V.D. SREEMATHIYAMMA @ RAJAMMA & V.D. SUMATHIKUTTY v. V.D. RADHAMMA @ RAJAMMA & V.D. RAJAPPAN

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 **SA.NO. 631 OF 1999(A)** --------------------{IN AS.42/1995 OF PRINCIPAL SUB COURT,KOTTAYAM IN OS.332/1987 OF ADDITIONAL MUNSIFF'S COURT, KOTTAYAM} .................... ## APPELLANT(S)/RESPONDENTS 1 & 2/ DEFENDANTS 2 & 3: ---------------------------------------------------------------- 1. V.D.SREEMATHIYAMMA @ RAJAMMA, CHAMAKKATTU VEEDU, MADHU BHAVAN, THRIPUNITHURA P.O., ERNAKULAM. 2. V.D.SUMATHIKUTTY, MUDAKKARIL VEEDU, MANIKKUNNAM, VADAYAR, VAIKOM. BY ADV. I.SHEELA DEVI SMT.I.SHEELA DEVI SMT.REJI RAMACHANDRAN RESPONDENT(S)/APPELLANT & 3RD RESPONDENTS/ PLAINTIFF & 4TH DEFENDANT: ---------------------------------------------------------- 1. V.D.RADHAMMA @ RAJAMMA. KIZHAKKEMAILAKKATTU VEEDU, PARK ROAD, KOTTAYAM, NOW RESIDING AT MAILAKUNNEL HOUSE, KEEZHUKUNNU, COLLECTORATE P.O., KOTTAYAM – 2. 2. V.D.RAJAPPAN, VATTAKKUNNEL, PEROOR P.O., ETTUMANOOR. - R1 BY ADVS. SRI.M.NARENDRA KUMAR & - SRI.LIJI.J.VADAKEDOM THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **SA.NO. 631 OF 1999** **:: 2 ::** **ORDER ON C.M.P.Nos.1743/99 & 623/01 IN SA.NO. 631 OF 1999** DISMISSED. Sd/- 12.10.2010. (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. To Judge. ## **S.S.SATHEESACHANDRAN, J.** **--------------------------------------------------** ## **S.A.No.631 of 1999** **------------------------------------------------Dated this the 12[th ] day of October, 2010** ## **JUDGMENT** Defendants 2 to 4 in O.S.No.332/1987 on the file of the Additional Munsiff's Court, Kottayam are the appellants. 2. The above suit was filed by the 1[st] respondent as plaintiff for a declaration of title and recovery of possession. The 4[th] defendant in the suit is the 2[nd] respondent in the appeal. Subject matter involved in the suit was 3.24 cents of land comprising a building. Admittedly, the suit property originally was under the occupation of one Itty Devadas. Both the plaintiff and also the defendant claimed right over the suit property as the legal heirs of Itty Devadas. Whereas the 1[st] respondent/plaintiff contended that she is the daughter and sole legal heir of Itty Devadas, born out of the wedlock with Kutty @ Kurumba, defendants 1 to 3 contended that the 1[st] defendant was the wife of Itty Devadas and defendants 2 ## **S.A.No.631 of 1999** ## **:: 2 ::** and 3 are the children of 1[st] defendant and Itty Devadas. Admittedly, 4[th] defendant was a foster child of Itty Devadas, and he is the son of his younger brother. Plaintiff laid the suit for declaration of title over the suit property and sought for its recovery contending that the 1[st] defendant was only a concubine of late Itty Devadas and defendants 2 and 3 are not the children of Itty Devadas, and the 4[th] defendant has no right over the suit property. After the death of Itty Devadas, the owner of the suit property had executed a sale deed (A1) in favour of the plaintiff and also defendants 1 to 4 transferring title and possession jointly in their favour. The right conveyed under that sale deed would enure only to the legal heir of Itty Devadas, the plaintiff, was her case for seeking the declaration over the property, as indicated above. The 4[th] defendant remained ex parte. The other defendants, the present appellants, filed a joint written statement, in which they claimed absolute right over the suit property and set up a claim of kudikidappu as well, contending that the 1[st] ## **S.A.No.631 of 1999** ## **:: 3 ::** defendant has obtained such right over the building and premises scheduled in the plaint. A1 sale deed was repudiated by these defendants contending it was executed collusively by the previous owner with plaintiff. The claim of kudikidappu raised by 1[st] defendant was referred to the Land Tribunal, which, after enquiry, entered a finding that the 1[st] defendant does not have any independent kudikidappu right over the plaint schedule property. Though both parties have repudiated A1 sale deed, the trial court found that the rights of parties are crystallised under A1 sale deed and none of them is competent to repudiate the transfer effected under that deed. In that view of the matter, the trial court granted a declaration to the effect that the plaintiff has 1/5[th] right over the suit property. After passing a declaratory decree, as indicated above, that court directed the plaintiff to file a fresh suit for partition to have separate possession for 1/5[th] share over the suit property. The decree so granted by the trial court was challenged by the plaintiff reiterating the contentions set up in her suit to ## **S.A.No.631 of 1999** ## **:: 4 ::** claim exclusive title and possession over the suit property. The appellate court, re-appreciating the materials, examined the disputed questions involved with reference to the legitimacy of the marriage of the 1[st] defendant with Itty Devadas and ultimately arrived at the conclusion that there was no valid marriage between them and as such, 1[st] defendant and her children are not entitled to have any share in the suit property. Placing reliance on the decision reported in **Kallyani Amma v. Devi {1989 (2) KLT 80}** , which has been since reversed, it was held that defendants 2 and 3 are not entitled to the benefit of Section 16 of the Hindu Marriage Act to claim any right over the property as the illegitimate children of Itty Devadas. In that view of the matter, modifying the decree of the trial court, a decree was granted in favour of the plaintiff by the lower appellate court as applied for in her suit. Defendants 2 and 3 have challenged that decree by preferring this appeal. 3. I heard the counsel on both sides. Having regard to the submissions made and also perusing the ## **S.A.No.631 of 1999** ## **:: 5 ::** judgments rendered by both the courts with reference to the materials tendered, I find, the question whether the 1[st] defendant was the legally wedded wife of Itty Devadas and her children defendants 2 and 3 are the legitimate or illegitimate children of Itty Devadas has no significance, in the given facts of the case, where title over the property by virtue of A1 sale deed executed by the previous Jenmi vested on both parties jointly. Though the plaintiff and also defendants 1 to 3 have challenged the validity of A1 sale deed, the former contending that it has no legal sanctity and defendants 1 to 4 are not the legal heirs of Itty Devadas and the latter impeaching that deed as a collusive and fraudulent transaction at the instance of the plaintiff with the prior owner, as rightly and correctly found by the trial court, A1 registered sale deed, in the absence of a challenge and further a declaration for setting aside or cancelling such document, can never be ignored or be treated as nullified on the rival case presented by the partiies. Though the plaintiff has impeached A1 sale deed ## **S.A.No.631 of 1999** ## **:: 6 ::** contending that she alone is the legal heir of Itty Devadas entitled to the suit property, it has to be noted that in the suit she has not moved for cancelling that sale deed. In the absence of a specific prayer for cancellation of that document, and further establishing that case, merely by alleging that the document executed by the Jenmi in favour of the plaintiff and defendants has no value or legal sanctity, the case canvassed by the plaintiff can never be entertained. In **Prem Singh and others v. Birbal and others {2006(5) SCC 353}** , the Apex Court has considered the difference between a fraudulent misrepresentation as regards the character of a document and also as to its contents. In the case of misrepresentation, as regards the contents of a document, it has been held that the document is only voidable. But in the case of misrepresentation, as regards the character, the document is void. As the plaintiff has impeached A1 sale deed with reference to the fraudulent nature of the contents of the document, but not of its character, it was ## **S.A.No.631 of 1999** ## **:: 7 ::** only voidable, even assuming that the plaintiff's case is true, by seeking its cancellation. That having not been done and the document A1 sale deed which, at the most, was voidable remains unimpeached, it follows that it is binding on the plaintiff. Such being the position, the finding entered by the trial court acting upon A1 sale deed, though not on the above reasoning, that the plaintiff is entitled to 1/5[th] share in the suit property and not to exclusive title and possession, is unimpeachable. The trial court, after granting such a decree has directed the plaintiff to work out her remedy to have separate possession filing a suit for partition. Even in a declaratory suit if it is so found, it is competent for the court to pass a preliminary decree for partition subject to further directions as may be required including remittance of court fee, if any, needed with respect to the valuation of the suit. It would be pointless to drive either party to a fresh suit for partition, where a preliminary decree for partition in terms of the declaration of right found can be granted in the ## **S.A.No.631 of 1999** ## **:: 8 ::** present suit (see **Vadekannu v. Kuttathi and others {1960 (II) K.L.R. 258** }. A fresh suit, for partition, no doubt would take its own time, for passing an effective decree. So much so, the decree granted by the trial court shall stand modified to the effect that it shall be treated as a preliminary decree allowing the plaintiff to have 1/5[th] share in the suit property, with liberty to work out the actual division and separate possession in the final decree proceedings. It is also open to the defendants, if so interested, to move for passing of another preliminary decree for allotment of their share, remitting the court fee payable thereof. Appeal is disposed of as indicated above, directing both sides to suffer their costs. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//