IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 12TH AUGUST 2010 / 21ST SRAVANA 1932 WP(C).No. 25343 of 2010(O) -------------------------- IA NO.672/2009 IN OS.66/1991 of MUNSIFF-MAGISTRATE COURT,MANANTHAVADY .................... PETITIONER(S): --------------- 1. K.SAMBU EMBRANTHIRI,S/O.KRISHNAN EMBRANTHIRI,AGED 68 YEARS,AGRICULTURIST, PORUNNANNUR AMSOM,KARINGARI DESOM,MANANTHAVADY TALUK. 2. K.DURGAVATHI ANTHARJANAM, W/O.SAMBU EMBRANTHIRI ,RESIDING AT DO. DO. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.ANJU P.NAIR RESPONDENT(S): --------------- KODAMAD GOPALAKRISHNAN EMBRANTHIRI, S/O.KRISHNAN EMBRANTHIRI , AGED 66 YEARS, KODUMADU VEEDU,THERAL GRAMAM, PO BERNANI, VEERAJPETTA TALUK, KOORGE DISTRICT, KARNATAKA STATE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/08/2010, ALONG WITH WP(C) NO.25374/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) Nos.25343 & 25374 of 2010 -------------------------------------- Dated this the 12th day of August, 2010. JUDGMENT Notice to respondents is dispensed with in view of the order I propose to pass in these Writ Petitions. 2. These Writ Petitions concern common order passed by the learned Munsiff, Mananthavady on I.A.Nos.672 of 2009 and 715 of 2009 in O.S.No.66 of 1991 and 67 of 1991 (Ext.P6 in W.P.(C) No.25343 of 2010 and Ext.P5 in W.P. (C) No.25374 of 2010). Respondents sued petitioners for recovery of possession of plaint B schedule with mesne profits. Their case is that plaint B schedule belonged to their father and it was gifted to them as per Ext.A1 (marked in the suit), gift deed. Petitioners resisted the suit contending that plaint B schedule belonged in title to them, they have perfected title over the property by adverse possession and law of limitation, respondents' father had no right over the property to gift the same in favour of respondents and that the gift deed is sham. Petitioners then filed additional written statement in both the cases contending that property dealt with under the gift deed did not belong to the father of respondents. That additional written statement was received and the suit was decreed in favour of respondents. Petitioners challenged that judgment and decree in appeal and they got remand of the case. Trial court was directed to frame issue whether impugned gift deed is a sham document. WP(C) Nos.25343 & 25374/2010 2 While so petitioners filed application for amendment of the written statement to state about the alleged invalidity of the gift deed. That application was dismissed by the trial court against which petitioners filed C.R.P.No.3076 of 2001 in this Court. That revision was allowed and petitioners were permitted to amend the written statement. It is thereafter that petitioners filed the present applications again to amend the written statement to delete the admission regarding execution of gift deed and to facilitate a plea regarding denial of its execution. In the affidavit in support of the applications petitioners say that it was by an inadvertent mistake that they happened to admit execution of the gift deed in the written statement and additional written statement. That explanation did not find favour with the learned Munsiff who dismissed the applications vide impugned orders as above stated. Those orders are under challenge in these Writ Petitions. Learned counsel contends that there is nothing wrong in a defendant taking up inconsistent pleas and that petitioners have already been permitted to take up such inconsistent pleas. Court below should have permitted to amend the written statement as prayed for vide order on I.A.Nos.672 and 715 of 2009. 3. On the facts and circumstances of the case, I am not persuaded to accept the argument of the learned counsel. It is in several installments that petitioners have developed a case concerning the gift deed relied on by the respondents. Going through the contentions raised by petitioners so far, they proceeded on the basis that respondents' father had executed Ext.A1, gift deed in favour of respondents. They also contended that donor of property had no WP(C) Nos.25343 & 25374/2010 3 right title or interest over the property to be conveyed to the donee, it has not taken effect and that the document is invalid for the reasons stated by the petitioners. I am not persuaded to think that admission regarding execution of gift deed was an inadvertent mistake as circumstances tell me. I must bear in mind that before the suit was initially decreed, gift deed was marked in evidence as Ext.A1 in view of the admission made by the petitioners that the gift deed was executed by the executant. Now consequence of allowing petitioners to resile from the admission regarding execution of gift deed is that additional burden is cast on the respondent to prove execution of the gift deed as provided under Section 68 of the Indian Evidence Act. I have gone through the pleadings of petitioners at different levels and I am not inclined to accept that admission regarding gift deed was due to any inadvertent mistake. In the circumstances request for amendment was rightly declined by the learned Munsiff. Writ Petitions are therefore dismissed. THOMAS P.JOSEPH, Judge. cks