IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 RSA.No. 423 of 2008 ------------------------ AS.145/2007 of SUB COURT, PERUMBAVOOR OS.243/2002 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANTS/DEFENDENTS 1 & 2 ------------------------------------ 1. ABDUL AZEEZ, AGED 45 YEARS, S/O.SAYED MUHAMMED, EMBASSERY HOUSE, PALLIPRAM KARA, MARAMPILLY VILLAGE, KUNNATHUNADU TALUK. 2. LALI, AGED ABOUT 34 YEARS, W/O.ABDUL AZEEZ, EMBASSERY HOUSE, PALLIPRAM KARA, MARAMPILLY VILLAGE, KUNNATHUNADU TALUK. BY ADV. SRI.M.JACOB MURICKAN SRI.DINESH MATHEW J.MURICKEN RESPONDENTS: PLAINTIFF & DEFENDENTS 3 TO 6 ------------------------------------------------------ 1. K.S.MOHAMMED ASHARAF, S/O.SAYED MUHAMMED, KUDIYIL HOUSE, N.VASHAKULAM KARA, MARAMPILLY VILLAGE, KUNNATHUANDU TALUK. 2. PARIYATHUMMA, W/O.SAYED MUHAMMED, EMBASSERY HOUSE, PALLIPRAM KARA, MARAMPILLY VILLAGE, KUNNATHUNADU TALUK. 3. ABDUL NAZAR, S/O.SAYED MUHAMMED, EMBASSERY HOUSE, PALLIPRAM KARA, MARAMPILLY VILLAGE, KUNNATHUNADU TALUK. 4. ABDUL SATHAR, S/O.SAYED MUHAMMED, EMBASSERY HOUSE, PALLIPRAM KARA, MARAMPILLY VILLAGE, KUNNATHUNADU TALUK. 5. RUKHIYA, W/O.BAWA SYDALI, THAYLAN HOUSE, PATTIMATTOM KARA, PATTIMATOM VILLAGE, KUNNATHUNADU TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. --------------------------------------------------- R.S.A. No 423 of 2008 --------------------------------------------------- Dated this the 23rd May 2008 JUDGMENT This appeal is filed by defendants 1 and 2 in O.S. No 243 of 2002 on the file of the Munsiff's Court, Perumbavoor, they having lost their contentions both before the trial court as also before the first appellate court. The first respondent-plaintiff instituted O.S. No 243 of 2002 against the appellants and respondents 2 to 5 for a decree for partition and separate possession of 2/8th share in the schedule property after cancelling Ext A5 document executed by the first appellant in favour of the second appellant who is his wife inter alia, on the following allegations:- 2. Second defendant is the wife of the first defendant. Third defendant is the mother of defendants 1 and 4 to 6. Husband of the third defendant and father of defendants 1 and 4 to 6, Syed Mohammed expired. Schedule property belonged to the said Syed Mohammed. On his death the defendants except the second defendant became joint owners in possession and enjoyment of the schedule property. Syed Mohammed aforesaid died intestate. On his death the first defendant has obtained 2/8th share in the plaint schedule property. On 26.11.1999 he assigned his 2/8th share in the RSA 423/08 2 schedule property under Ext A1 in favour of the plaintiff and thus the plaintiff obtained title and possession over the schedule property along with defendants 3 to 6 and they are jointly in possession of the schedule property. The defendants are trying to transfer the property by suppressing the right of the plaintiff and they are trying to commit act of waste in the schedule property. Despite repeated demands they were not amenable to effect a partition. On 8.5.2002 notice was issued to them demanding partition and in reply issued by the third defendant it is stated that the first defendant has assigned the share in the schedule property in favour of the second defendant. On further enquiry it was revealed that the first defendant had fraudulently executed Ext A5 in favour of his wife, the second defendant after his executing Ext A1 in favour of the plaintiff but before its registration. There is no consideration for the assignment under Ext A5 and it is vitiated by fraud and is not binding on the plaintiff and his right over the plaint schedule property. Hence the suit for partition and separate possession of 2/8th share of the plaintiff setting aside Ext A5 document executed by the first defendant in favour of his wife the second defendant. 3. Defendants 1 and 3 to 6 filed a joint written statement contending inter alia, that the first defendant assigned his rights over the schedule property in favour of the second defendant receiving sufficient RSA 423/08 3 consideration under Ext A5. The plaintiff never acquired any right over the schedule property. The suit is an experimental one. The suit is filed only on 30.07.2002 though Ext A5 document was executed on 27.11.1999. It is incorrect to say that the plaintiff is in joint possession of the schedule property along with defendants 3 to 6 and that the defendants are making preparations to demolish the building in the schedule property and to cut and remove the trees therein. In fact the plaintiff has no right over the schedule property and he is not entitled to get partition or separate possession and is also not entitled to have Ext A5 assignment deed executed by the first defendant set aside. It is further contended that the property was assigned in favour of the second defendant in consideration of the amount received from her family as her share; that the plaintiff filed O.S. No 158 of 1999 before the Sub Court, N. Parur against the first defendant for recovery of an amount of Rs 4,50,000/- alleged to have been advanced to him under promissory note but that was dismissed; that thereafter at the instigation of the plaintiff one Salim who is the son of sister of plaintiff's mother filed suit against the first defendant as O.S. No 239 of 1999 before the Munsiff's Court, Perumbavoor for realisation of Rs 50,000/- allegedly due to him on the basis of a promissory note and the plaintiff was witness No. 1 in the said case; that 2/7th share of balance 1/6th share excluding the RSA 423/08 4 mother's share from the plaint schedule property was attached in the aforesaid suit; that plaintiff filed C.C.No 122 of 2003 before the Judicial Magistrate of First Class, Perumbavoor against the first defendant alleging a transaction of Rs 3,85,000/-; that the plaintiff is only attempting to snatch away the property of the first defendant; that Ext A5 executed by the first defendant in favour of the second defendant is not vitiated by fraud and that the plaintiff and his henchmen threatened the first defendant that he would be done away with and it is when threatened with death that the first defendant affixed his signature in a document on 29.11.1999 without applying his mind and that the plaintiff is not entitled to a decree for partition setting aside Ext A5 and to have mesne profits. 4. The second defendant filed a separate written statement resisting the suit and fastening her claim under Ext A5 contending that the document executed and registered in her favour is dated 27.11.1999 at a time when Ext A1 had not been registered and therefore the plaintiff does not acquire any right on the strength of Ext A1 which was registered after the execution of Ext A5. 5. On the above pleadings the trial court raised various issues and the trial court considering the evidence adduced at trial which consisted of oral evidence of P. Ws 1 and 2 and D.Ws 1 to 3 and documentary evidence, RSA 423/08 5 Exts A1 to A7 and B1 to B4, decreed the suit setting aside Ext A5 and granting a preliminary decree in favour of the plaintiff for partition and separate possession of his 2/8th share in the schedule property. 6. Defendants 1 to 6 challenged the said decree filing A.S. No 145 of 2007 before the Sub Court, Perumbavoor and that was dismissed by the first appellate court confirming the correctness of the judgment and decree passed by the trial court. Hence this second appeal by defendants 1 and 2 arraying the plaintiff as first respondent and defendants 3 to 6 as respondents 2 to 5. 7. The only point that has to be considered by this court is as to whether Ext A5 which is executed and registered on 27.11.1999 gets predominance over Ext A1 assignment deed in favour of the plaintiff executed on 26.11.1999 and registered only on 29.11.1999. It is vehemently contended before me by the learned counsel for the appellant that under Section 49 of the Indian Registration Act a document which is required to be registered if not registered in contravention of the Transfer of Property Act, it does not operate on the rights over immovable property unless and until it is registered. It is the contention that in view of the said provision in the Registration Act Ext A5 executed and registered on 27.11.1999 operates on the rights of the first defendant and the property RSA 423/08 6 stands assigned to the second defendant and thereafter the first defendant does not have anything to be transferred under Ext A1 in favour of the plaintiff. In this context Section 47 of the Registration Act also is to be taken note of. It provides that a registered document shall operate from the time from which it would commence to operate if no registration thereof had been required and not from the time of its registration. Hence by virtue of Section 47 of the Act Ext A1 which was executed on 26.11.1999 though registered only on 29.11.1999 takes effect from 26.11.1999 onwards. It is worthy to note in this context that Ext A5 was executed on 27.11.1999 by the first defendant in favour of the second defendant who is none other than his wife after the execution of Ext A1 on 26.11.1999 though Ext A1 was registered only subsequently on 29.11.1999. Such execution of Ext A5 after executing Ext A1 by the first defendant is a fraudulent act on his part to defeat the rights of the plaintiff and for that reason as also for the reason of Section 47 of the Registration Act, it is futile to contend on behalf of the appellant that by reason of Ext A5 plaintiff does not get any right over the schedule property under Ext A1. The contention of the first defendant that he was being forced to sign in Ext A1 under threat and coercion has all been found against concurrently by the courts below on evidence. Thus there is absolutely no question of law and much less any RSA 423/08 7 substantial question of law arising for consideration in this R.S.A. This R.S.A in the circumstances is dismissed in limine refusing admission. Sd/- K.P. BALACHANDRAN Judge 23/05/08 en Order on I.A. No 1041 of 2008 ------------------------------------- Dismissed. Id./- K.P. Balachandran, Judge 23/05/08 [true copy] RSA 423/08 8