IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 SA.No. 801 of 1997(D) ------------------------- AS.103/1992 of DISTRICT COURT, PATHANAMTHITTA OS.579/1987 of M.C.,PATHANAMTHITTA .................... APPELLANT: 1ST RESPONDENT/1ST DEFENDANT ------------------------------------------------------ THE PRIMARY CO-OPERATIVE LAND MORTGAGE BANK LTD NO Q 390, PATHANAMTHITTA, REPRESENTED BY ITS SECRETARY BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENTS: APPELLANT & RESPONDENTS 2 AND 3/ [;AOMTOFF & DEFEMDAMTS 2 AMD 3 ----------------------------------------------------------- 1. GRACY ABRAHAM, VELLAPPALLIYA MADAPPALLIL ELANTHOOR MEKKUM MURI, ELANTHUR,PATHANAMTHITTA 2. MATHAI THOMAS, MADAPPALLIL VEEDU, ELANTHOOR MEKKUM, PATHANAMTHITTA 3. THOMAS MATHEW OF DO. DO. BY ADV. SRI.K.K.JOHN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. --------------------------------------------------------- S. A. No 801 of 1997 -------------------------------------------------------- Dated this the 8th day of July 2008 JUDGMENT The first defendant in O.S. 579/87 on the file of the Munsiff's Court, Pathanamthitta, viz., the Primary Co-operative Land Mortgage Bank Limited No Q 390, Pathanamthitta is the appellant assailing the judgment passed against it vide judgment in A.S. 103/92 passed by the District Judge, Pathanamthitta allowing the appeal in reversal of the decree of dismissal of the suit O.S. 579/87 by the trial court and decreeing the suit declaring title and possession of the first respondent over plaint schedule property and declaring that Ext. A4 mortgage deed executed by respondents 2 and 3/defendants 2 and 3 in favour of the appellant on 29/04/1981 is not binding on the first respondent/plaintiff or over the plaint schedule property and granting permanent injunction restraining the appellant/Bank from enforcing Ext. A4 mortgage and from proceeding against the scheduled property for realisation of money due from respondents 2 and 3/defendants 2 and 3. 2. First respondent filed O.S. 579/87 before the Munsiff's Court, SA 801/97 2 Pathanamthitta for declaration of title and possession and for a decree of injunction inter alia, on the following allegations:- 3. Defendants 2 and 3 are respectively husband and son of the plaintiff. Scheduled properties having an extent of 80 and a half cents in survey number 2/9A/2 of Elanthoor village belonged to plaintiff as per partition deed No. 5153/1113 M.E of Pathanamthitta Sub Registry Office. At the time of her marriage with the second defendant, Sthreedhana Udampadi No 1185/1953 was executed in favour of the second defendant in respect of the scheduled property on 20/04/1953 and she also executed Ext. B1 gift deed dated 02/04/58 in favour of the second defendant whereby the second defendant became the absolute owner in relation to the scheduled property. Thereafter in 1967, the second defendant gifted the property to the plaintiff under Ext. A1 gift deed dated 02/03/1967. Thus, plaintiff became the absolute owner in possession of the scheduled properties. While so, on 25/02/1967 the plaintiff and the second defendant jointly executed Ext. A2 gift in relation to the scheduled property in favour of all their children including the third defendant who were minors at that time. The said gift deed was cancelled by the plaintiff and the second defendant under Ext. A3 SA 801/97 3 cancellation deed dated 11.12.1967. Thus, plaintiff retained absolute right over plaint schedule properties. While so, on 29.04.1981 defendants 2 and 3 have executed Ext. A4 mortgage in favour of the first defendant in respect of the scheduled properties alleging that the scheduled properties belonged to the second defendant as per Ext. B1 gift deed dated 02.04.1958. Defendants 2 and 3 have absolutely no right over the scheduled properties so as to execute Ext. A4 mortgage in favour of the first defendant. The first defendant attempted to enforce the mortgage over the scheduled property on the strength of Ext. A4 mortgage deed executed by defendants 2 and 3. Hence, plaintiff and her children filed O.S. 282/83 before the Munsiff's Court, Pathanamthitta for declaration of their right as per gift deed executed by plaintiff and second defendant in their favour. The suit was decreed declaring plaintiff's title and possession. The first defendant preferred A.S. 136/84 and the decree of the trial court was set aside vide judgment in appeal holding that there was no acceptance of the gift deed by the children. In view of the finding of the appellate court in A.S. 136/84 Ext. A2 gift in favour of the children became inoperative and the right, title and interest over the scheduled property got vested with the plaintiff SA 801/97 4 herself as possession stood on the date of execution of Ext. A2 gift deed on 25.03.1967. The plaintiff is in possession and enjoyment of the scheduled properties on the basis of Ext. A1 gift deed in her favour dated 02/03/1967. In view of decision in A.S. 136/84 plaintiff is entitled to get declared her absolute right over the plaint schedule property declaring that Ext. A4 mortgage executed by defendants 2 and 3 in favour of the first defendant is not valid and binding on the plaintiff and her rights over the scheduled properties. The mortgage deed is void and does not bind the scheduled properties. The first defendant is not entitled to proceed against the scheduled property on the basis of the mortgage deed and hence the suit for declaration of plaintiff's right and possession over the scheduled property declaring Ext. A4 mortgage executed by defendants 2 and 3 in favour of the first defendant as not binding on the plaintiff or over the plaint schedule properties and for permanent injunction restraining the first defendant from enforcing Ext. A4 mortgage against the scheduled properties in any manner for realisation of the debts due from defendants 2 and 3. 4. Defendants 2 and 3 remained absent and ex parte. The first defendant filed written statement resisting the suit raising the SA 801/97 5 following contentions:- 5. The suit is not maintainable. The plaint schedule properties belonged to the plaintiff as per partition deed of 1113 M.E. A sthreedhana udampady was executed in favour of the second defendant on 20.04.1953. She also executed a gift deed in favour of the second defendant, vide Ext B1 dated 02.04.1958. Second defendant alone is entitled to schedule properties and he has been in possession and enjoyment of the properties. Ext. A1 gift deed in favour of the plaintiff has not come into effect, she has not accepted the gift; nor did she obtain possession of the property. She did not get any right as per the gift deed. Ext. A2 (B2) gift deed dated 25.03.1967 in favour of her children also did not come into effect. However, that was cancelled as per Ext. A3 (B3) cancellation deed dated 11.12.1967. The plaintiff and her children have not obtained any right as per the gift deed in their favour. On the other hand second defendant obtained absolute right as per Ext B1 gift deed consequent on execution of Ext A3 cancellation deed. Defendants 2 and 3 have on 29.04.1981 executed Ext A4 hypothecation deed in favour of the first defendant with respect to the schedule properties. The second defendant had absolute right to execute the said SA 801/97 6 document and plaintiff has no right to question the said document. The plaintiff and her children except third defendant filed O.S. No 282 of 1983 before the Munsiff's Court, Pathanamthitta against the first defendant for declaration of their right over the schedule property and to set aside the mortgage deed in favour of the first defendant when the first defendant proceeded against the said property for realisation of debt due from the second defendant. The said suit was decreed in part and the plaintiff filed appeal as A.S.No 124 of 1984 and the first defendant filed appeal as A.S. No 136 of 1984 against the said decree before the District Court, Pathanamthitta. Thereupon A.S. No 136 of 1984 was allowed and the decree passed by the court below was set aside. It was found therein that the second defendant alone had the right over plaint schedule property and neither the plaintiff nor her children have got right or possession over the same. Hence the present suit is barred by res judicata. The plaintiff claimed no right as per gift deed No 880/67 before the Munsiff's Court in O.S. No 282 of 1983 or before the District Court in A.S. No 136 of 1984. Hence she is estopped from claiming any right in the present suit. The decrees in A.S. Nos 129 and 136 of 1984 are also binding on the plaintiff and she has no cause of action to file the SA 801/97 7 present suit. On the above contentions the first defendant prayed for dismissal of the suit with their costs. 6. The trial court raised necessary issues for trial and considering the case also in the light of the evidence adduced at trial which consisted of oral evidence of P.W. 1 and D.W.1 and documentary evidence, Exts A1 to A5 and B1 to B4, dismissed the suit. Appeal filed by the plaintiff before the District Court, Pathanamthitta as A.S.No 103 of 1992 was allowed setting aside the judgment and decree of the trial court and decreeing the suit declaring her title and possession over the schedule property and declaring that Ext A4 mortgage deed executed by respondents 2 and 3 in favour of the first respondent on 29.04.1981 is not binding on her or the plaint schedule property and granting a decree of permanent injunction restraining the first respondent from enforcing Ext A4 mortgage and from proceeding against the plaint schedule property for realisation of money due from respondents 2 and 3. It is aggrieved by the said decree passed by the lower appellate court in reversal of the dismissal of the suit by the trial court that the first defendant Land Mortgage Bank has come up in Second Appeal. 7. The Second Appeal was admitted on the following SA 801/97 8 substantial questions of law formulated in the memorandum of appeal. 1) Whether the suit is not barred by res judicata? 2) When a gift is executed with certain conditions and when the donor himself states in a later document that the conditions are not fulfilled and he is continuing in possession, is there an acceptance of the gift so as to confer title on the donee? The first respondent plaintiff has entered appearance and respondents 2 and 3 remained absent and ex parte. Heard the arguments of counsel for the appellant and counsel for the first respondent. 8. It is not in dispute that the property was gifted under Ext B1 by the plaintiff to the second defendant. It is seen that subsequently by Ext A1 gift deed dated 2.3.1967 the second defendant gifted the property to the plaintiff and thereafter in the same year on 25.03.1967 namely , within 23 days on execution of Ext A1, plaintiff and the second defendant jointly executed Ext A2 (same as Ext B2) gift deed in favour of third defendant who is son of plaintiff and the second defendant and also in favour of their other children who are SA 801/97 9 their other sons and daughter. Within nine months from the date of Ext A2, by Ext A3 dated 11.12.1967 the gift Ext A2 in favour of children, plaintiff and second defendant was cancelled. Thereafter on 29.04.1981 the second defendant hypothecated the property in favour of the appellant-first defendant Bank and availed of a loan with one of his sons, namely the third defendant as guarantor producing Ext B1 as security whereby he waived his right under Ext B1 ignoring Ext A1 gift deed executed by him in favour of the plaintiff. It was while on the basis of Ext A4 mortgage deed the first defendant moved for realisation of debt charged on the schedule properties that the plaintiff and her children excluding the third defendant filed O.S. No 282 of 1983 before the Munsiff's Court, Pathanamthitta against the appellant-first defendant Bank and against the second and third respondents for a decree restraining the Bank from proceeding against the schedule properties asserting right over them on the strength of Ext A2 gift deed executed by the plaintiff and second defendant in favour of their children. Though the said suit was decreed in part by the trial court the decree was reversed in appeal, vide common judgment in A.S No 129 of 1984 and 136 of 1984 dated 18.07.1987 passed by the District Judge, Pathanamthitta. SA 801/97 10 9. It is vehemently urged by the counsel for the first respondent that the dismissal of the suit will only disentitle the plaintiff to claim any right based on Ext B2 gift deed (same as A2), but that her right under Ext A1 gift executed by the second defendant in her favour was not agitated in the earlier suit O.S No 282 of 1983 aforesaid and that therefore the right under Ext A1 gift in her favour has tobe upheld as unaffected by the decree in O.S. 282 of 1983 as modified by the judgment under appeal as already mentioned. 10. Counsel for the appellant points out that the suit, O.S. No 282 of 1983 which was partly decreed was assailed in A.S. No 136 of 1984 by the present appellant who was the first defendant in that suit and not being satisfied with decreeing of the suit in part the plaintiffs therein had filed A.S.No 129 of 1984 and considering both the appeals together the first appellate court has found that the property which was hypothecated to the Bank under Ext A4 exclusively belonged to the second defendant and that the plaintiff did not have any right over the same; that in the nature of the relief claimed in the earlier suit O.S. 282 of 1983 the first respondent herein should have advanced all the claims that she had under whatever documents it be and that she is not entitled to set up SA 801/97 11 certain documents at one stage and when she loses the case, to put forth another document and contend that she is having title under that different document. He has also invited my attention to paragraph 15 of Ext A5 judgment in A.S. Nos 129 and 136 of 1984 wherein the first appellate court has observed as follows:- Ext B1 hypothecation bond (Ext A4 in the present suit) was executed on the ground that the schedule property belongs to the second defendant absolutely, that Ext A1 refers to two documents namely; document No 872 of 1958 and document No 880 of 1967; that according to learned counsel appearing for the respondent in A.S. No 136 of 1984 by document No 880/67 the second defendant did not get absolute right over the schedule property but the first plaintiff also got right over the property but that the said document is not produced and the first plaintiff has got no case that she has got a right over the plaint schedule property. 11. The documents which were so referred to as document No 872/58 and document No 880/67 are respectively Exts B1 and A1 in the present suit. Ext A1 is gift deed in favour of the second defendant by the plaintiff which was withheld from being produced in the earlier suit despite advancing argument that the first plaintiff SA 801/97 12 therein who is the sole plaintiff in the present suit is having right over the schedule property even in the event of cancellation of Ext A2 (same as B2). Consequently it was found in Ext A5 judgment against the first respondent herein who was the first plaintiff in Ext A5 suit that on the basis of Exts B1 and B4 the second defendant has got absolute right over the property. Exts. B1 and B4 so referred to are respectively Ext A3 cancellation deed and Ext B1 gift deed in the present suit. Thus vide Ext B4 judgment in O.S 282 of 1983 which was reversed vide Ext A5 judgment it was found with the plaintiff- first respondent on the party array that the second respondent herein is having absolute right over the schedule property. The first respondent who suffered such a decree did not assail Ext A5 judgment before this court and Ext A5 judgment has become final. Consequently therefore it is futile to contend on the part of the first respondent-plaintiff that she has any right under Ext A1 gift deed executed by the second defendant in her favour. Thus as rightly urged by the counsel for the appellant I have to conclude that the right over the schedule property advanced by the plaintiff-first respondent stands negatived by Ext A5 judgment and that operates as res judicata against the claim advanced by the first respondent- SA 801/97 13 plaintiff in the present suit. The decree passed by the lower appellate court in favour of the first respondent declaring her title over the schedule property and restraining the appellant Bank from proceeding against the said property for recovery of debt due from the second defendant on the strength of Ext A4 mortgage with the third respondent also as a guarantor deserves to be set aside and the suit dismissed allowing this appeal. Substantial questions of law raised in this Second Appeal stand answered as above. 12. In the result, allowing the Second Appeal I set aside the decree and judgment passed by the lower appellate court and restore the decree of the trial court dismissing O.S. No 579 of 1987. No order as to costs. Sd/- K.P. BALACHANDRAN Judge 08/07/2008 en Order on CMP No 2061 of 1997 ----------------------------------- Dismissed. Id./- K.P. Balachandran, Judge 08/07/2008 [true copy] SA 801/97 14 K.P. BALACHANDRAN, J. S.A. No 801 of 1997 JUDGMENT 08/07/2008