IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 11TH FEBRUARY 2008 / 22ND MAGHA 1929 RSA.No. 1094 of 2005(E) --------------------------------- AS.352/2003 of V ADDL. DISTRICT COURT, ERNAKULAM OS.18/2001 of II ADDL.M.C., ERNAKULAM .................... APPELLANT/ APPELLANT/ IST DEFENDANT -------------------------- PHILOMINA @ LILLY, AGED 45 YEARS, W/O.P.M.XAVIER, PARAYANTHARA HOUSE, PARAMBITHARA ROUND, NEAR RAILWAY GATE, PANAMPILLY NAGAR, KOCHI-15. BY ADV. SRI.P.SANTHALINGAM SRI.INNOCENT FRANCIS PAPALI RESPONDENTS: ---------------------- 1. GEORGE, S/O.KURIAN, AGED 73 YEARS, RESIDING AT KATTITHARA HOUSE, ELAMKULAM VILLAGE, KANAYANNUR TALUK. 2. MR.SANKARA NARAYANAN BHATTATHIRIPPAD, S/O.SREEDEVI ANTHERJANAM, AGED 70 YEARS, RESIDING AT EDATHAMRA MANA, ELAMKULAM VILLAGE, ELAMKULAM DESOM, KANAYANNUR TALUK. 3. MR.SREEDHARAN BHATTATHIRIPPAD, S/O.SREEDEVI ANTHERJANAM, AGED 64 YEARS, DO. DO. 4. MR.RAMAN BHATTATHIRIPPAD, S/O.SREEDEVI ANTHERJANAM, AGED 63 YEARS, DO. DO. 5. MR.ARYAN BHATTATHIRIPPAD, AGED 59 YEARS, DO. DO. (DIED) 6. MR.VIROOPAKSHAN BHATTATHIRIPPAD, S/O.ARYAN BHATTATHIRIPPAD, AGED 53 YEARS, DO. DO. R.S.A. NO.1094/2005 ADDL. R7 TO R9 ARE IMPLEADED 7. DR.NIRMALA, W/O. ARYAN BHATTATHIRIPAD EDATHAMRA MAN, ELAMKULAM VILLAGE ELAMKULAM DASOM, KANAYANNUR TALUK. 8. DR. SARITHA, D/O. DO. DO. 9. AMRITHA D/O. DO. DO. ADDL. R7 TO R9 ARE IMPLEADED AS THE LRS OF DECEASED 5TH RESPONDENT AS PER ORDER DT. 11.10.07 IN IA. 1955/06. BY ADV. SRI.P.A.ABDUL JABBAR - R1 SRI.MADHU N.NAMBOOTHIRIPAD R2 TO R4 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 1094 OF 2005 =========================== Dated this the 11th day of February, 2008 JUDGMENT First defendant in O.S.18/2001 on the file of Additional Munsiff Court, Ernakulam is the appellant. First respondent is the plaintiff and other respondents are the other defendants. Plaint schedule property is 4 cents in survey No.455/2 of Elamkulam Village. First respondent is the father of appellant. It is admitted case that first respondent the father and his wife were living in a house in their property at Mulavukad. They have four children including appellant. All the children were living separately. Appellant and her husband persuaded first respondent to purchase a property near to the kudikidappu house of husband of appellant. First respondent sold his property at Mulavukad and plaint schedule property was purchased under Ext.A1 sale deed. Ext.A1 stands in the name of appellant. The case of first R.S.A.1094/2005 2 respondent is that though the document stands in the name of appellant it was he who purchased the property and he paid Rs.20,000/- as advance to respondents 2 to 6 the owners on 25.4.1999 and thereafter on 30.6.1999 he paid Rs.30,000/- being the balance consideration and possession of the property was handed over on 30.6.1999 and he reclaimed the property and constructed a house and is residing therein. It is contended that appellant and her husband had gone to the scribe to get the document prepared and appellant along with the husband fraudulently obtained the document in the name of appellant and the sale deed was kept under her safe custody and first respondent believed the daughter and only in September 2000 he asked the appellant for the document to produce before the Corporation and she reluctantly handed over the title deed and then it was found that the document was obtained in the name of appellant. Contending that appellant is not the owner of the plaint schedule property and Ext.A1 sale deed was fraudulently obtained in the name of appellant, a decree for declaration that Ext.A1 R.S.A.1094/2005 3 sale deed was null and void and appellant did not derive any right and first respondent is the owner of the property was sought for. A decree for permanent prohibitory injunction restraining appellant from alienating or otherwise encumbering the plaint schedule property or forcefully dispossessing first respondent from plaint schedule property was also sought for. 2. Appellant resisted the suit contending that she and her husband purchased the property and first respondent approached the appellant to give him a shelter and he was allowed to live with them temporarily and he has no right over the property. Respondents 2 to 5 filed a joint written statement contending that it is the appellant and her husband who got the documents prepared and they executed the sale deed in good faith and confidence and if appellant had done any illegal act they are not responsible. 3.Learned Munsiff on the evidence of PW1, Dws.1 and 2, Exts.A1 to A4, C1 to C2(a) found that the recital in Ext.A1 itself establish that the document is fraudulently created in the name of R.S.A.1094/2005 4 appellant. The trial court took note of the fact that property was assigned in the name of appellant stating that first respondent is the kudikidappukaran and he died and on his death the property devolved on the appellant and therefore the property is being sold to her. Learned Munsiff found that the consideration was paid by first respondent after alienating his property and transaction was entered into with the help of appellant and her husband and it is clear that it is first respondent who purchased the property and granted a decree as sought for. Appellant challenged the judgmet before District Court,Ernakulam in A.S.352/2003. Learned District Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for appellant was heard. 5. The argument of the learned counsel is that under Ext.A1 sale appellant purchased the property and appellant has no other property and therefore courts below should not have granted a decree in R.S.A.1094/2005 5 favour of first respondent. 6. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 7. Ext.A1 shows that the property was assigned in favour of appellant on the basis that what is being assigned is the kudikidappu right which is available to the father of appellant and as the father is no more the right is transferred to the daughter appellant. That father is the first respondent plaintiff. Courts below appreciated the evidence in the propert perspective and found that consideration for Ext.A1 was paid by first respondent and property was purchased by him and though the property was fraudulently obtained in the name of appellant, appellant has no right in the property. In the light of the factual finding, I do not find any merit in the appeal. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006