IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 RSA.No. 848 of 2008(A) ---------------------- AS.405/2005 of I ADDL.DISTRICT COURT, ERNAKULAM OS.846/1996 of II ADDL.M.C., ERNAKULAM .................... APPELLANTS/RESPONDENTS/DEFENDANTS:- ------------------------------------------------------- 1. P.P. MARZILI, S/OLATE FRANCIES, DOOR NO. 47/1227, PAYYAPPILLIL HOUSE, VADUTHALA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 2. P.F. ANTONY, DOOR NO. 47/1227, PAYYAPPILLIL HOUSE, VADUTHALA DESOM, CHERANELLOR VILLAGE, KANAYANNUR TALUK,ERNAKULAM DISTRICT. BY ADV. SRI.T.KRISHNANUNNI(SR.) SRI.SAJU.S.A RESPONDENT(S): ---------------------------- RAI ABHILASH, S/O UPENDRA RAO, RESIDING AT AYODHYA, POONITHURA, KANAYANNUR TALUK, ERNAKULAM. ADV. SRI.S.SREEKUMAR SRI.S.SREEKUMAR(CAVEATOR) FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/11/2008, ALONG WITH RSA NO. 905 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:0 V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.Nos.848 & 905 of 2008 = = = = = = = = = = = = = = Dated this the 3rd day of November, 2008 JUDGMENT The defendants in O.S.Nos.846 of 1996 and 891 of 1996 respectively on the file of the Munsiff's Court, Ernakulam are the appellants in these second appeals. The said suits were filed by the common plaintiff seeking fixation of boundary of the plaint B schedule property after excluding the plaint C schedule property in the respective suits. Both suits were dismissed by the trial court. On appeal preferred by the plaintiffs, the lower appellate court reversed the decrees and decreed the suit. Hence these second appeals by the respective defendants. 2. The facts which are either proved or admitted are the following:- One acre of land comprised in Survey No.1062/1 of Cheranelloor village of which Thirumala Devasawam is the Jenmi was taken on lease by one Mr.Payyappillil Marzalinja R.S.A.Nos.848 & 905of 2008 2 and he constructed a house in 4 cents of land. Plaint C Schedule property in O.S.No.846 of 1996 is the said 4 cents of land. Thereafter the balance extent of 96 cents was possessorily mortgaged by the said Marzalinja to one Paradessy as per two document Nos. 355 and 356 of 1097 ME corresponding to the year 1922. In the year 1099 ME the said Marzalinja transferred his equity of redemption over the said 96 cents in favour of one Anthappan. The said Anthappan in turn assigned the said equity of redemption to the mortgagee Paradessy as per Ext.A2 sale deed of the year 1103 ME corresponding to the year 1928. Thus the equity of redemption came to vest in the mortgagee Paradessy who thus got the entire rights of Marzalinja over the said 96 cents. In a subsequent partition, the rights of Paradessy came to vest in a female heir of Paradessy by name Koditheertha. The 1st plaintiff namely Kalavathy who died pending the suit is the only daughter of the said Koditheertha. In the plaint there was an averment that the 1st plaintiff got the rights of her R.S.A.Nos.848 & 905of 2008 3 mother Koditheertha as per a will executed by Koditheertha. The said will was not produced before court. Consequent on the death of the 1st plaintiff, Kalavathy the additional 2nd plaintiff namely Rai Abhilash who is her son was impleaded in the suit. The 2nd plaintiff claimed the rights of his mother also by virtue of Ext.A1 registered will executed by his mother. Koditheertha and her daughter and 1st plaintiff had sold portions of the said 96 cents. Ext.A4 to A7 are the assignment deeds executed by Kalavathy and Exts.A8 to A10 are the assignment deeds executed by the mother Koditheertha. According to the plaintiffs a total extent of 40.927 cents were thus assigned by Koditheertha and her daughter to strangers. Another extent of 7 ½ cents was compulsorily acquired for the purpose of widening a road forming the boundary. Thus, according to the plaintiffs the plaint B Schedule property admeasuring 47.575 cents was the balance extent which was in the possession of the plaintiffs. They therefore wanted fixation of the boundary of the plaint B Schedule Property R.S.A.Nos.848 & 905of 2008 4 after excluding 4 cents belonging to Marsalinja described as plaint C schedule property in O.S.No.846/96 and after excluding 3 cents described as plaint C Schedule in O.S.No.891/96 forming the Kudikidappu of late Joseph the father of the defendants in O.S.No.891/96. 3. The main reason given by the trial court for dismissing the suit was that what was produced as Exts.A4 to A10 were only Photostat copies of the original sale deeds executed by Kalavathy and her mother Koditheertha and they could not be relied on to accept the alleged transfer and therefore the plaintiffs had failed to substantiate their contention that they were in possession of the alleged balance extent of 47.575 cents described as plaint B Schedule property. The lower appellate court, however, relied on Exts.A4 to A10 to accept the alienations pleaded by the plaintiffs and granted a decree excluding 4.180 cents in stead of 4 cents in O.S.No.846 of 1996 in addition to the appurtenant land of 0.918 cents. Likewise, a decree was R.S.A.Nos.848 & 905of 2008 5 granted in O.S.No.891/96 fixing the boundary after excluding 3 cents described as plaint C Schedule Property as well as 0.355 cents shown as the appurtenant land. It is the said appellate decree which is assailed in these second appeals. 4. I heard the learned Senior Advocate appearing for the appellants in these second appeals. Assailing the decrees passed by the lower appellate court the learned senior Advocate made the following submissions before me:- Exts.A4 to A10 are only Photostat copies of the assignment deeds allegedly executed by Koditheertha and her daughter Kalavathay. These Photostat copies are only secondary evidence and are admissible as such only on proof of foundation made out for reception of secondary evidence. That is why the trial court had eschewed of these documents from consideration since the plaintiffs had not made out a case for reception of Photostat copies as secondary evidence. The lower appellate court has not given any reason to rely on these documents which were rightly discarded by the trial R.S.A.Nos.848 & 905of 2008 6 court. It was by relying on those inadmissible documents that the lower appellate court had held that Ext.A2 assignment of the equity of redemption and the prior documents were not sham and nominal documents as contented by the defendants. The plaintiffs had come to court with a specific allegation in the plaint that Koditheertha's right came to be vested in the 1st plaintiff, Kalavathy on the strength of the will executed by Koditheertha. But strangely enough, the said will has not been produced before court. When a testamentary succession is put forward as the basis for devolution of title, it is impermissible for the party to give a go bye to the said case pleaded in the plaint and fall back upon intestate succession. When there is nothing to show that Marzalinja had parted with his possession of the entire 96 cents comprising of the plaint A Schedule Property, the case of the plaintiffs that there was a mortgage of the said property in favour of Paradessy who subsequently obtained the equity of redemption etc. cannot be accepted for a R.S.A.Nos.848 & 905of 2008 7 moment, particularly when the specific defence contention is that the said mortgage as well as transfer of equity of redemption were all sham transactions which were never acted upon. 5. I am afraid that I cannot agree with the above submissions:- It is true that the plaintiffs have pleaded that the rights of Koditheertha had devolved on the 1st plaintiff, Kalavathy under a will executed by Koditheertha. It is also true that the said testamentory document has not been produced before court. But it must be remembered that the additional 2nd plaintiff who was examined as PW1 in the case after the death of Kalavathy has deposed before the court in unmistakable terms that the rights of Koditheertha came to vest in Kalavathy as the sole surviving daughter. There is no dispute that Kalavathy was the sole surviving daughter of Koditheertha. This being the position, whether it was testamentary or intestate succession, since the plaintiff's R.S.A.Nos.848 & 905of 2008 8 contention was that it was Kalavathy, the only daughter who got the property under a will executed by the mother Kalavathy being the sole surviving daughter of Koditheertha would have even otherwise inherited the plaint B Schedule property. Hence, the non-production of the will by the plaintiffs does not alter the position. 6. It is no doubt true that Exts.A4 to A10 are only Photostat copies of their originals. Without preparing the foundation for reception of secondary evidence within the meaning of Section 63(2) of the Evidence Act, technically speaking, those Photostat copies could not have been received in evidence. But then, the specific plaint averment that as per 7 registered documents, a total extent of 40.927 14.92 cents had been assigned by Koditheertha and her daughter Kalavathy and 7½ cents had been acquired for the purpose of widening a road had not been specifically denied in the written statement. Moreover, the 2nd defendant in O.S.No.846 of 1996 examined as DW1 had unambiguously R.S.A.Nos.848 & 905of 2008 9 admitted that 40 cents has been assigned by 1st plaintiff and mother that, he knows the location of the properties which have been assigned and that the assignees under the 7 documents are in possession of their respective portions. With regard to the 7 ½ cents acquired for the purpose of widening the road he pleaded ignorance. But the 2nd defendant in O.S.No.891/96 examined as DW2 has clearly admitted that 7½ cents of land had been acquired for widening the road and it was the 1st plaintiff Kalavathy who received the compensation for the said acquisition. DW1 has further confessed that the plaint B Schedule Property is the property which remains after excluding the properties so transferred under the 7 documents and after the acquisition for the road. In the face of these admissions by DWs.1 and 2 even if the plaintiffs had not produced Exts.A4 to A10 that would not in any way weaken the case of the plaintiffs. It is well known that an admitted fact need not be proved and when both Dws1 and 2 have admitted the assignments alleged R.S.A.Nos.848 & 905of 2008 10 by the plaintiffs, it was not necessary for the plaintiffs to prove the said admitted fact. Hence, even if Exts.A4 to A10 are eschewed from consideration that does not in any way alter the position. The lower appellate court has found that the plaint B Schedule Property in both the suits is the property which remains after excluding the assignments effected by Kalavathy and her mother Koditheertha. If so, the decrees granted by the lower appellate court do not suffer from any illegality. No questions of law, much less any substantial question of law arises for consideration in this second appeal. The questions of law formulated in the memoranda of appeals do not arise for consideration in these second appeals which are accordingly dismissed in limine. Dated this the 3rd day of November, 2008. V. RAMKUMAR, JUDGE sj