONDENTS/PLAINTIFF & DEFENDANTS3 TO 5: -------------- ## 1. SREEDHARAN S/O. THAIVALAPPIL AYYAPPAKUTTY, PUTHURKKARA DESOM, AYYANTHOLE VILLAGE, THRISSUR TALUK, PIN - 680 008. ## 2. OMANA, D/O. THAIVALAPPIL AYYAPPAKUTTY, PUTHURKKARA DESOM, AYYANTHOLE VILLAGE, THRISSUR TALUK, PIN - 680 621. ## 3. KUMARI D/O. THAIVALAPPIL AYYAPPAKUTTY, PUTHURKKARA DESOM, AYYANTHOLE VILLAGE, THRISSUR TALUK, PIN - 680 621. 4. SUMATHY, D/O. THAIVALAPPIL AYYAPPAKUTTY, CHETTPUZHA DESOM, PULLAZHI VILLAGE, THRISSUR TALUK, PIN 680621. ADV. SRI.M.R.ANISON(CAVEATOR)- FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------R.S.A. No.1057 of 2012 -------------------------------------Dated this the 22[nd] day of August, 2012.** ## **JUDGMENT** The second appeal arises from the judgment and decree of learned Additional District Judge-I, Thrissur in A.S.No.94 of 2010 confirming the judgment and preliminary decree for partition passed by the learned Additional Munsiff-II, Thrissur in O.S.No.1966 of 2007. 2. The 1[st] respondent, the appellants and respondents 2 to 4 are children of the late Ayyappakutty and the deceased 6[th] defendant (she died pending suit). According to the 1[st] respondent, the suit property was purchased by him in the name of his father, the late Ayyappakutty as per Ext.A2, assignment deed dated 09.08.1961. While so, the father assigned half share in the suit property to the 1[st] respondent as per Ext.A3, gift deed dated 12.12.1961. Ayyappakutty died in the year, 1980. In the year, 2007, the 1[st] respondent sued for partition and separate possession of the half share he claimed as per Ext.A3 and 1/12 share in the remaining half share which devolved on all the legal heirs on the death of Ayyappakutty. 3. Appellants and respondents 2 to 5 contended that the property was acquired by the late Ayyappakutty as per Ext.A2. They also contended that Ext.A3, gift deed dated 12.12.1961 is a sham document which has never taken effect and at any rate was got executed by fraud and misrepresentation. 4. So far as the deceased 6[th] defendant is concerned, there is some 2 RSANo.1057/2012 controversy as to the first written statement she is said to have filed. I am told that appearing through another lawyer, the deceased 6[th] defendant claimed that she was made to sign some blank papers by the 1[st] appellant in which a written statement was prepared and hence she wanted to file a separate written statement. Fate did not permit her to wait, file another written statement and be involved in the suit. The trial court after consideration of the contentions raised by the 1[st] respondent on the one side and appellants and respondents 2 to 5 on the other, accepted the case of the 1[st] respondent that he acquired half right in the suit property as per Ext.A3. A preliminary decree for partition was passed allowing 7/12 shares to the 1[st] respondent. That judgment and preliminary decree were confirmed by the learned Additional District Judge in A.S.No.94 of 2010. Hence this Second Appeal. 5. The learned Senior Advocate appearing for the appellants has contended that there is nothing on record to show that the funds for acquisition of the property by Ext.A2 was from the 1[st] respondent or, that he had any share in the sale consideration referred to in Ext.A2. On the other hand, Ext.A2 shows that of the total sale consideration of `2,608/-, `800/- was paid at the time of the agreement for sale (Ext.A14) and the balance sale consideration was paid by the late Ayyappakutty on the date of Ext.A2. It is further contended so far as Ext.A3 is concerned that evidence and circumstances show that it is a sham document executed by the late Ayyappakutty to merely enable the1[st] respondent obtain a loan from the Government so that a house could be constructed in the suit property. It is contended by the learned Senior Advocate that pursuant to that intention of the late Ayyappakutty and 1[st] respondent, 3 RSANo.1057/2012 Ext.A6, mortgage deed was executed in favour of the Government on 23.03.1962 and after discharge of the loan liability the Government released the mortgage in favour of all the legal heirs of the late Ayyappakutty as revealed by Ext.A12. Thus, the very purpose of Ext.A3, document having been accomplished, the contention of the 1[st] respondent that he has half right in the suit property cannot be accepted. The learned Senior Advocate has placed reliance on the decisions in **Sree Meenakshi Mills Ltd., Madurai v. Commissioner of Income -Tax, Madras (AIR 1957 SC 49 (paragraph 30)** and **V.M.Salim v. Fathima Muhammed and others (ILR 2006 (3) Kerala 193)** . 6. Per contra, the learned counsel who took notice for the 1[st] respondent contended that even if it is assumed that Ext.A2 is an acquisition by the late Ayyappakutty on his own, the 1[st] respondent has acquired half right in the said property as per Ext.A3. It is pointed out that Ext.A3 is an assignment deed pure and simple and hence the question of the said assignment taking effect as if in the case of a gift does not arise. It is argued that even if Ext.A3 is treated as a gift, there is ample evidence to show that even during the life time of the late Ayyappakutty, the gift was accepted and acted upon by the 1[st] respondent. It is also argued that having regard to the evidence adduced by both sides, the courts below found that the 1[st] respondent has acquired half right in the suit property as per Ext.A3 and hence he is entitled to 6/12 shares in the said property, while being a legal heir of the late Ayyappakutty, he is also entitled to get 1/6 share in the remaining half share. Thus, the 1[st] respondent is entitled to get 7/12 shares in the suit property as rightly found by the courts below, it is argued. 4 RSANo.1057/2012 7. So far as the contention of the 1[st] respondent that the suit property was acquired utilising his own funds is concerned, I do not find any substance since Exts.A2 and A14 show that the entire sale consideration flowed from the late Ayyappakutty. 8. Ext.A3 is styled as an assignment deed and admittedly executed by the late Ayyappakutty in favour of the 1[st] respondent on 12.12.1961. During that time the 1[st] respondent was employed and to be more precise, he was the only employed member of the family. In Ext.A3, the consideration for the half share of the late Ayyappakutty in the suit property is fixed as `100/- and the half share is assigned in favour of the 1[st] respondent for the said sum of `100/-. It is further stated that the sale consideration is adjusted for the love and affection the late Ayyappakutty had to the 1[st] respondent and paid to the late Ayyappakutty. 9. **Ghosh v. Rohini ((1908) 13 Cal.W.N. 692))** and **Baijnath v. Paltu ((1908) 30 All. 125)** have taken the view that payment of price is not necessarily a sine qua non to the completion of the sale. If the intention is that the property should pass on registration, the sale is complete as soon as the deed is registered whether the price has been paid or not. But Ext.A3 does not show that there was any intention to pay/receive sale consideration. 10. Assuming Ext.A3 to be a gift deed, question is whether the said document is a sham document or was accepted and acted upon during the life time of the late Ayyappakutty? The appellants and the supporting respondents have a case that Ext.A3 was got executed by the 1[st] respondent by fraud and misrepresentation. I do not find much weight in that contention. Ext.A3 was 5 RSANo.1057/2012 executed on 12.12.1961. Ayyappakutty died only in the year, 1980. He did not consider Ext.A3 as got executed by fraud or misrepresentation and seek to set aside the same. Instead he, along with the 1[st] respondent created mortgage of their respective shares in the said property to the Government as per Ext.A6. There is no sufficient evidence to dubb Ext.A3 as vitiated by fraud and misrepresentation. 11. The distinction between 'sham' and benami is considered by the Supreme Court in **Sree Meenakshi Mills Ltd., Madurai v. Commissioner of Income -Tax, Madras** (supra). In paragraph 30 (page 66) it is observed that when the question is whether the transfer is genuine or sham the point for decision would be, not who paid the consideration but whether any consideration was paid. In short, in a sham transaction there is no transaction at all though the document might states so. The document is executed for some secret purpose. No question of payment of consideration is also involved. In a benami transaction, there is a transaction with passing of consideration , though the ostensible owner is not the real owner. Consideration would have gone from the real owner. The ostensible owner would only be a name lender for the real owner who stands behind the curtain. That is the distinction between sham and benami transactions stated by the Supreme Court in the decision cited. In **V.M.Salim v. Fathima Muhammed and others** (supra) it is held that a document will be 'sham' if it ostensibly creates rights/obligations which are not intended to be acted upon by the parties to the deed, and is executed in pursuance of a secret arrangement with the ulterior motive of securing an undisclosed advantage to the owner. 6 RSANo.1057/2012 12. According to the appellants, the ostensible reason for a document like Ext.A3 being executed in favour of the 1[st] respondent is that Ayyappakutty and the 1[st] respondent wanted to avail a loan from the department where the 1[st] respondent was working, for construction of a house in the suit property. Ext.A6 is the mortgage deed dated 23.03.1962 executed by the late Ayyappakutty and the 1[st] respondent in favour of the Government whereby the entire suit property was placed as security for the loan of `5,000/- (availed by the 1[st] respondent during 1962) for the house construction in the suit property. It is seen from Ext.A10 series that payment under the loan account was made by the 1[st] respondent (naturally, as he availed the loan). Ext.A11 series are receipts for payment of revenue for the suit property for the period from 08.09.1964 to 18.01.1974. In Ext.A11 series, the name of the 1[st] respondent is written in the columns indicating the name of pattadar and the person who paid the revenue. Ext.A5 series show that in 2007, revenue was collected from the 1[st] respondent, the deceased 6[th] defendant and others. 13. By Ext.A3, the late Ayyappkutty has transferred his half share in the suit property to the 1[st] respondent keeping the remaining half right with himself. It is not disputed that at the time Ext.A3 was executed on 12.12.1961, the late Ayyappakutty, his wife and children including the 1[st] respondent were all residing in the suit property. Therefore, one does not expect a physical delivery of possession of the property even if Ext.A3 is treated as a gift deed. Various decisions on the point say that constructive possession of the property is sufficient to show acceptance of the gift. 14. The late Ayyappakutty and the 1[st] respondent executed Ext.A6, RSANo.1057/2012 7 agreement mortgaging the suit property to the Government. Ext.A6 shows that acting as owner of the half share in the suit property, the 1[st] respondent mortgaged his share. The late Ayyappakutty by being a party to Ext.A6 has accepted and acknowledged that half right of the 1[st] respondent. Exts.A9 series and A10 series show that the 1[st] respondent was remitting the loan amount. It is also relevant to note from Ext.A12, release deed of the year, 1999 (Ayyappakutty died in the year, 1980) that after the housing loan was cleared, the mortgage was released in favour of the appellants, respondents 1 to 5 and the deceased 6[th] defendant. 15. Though, the appellants pleaded ignorance about the mortgage of the suit property created as per Ext.A6, it is relevant to note that Ext.A12 was produced for registration by the 2[nd] appellant, who in that capacity has also signed Ext.A12. Therefore, it is not as if at least the 2[nd] respondent could feign ignorance about Ext.A6 but, to suit his convenience he has pleaded ignorance about the mortgage. 16. Ext.A8 is a reply dated 28.10.2009 to the 1[st] respondent for the enquiry made to the Assistant Engineer, Electrical Section, Arimbur. There, it is stated that electrical connection in the house in the suit property was given in the name of 1[st] respondent on 12.02.1969. Exhibit A9 series show that the electric connection was in the name of the 1[st] respondent and he was paying the electricity charges. 17. Appellants produced Exts.B1 to B9. Ext.B1 is the plan and Ext.B2 is the building permit dated 26.03.1983. Exts.B5 to B9 are receipts for payment of building tax. It is argued that under Exts.B1 and B2, the 2[nd] appellant has reconstructed the building in the suit property. Assuming so, that does not 8 RSANo.1057/2012 wash out the documents produced by the 1[st] respondent and referred above which show that electric connection to the building constructed utilising the loan availed by the 1[st] respondent was taken in the name of the 1[st] respondent even in the year, 1969. Therefore, whatever that was done under Exts.B1 and B2 is only a reconstruction or development of the existing structure. I am not inclined to think that the said documents would upset the title that the 1[st] respondent has acquired as per Ext.A3. It is also relevant to note that Exts.B1 to B9 are all after the death of Ayyappakutty in the year, 1980 at a time when the appellants and the respondents 2 to 5 were also co-owners of the suit property along with the 1[st] respondent as the half share of Ayyappakutty devolved on all of them. 18. Ext.A3 was executed on 12.12.1961. Ayyappakutty died in the year, 1980. There is nothing to show that at any time between 12.12.1961 till death in the year 1980, Ayyappakutty claimed or accepted absolute right over the property notwithstanding Ext.A3. It is not as if Ayyappakutty was disabled from doing so. May be, it is possible to contend that the loan availed by the 1[st] respondent on the security of the suit property was discharged only in the year, 1999. But, I must notice that Ayyappakutty until his death in the year, 1980 has been accepting the 1[st] respondent as owner of the half share in the property by virtue of Ext.A3. 19. Having regard to the facts and circumstances of the case I am unable to accept the contention that Ext.A3 is a sham document which was not accepted and acted upon by the 1[st] respondent. Nor am I inclined to think that Ext.A3 is got executed by fraud or misrepresentation. 20. The courts below have referred to the various contentions and found that the 1[st] respondent has half right in the suit property by virtue of Ext.A3 RSANo.1057/2012 9 and 1/6 share in the remaining half share which belonged to the late Ayyappakutty. 21. Having heard the learned Senior Advocate for the appellants and the learned counsel for the 1[st] respondent and gone through the judgments under challenge as also the relevant documents, I do not find any substantial question of law involved in the second appeal requiring its admission. The Second Appeal is dismissed. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**