IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH SEPTEMBER 2009 / 23RD BHADRA 1931 RSA.No. 844 of 2009() --------------------- AS.4/2006 of DISTRICT COURT, PALAKKAD OS.27/1998 of SUB COURT, OTTAPPALAM .................... APPELLANT(S): APPELLANT/PLAINTIFF --------------------------------------- NEELAKANDAN, AGED 56, S/O. MANAKKATHODIYIL LATE BALAKRISHNANEZHUTHASSAN THRIKKANGODE AMSOM, CHOROTTOOR DESOM, OTTAPPALAM TALUK. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON SMT.ANJU P.NAIR RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------- 1. RAMAKRISHNAN, 60 YEARS, S/O. MANAKKATHODIYIL LATE BALAKRISHNANEZHUTHASSAN, THRIKKANGODE AMSOM, CHOROTTOOR DESOM, OTTAPPALAM TALUK. 2. UNNIKRISHNAN, 58 YEARS, S/O. DO- R/AT -DO- 3. DEEPA, 31 YEARS D/O. -DO- R/AT -DO- 4. SHEEBA, 29 YEARS, D/O. -DO- R/AT -DO- 5. SOBHA, 28 YEARS, D/O. -DO- R/AT -DO- 6. SREEJA, 22 YEARS, D/O. -DO- R/AT -DO- THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.844 of 2009 -------------------------------------- Dated this the 14th day of September, 2009. JUDGMENT This Second Appeal is brought from judgment and decree of learned District Judge, Palakkad in A.S.No.4 of 2006 confirming judgment and decree of learned Sub Judge, Ottappalam in O.S.No.27 of 1998. Appellant sued for partition and separate possession of his one third share in the suit property claiming that his mother Madhavi Amma got the property as per partition deed No.683 of 1981 dated 28.2.1981 certified copy of which is marked as Ext.A1. The said Madhavi Amma died on 10.10.1997 as proved by Ext.A3. Appellant and respondents are children of the said Madhavi Amma. After the death of Madhavi Amma, appellant filed the suit for partition claiming that he is in joint possession of the suit property with respondent Nos.1 and 2 and seeking separate possession of his one third share. Respondent No.1 admitted that property originally belonged to Madhavi Amma but claimed that she assigned the property to his minor children (subsequently impleaded as additional defendant Nos.3 to 6, who are respondent Nos.3 to 6 herein) as per Ext.B1, assignment deed No.2708 of 1993 and that himself is managing the property on behalf of his minor children, assignees under the assignment deed. He also contended that as per partition deed No.683 of 1981, mother was obliged to pay Rs.1,500/- to respondent No.2 which respondent No.1/defendant No.1 paid as per Ext.B2, receipt dated 29.7.1997 on behalf of respondent Nos.3 to 6. A sum of Rs.1,500/- RSA No.844/2009 2 was payable to the appellant and since appellant did not receive the same respondent No.1 on behalf of respondent Nos.3 to 6 filed O.P.No.20 of 1990 and deposited amount payable to the appellant in that proceeding but appellant was not prepared to receive the same. In view of contention raised by respondent No.1 about assignment in favour of his children (respondent Nos.3 to 6) appellant amended the plaint contending that there was no possibility of the mother executing any such assignment deed and that at any rate the assignment deed is a sham document. It is also contended that mother never parted with the possession of the suit property. In answer to that, respondent No.1 filed additional written statement asserting title and possession with respondent Nos.3 to 6 as per the assignment deed in question. Respondent Nos.3 to 6 who were impleaded as additional defendants filed written statement taking up similar contentions. Respondent No.2/defendant No.2 did not contest the suit. Appellant proved Exts.A1 to A8 and gave evidence as PW1. Respondent No.1 gave evidence as DW1 on behalf of respondent Nos.3 to 6 and proved Exts.B1 to B7 series. Exts.X1 to X3 are also marked in evidence. Trial court found in favour of due execution of Ext.B1 (certified copy of which is Ext.A8). It was found that contention of appellant that Ext.B1 is a sham document is not proved and consequently, holding that Madhavi Amma had no right, title or interest on the suit property on the date of her death, dismissed the suit. Aggrieved, appellant took up the matter in appeal but, met with the same result. Hence this Second Appeal raising the following substantial questions of law: RSA No.844/2009 3 i. Whether averment in paragraph No.6A of the plaint is sufficient to challenge the validity of Ext.B1? ii. Whether in the light of the contention raised by the appellant, burden was on the respondents to prove execution of Ext.B1? 2. It is true that in paragraph Nos.6A and 6B of the plaint incorporated by amendment consequent to the contention raised by the respondents, it is contended that there was no possibility of Madhavi Amma executing any such assignment deed like Ext.B1 and that if at all any document is executed it is fraudulently created and is sham. Under Order 6 Rule 4 of the Code of Civil Procedure when a document is challenged on the ground of fraud, the party alleging fraud is required to give particulars of such fraud. I do not find any such particulars even in the amended plaint. So far as execution of Ext.B1 is concerned, it is a registered document genuineness of which can be presumed and the courts below have found in favour of its due execution based on evidence which is a finding of fact which is not required to be interfered in Second Appeal. 3. On the question whether the document is sham it has been held by the Apex Court in Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo [(2009) 5 SCC 713] that when a plea that the document is sham is raised, burden is on the person who contends so. Hence burden of proving that Ext.B1 is sham was on the appellant. Appellant has produced RSA No.844/2009 4 Ext.A6 series to prove payment of building tax in the name of the mother even after Ext.B1. Exts.X1 to X3, applications for renewal of ration card, voters list, ledger extract and application to the Co-operative Society are produced to show that Madhavi Amma was residing in the building in the property even after Ext.B1. On the other hand, respondent Nos.1 and 3 to 6 have produced Exts.B7 to B9. Ext.B2 is receipt dated 29.7.1997 for payment of Rs.1,500/- on behalf of Madhavi Amma as recited in the partition deed to respondent No.2. Ext.B3 is receipt dated 30.4.1993 for payment of land revenue by the said Madhavi Amma concededly before Ext.B1. Ext.B4 series are receipts for payment of land revenue which shows that mutation was effected in favour of respondent Nos.3 to 6 based on Ext.B1. Ext.B5 is house tax receipt dated 11.2.1993 ofcourse paid in the name of said Madhavi Amma but before Ext.B1. Ext.B6 series show payment of house tax by respondent Nos.3 to 6 after the assignment. Thus, there is evidence to show that consequent to Ext.B1, assignment deed mutation was changed in the name of respondent Nos.3 to 6 and they paid tax. Mere fact that Madhavi Amma was residing in the very same building in the property even after assignment does not mean that property in question was not in the possession of respondent Nos.3 to 6 or that the transaction was sham or fraudulent as contended by the appellant. A further fact is that Madhavi Amma died only on 10.10.1997 though Ext.B1 was executed and registered on 23.8.1993. Appellant has no case for what reason Madhavi Amma had to create a sham document like Ext.B1. On going through the judgments RSA No.844/2009 5 under challenge and hearing learned counsel I do not find any substantial question of law in this Second Appeal requiring this Court to consider the same. Resultantly, this Second Appeal fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks