IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 SA.No. 21 of 1995(C) -------------------- AS.189/1993 of III ADDL.SUB COURT,ERNAKULAM OS.23/1988 of I ADDL.MUNSIFF COURT,ERNAKULAM .................... APPELLANT(S)/RESPONDENTS 1 & 2/DEFENDANTS 1 & 2: -------------- 1. BALAKRISHNAN, CONTRACTOR, VARIYAMPURATH HOUSE, NADAMA VILLAGE, KANAYANNUR TALUK. 2. SAVITHRI, W/O.BALAKRISNNAN, -DO- -DO- BY ADV. SRI.P.R.VENKETESH RESPONDENT(S)/APPELLANT & RESPODNENTS 3 TO 11/PLAINTIFF AND DEFENDANTS 3 TO 11: --------------- 1. KALYANI, MANJAKATTIL, THIRUVAMKULAM, THIRUVAMKULAM VILLAGE, KANAYANNUR TALUK. (**)2. PADMAKSHI, W/O.LATE ACHUTHAN, VARIYAMPURATH HOUSE, NADAMA VILLAGE, KANAYANNUR TALUK.(DIED. LR IMPLEADED AS R11) (*)3. PARAMESWARAN, -DO- -DO- (DIED. LRS RECORDED) 4. GIRIJAN, -DO- -DO- 5. NALINI, -DO- -DO- 6. PRAKASAN, -DO- -DO- 7. SASIDHARAN, -DO- -DO- 8. SOMAN, -DO- -DO- 9. KRISHNAN, SINDHU NIVAS, NEAR TRIPUNITHURA RAILWAY STATION. (*)10. VIJAYAN, OWNER OF CENTRAL BAKERY, TRIPUNITHURA DESOM, NADAMA VILLAGE, KANAYANNUR TALUK (V.VIJAYAN, RANJINI NIVAS, PALLIPPARAMBU KAVU, TRIPUNITHURA) (DIED. APPELLANTS EXEMPTED FROM RECORDING THE LRS) S.A.NO.21/1995 2 (**)ADDL.R11 IMPLEADED: 11. CHANDRAN V.B., BALAKRISHNAN, VARIYAMPURATH, NADAMA, TRIPUNITHURA. (*)IST APPELLANT AND RESPONDENTS 1 AND 9 ARE RECORDED AS LRS OF DECEASED R3 AND APPELLANTS ARE EXEMPTED FROM SUBSTITUTING THE LRS OF DECEASED R10 AT THE RISK OF THE APPELLANT AS PER ORDER DATED 19.2.2008 IN IA NOS.216/2008 AND 215/2008 RESPECTIVELY. (**)ADDL.R11 IMPLEADED AS LEGAL REPRESENTATIVE OF DECEASED RESPONDENT NO.2 VIDE ORDER DATED 21.10.2009 IN IA NO.233/2008 ADV. SRI.B.GOPAKUMAR FOR R1 SMT.CHINCY GOPAKUMAR FOR R1 SRI P.RAVINDRANATH FOR R1 SRI.K.C.ELDHO FOR R9 SMT.VILASINI NAYAK FOR R9 SRI.ABRAHAM GEORGE JACOB FOR ADDL.R11 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.21 of 1995 -------------------------------------- Dated this the 21st day of October, 2009. JUDGMENT Second Appeal arises at the instance of defendant Nos.1 and 2 in O.S.No.23 of 1988. Parties are referred to as plaintiff and defendants as in the trial court for convenience. 2. Plaintiff, defendant Nos.1, 4 and 10, the late Velayudhan, the late Padmanabhan and the late Karthyayani are children of Achuthan (he died in the year 1959). Padmanabhan died as a bachelor. Defendant No.3 is the wife of the late Velayudhan. Defendant Nos.5 to 9 are children of the late Karthyayani. Defendant No.11 claimed to have entered into some agreement with defendant No.1 to purchase a portion of the suit property. Case of the plaintiff is that late Achuthan was residing in the building in the suit property since long taking income therefrom. While so, a document was obtained on 17.7.1957 in the name of defendant No.1 from the prior owner, Keralavarma Thampuran getting assignment of the entire right over the property in favour of defendant No.1. According to the plaintiff, at the time of that document Achuthan was aged about 70 years and was dependant on defendant No.1. That document was taken by defendant No.1 without the consent of the plaintiff or other legal representatives (of Achuthan). While so, defendant No.1 executed a document in favour of Velayudhan, husband of defendant No.3 as document No.896 of 1957 dated SA No.21/1995 2 26.9.1957. Plaintiff would say that the said document has not taken effect, it was not intended to take effect, nor does it bind the plaintiff or others. Document No.632 of 1958 dated 23.7.1958 was got executed by defendant No.1 from late Achuthan getting release of his right in the suit property for a consideration of Rs.2,300/-. Plaintiff would say that there was no occasion for executing such document and that Achuthan did not have the mental capacity or financial stability to execute such document. Moreover, defendant No.1 had no right to get any document executed without the consent of other legal representatives. It is stated that document No.632 of 1958 was got executed by defendant No.1 exercising undue influence. Plaintiff learnt about the document only recently when defendant No.11 asked her about her right in the suit property. Plaintiff claimed that she has been in joint possession of the property with other legal representatives of Achuthan and that the right which Achuthan had in the suit property existed even now. That right is heritable and thus, plaintiff and other legal representatives got right in the suit property. Accordingly she prayed for partition and separate possession of her one sixth share in the suit property “after finding that the above said documents are null and void and are sham”. Defendant Nos.1 and 2 resisted the suit contending that the late Achuthan was residing in the suit property as a 'kudikidappukaran' and that the suit property originally belonged to the Cochin Royal Family in jenm. The property was owned by the late Kavoo Thampuran. While so, there was a partition in the Royal Family and the suit property was allotted to the share of SA No.21/1995 3 Keralavarma Thampuran, son of .Kavoo Thampuran. He executed document No.718 of 1057 dated 17.7.1957 transferring his right, title, interest and possession of the suit property in favour of defendant No.1 receiving consideration of Rs.3,752/-. The amount retained with defendant No.1 to be paid to the late Achuthan was paid to him and received by him. It is contended that 30 cents out of the suit property was sold to Velayudhan, eldest brother of defendant No.1 on 26.9.1957. Later defendant No.1 executed a gift deed in favour of defendant No.2 in the year 1968 and presently defendant No.2 is in possession of the suit property. It is incorrect to say that the documents are got executed in the manner stated in the plaint. It is also not correct to say that the documents have not taken effect or are sham. Plaintiff has no right or interest in the suit property. Plaintiff was aware of execution of the documents during the relevant time itself. Defendant No.3 adopted the contentions of defendant Nos.1 and 2. She claimed that defendant No.1 sold 30 cents from the suit property to her husband, the late Velayudhan on 26.9.1957 as per a registered document. Defendant Nos.4 and 10 supported defendant Nos.1 and 2. Learned Munsiff found that plaintiff has no partiable right in the suit property and dismissed the suit. Plaintiff took up the matter in appeal. First appellate court found that Exts.A1 to A3 are sham documents which have not taken effect and reversing the judgment and decree of the trial court the suit was decreed. A SA No.21/1995 4 preliminary decree for partition was passed in favour of the plaintiff. That judgment and preliminary decree are under challenge in this Second Appeal at the instance of defendant Nos.1 and 2. 3. Following substantial questions of law are framed for a decision: i. When there are registered documents in respect of a property and right is claimed only as a sharer by the plaintiff, could partition be allowed without a declaration to the effect that plaintiff is entitled to a share in the suit? ii. Was not the first appellate court wrong in concluding that Exts.A1 to A3 are sham transactions, in the absence of any evidence in that line? It is contended by learned counsel for appellants/defendant Nos.1 and 2 that in the nature of the averments in the plaint attacking the relevant documents, plaintiff could not succeed without incorporating a prayer for declaration of the right claimed by her or, to set aside the documents which according to her, stand against her. It is also the contention of learned counsel that the first appellate court was not legally correct in concluding that Exts.A1 to A3 are sham documents in the absence of any evidence to that effect. Learned counsel contends that the failure of plaintiff to mount the witness box is fatal and placed reliance on the decisions in Iswar Bhai C.Patel v. Harihar Behera [AIR SA No.21/1995 5 1999 SC 1341] and Vidhyadhar v. Manikrao [AIR 1999 SC 1441]. Per contra, it is contended by learned counsel for plaintiff that the only contention raised by the plaintiff in the trial court and the first appellate court as regards the documents in question is that the said documents are sham, which does not require a declaration to that effect. According to the learned counsel it is sufficient that plaintiff avoided the said documents by appropriate plea and produced evidence to show that the said documents are sham and have not taken effect. Learned counsel would contend that the first appellate court was justified on evidence in concluding that Exts.A1 to A3 are sham and have not taken effect. Further contention is that the said finding is one on fact, no substantial question of law is involved and this Court is not justified in interfering on a finding of fact entered by the first appellate court. 4. Ext.A1 is the certified copy of sale deed dated 17.7.1957 executed by Keralavarma Thampuran in favour of defendant No.1 purporting to transfer his right, title, interest and possession over the suit property – 1.46 ½ acres for the consideration mentioned therein and directing that defendant No.1 shall pay certain amount to Achuthan, his father who has been residing in the suit property since time immemorial looking after that property. Ext.A2 is the certified copy of sale deed dated 26.9.1957 executed by defendant No.1 in favour of his eldest brother, the late Velayudhan (husband of defendant No.3) conveying right, title, interest and possession of 30 cents from the said 1.46 ½ acres. Ext.A3 (Ext.B2 SA No.21/1995 6 is the original) is the certified copy of release deed dated 23.7.1958 executed by the late Achuthan in favour of defendant No.1 releasing his right over 1.15 ½ acres from out of the suit property (less 30 cents covered by Ext.A2) for the consideration mentioned therein. Ext.A4 is the certified copy of gift deed dated 5.7.1968 executed by defendant No.1 in favour of defendant No.2 concerning 1.46 ½ acres. I shall refer to the rest of documents a bit later. 5. According to the plaintiff, as seen from the averments in paragraph No.3 of the plaint Ext.A1 was got executed by defendant No.1 without the consent of plaintiff or other legal representatives (meaning those were entitled to a share in the suit property after the death of Achuthan). So far as Ext.A2 is concerned the averment in the plaint is that it is a sham document which has not taken effect, nor intended to take effect. When it comes to Ext.A3, averment in paragraph No.3 of the plaint is that there was no occasion for Achuthan to execute any such document, nor had he the mental capacity to do so. In paragraph No.4 of the plaint it is stated that it was exercising undue influence that Ext.A3 was got executed. In the relief portion it is stated that the said documents are null and void, sham and holding so, plaintiff may be granted a decree for partition and separate possession of her one sixth share. 6. Contention raised by learned counsel for defendant Nos.1 and 2/appellants is that in that nature of the attack against Exts.A1 to A3, without a prayer for declaration regarding the validity of the said documents in the manner SA No.21/1995 7 pleaded by the plaintiff or, without setting aside those documents plaintiff could not ask for the relief of partition as if she were a co-owner of the suit property. Learned counsel for plaintiff in response would contend that the plea raised concerning Exts.A1 to A3 is only that the said documents are sham and that was how those documents were attacked in the first appellate court also That being the plea, a declaration or setting aside of the documents is not required before seeking partition, according to the learned counsel. 7. If a document is sought to be attacked on the ground that it is null and void or it is sham having not taken effect, a declaration to that effect or setting aside the document is not required. Reason is that so far as a document which is null and void is concerned, it is non est in the eye of law and can be ignored by proving the same to be null and void. When a document is attacked on the ground that it is sham, then also in my view, a declaration to that effect or setting aside that document is not required since a sham document cannot create rights or obligations or affect the rights of parties concerned. The decision of the Madras High Court in Venkatrama Aiyar and others v. Krishnammal and another [AIR 1927 Madras 255] and the decision of this Court in Gouri Amma Vaidehi Amma v. Parameswaran Pillai Madhavan Pillai [1956 KLT 431] support that view. Therefore, so far as the contention of plaintiff that the documents are sham is concerned, even SA No.21/1995 8 without setting aside those documents or seeking a declaration to that effect, it was well within the right of the plaintiff to seek partition and separate possession of the share claimed by her. But, if a document is attacked on the ground that the executant was not having the mental capacity to execute that document or it was got executed under undue influence, then it is only voidable in nature, remains valid till avoided and has to be set aside in the manner known to law. In the plaint, it is stated that at the time Ext.A3 was executed by late Achuthan he did not have the mental capacity to do so. It is also stated that the said document was got executed by defendant No.1 using undue influence. Son of plaintiff when examined as PW1 asserted in chief examination that at the time Ext.A3 was executed Achuthan was not having sound disposing state of mind. He further stated that it was executed fraudulently. If that be so, plaintiff had to set aside the said document (Ext.A3) before claiming partition. However, it is stated by learned counsel for the plaintiff that plaintiff is not pursuing such a contention and her contention is only that Ext.A3 is sham and has not taken effect. Though what is stated in the relief portion in the plaint is not a substitute for pleadings, what is prayed for is that partition may be ordered after holding that Exts.A1 to A3 are sham and null and void. That is how plaintiff presented her case in the first appellate court also as seen from the finding entered by that SA No.21/1995 9 court and the learned counsel for plaintiff submits. In the circumstances I hold that a declaration or setting aside of the documents as suggested by learned counsel for defendant Nos.1 and 2, before seeking partition was not necessary. 8. Now I shall come to the question whether finding of the first appellate court, in reversal of the finding of the trial court that Exts.A1 to A3 are sham and that plaintiff has partiable interest in the property is supported by any evidence. What is stated in the plaint is that late Achuthan was residing in the building in the suit property and taking yield from time immemorial. Apart from the said averment there is nothing averred in the plaint to indicate that Achuthan had any other right or interest in the suit property. Though it is contended by learned counsel for plaintiff that the recital in Ext.A1 would show that Achuthan had been making customary payments to Keralavarma Thampuran which is indicative of a tenancy in favour of the late Achuthan, I do not find any such averment in the plaint nor evidence on the side of PW1 who testified for the plaintiff. There is no averment in the plaint that suit property was entrusted to the late Achuthan for effecting cultivation or that he was empowered or authorised to effect such cultivation. A 'cultivating tenant' is defined in Section 2(8) of the Kerala Land Reforms Act as “ a tenant who is in actual possession of and is entitled to cultivate the land comprised in his holding”. I do not find any such averment in the plaint or evidence in that line. Exts.A1 and A3 (which ofcourse plaintiff challenge as 'sham') only say that late Achuthan was a SA No.21/1995 10 caretaker of the suit property residing in the house therein since long. That does not make him a cultivating tenant. Therefore, that contention of the learned counsel cannot be accepted. 9. Learned counsel for plaintiff contended that there is no evidence to show that Keralavarma Thampuran, the executant of Ext.A1 had any right over the suit property as stated in Ext.A1. Ext.A1 states that it was by way of a partition in the Royal Family that Keralavarma Thampuran got the suit property absolutely, but the copy of that partition deed is not produced. Here also I must also say that there is no averment in the plaint that Keralavarma Thampuran had no right in the property so that, he could not execute Ext.A1. On the other hand what is stated in paragraph No.2 of the plaint is that defendant No.1 got Ext.A1 got executed from Keralavarma Thampuran, the owner of the property. Moreover, PW1 has given evidence that Keralavarma Thampuran was the owner of the property. It is true that when defendant No.1 was in the box, he was questioned whether he had seen the partition deed referred to in Ext.A1 or any other document showing the title of Keralavarma Thampuran over the property and he answered in the negative. But in the light of what is stated in paragraph No.2 of the plaint, lack of averments in the plaint that Keralavarma Thampuran had no property and the evidence of PW1 that the property belonged to Keralavarma Thampuran, I am unable to accept that contention of the learned counsel for plaintiff. 10. So far as Ext.A1 is concerned, it recites that Keralavarma SA No.21/1995 11 Thampuran assigned his right, title, interest and possession of the suit property in favour of defendant No.1 on receipt of the consideration mentioned therein and it is also stipulated in Ext.A1 that defendant No.1 was to pay certain amount to the late Achuthan in consideration of his looking after the properties staying there since time immemorial. Defendant Nos.1 and 2 produced Ext.B1 to show that the amount recited to be paid to Achuthan was paid. Ext.B1 is a photocopy of receipt dated 15.7.1957 said to have been executed by Achuthan in favour of defendant No.1 receiving the sum of Rs.3,752/- recited in Ext.A1 to be paid to him. Ext.A1 is however dated 17.7.1957. First appellate court held that execution of Ext.A1 itself is doubtful in so far as the amount recited in Ext.A1 to be paid to Achuthan is seen paid by Ext.B1 to the said Achuthan two days prior to Ext.A1. I shall refer to acceptability of that contention a bit later. Ext.A2 states that defendant No.1 sold 30 cents out of 1.46 ½ acres to Velayudhan, husband of defendant No.1 for consideration. It is as per Ext.A3 that the late Achuthan is said to have released his right over the remaining 1.15 ½ acres in favour of defendant No.1, and later comes Ext.A4, gift deed dated 5.1.1968 executed by defendant No.1 in favour of defendant No.2, but in respect of the entire 1.46 ½ acres. 11. First appellate court found that Ext.B1 could not have been executed by the late Achuthan two days prior to Ext.A1. A further finding is that though as per Ext.A2, defendant No.1 had sold 30 cents to his eldest brother, Velayudhan (husband of defendant No.3) from out of 1.46 ½ acres, it would SA No.21/1995 12 appear from Ext.A4, gift deed dated 5.1.1968 that defendant No.1 gifted the entire 1.46 ½ acres (including the 30 cents covered by Ext.A2) to defendant No.2, wife. Thus first appellate court came to the conclusion that Ext.A1 to A3 are sham transactions. 12. I am afraid, the first appellate court has not gone into the evidence or considered the relevant aspects in depth while holding so. Assuming that Ext.B1(it is the photocopy of an unregistered receipt) came into existence two days prior to Ext.A1, that could be a reason to discard Ext.B1 but, not sufficient to ignore Ext.A1 which is a registered document. Execution of Exts.A1 to A3 are not being disputed by the plaintiff before me. Though registration by itself is not proof of execution of a document, binding authorities on the point say that registration is prima facie evidence of valid execution of the document which is required by law to be registered. Therefore that Ext.B1 was got executed two days prior to Ext.A1 is no ground to hold that Ext.A1 has not taken effect. May be Ext.B1 can be ignored which does not affect the right of defendant Nos.1 and 2 over the property. It is also true that as per Ext.A2, 30 cents was assigned to Velayudhan (late husband of defendant No.3) from out of 1.46 ½ acres and Ext.A4 would say that the entire property including the said 30 cents was gifted to defendant No.2. From that also it is not possible to say, in the light of evidence on record that either Ext.A2 or Ext.A4 has not taken effect. What could be said is that Ext.A4 does not affect the 30 cents sold as per Ext.A2. 13. Learned Munsiff observed that so far as Exts.A1 to A3 and Ext.B1 SA No.21/1995 13 are concerned, the presumption under Section 90 of the Evidence of Act (for Short, “the Act”) is available to it. That finding in my view is not legally correct for, Exts.A1 to A3 are only certified copies and though, for certified copies also a presumption under Section 90 could be drawn, two conditions are to be satisfied: firstly, the said documents are brought in evidence after complying with the requirements of Section 63 of the Act and secondly, the certified copies by themselves are of thirty years old (see the decision of the Supreme Court in Lakhi Baruah v. Padma Kanta Kalita (AIR 1996 SC 1253). Therefore, the presumption under Section 90 of the Act is not available to Exts.A1 to A3. So far Ext.B1 is concerned, the same principle must apply since it is a photocopy and Ext.B1, I stated cannot be accepted in the light of Ext.A1 and for the reason which I have already stated above. 14. It has come in evidence that defendant Nos.5 to 9, children of late Karthyayani (daughter of the late Achuthan) filed O.A.No.813 of 1970 before the Land Tribunal making defendant No.2 as the opposite party and claiming right of kudikidappu. That application comes after Ext.A4, gift deed in her favour. It is not disputed that the said application was concerning the portion of property covered by Ext.A4 and excluding the 30 cents covered by Ext.A2. Ext.B4 is the copy of application dated 28.3.1970 preferred by defendant Nos.2 to 5 before the Land Tribunal. Ext.B5 is the copy of notice dated 28.10.1970 issued to defendant No.2 from Land Tribunal in O.A.No.813 of 1970. Ext.B6 is the sketch SA No.21/1995 14 of the land to be assigned to defendant Nos.5 to 9 by way of kudikidappu. Ext.B7, notice in O.A.No.813 of 1970 shows that the purchase price was deposited by defendant Nos.5 to 9 in the Land Tribunal and notice of the deposit was given to defendant No.2. Ext.B7 reveals that kudikidappu was assigned to defendant Nos.5 to 9 from property belonging to defendant No.2 as per Ext.A4. That also indicates that the gift in favour of defendant No.2 to the extent it concerned 1.15 ½ acres had taken effect. 15. Now I shall refer to the evidence let in by the plaintiff. She has not gone to the box. True, her son was examined as PW1 on the strength of the order passed on an application to examine him on behalf of plaintiff stating that she is laid up. Evidence reveals that PW1 was not even born at the time of Exts.A1 to A3. Certainly PW1 was not competent to give evidence regarding Exts.A1 to A3.