Valsa and Laila v. Babu and Ravi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY ,THE 09TH DAY OF OCTOBER 2018 / 17TH ASWINA, 1940** ## **FAO (RO).No. 96 of 2017** **AGAINST THE REMAND ORDER DATED 28-02-2017 OF THE DISTRICT COURT AT ERNAKULAM IN A.S NO.4/2015.** **AGAINST THE DECREE AND JUDGMENT DATED 31-10-2014 IN OS 215/2012 of SUB COURT, KOCHI.** ## **APPELLANTS/RESPONDENTS/PLAINTIFFS :** **1 VALSA, AGED 48 YEARS, W/O. RADHAKRISHNAN, PUTHIYAPARAMBATHU HOUSE, PERUMBALAM P.O., CHERTHALA, ALAPPUZHA DISTRICT - 688 570.** **2 LAILA, AGED 51 YEARS, W/O.SHAJI, KALATHIL HOUSE, KANNAMALI P.O., KOCHI ERNAKULAM DISTRICT, PIN - 682 008.** **BY ADVS. SRI.T.N.SURESH SMT.A.S.CHINJU DUTH SMT.DHANUJA VETTATHU SRI.V.S.ANU MON** ## **RESPONDENTS/APPELLANTS/DEFENDANTS :** **1 BABU, AGED 67 YEARS, S/O.LATE SANKU, KAITHAVALAPPIL HOUSE, THAZHUPPIPARAMBHU, KUMBALANGI P.O., ERNAKULAM DISTRICT-682 007.** **2 RAVI, AGED 64 YEARS, S/O.LATE SANKU, KAITHAVALAPPIL HOUSE, THAZHUPPIPARAMBHU, KUMBALANGI P.O., ERNAKULAM DISTRICT-682 007.** **BY ADVS. SRI.K.S.BABU SMT.N.SUDHA SRI.BABU SHANKAR SRI.K.S.GOPI** **THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 09.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** F.A.O (R.O) No.96 of 2017 2 ## A.HARIPRASAD, J. -------------------------------------- F.A.O (R.O) No.96 of 2017 -------------------------------------Dated this the 9th day of October, 2018 ## J U D G M E N T Heard the learned counsel for the appellants and respondents. 2. Appellants herein are the respondents in A.S No.4 of 2015 before the Court of District Judge, Ernakulam. They are the plaintiffs in O.S No.215 of 2012 on the file of the Sub Court, Kochi. They filed a suit for partition against the respondents, who are their brothers. Appellants and respondents are the children of deceased Sanku and Kamalakshi. Sanku owned 18 cents of property and a residential building thereon, along with shop rooms therein, which is described in plaint A schedule. Kamalakshy owned 13.5 cents of property and a residential building thereon, which is described in plaint B schedule. Both A and B schedule properties are lying F.A.O (R.O) No.96 of 2017 3 contiguously. According to the plaint averments, their parents were illiterate. Kamalakshi used to put her mark by thump impression and Sanku used to write a letter in the shape of Malayalam letter ' ( ശശ ' as his mark. During 1990, Sanku fell ill and he was reeling under various deceases. He was totally bed ridden and was unable to attend to his primary needs since 1994. He was treated in various hospitals and later he passed away on 10-01-1997. Kamalakshi also died on 26-08-2004. Kamalakshi used to demand partition of the assets after the death of Sanku. The defendants protracted the matter on one pretext or other. Later, the respondents filed O.P No.1 of 2011 before the Munsiff Court, Kochi, contending that Sanku and Kamalakshi had executed a joint Will bearing registration No.54 of 1995, S.R.O, Kochi (Ext.B1), bequeathing the entire properties in the name of the respondents. According to the respondents, there is a condition in the Will to pay off Rs.12,000/- to the appellants each. According to the plaint contentions, the Will is a forged document. F.A.O (R.O) No.96 of 2017 4 The purported Will was not executed by the testators by exercising their free will or consent. Both Sanku and Kamalakshi had no testamentary capacity. However, O.P No.1 of 2011 was disposed of by the court below after a full fledged enquiry and found that Ext.B1 Will was a genuine Will. Hence, aggrieved by these findings, the plaintiffs filed a suit for partition of the properties. 3. Respondents/defendants filed a joint written statement contending that the suit is barred by res judicata in view of the findings in O.P No.1 of 2011. The statements in the plaint, that Sanku and Kamalakshi were illiterate, are strongly denied. Sanku was not suffering from any serious illness and he had only minor bronchitis. He was not bedridden from 1994 onwards nor was he hospitalized. Both Sanku and Kamalakshi executed Ext.B1 in a sound disposing state of mind and with free will. The suit is liable to be dismissed. 4. One witness was examined on the side of the plaintiffs and F.A.O (R.O) No.96 of 2017 5 two on the side of the defendants. Exts.A1 to A6 and Exts.B1 to B5 are the documents marked on both sides. The following issues were raised by the trial court : - “1. Whether the deceased Sanku and Kamalakshi had executed any Will ? 2. Whether the plaintiffs have any partible right over - the plaint schedule property ? 3. What is the share to which the parties are entitled to ? 4. Reliefs and costs ? ” 5. The trial court considered the plea of res judicata raised by the defendants and entered a finding that adjudication in O.P No.1 of 2011 will not bar the contention raised by the plaintiffs in the suit and the order passed in O.P No.1 of 2011 cannot operate as res judicata as the scope of enquiry was limited. 6. The substantial question of law is whether the remand of the case by lower appellate court for the determination of res judicata is F.A.O (R.O) No.96 of 2017 6 warranted ? 7. The lower appellate court after considering the rival contentions and also an application filed by the respondents under Order 41 Rule 27 of the Code of Civil Procedure, 1908 ( in short 'C.P.C'), thought it fit to remand the case to the trial court for a fresh consideration. The lower appellate court directed the trial court to frame an issue regarding res judicata and thereafter to give an opportunity to the parties to adduce evidence to substantiate their contentions. It is true that the trial court has not raised a specific issue regarding bar of res judicata by virtue of the adjudication in O.P No.1 of 2011. However, the court considered the issue in detail and after analyzing the materials placed and it entered a clear finding that the claim of plaintiffs in the partition suit are not barred by res judicata. Learned counsel for the appellants contended that the court below committed a grave mistake in entering a finding that the plea of res judicata do still arise in this case. In order to consider the correctness of the F.A.O (R.O) No.96 of 2017 7 findings of the lower appellate court, following facts will have to be borne in mind. Execution of Ext.B1 Will is a disputed fact. Appellants would contend that deceased Sanku and Kamalakshi were not in a sound disposing state of mind and Ext.B1 was procured by the respondents by misrepresenting facts. Whereas the respondents would contend that Ext.B1 Will was properly executed by Sanku and Kamalakshi on their free will and consent and they had enough testamentary capacity to execute Ext.B1. Ext.B2 is the certified copy of the order passed by the Munsiff in O.P No.1 of 2011. 8. The prayer in the original petition filed by the respondents read thus : “ Therefore in the interest of justice, it is humbly prayed that this Honourable Court be pleased to pass an order by directing the respondent to execute the Deed of Receipts by respective parties in favour of each of the parties, within a time F.A.O (R.O) No.96 of 2017 8 fixed by this honourable Court and on their failure, or any of them willfully hesitate to comply with the orders of this Hon'ble Court, allow the petitioners to get the Deed executed and registered through this Honourable Court. ” 9. From the caption to the petition, it can be seen that the petition was filed by invoking Section 151 of the C.P.C. I have a serious doubt about maintaining an original petition by invoking Section 151 of the C.P.C, as the Section recognizes the inherent power vested in the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Recognition of inherent power is with a solemn view to effectuate complete justice to the parties in a proceeding properly laid before the court. 10. Section 100 of the Transfer of Property Act, 1882 (for short, T.P.Act), deals with 'charges', which reads as follows : “ 100. Charges .- Where immovable property of one F.A.O (R.O) No.96 of 2017 9 person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the later person is said to have a charge on the property; and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge. Nothing in this section applies to the charge of a trustee on the trust-property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.” 11. As per the terms in Ext.B1 Will, it is discernible that the executants have stipulated that Rs.12,000/-, each should be paid to their F.A.O (R.O) No.96 of 2017 10 daughters (who are the plaintiffs) and the liability to pay is cast upon their brothers (who are the defendants). Even though it does not speak about a charge as defined under Section 100 of the T.P Act, it is an unchallengeable fact that the respondents owed Rs.12,000/- each to the appellants as per the terms in Ext.B1. Therefore, they rightly approached the court below by filing an original petition, although they quoted only Section 151 of the C.P.C, by invoking Section 100 and to some extent provisions in Section 83 of the T.P Act. The Munsiff Court on receiving O.P No.1 of 2011 issued notice to the appellants and on entering appearance they challenged the genuineness of the Will. 12. Learned counsel on both sides have no quarrel to the proposition that the scope of enquiry in O.P No.1 of 2011 was limited and the proceeding therein was only in the nature of a summary proceeding. In that proceeding, the appellants herein were over zealous to establish that Ext.B1 Will was not genuinely executed. The pertinent legal question is F.A.O (R.O) No.96 of 2017 11 whether the court entertaining the original petition was competent to look into the question as to whether Ext.B1 Will was genuine or not. 13. Answer to this question, can only be in the negative. For entering such a finding, there are two reasons. Firstly, the scope of enquiry in O.P No.1 of 2011 was very limited and the proceeding was in the nature of a summary proceeding. Secondly, what was sought for in the original petition was only to direct the respondents therein (appellants) to issue receipts, on receipt of the amounts stipulated in the Will. It is therefore clear that if the court had entertained any doubt regarding genuineness of Ext.B1 Will, it could not have decided that issue in the original proceeding and should have relegated the parties to a regular suit. 14. Learned counsel for the respondents contended that the appellants themselves raked up the issue regarding genuineness of the Will in the summary proceeding and got an adverse finding that Ext.B1 is a genuine Will. They have estopped from contending otherwise in the F.A.O (R.O) No.96 of 2017 12 regular suit. Not only that, even though the finding was rendered by the Munsiff Court in a summary proceeding, it was rendered after adducing full fledged evidence on both sides and therefore, the finding will operate as res judicata. 15. In order to appreciative this contention, it has to be kept in mind that the Munsiff's Court cannot be said to be a court of limited jurisdiction as contemplated in Explanation VIII to Section 11 of the C.P.C. In other words, it is a regular court having all the trappings of a civil court except for the pecuniary and territorial jurisdictional restrictions provided by the Code and the Rules. Cardinal question is whether the court could have overstepped its jurisdiction in O.P No.1 of 2011 and entered a finding that Ext.B2 is a genuine Will. In order to attack the findings of the trial court, learned counsel for the appellants relied on some precedents. 16. By relying on Bishwanath Prasad Singh v. Rajendra Prasad and Another (2006 (4) SCC 432) , it is contended by the learned counsel for the F.A.O (R.O) No.96 of 2017 13 appellants that in the original petition, what the court could have adjudicated was only a ministerial act and there was no legal necessity to enter a finding regarding the genuineness of Ext.B1 Will. It is therefore argued that the ratio in paragraph 49 of the above decision will squarely apply to this case : “49. If the proceedings were only ministerial as held by the Privy Council and the various High Courts, obviously, it could not be argued that anything was “heard and finally decided” in a proceeding under S.83 of the Transfer of Property Act, which could operate as res judicata. For, the essential requirement of a bar by res judicata is that a matter should have been directly and substantially in issue in a prior litigation, and it should have been heard and finally decided by a court of competent jurisdiction. Of course, Explanation VIII to S.11 of the Code of Civil Procedure justifies a contention that even if the F.A.O (R.O) No.96 of 2017 14 court that heard and finally decided an issue between the parties was one of limited jurisdiction, its adjudication would operate as res judicata. But, that would not enable the learned counsel for the respondents to contend either that the court which entertained the application under S.83 of the Transfer of Property Act is a court of limited jurisdiction within the meaning of that Explanation, or that any issue was heard and finally decided in the proceeding under S.83 of the Transfer of Property Act. It may be noticed that the deposit under S.83 of the Transfer of Property Act has to be made in a court in which the mortgagor might have instituted a suit for redemption. Obviously, that is not a court of limited jurisdiction in the sense of the term as used in Explanation VIII to S.11 of the Code of Civil Procedure.” 17. Another decision relied on by the learned counsel for the appellants is Vasanthakumari and Others v. Sarojini and Others ( 2008 F.A.O (R.O) No.96 of 2017 15 (1) KHC 421 ). A similar question arose for consideration before a learned Single Judge of this Court, with a distinction that the document which created the obligation to pay off was a gift deed and not a Will as in this case. However, this Court after considering various aspects of Sections 83 and 100 of the T.P Act, entered the following findings. The observations in paragraph 12 are as follows : “ ….. As per S.100, all the provisions in the Transfer of Property Act which apply to simple mortgage shall, as far as may be, apply to a charge. The amount payable as per the terms of the settlement deed, according to the petitioners, constitutes a charge on the property. The petitioners wanted the charge to be redeemed and, therefore, filed the Original Petition with a prayer to permit them to deposit the amount payable under the terms of the settlement deed. In view of the provision in S.100 that the provisions of the Transfer of Property Act relating to simple F.A.O (R.O) No.96 of 2017 16 mortgage shall apply to the charge, the petitioners could file the Original Petition under S.83 of the Transfer of Property Act. Though the petition does not state that it was filed under S.83 of the Transfer of Property Act, in sum and substance, the petition is under S.83 as the averments in the petition and the relief prayed for in the petition would disclose. In order to record the deposit under S.83 of the Transfer of Property Act or to record the same by invoking S.151 of the Code of Civil Procedure, the Court is not expected to decide the disputes between the parties relating to the genuineness or otherwise of the document or the respective rights and liabilities of the parties or the entitlement of any party to receive any amount or as to the sufficiency of the amount or any other matter which is required to be settled in a properly constituted civil suit. The jurisdiction of the Court in disposing of such an Original Petition is only procedural and ministerial in F.A.O (R.O) No.96 of 2017 17 character as held by the Supreme Court in 2006 KHC 608 ; JT 2006(3) SC 221 : AIR 2006 SC 2965 : 2006 (4) SCC 432. The Court need only look into the document and ascertain whether the petitioners are liable to pay certain amounts to the respondents as per the terms of the said document. If the Court is satisfied that there is such a liability, permission can be granted to the petitioners to make the deposit. The Court shall not in such case decide the question whether the settlement deed is genuine or whether the donor had the required sound disposing state of mind at the time of execution of the document, or whether the document is vitiated by fraud, undue influence or coercion. Such questions are alien to a petition under S.83 of the Transfer of Property Act or one under S.151 of the Code of Civil Procedure to record the deposit. One the deposit is recorded, the liability of the person bound under the document to discharge the liability would F.A.O (R.O) No.96 of 2017 18 come to an end. The petitioners cannot be compelled to indulge in a suit on title or a suit for declaration, when according to them, there is no cloud on their title or when they do not want any declaration in respect of their title. It is not for the Court to compel a party to institute a suit. When a petition of the nature now under consideration is filed, the only requirement is to ascertain whether the petitioners are liable to pay the amount and whether they are prepared to make the deposit. After service of notice on the respondents, the Court can record the deposit and relegate the parties to agitate all their contentions and the defence in a properly constituted civil suit.” 18. Per contra, learned counsel for the respondents relied on some decisions and contended that the findings in O.P No.1 of 2011 will operate as resjudicata in the the factual context of this case. Learned counsel for the respondents placed reliance on Dashrath Rao Kate v. Brij Mohan F.A.O (R.O) No.96 of 2017 19 Srivastava (2010(1) SCC 277) , and contended that findings of a summary nature can operate as res judicata. That was a case wherein a finding rendered under Order 22 Rule 5 of the C.P.C in a previous proceedings was sought to be canvassed as res judicata in a subsequent stage of the same proceeding. The Supreme Court after considering the facts and circumstances in that case held that the findings in the same proceeding at an earlier stage may operate as res judicata inter parties though it may not bind others. The principle in this decision can be easily distinguished on facts. Two decisions rendered by Madhavan Padmanabhan and Others v. Kumaran Kochan and Others (A.I.R 1952 Travancore - Cochin 383) and Sivanu Chettiar Muthukumaru Pillai v. Sivarama Iyer Thanu Iyer and Others (A.I.R 1957 Travancore - Cochin 13) can also be distinguished on facts. 19. Another decision relied on by the learned counsel for the respondents is Jai Kishan Dass and Others v. Smt.Nirmala Devi and Others F.A.O (R.O) No.96 of 2017 20 ((1984) 1 SCC 682) . That is also a case where the Supreme Court made an observation regarding the finding entered in a previous proceeding by a regular court, where a matter directly and substantially arose between the parties. The principle herein also cannot be extended to this case. 20. Having regard to the submissions at the Bar and on perusal of the records, I am of the view that the District Judge erred in finding that an issue has to be cast on res judicata and for that matter, the appeal has to be remanded. The question whether Ext.B2 order in O.P No.1 of 2011 will operate as res judicata can be decided in the appeal itself without making a remand. It is so said because the respondents have raised a plea regarding operation of res judicata by virtue of the order in O.P No.1 of 2011, clearly in the written statement. Non casting an issue on res judicata may be a procedural irregularity, but it cannot go to the root of the matter since the parties have understood the contentions and adduced elaborate evidence in respect of their contentions. That apart, res judicata is a vexed question of F.A.O (R.O) No.96 of 2017 21 fact and law. Since plea and evidence are available in the records, I find no need to remand the case for determining the question of res judicata by the trial court. 21. Learned counsel for the appellants strongly objected to the reception of additional evidence under Order 41 Rule 27 of the C.P.C at the appellate stage. According to them, what is sought to be produced is the originals of certified copies of Exts.A3 and A4. Learned counsel for the respondents would contend that Exts.A3 and A4 carry the thump impression of the testators and the objection regarding the genuineness of Will can be answered by looking into Exts.A3 and A4. 22. Learned counsel for the respondents contended that it is well settled that thump impression is a well developed science. There cannot be a dispute to this proposition. However, learned counsel for the appellants pointed out that no plea was raised before the trial court or before the lower appellate court to sent Ext.B1 for the scrutiny of an expert, despite F.A.O (R.O) No.96 of 2017 22 specific objection has been taken against that document. However, those are all matters to be decided by the lower appellate court on the basis of the pleadings and evidence adduced before the court. None of the conditions in Order 41 Rule 27 of the C.P.C has been satisfied for reception of additional evidence is the contention raised by the learned counsel for the appellants. It has been decided in a long line of decisions that Order 41 Rule 27 of the C.P.C cannot be invoked for a mere asking. The conditions stipulated therein should exist for reception of additional evidence because the normal rule is to decide the case based on the evidence available. 23. Having regard to the facts and circumstances, I find no justification for remanding the case to the trial court. Hence, the impugned judgment passed by the lower appellate court is set aside on finding that legal requirement in Order 41 Rule 23 A of the C.P.C has not been satisfied in this case. It is made clear that the lower appellate court shall dispose of the appeal on merits with reference to the pleadings and evidence available F.A.O (R.O) No.96 of 2017 23 on record and also applying the correct principles of law. It is further made clear that none of the observations herein will be taken as expression of a final opinion in this case. In the result, the appeal is dismissed. The court below shall decide the appeal on merits, within a period of three months from the date of appearance of parties. Parties shall appear before the court below on 01-11-2018. All pending interlocutory applications will stand dismissed. A. HARIPRASAD, JUDGE. amk F.A.O (R.O) No.96 of 2017 24 The sentence “ In the result, the appeal is dismissed ” occurring in the 2nd paragraph of the last page of the judgment dated 09-10-2018 in F.A.O(R.O) No.96/2017 is amended and read as “ In the result the appeal is allowed” as per order dated 14.11.2018 in I.A.1/2018 in F.A.O(R.O) No.96/2017. Sd/Registrar (Judicial)(in charge)