IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 AS.No. 957 of 1998() -------------------- OS.2/1996 of SUB COURT, VADAKARA .................... APPELLANT/PLAINTIFF ----------------- CHANDRAN, S/O. CHEKKOLI KITTAN ALIAS KRISNAN, AGED 42 YEARS, AMBIDATHIL HOUSE, POST ERAMALA, (DIED) ERAMALA AMSOM, DESOM, BADAGARA TALUK. ADD.2. SANTHA, W/O. LATE CHANDRAN, AGED 48 YEARS, AMBIDATHIL HOUSE, ERAMALA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. '' 3. SHABU, S./O. LATE LCHANDRAN, AGED 28 YEARS, -DO- -DO- '' 4. SHINY, D/O. LATECHANDRAN, AGED 21YEARS, -DO- -DO- LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANT 2 TO 4 AS PER ORDER DATED 12/10/09 IN IA.3353/09. BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA RESPONDENT/DEFENDANT: ------------------- THURUTHIYIL POCKI ALIAS MADHAVI, D/O. CHEKKOTTI, AGED 57 YEARS, KANDAPPAN KUNDIL HOUSE, AZHIYOOR AMSOM, CHOMBAL DESOM, BADAGARA TALUK. ADV. SRI.C.VATHSALAN THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 17/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------------ A.S.NO.957 OF 1998 & Cross Appeal ------------------------------- DATED THIS THE 17TH DAY OF MARCH, 2010 JUDGMENT The plaintiff in O.S.No.72/96 on the file of the Sub Court, Vadakara is the appellant. The suit was filed for partition and separate possession of plaintiff's 1/2 right in the plaint schedule property. The court below dismissed the suit. Hence the appeal. The parties hereinafter are referred to as the plaintiff and defendant as arrayed in the suit. 2. The plaintiff's case is that the plaint schedule property is owned and possessed by his father Cheekkoli Krishnan and the defendant jointly, that Cheekoli Krishnan died on 12/8/1994, that the plaintiff is the only legal heir of Cheekoli Krishnan, that on the death of Cheekoli Krishnan, his 1/2 share in the plaint schedule property devolved upon the plaintiff and therefore, the suit was filed. -2- A.S.No.957/98 & Cross Appeal. 3.The defendant denied the allegations in the plaint and inter alia contended that the plaintiff is not the son of Cheekoli Krishnan, that Cheekoli Krishnan had no other wife other than the defendant, that Cheeekoli Krishnan married her on 23 Makaram 1133 and that they lived together as husband and wife. It is further pleaded that Cheekoli Krishnan died on 12/8/1995, while he was residing with the defendant, and that she is the only legal heir of the deceased Cheekoli Krishnan. She denied the allegations in the plaint that Cheekoli Krishnan married the mother of the plaintiff and that Cheekoli Krishnan had 1/2 right over the plaint schedule property. According to the defendant, the plaint schedule property was acquired by her as per the registered lease deed No.1295/1958 dated 20/11/1958 produced and marked as Ext.B1, that ever since Ext.B1 lease deed, she enjoyed the property and she constructed a house therein with her own money, that she borrowed an amount of -3- A.S.No.957/98 & Cross Appeal. Rs.200/- from one Kunhikannan and that Ext.B2 dated 4/10/1960 was executed as security for the amount borrowed on the understanding that on repayment of the amount borrowed, within one year, he agreed to execute re-assignment deed in respect of the plaint schedule property in her favour. On the basis of the said agreement, which was stipulated in Ext.B2, this defendant paid Rs.200/- to the said Kunhikannan on 3/10/1961 and obtained the re-assignment deed in respect of the plaint schedule property from Kunhikannan, which was marked as Ext.A1. It is also pleaded that she being an illiterate woman did not understand the contents of Ext.B2 assignment deed and that she came to know later that the name of Cheekoli Krishnan was also included in Ext.A1 re-assignment deed. It is the defendant's case that Cheekoli Krishnan did not get any right overt the plaint schedule property on the basis of the re-assignment deed, that Ext.B2 executed by the defendant in favour of Kunhikannan was -4- A.S.No.957/98 & Cross Appeal. in fact intended to be a mortgage deed, that Ext.B2 was executed only as a security for the amount borrowed from Kunhikannan, that Ext.B2 is only a mortgage deed with conditional sale, that during the life time of deceased Cheekoli Krishnan he never claimed any right over the plaint schedule property, that when Cheekoli Krishnan was alive, the defendant obtained assignment of the intermediary right of Mathu over the plaint schedule property and that during the life time of Krishnan, this defendant obtained purchase certificate in respect of the plaint schedule property from the Land Tribunal, Vadakara in SMC.No.1249/1975. The defendant also contended that at the time of obtaining assignment of the intermediary right of Mathu and during the period when the purchase certificate was issued, the defendant and Cheekoli Krishnan were living under the same roof as husband and wife. She claimed that the entire consideration shown in Ext.A1 re-assignment deed was paid by -5- A.S.No.957/98 & Cross Appeal. her and she has constructed a house in the plaint schedule property at the cost of Rs.5,000/- as early as in the year 1959-60. According to the defendant, from the date of lease in 1958 she is holding the plaint schedule property as a tenant and subsequently she got jenm right over the property. On the basis of the said right, she had effected valuable improvements in the plaint schedule property, constructed a house and enjoyed the property peacefully. 4. On the side of the plaintiff PWs.1 to 5 were examined and Exts.A1 to A7 were marked and on the side of the defendant Dws.1 to 3 were examined and Exts.B1 to B11 were marked. 5. I have narrated the respective contentions of the parties. The trial court examined the oral and documentary evidence and discussed the respective contentions in detail. Ext.B1 is the earliest document which shows that the plaint -6- A.S.No.957/98 & Cross Appeal. schedule property was obtained by the defendant in the year 1958. Ext.B1 is the lease deed. The property was put in possession of the defendant permitting her to enjoy the property by effecting cultivation etc. Subsequently, for the purpose of raising some amount, the defendant executed Ext.B2 assignment deed in favour of one Kunhikannan. There is a clause in Ext.B2 that Kunhikannan shall re-convey the property on receiving back the sale consideration. On the basis of the said agreement between the parties, Kunhikannan executed Ext.A1 re- assignment deed; but in Ext.A1 the property was reassigned not only in the name of the defendant but also in the name of Cheekoli Krishnan. The defendant's case is that Ext.B2 assignment is a mortgage by conditional sale. Subsequently, the defendant obtained intermediary right by assignment and also approached the Land Tribunal for issuance of pattayam being a cultivating tenant. The Land Tribunal issued pattayam in the -7- A.S.No.957/98 & Cross Appeal. name of the defendant. The above-said facts show that the defendant was enjoying the property at the beginning as a cultivating tenant and subsequently as the patta holder. These facts and circumstances show that there is force in the contention of the defendant that Ext.B2 assignment deed executed by the defendant in favour of Kunhikannan in the year 1960 is a mortgage by conditional sale. The trial court, after examining the evidence of PWs. 1 to 3, Dws.1 to 3, Exts.A2, A5, A6 and A7 and other materials on record, held that the plaintiff was born in the lawful wedlock between Cheekkoli Krishnan and Paru and therefore, the plaintiff is a legal heir of deceased Cheekkoli Krishnan. The court below further held that the defendant is not the legally wedded wife of Cheekkoli Krishnan and therefore she is not his legal heir. 6. The plaintiff claimed right over the plaint schedule property on the basis of Ext.A1 re-assignment deed dated -8- A.S.No.957/98 & Cross Appeal. 3/10/1961 executed by Kunhikannan in favour of the defendant and Cheekoli Krishnan. In the preceding paragraphs I have discussed derivation of title of the defendant. The defendant got assignment of the leasehold right in the year 1958 by Ext.B1 registered kanam kuzhikanam deed. Subsequently, Ext.B2 assignment deed was executed by the defendant in favour of Kunhikannan on 4/10/1960. In the said deed it is recited that Kunhikannan shall re-convey the property on repayment of the amount shown as consideration in Ext.B2. Ext.B3 dated 7/7/1965 is the registered assignment deed executed by Mathu to the defendant. The intermediary right of the assignor was purchased by the defendant by Ext.B3 document. Ext.B4 is the purchase certificate obtained by the defendant in the year 1975. Ext.A1 is the assignment deed executed by Kunhikannan in favour of the defendant and Cheekoli Krishnan. Cheekoli Krishnan's name is also mentioned therein. The plaintiff has -9- A.S.No.957/98 & Cross Appeal. filed the suit claiming 1/2 share. It is the case of the defendant that as per the condition of re-purchase recited in Ext.B2 document, she re-paid the amount of Rs.200/- within one year and re-purchased the plaint schedule property from Kunhikannan as per Ext.A1. Being an illiterate lady, it is further stated that she has no knowledge about the mention of the name of Cheekoli Krishnan in Ext.A1 assignment deed. It is further stated by the defendant that even though the entire sale consideration shown in Ext.A1 was paid by her, the name of Cheekoli Krishnan was also included by Kunhikannan without her knowledge and she came to know about the said fact only when she received Ext.B7 registered lawyer notice sent by the plaintiff. In the light of the said facts, the trial court examined the question as to whether Ext.B2 transaction is a mortgage by conditional sale or a sale with a condition for re-transfer. It cannot be denied that Ext.B2 document would show that the condition for repurchase is -10- A.S.No.957/98 & Cross Appeal. embodied in Ext.B2 document itself. The recital in Ext.B2 would further show that the defendant had incurred a debt of Rs.200/- for constructing a house in the plaint schedule property and it was for raising funds for discharging that debt, she had executed Ext.B2 document in favour of Kunhikannan. The recitals in Ext.B2 document regarding re-assignment on payment of the same amount would clearly show that the intention of the parties was to create a mortgage by conditional sale and not a sale with a condition for re-transfer. DW1 testified before the court below that at the time of execution of Ext.B2 document, the construction of the house in that property was almost complete, for which she had spent more than Rs.5,000/-. The evidence of DW1 would further show that even after executing Ext.B2 document, she continues to possess and enjoy the property. The trial court had taken note of the fact that the testimony of PW1, who in cross- examination, testified that at the time of Ext.A1 -11- A.S.No.957/98 & Cross Appeal. assignment deed, the defendant and Krishnan were residing in the plaint schedule property. The said admission was also taken note of by the court below in order to hold that the defendant continues to possess and enjoy the property even after the execution of Ext.B2 assignment deed. The trial court, on an appreciation of the facts and circumstances of the case, which I have narrated above, concluded that Ext.B2 transaction is only a mortgage by conditional sale and not a sale with condition for re-transfer. 6. Ext.B3 assignment deed dated 7/7/1965 was executed at the time when Cheekkoli Krishnan was alive. Ext.B4 is the certificate of purchase in respect of the plaint schedule property obtained by the defendant in her name while she and the deceased Krishnan were living together under the same roof. Ext.B9 building tax receipt and Ext.B10 revenue receipt would further show that the defendant was in exclusive possession and -12- A.S.No.957/98 & Cross Appeal. enjoyment of the property, paying house tax and basic tax at the time when the defendant was residing with Cheekkoli Krishnan under the same roof. The findings recorded by the court below in the said circumstances, are based on the materials produced by the parties. I find that no sustainable grounds are made out to interfere with the findings recorded by the court below. In the result, the appeal fails and according dismissed. There will be no order as to costs. The respondent in the cross appeal died during the pendency of the appeal. The cross appellant did not take any steps to implead legal heirs of the deceased respondent. Therefore, the cross appeal is dismissed as abated. HARUN-UL-RASHID, JUDGE. kcv. -13- A.S.No.957/98 & Cross Appeal.