IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 15TH DECEMBER 2008 / 24TH AGRAHAYANA 1930 WP(C).No. 35024 of 2008(T) ---------------------------------- PETITIONER: ---------------- KURIEN E. KALATHIL, AGED 58 YEARS, S/O. LATE V.K.EAPEN, T.C.14/1004, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 010. BY ADV. SRI.A.V.THOMAS SRI.JOJO GEORGE SRI.NIDHI SAM JOHN RESPONDENTS: ------------------ 1. INDIAN BANK, REPRESENTED BY CHIEF MANAGER, THIRUVANANTHAPURAM MAIN BRANCH M.G.ROAD, THIRUVANANTHAPURAM. ADDL R2. CATHERINE THOMAS, W/O. LATE K.T. THOMAS, BRIGHT HOUSE, KOZHIKODE - 673 017. ADDL R3. JAY THOMAS, S/O. LATE K.T. THOMAS, 1-C, AMBER PARK, C.S. ROAD, KOCHI - 11. ADDL R4. DR. JOE THOMAS, S/O. LATE K.T. THOMAS, BRIGHT HOUSE, KOZHIKODE - 673 017. (ADDITIONAL RESPONDENTS 2 TO 4 ARE IMPLEADED AS PER ORDER IN I.A.No.15558 OF 2008 DATED 15.12.2008). ADV. SRI.BECHU KURIAN THOMAS FOR ADDL.R2 TO R4 SMT.NISHA JOHN FOR ADDL.R2 TO R4 SRI. S. SREEKUMAR, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.35024 OF 2008 ---------------------------------------- Dated this the 15th day of December, 2008 JUDGMENT The petitioner claims to have purchased certain properties comprised of the Ponmudi Estate from the legal heirs of one late M.Chettiyappan. A former owner of the property one Sri. K.T. Thomas, who obtained the same by virtue of sale deed No.2016/1972 of Thiruvananthapuram Sub Registrar’s office, who is stated to have sold the same to late Sri. M. Chettiyappan on 7.9.1991 had obtained a loan from the respondent bank by mortgaging the estate by depositing the title deeds namely sale deed No.2016/1972 along with other documents. The petitioner claims to have discharged the loan liability to the bank, in respect of the said loan transaction. The petitioner made a request to the respondent bank on 29.4.2005 to release the original title deed namely sale deed 2016/1972 to him. Since the same was not done, the petitioner filed W.P.(C) No.30692/2007 before this Court and this Court by judgment dated 07.11.2007 disposed of the writ petition directing release of the documents. Two of the W.P.(c)No.35024/08 2 additional respondents, who are legal heirs of K.T. Thomas and have impleaded themselves in this writ petition, filed a review petition against that judgment, which was admitted and the judgment was stayed. That review petition is still pending. In respect of part of the properties, proceedings were initiated under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act 2003. The petitioner filed O.A. No.1/2008 before the Forest Tribunal, Kollam under Section 10 of the said Act for a declaration that an extent of 353.265 hectares of land in Survey N.3992, 3993 and 3995/1 in Thennur Village and Nedumangad Taluk, principally cultivated with tea, cardamom, rubber, coffee, pepper and arecanut, is exempt from the purview of the Act. The petitioner contends that the title deeds and other documents deposited with the respondent bank in the loan transaction are necessary for adjudication of the dispute before the Forest Tribunal, which are still in the custody of the respondent bank. The petitioner now wants copies of those documents. Some of the documents are ancient and handling of the same except by experts may even destroy the same. Therefore, the said documents can be preserved only with the assistance of the W.P.(c)No.35024/08 3 Archaeological Department. The petitioner is stated to have contacted the Archaeological Department regarding the feasibility of preserving the old/crumbled documents and they are stated to have agreed to take appropriate steps, which, if done, so that a copy of the same can be obtained by the petitioner for production before the Tribunal. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) issue of writ of mandamus or any other appropriate writ, order or direction directing the respondent Bank to issue attested copies of the documents mentioned in Ext.P5 forthwith; ii) issue of writ of mandamus or any other appropriate writ, order or direction directing the respondent Bank to permit the Archaeological Department to take steps to preserve and protect the documents that are in a crumbled state due to old age”. 2. Additional respondents 2 to 4 stoutly opposes the prayers of the petitioner. According to them, the petitioner is not entitled to the reliefs prayed for. They would submit that a serious dispute regarding title to the property is pending. Therefore, if attested photocopies of the documents are issued to the petitioner, the petitioner is likely to misuse the same is the contention raised. It is further submitted that nothing W.P.(c)No.35024/08 4 prevents the petitioner from obtaining, under Section 57 of the Registration Act, certified copies of the documents from the concerned Sub Registrar’s Office. They further submit that under Section 55(3) of the Transfer of Property Act, the petitioner can obtain copies of the documents only from respondents 2 to 4, who are the real owners of the property. 3. In answer to the above contentions, the learned Counsel for the petitioner would submit that the dispute raised by respondents 2 to 4 regarding the title to the property has been rejected by the Civil Court, although respondents 2 to 4 have filed an appeal against the decree of the Civil Court which is pending. He further submits that some of the documents, copies of which are requested for, are of the years 1880, 1888, 1896,1910, 1911 and 1917. Therefore, it is in the interest of both the petitioner and respondents 2 to 4 that the same is preserved by the Archaeological Department. The learned counsel for the petitioner would further submit that being old documents, they may not be available with the Sub Registrar's Office. Further he points out that not all documents requested for are registered documents, some of which are unregistered documents, which also have to be preserved. He further W.P.(c)No.35024/08 5 submits that there is no chance of the petitioner misusing the copies. According to him the purpose for which copies are requested is for production before the Forest Tribunal, Kollam. 4. I have considered the rival contentions. The documents, copies of which are requested for by the petitioner are as follows: “1) Title Deed Number 174 dated 6.8.1880. 2) Deed of Declaration dated 13.3.1888. 3) Title Deed No.207 dated 12.8.1896. 4) Title Deed No.208 dated 12.8.1896. 5) Conveyance deed executed by the Ponmudi Tea Co. Ltd, and its liquidator to the Ponmudi Tea and Rubber Co.Ltd, dated 2.6.1910. 6) Copy of Conveyance Deed executed by Edward James Tomes and others to the Ponmudi Tea & Rubber Co. Ltd dated 19.7.1911. 7) Copy of Agreement entered into between The Ceyler, Travancore Rubber & Tea Estates Ltd. and the Ponmudi Tea & Rubber Co. Ltd, dated 12.6.1911. 8) The Indenture dated 7.3.1917 between the Ponmudi Tea & Rubber Co. Ltd. and His Highness the Maharaja of Travancore.” 5. The learned counsel for the 1st respondent – bank admits the fact that the documents are in the danger of being destroyed, if not properly handled. They have no objection whatsoever, in handing over the documents to the Archaeological Department for preservation. W.P.(c)No.35024/08 6 6. Admittedly, the documents are very very old. Naturally the same are of archaeological importance. The fact that even most careful handling of the same may destroy the documents themselves is not disputed before me by either parties. As such it is only appropriate that experts in the field is entrusted with the task of preserving the same. Therefore, nobody would be prejudiced if the Archaeological Department of the Government of Kerala is directed to take custody of the documents and take necessary steps to preserve the same for posterity. That would be in the best interests of both the petitioner as well as respondents 2 to 4. In fact a parallel proceedings before the Forest Tribunal, Palakkad filed by the predecessor-in-interest of the petitioner, in which respondents 2 to 4 are also parties is pending. Naturally, copies of these documents would be required for adjudication of the dispute in that proceedings also. In the above circumstances, I am satisfied that the Archaeological Department should be directed to take custody of the documents now lying with the 1st respondent – bank and to preserve the same by taking appropriate steps in that regard. W.P.(c)No.35024/08 7 8. Despite the vehement objections raised by respondents 2 to 4, I am not satisfied that the issue of mere copies of these documents to the petitioner and respondents 2 to 4 would in any way prejudice the right of respondents 2 to 4, if any, in the properties. Further respondents 2 to 4 would also require copies of the same for the purpose of production before the Forest Tribunal, Palakkad. Therefore, after preserving the documents, it is only appropriate that the Archaeological Department issues attested copies of those documents to both the petitioners as well as respondents 2 to 4 with the endorsement thereon to the effect that the same are issued for the purpose of production before the respective Forest Tribunal. Accordingly, the writ petition is disposed of with a direction to the Archaeological Department of the Government of Kerala, on production of a certified copy of this judgment to take over the above said documents from the 1st respondent – bank and to take appropriate steps to preserve the same for posterity. Thereafter, the Archaeological Department shall issue attested copied of these documents to both the petitioner as well as respondents 2 to 4 with endorsement that the same W.P.(c)No.35024/08 8 are issued for the purpose of production before the Forest Tribunal, Kollam and the Forest Tribunal, Palakkad. The above shall be done, on payment of charges fixed for the same by the Archaeological Department, within a period of six weeks from the date of production of a certified copy of this judgment before the Archaeological Department. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.35024/08 9