IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 RSA.NO. 380 OF 2009() --------------------- AS.84/2007 OF SUB COURT, PERUMBAVOOR OS.321/2000 OF MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT – APPELLANT - PLAINTIFF ----------------------------- LEENA, AGED 42 YEARS, D/O. GOPALAN, VAZHAYIL HOUSE, PERUMBAVOOR KARA, PERUMBAVOOR VILLAGE. BY ADV. SRI.PULIKKOOL ABUBACKER RESPONDENT(S): RESPONDENTS -------------------------- 1. V.G. BABU, AGED 47, S/O. GOPALAN, VAZHAYIL HOUSE, PERUMBAVOOR KARA, PERUMABVOOR VILLAGE. 2. JIJI BABU, AGED 44 YEARS, KANICHAL HOUSE, ALLAPRA BHAGAM, ARAKKAPADY VILLAGE. 3. VISALAKSHY, AGED 70 YEARS, W/O.GOPALAN, VAZHAYIL HOUSE, PERUMBAVOOR KARA, PERUMBAVOOR VILLAGE. ADV. SRI.N.ANILKUMAR FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO. 380 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 22nd day of February, 2010 J U D G M E N T --------------------- Second Appeal arises from judgment and decree of learned Sub Judge, Perumbavoor confirming dismissal of O.S. No.321 of 2000 of the court of learned Munsiff, Perumbavoor. That is a suit filed by the appellant to set aside Ext.B1, sale deed No.1491 of 1997 and for partition and separate possession of the share claimed by the appellant. Suit property originally belonged to Gopalan, father of appellant and respondent Nos.1 and 2 and husband of respondent No.3. Gopalan died on 14.8.2000. Appellant wanted respondent No.1 to partition the property and give her share but respondent No.1 claiming exclusive right over the property as per Ext.B1 refused to do so. Appellant would say that her father, Gopalan died of brain cancer and was unconscious for about 5 years immediately preceding his death. It is also contended that the document is got executed as result of undue influence, fraud and mis-representation and without consideration. According to the appellant Ext.B1 reserved a life interest for Gopalan and respondent No.3 and right to encumber the property during their R.S.A. No.380 of 2009 -: 2 :- lifetime and hence there is no valid sale. On the death of Gopalan property should devolve on appellant and respondents. Respondent Nos.1 and 3 contended that suit property was assigned to respondent No.1 as per Ext.B1 and that the assignment is valid. They denied that Gopalan was unconscious as pleaded by the appellant or that the document was executed under undue influence, fraud or mis-representation. Respondent No.2 supported the contentions taken by respondent Nos.1 and 3. Trial court found against the challenge to Ext.B1, held that it is valid and consequently dismissed the suit. That was confirmed by the first appellate court. Hence the Second Appeal urging by way of substantial questions of law whether Ext.B1 can be characterised as a sale as understood in Section 54 of the Transfer of Property Act (for short, “the Act”) and on the evidence on record finding of the courts below that appellant failed to prove the vitiating circumstance she attributed to respondent No.1 is correct. Learned counsel for the appellant has taken me through Sec.54 of the Act and contend that only on fulfilment of the requirements stated therein there could be complete sale unlike in this case where there is no transfer in presenti to respondent No.1 nor transfer of possession to him. It is R.S.A. No.380 of 2009 -: 3 :- contended that recital in Ext.B1 that Gopalan and respondent No.3 are entitled to encumber the property would indicate that there was no transfer of the property in favour of respondent No.1. Hence Ext.B1 cannot be taken as a sale deed. Counsel for respondents supported the concurrent finding entered by the courts below. 2. So far as the contention that Ext.B1 is got executed under undue influence, fraud or mis-representation is concerned Order VI Rule 4 of the Code of Procedure mandates that a party relying on misrepresentation, fraud, breach of trust, willful default or undue influence, etc., is required to give particulars of such fraud, misrepresentation, undue influence, etc. Here what is available is only a bald plea not supported by any particulars, not to say any reliable evidence. As such courts below rightly found that challenge to Ext.B1 on the vitiating circumstance pleaded by the appellant cannot stand. 3. What remained is the contention regarding validity of Ext.B1 based on Sec.54 of the Act. That provision defines sale and states how a sale is to be made. Proviso says that a sale of immovable property for value of Rs.100/- or more can be made only by a registered instrument and that delivery of tangible R.S.A. No.380 of 2009 -: 4 :- immovable property takes place when the seller places the buyer or such persons as he directs in possession of the property. I have gone through a copy of Ext.B1 given to me for perusal by learned counsel. That document says that Gopalan has assigned his right, title and possession in favour of respondent No.1 for consideration. It is specifically stated that Gopalan has relinquished his rights over the property in favour of respondent No.1 and that the latter is put in possession thereof. He has authorised respondent No.1 to effect mutation and pay revenue for the property. There is reservation in favour of the vender and his wife (respondent No.3) for residence in the house situated in the property during the lifetime, take usufructs from the property and if necessary for their livelihood to encumber the same. Document also states that respondent No.1 will get right of disposal after the death of vendor and respondent No.3 and that if during the life time of vendor and respondent No.3 any alienation contrary to the above direction is made it will not be valid. It is on the above recitals that appellant claimed that Ext.B1 cannot amount to a sale. Section 54 of the Act does not say that delivery of possession is an integral part of the sale. This has been held so in Narayan v. Timbakrao (AIR 1988 Bombay 94). That apart I R.S.A. No.380 of 2009 -: 5 :- find from Ext.B1 that possession of the property was given to respondent No.1 though subject to right of vendor and respondent No.3 to reside in the house and take usufructs. Hence the contention that respondent No.1 did not get possession of the property cannot be sustained. It is also seen that respondent No.1 has effected mutation and paying revenue as seen from Ext.B2. 4. Now coming to the restriction on alienation contained in Ext.B1, that is a matter between the vendor and respondent No.1 and assuming that restriction on alienation is not valid that is a matter which respondent No.1 can take up against the vendor. Rosher v. Rosher (1884) 26 Ch. D.801) states that a condition restraining alienation during a lifetime is invalid. Exhibit B1 shows that there is an outright sale of the property in favour of respondent No.1 in presenti followed by certain restriction regarding alienation. Whether respondent No.1 should abide by those restrictions or he could challenge the same is a matter to be left to respondent No.1. It is not the concern of the appellant who is a stranger so far as Ext.B1 is concerned. In the light of the recitals in Ext.B1 and the position of law which I have stated above argument advanced against the validity of Ext.B1 has to fail as rightly found by the R.S.A. No.380 of 2009 -: 6 :- courts below. If that be so subject to the reservation regarding residence of respondent No.3 who survives deceased Gopalan, respondent No.1 is the absolute owner of the property and appellant cannot claim any share in it. No substantial question of law is involved. Second Appeal is dismissed in limine. Interlocutory Application No.858 of 2009 shall stand closed. THOMAS P.JOSEPH, JUDGE. vsv