IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 SA.NO. 330 OF 2003() -------------------------------- AS.125/1999 OF ADDL. DISTRICT COURT, PARAVUR OS.288/1995 OF MUNSIFF COURT,ALUVA .................... APPELLANT(S): APPELLANTS/DEFENDANTS: ----------------------------------------------------------- DEVASSY, S/O. VAREED, PERUMAYAN VEEDU, KANJOOR KARA, VADAKKUMBHAGOM VILLAGE (DIED) ADDITIONAL RESPONDENTS IMPLEADED -------------------------- 2. P.D. VARGHESE, S/O. LATE DEVASSY, AGED 47 YEARS, PERUMAYAN HOUSE, THATTANPADY, KANJOOR P.O. 3. P.D.JOY, DO. DO. DO. DO. 4. P.D. SEBASTIAN, DO. DO. DO. DO. 5. VIMALA SEBASTIAN, AGED 32 YEARS, D/O. LATE DEVASSY, W/O. JOSE MATHEW REGISTERED NURSE – OT, THE CITY HOSPITAL DUBAI HEALTH CARE CITY, DUBAI P.O. BOX 505004, REPRESENTED BY POWER OF ATTORNEY HOLDER, P.D. VARGHESE PERUMAYAN HOUSE, THATTANPADY, KANJOOR P.O., KIZHAKKUMBHAGOM VILLAGE ALUVA TALUK. 6. SISTER JAISNA, AGED 30 YEARS, D/O. LATE DEVEASSY, SISTERS OF NAZRETH, PATHUVAPURAM, EDAKKUNNAM, KARUKUTTY. 7. MARIAM DEVASSY, W/O. LATE DEVASSY AGED 70 YEARS, PERUMAYAN HOUSE, THATTANPADY, KANJOOR P.O. ADDITIONAL APPELLANTS 2 TO 4 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT AS PER ORDER DATED 23.2.10 ON I.A. NO.485 OF 2010. BY ADV. SRI.V.V.SIDHARTHAN SRI.D.G.VIPIN RESPONDENT(S): RESPONDENTS/PLAINTIFFS: ---------------------------------------------------------------- 1. KUNJAPPAN, AGED 68 YEARS, S/O. KUTTAPPAN, ALLALANJI VEEDU, KANJOOR KARA, VADAKKUMBHAGOM VILLAGE. 2. RAJAN, AGED 33 YEARS, S/O. CHINNAPPAN, ALLALANJI VEEDU, KANJOOR KARA, VADAKKUMBHAGOM VILLAGE. 3. SAJEEVAN, AGED 28 YEARS, S/O. CHINNAPPAN, ALLALANJI VEEDU, KANJOOR KARA, VADAKKUMBHAGOM VILLAGE. 4. VIJAYAN, AGED 24 YEARS, S/O. CHINNAPPAN, ALLALANJI VEEDU, KANJOOR KARA, VADAKKUMBHAGOM VILLAGE. 5. RAJEEV, AGED 19 YEARS, S/O. CHINNAPPAN, ALLALANJI VEEDU, KANJOOR KARA, VADAKKUMBHAGOM VILLAGE. 6. SARASAMMA, AGED 51 YEARS, W/O. CHINNAPPAN, ALLALANJI VEEDU, KANJOOR KARA, VADAKKUMBHAGOM VILLAGE. 7. SYAMALA, AGED 30 YEARS, D/O. CHINNAPPAN, ALLALANJI VEEDU, KANJOOR KARA, VADAKKUMBHAGOM VILLAGE. ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. NO.330 of 2003 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th day of March, 2010 J U D G M E N T --------------------- Second Appeal arises from judgment and decree of learned additional District Judge, North Paravur in A.S. No.125 of 1999 confirming judgment and decree of learned Munsiff, Aluva in O.S. No.288 of 1995. Respondents-plaintiffs sued for declaration of title claimed by them over the suit property and for a decree for prohibitory injunction. According to them suit property originally belonged to one Kuttappan and on the death of Kuttappan Ext.A1, partition deed No.144 of 1965 was executed among the legal heirs of the said Kuttappan including respondent No.1 as per which the suit property (A schedule in the partition deed) was allotted to Ichira, wife of the late Kuttappan.. According to the respondents on the death of Ichira the said property was to go to respondent No.1/plaintiff No.1 and Chinnappan, another legal heir of the late Kuttappan. Ichira died 17 years back and thereon the property devolved on respondent No.1/plaintiff No.1 and other respondents who are legal heirs of Chinnappan. It is the further case of respondents that in the resurvey suit property was shown as S.A. No.330 of 2003 -: 2 :- belonging to one Chakkalakal Rosa. Respondents have applied for correction of the resurvey records. Appellant is attempting to trespass into the suit property. Hence the suit. Appellant contended that in the year, 1965 Ichira had sold 20 cents (excluding one cent provided for way) to him for a consideration of Rs.125/- per cent. She received Rs.2,100/- out of the total sale consideration of Rs.2,500/- and put the appellant in possession of the property. He effected improvements in the property. After the death of Ichira, Chinnappan and respondent No.1 received the balance sale consideration (Rs.400/-) from him and executed an agreement for sale dated 31.3.1992 a photocopy of which is marked as Ext.B1. According to the appellant, respondents have no right or possession of the suit property. Trial court found against due execution of Ext.B1 and held that suit property belonged to all the legal representatives of the late Ichira since Ext.A1 did not contain any recital excluding inheritance of the property by all the legal representatives of Ichira on her death. Trial court also found from the evidence that respondents are in possession of the property and accordingly granted a decree as prayed for. First appellate court has confirmed the judgment and decree. Hence the Second Appeal S.A. No.330 of 2003 -: 3 :- urging by way of substantial questions of law whether courts below went wrong in holding against possession claimed by the appellant in the light of Ext.B1, whether appellant is not entitled to the protection of Section 53A of the Transfer of Property Act (for short, “the Act”) in view of Ext.B1 coupled with the possession of the property by him and whether the suit ought to have been dismissed for non-joinder of necessary parties. Pending Second Appeal the sole appellant died and his legal representatives are impleaded as supplemental appellants. Learned counsel for supplemental appellants raising the above points contended that findings of the courts below are not correct. According to the learned counsel courts below ought to have found in favour of due execution of Ext.B1 in the light of the evidence given by the parties. Finding on possession is also not sustainable. At any rate in so far as all the legal representatives of the late Ichira are not made parties the suit ought to have been dismissed for non-joinder of necessary parties. Learned counsel for respondents supported the findings, judgment and decree of the courts below. 2. So far as non-impleadment of all the legal representatives of the late Ichira is concerned though respondents S.A. No.330 of 2003 -: 4 :- came with the case that as per terms and conditions of Ext.A1, partition deed the suit property which was allotted to Ichira was to go to respondent No.1 and the late Chinnappan (whose legal representatives are respondent Nos.2 onwards), trial court found from Ext.A1 that there was no such recital in Ext.A1 and hence on the death of Ichira her property should go to all her legal representatives. It is not disputed that all legal representatives of the late Ichira are not impleaded in the suit. But it is not as if respondents are not legal representatives of the late Ichira. It is settled position of law that one co-owner can seek relief (for and on behalf of all the legal heirs). In this case respondents are co-owners along with other legal representatives of the late Ichira and that finding of the trial court is not challenged by the respondents. As such I do not think that at this stage it is necessary to non-suit the respondents for the reason that all legal heirs of the late Ichira are not made parties to the suit or remand the case for their impleadment particularly the finding of the courts below in that regard is not challenged by the respondents. As such no substantial question of law in that regard is involved for a decision. 3. So far as alleged execution of Ext.B1 is concerned what S.A. No.330 of 2003 -: 5 :- is available on record is only the photocopy of that document. Respondents have denied its execution. According to the supplemental appellants the late Ichira sold 20 cents (excluding one cent provided for a way) to the deceased appellant in the year 1965 and received major portion of the sale consideration. It is the case of deceased appellant that he was put in possession of the property. After the death of Ichira respondent No.1 and Chinnappan, another legal heir of the late Ichira received the balance sale consideration of Rs.400/- on 31.3.1992 and executed an agreement for sale on that day. Respondent No.2 who gave evidence as P.W2 denied that there was any such transaction and that he is a party to Ext.B1. It is true that in cross-examination he stated that the 'original' is with him but in re-examination he clarified that what he meant by the expression 'original' is the original of the title deed and not of Ext.B1. Learned counsel for supplemental appellants would contend that normally when an agreement is executed its original will be with the executant. But I do not find any precedent for that view. At any rate, the document in this case is allegedly executed in favour of the deceased appellant. I must also bear in mind that deceased appellant was a S.A. No.330 of 2003 -: 6 :- surveyor by profession who would not have been unaware of the situation in which he was placed. The alleged sale pleaded by him was in the year 1965 and his claim is that after the death of Ichira agreement was allegedly executed on 31.3.1992. There is no case or evidence that during the lifetime of the late Ichira deceased appellant had taken any steps to get the sale deed executed. The alleged sale in the year 1965 cannot confer title on the deceased appellant since even according to him the sale was a for a consideration exceeding Rs.100/-. Hence the sale pleaded in the year 1965 is of no consequence and cannot bind the suit property. So far as Ext.B1 is concerned even in spite of the fact that it was allegedly executed on 31.3.1992 deceased appellant who was a surveyor by profession took no steps to get the sale deed executed for about three years (suit was filed in the year 1995). D.W.1 stated that original of Ext.B1 is written by him and that was signed by respondent No.1 and Chinnappan. D.W.2, witness examined on the side of deceased appellant would say that deceased appellant approached him 3-4 years back (of his examination in court) to prepare the agreement regarding the suit property. He would say that the documents were entrusted to his Master for S.A. No.330 of 2003 -: 7 :- preparation of the agreement and after preparation of the agreement the same were taken back. In cross-examination he stated that documents were taken back by respondent No.1. D.W.3 is the deceased appellant. He, of course deposed to the execution of Ext.B1. He also produced Exts.B2 to B4, receipts for payment of revenue during 1980, 1993 and 1995. D.Ws.4 and 5 are witnesses examined to speak about possession of deceased appellant over the suit property. D.W.6 is the attester in Ext.B1. On the other hand respondents examined P.Ws.3 and 4 to prove that they are in possession of the suit property and produced Ext.A2 for payment of revenue. Trial court observed that deceased appellant being a surveyor and the alleged sale having been effected in the year 1965 it is unlikely that he waited till 1992 to get an agreement executed. That, even after 1992 for about three years deceased appellant had not taken steps to get the sale deed executed was also taken as a circumstance against him. Courts below have also adverted to Exts.C1 and C2, report and sketch prepared by the Advocate Commissioner. Going by the report, house of deceased appellant is situated about 50 metres away from the suit property and suit property was seen separated with mud ridges. Thus S.A. No.330 of 2003 -: 8 :- courts below on the evidence on record found against the alleged sale in the year 1965 and the alleged agreement for sale in the year 1992. Regarding possession also courts below found against the appellants. Above findings are entered on a proper appreciation of the evidence on record and did not involve any substantial question of law. Since execution of the agreement for sale has been found against and the case of deceased appellant as to possession of the suit property is not accepted, Sec.53A of the Act has no application. 4. On going through the judgment and decree under challenge and hearing counsel on both sides I am satisfied that no substantial question of law is involved requiring admission of the Second Appeal. Second Appeal is dismissed in limine. Civil Miscellaneous Application No.1198 of 2003 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv S.A. No.330 of 2003 -: 9 :- THOMAS P.JOSEPH, J. =================== S.A. NO.330 of 2003 =================== J U D G M E N T 5TH MARCH, 2010 S.A. No.330 of 2003 -: 10 :-