Thomas Koshi v. Lalamma Thomas and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 14TH DAY OF OCTOBER 2016/22ND ASWINA, 1938 FAO.No. 79 of 2012 () ---------------------- AGAINST THE JUDGMENT IN AS NO. 46/2009 of SUB COURT, PALA DATED 20-09-2011 O.S.NO.257/2007 OF MUNSIFF COURT, KANJIRAPPALLY APPELLANT/RESPONDENT NO.1/DEFENDANT NO.1:- ------------------ THOMAS KOSHI, 48 YEARS, S/O.KOSHI, PAZHAVILLA HOUSE, PULIKKUNNU BHAGOM, ERUMELY NORTH VILLAGE, KANJIRAPPALLY TALUK. BY ADV. SRI.T.I.ABDUL SALAM RESPONDENTS/APPELLANTS AND RESPONDENTS 2 TO 4/PLAINTIFFS AND DEFENDANTS 2 TO 4.: |2 TO 4.:|2 TO 4.:| |---|---| |---------------------------------|| |1.|LALAMMA THOMAS, 48 YEARS, W/O.ABRAHAM THOMAS,| ||NEEROPLACKAL HOUSE, PAZHAVANGADI BHAGOM, RANNI, FROM| ||PULIKKUNNU BHAGOM, ERUMELY NORTH VILLAGE,| ||KANJIRAPPALLY TALUK-686509.| |2.|OMMEN KOSHI, 55 YEARS, S/O.KOSHI, PAZHAVILLA HOUSE,| ||PULIKKUNNU BHAGOM, ERUMELY NORTH VILLAGE,| ||KANJIRAPPALLY TALUK-686509.| |3.|LISSY THOMAS, 44 YEARS, W/O.THOMAS KOSHI, PAZHAVILLA HOUSE,| ||PULIKKUNNU BHAGOM, ERUMELY NORTH VILLAGE,| ||KANJIRAPPALLY TALUK-686509.| |4.|KOCHUNNI, 52 YEARS, S/O.KUTTY, PULLOLIL HOUSE, PULIKKUNNU| ||BHAGOM, ERUMELY NORTH VILLAGE, KANJIRAPPALLY TALUK-686509.| |5.|MOHINI KOCHUNNI| ||44 YEARS, W/O.KOCHUNNI, PULLOLIL HOUSE, PULIKKUNNU BHAGOM,| ||ERUMELY NORTH VILLAGE, KANJIRAPPALLY TALUK-686509.| ## R1 & R2 BY ADV. SRI.P.C.HARIDAS THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 14-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **-------------------------------------F.A.O. No.79 of 2012** **-------------------------------------Dated this the 14[th] day of October, 2016** ## **JUDGMENT** 1[st] defendant in a suit for permanent prohibitory injunction is the appellant. His grievance is that the lower appellate court without adjudicating the matter on merit, remanded the case to the trial court for a fresh determination of the dispute after affording an opportunity to the plaintiffs to prove certain documents, which were produced along with the plaint. 2. Heard the learned counsel appearing for the appellant and the contesting respondents. 3. The plaintiffs and 1[st] defendant are siblings. 2[nd] defendant is the wife of 1[st] defendant. Defendants 3 and 4 are husband and wife and they are neighbours of 1[st] defendant. 4. It is the case in the plaint that the plaintiffs and 1[st] defendant are the children of Koshi. He was having 2.28 acres of property. He was having only possessory title to the property. It is the allegation in the plaint that out of the said extent, 76 cents of property included in the plaint schedule item No.1 was given by him to mother of the plaintiffs and 1[st] defendant. Remaining 76 cents of property scheduled as plaint item No.2 2 FAO No.79/2012 was given to the 2[nd] plaintiff. 76 cents of property lying on the northern side of the entire property was given to the 1[st] defendant in the year 1990. The parties were put in possession of the property and they are enjoying the same. In addition to this, Koshi had other properties as well, which is not a subject matter of this suit. According to the plaintiffs, there is a three feet wide pathway running through plaint schedule item No.2 property, which ends in the 1[st] defendant's property. 1[st] defendant tried to widen the pathway. That is also a cause of action for the suit. 5. Defendants 1 and 3 filed a joint written statement contending that the descriptions of plaint schedule properties are not correct. It is also contended that during the life time of Koshi he had given 76 cents of property in possession to the 2[nd] plaintiff and the rest of the property, viz., 1.52 acres was given to the 1[st] defendant. According to them, no property was given to the mother. It is therefore contended that mother had no occasion to deal with the property. According to the defendants, the width of the pathway mentioned by the plaintiffs is false and actually, a 14 feet wide motorable pathway is running through the plaint schedule item No.2, which ends in the property of the 1[st] defendant. They have every right to use the pathway and that is attempted to be blocked by the suit. 6. Learned counsel for the appellant contended that the lower appellate court without any justification remanded the case to the trial 3 FAO No.79/2012 court. It is also contended that the document relied on by the plaintiffs is styled as an unregistered gift deed. It is therefore contended by the learned counsel for the appellant that Section 17 of the Registration Act, 1908 (in short, “the Act”) is attracted in this case. The document now sought to be proved is a compulsorily registrable document by virtue of Section 17(1)(b) of the Act. Section 17(1)(b) of the Act read as follows: ## _“_ _**17. Documents of which registration is**_ _**compulsory** .-(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (7 of 1871) or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force, namely:-_ ## _xxxxxxxx_ _(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;_ ## _xxxxxxxxxxx”_ ## Section 49 of the Act reads as follows: ## _“_ _**Effect of non-registration of documents**_ 4 FAO No.79/2012 _**required to be registered** .- No document required by Section 17 or by any provision of the Transfer of Properly Act, 1882 (4 of 1882) to be registered shall-_ _(a) affect any immovable property comprised therein, or_ _(b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:_ _Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument.”_ 7. Learned counsel for the appellant contended that the document produced along with the plaint and which was not marked at the time of evidence cannot be used for any substantive purpose by virtue of Section 49 of the Act. According to him, it cannot even be used for a collateral purpose for two reasons. Firstly, proving possession through this document is not a collateral purpose and secondly such documents cannot 5 FAO No.79/2012 be used inter-parties and it can only be used against third parties. 8. Learned counsel for the contesting respondents opposed this argument by contending that the trial court committed a grave mistake in not allowing the plaintiffs to mark the document which was produced along with the plaint. It is true that a document, if legally admissible in evidence, is produced along with the pleadings, it shall be taken as part of the pleadings. But, in this case, there is a difference. Admittedly the document now sought to be proved is an unregistered gift deed and nobody has a case that value of the property involved in the document is less than `100/-. Therefore, the mandate of Section 17(1)(b) read with Section 49 of the Act would clearly show that the document in question cannot be used for proving possession of the plaintiffs over the property. Learned counsel for the respondents relying on an unreported decision of a learned Single Judge of this Court in W.P.(C) No.1853 of 2008 dated 08.07.2008 contended that the opposition for marking the document produced along with the plaint raised by the appellant is unsustainable. According to him, the contention that such a document can only be used against third parties is unsustainable. The learned Single Judge relying on **Padma Vithoba Chakkavva v. Mohd.Multani ((1963) 3 S.C.R. 229)** held that even if the document is unregistered, for collateral purpose of proving possession, the document can be admitted in evidence. It is well settled that the term 6 FAO No.79/2012 “collateral purpose” occurring in Section 49 of the Act means any purpose which is not the substantive purpose for which the document is intended to be used. It is discernible from various judicial pronouncements that a document which requires registration under Section 17 of the Act and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of possession of the person who holds under it. Learned counsel for the respondents contended that there are materials to show that the plaintiffs are in possession of the property. The document was intended only to explain their possession. 9. Learned counsel for the appellant on the other hand contended that the executant of the document, viz., mother of the plaintiffs and 1[st] defendant, had no possession over the property to execute the same in favour of the plaintiffs. However, that is a question of fact to be proved. 10. It is true that the trial court should have considered the document atleast when the application for re-opening the evidence was made by the plaintiffs. That application was rejected by the trial court and finally the suit was dismissed commenting that the plaintiffs failed to prove their possession. In this context, it appears that the remand by the lower appellate court is justifiable. Therefore, the questions of law framed in this 7 FAO No.79/2012 appeal are decided in favour of the respondents. It is made clear that in the guise of using the disputed document for a collateral purpose, the trial court shall not allow the plaintiffs to prove possession through this document. With the above observations, the appeal is dismissed. The parties shall appear before the trial court on 03.11.2016 and the court below shall dispose of the matter on or before 21.12.2016, the date on which the court closes for Christmas holidays. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**