IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 SA.No. 241 of 1995(D) ------------------------- AS.12/1988 of ADDL.SUB COURT,ATTINGAL OS.309/1985 of MUNSIFF COURT,ATTINGAL .................... APPELLANT: RESPONDENT / PLAINTIFF ------------------------------------------- MANIKKYA KUNJI, TANNINILKUNNAVILA PURAYIDOM KIZHUVILAM DESOM AND VILLAGE BY ADV. SRI.SIBY MATHEW RESPONDENTS: ADDL. APPELLANTS 2 & 3 ---------------------------------------------- 1. PODIYAN KAMALASANAN, VALLAKKOTTU, CHARUVILA VEEDU, NAGAROOR, VELLALLOOR VILLAGE 2. ANANTHA VHINNA, VELLAKKOTTU CHARUVILA VEEDU, VATTOM CHERICKAL, NAGAROOR R1 & R2 BY ADV. SRI.R.S.KALKURA SRI.G.S.REGHUNATH SRI.M.RAMASWAMY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------------------------------------ S.A. No 241 of 1995 ------------------------------------------------------------ Dated this the 21st May 2008 JUDGMENT The plaintiff in O.S. No 309 of 1985 on the file of the Munsiff's Court, Attingal is the appellant in the Second Appeal assailing the judgment of the first appellate court in A.S. No 122 of 1988 on the file of the Sub Court, Attingal by which the decree granted in her favour had been set aside. 2. Appellant filed the suit for declaration of title and possession and for a consequential injunction in relation to the scheduled property alleging inter alia, that the scheduled property originally belonged to the defendants who are husband and wife; that they had no issues and so the plaintiff was adopted by them as their daughter; that defendants executed Ext A1 settlement deed in her favour on 3.5.1961 settling the scheduled properties in her favour; that the said settlement deed had come into force and she is in possession and enjoyment of the scheduled property along with her husband and children; that the defendants who have no right to execute any document in respect of the scheduled property are attempting to create some fraudulent document with respect to the scheduled property, which, if done, will cause irreparable injury and loss to her and therefore her title and possession over the scheduled property has to be declared and an SA 241/95 2 injunction has to be granted restraining the defendants from creating any document with respect to the scheduled property. 3. Defendants 1 and 2 resisted the suit filing a joint written statement. According to them, the suit is not maintainable and the property is still in the possession of the defendants. The settlement deed/gift deed relied on by the plaintiff was cancelled on 25.03.1976 before it was accepted by the plaintiff. After cancellation, defendants have gifted 50 cents from out of the scheduled property to the plaintiff and she is residing in a building in the said 50 cents. However, defendants are not attempting to alienate the properties though they have got every right to alienate the remaining 50 cents and the plaintiff has no cause of action and the suit is to be dismissed. 4. The trial court considering the evidence adduced at trial which consisted of oral evidence of the plaintiff as P.W.1 and the second defendant as DW-1 and documentary evidence, Exts. A1 and B1 to B4 decreed the suit subject to the right of the second defendant to enjoy the property till her death as the first defendant died pending suit. The second defendant filed appeal before the Sub Court, Attingal assailing the decree passed in favour of the plaintiff. SA 241/95 3 While the said appeal was pending she also died. I.A. No 1638 of 1983 was filed before the first appellate court by one Podiyan Kamalasanan seeking to implead him as additional second appellant and to implead one Anantha Chinna as the additional third appellant alleging that 30 cents from out of the scheduled property had been sold to him by the appellant on 7.11.1985 under document number 4571/85 of Sub Registry Office, Kilimanoor and that in relation to the balance property the legal heir of the deceased appellant is her sister's daughter Anantha Chinna. The lower appellate court by order passed on 4.3.1994 on I.A.1638 of 1993 allowed impleadment of the petitioner, Podiyan Kamalasanan, as additional second appellant but disallowed impleadment of Anantha Chinna as additional third appellant as consequent on the death of the first defendant in the suit second defendant and the plaintiff were recorded as L.Rs and therefore consequent on the death of the second defendant who was the first appellant before the first appellate court her legal heir could only be the plaintiff. But in the preface to the judgment in A.S. No 122 of 1988 Anantha Chinna is shown as additional third appellant and for that reason in the appeal memorandum before this court also Anantha Chinna is impleaded as SA 241/95 4 second respondent. In fact the real parties in the second appeal can only be the appellant who is the plaintiff in the suit and the first respondent Podiyan Kamalasanan who was impleaded in the first appellate court as additional second appellant. 5. The first appellate court after hearing the arguments of both sides allowed the appeal and set aside the judgment and decree of the trial court. Hence this second appeal by the plaintiff. 6. Heard arguments of counsel on both sides. Copies of Exts. B1 to B4 were being furnished for perusal by the counsel on both sides as Exts. B1 to B4 had not been forwarded to this court from the court below along with the L.C records. 7. Certain aspects which are beyond the pale of controversy deserve to be stated before adverting to the contentions of the parties. Ext. A1 is not a gift deed but is executed as settlement deed wherein it is provided that the possession of the properties will continue to be with defendants 1 and 2 who are the executants till their death and that tax also will be paid by them and they will continue in full enjoyment of the property. The plaintiff in whose favour the property had been settled is permitted to effect mutation in her name in relation to the scheduled property. Provision also is SA 241/95 5 made in Ext A1 for cancellation of the said settlement deed in case they are not looked after by the plaintiff. Alleging that the defendants were being looked after by the plaintiff after the execution of Ext A1 they executed Ext B3 cancellation deed on 25.03.1976 and thereafter on 24.05.1977 executed a gift deed in favour of the plaintiff for an extent of 50 cents from out of the scheduled property after retaining possession of the balance 50 cents with them. An extent of 3 cents from out of the property so gifted to the appellant under Ext B1 has been sold by her under Ext B2 in favour of Narayanan Reghu on 18.01.1988. In Ext B2 the title traced by the appellant who is the executant is under Ext B1 gift deed executed in her favour by the defendants in the suit. When these aspects are not disputed by the appellant, she is estopped from contending that the cancellation of Ext A1 settlement deed by Ext B3 effected by the defendants in the suit is not valid and the title in relation to the entire scheduled property stands vested in her on the strength of Ext A1. Confronted with this position, counsel for the appellant was not able to answer how the claim based on Ext A1 can still be sustained. In view of the cancellation of Ext A1 by Ext B3 cancellation deed and Ext B1 gift deed executed by the defendants having been accepted by the SA 241/95 6 appellant-plaintiff and she having sold under Ext B2 a portion of the said property tracing her title under Ext B1 gift deed, she is not entitled to fall back upon Ext A1 and advance claim based thereon. The right she has is only the right under Ext B1 gift deed and not any right under Ext A1. The claim advanced by her has rightly been found against by the first appellate court. There is no merit in the second appeal and in fact no substantial question of law as formulated in the Second Appeal does actually arise for consideration and the second appeal deserves only to be dismissed. However, in the circumstances of this case, the parties are to be directed to suffer their own costs. 8. It is pointed out by the counsel for the appellant that the second respondent before the first appellate court who is the first respondent in the second appeal is entitled only to 30 cents that being the property purchased by him from the deceased first appellant before the first appellate court and in relation to the balance extent of 20 cents that belonged to the deceased first appellant in the first appellate court her legal heir will be the appellant herself as consequent on the death of the first defendant second defendant and the plaintiff were recorded as L.Rs by the trial SA 241/95 7 court by order on I.A. No 150 of 1987 and that additional third appellant shown in the judgment of the first appellate court is not entitled to any right over the said property as casually observed by the first appellate court in its judgment. The contention so canvassed is correct and sustainable in view of the order passed by the first appellate court on I.A. 1638 of 1993 and additional third appellant shown in the preface of the judgment of the first appellate court is by a mistake and there is no impleadment of additional third appellant by the first appellate court as per order on I.A 1638 of 1993 aforesaid. The above observation also is required to be made while disposing of the Second Appeal so as to set at rest the dispute between the parties. In the result, I dismiss this appeal with the above observations. Parties are directed to suffer their own costs. Sd/- K.P. BALACHANDRAN Judge 21/05/08 en Order on C.M.P. No 718 of 1995 ------------------------------------------- Dismissed. Id./- K.P. Balachandran,Judge [true copy] SA 241/95 8