IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 3RD JANUARY 2011 / 13TH POUSHA 1932 RSA.No. 952 of 2006() --------------------- AS.141/2002 of PRL.SUB COURT,THALASSERY OS.46/2000 of ADDL.MUNSIFF COURT,KANNUR .................... APPELLANTS/DEFENDANTS ----------------------------------------- 1. KOTTUNGAL PUTHIYAPURAYIL LAKSHMAN, S/O.LATE MATHA, TRADER KOTTUNGAL PUTHIYAPURAYIL HOUSE, KATTAMPALLY CHIRAKKAL AMSOM PUZHATHI DESOM, KANNUR DISTRICT. 2. MALLIKA, W/O.LAKSHMANAN, KOTTUNGAL PUTHIYAPURAYIL HOUSE, KATTAMPALLY CHIRAKKAL AMSOM PUZHATHI DESOM, KANNUR DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): PLAINTIFF ------------------------ KOTTUNGAL PUTHIYAPURAYIL BALAKRISHNAN, S/O.LATE MATHA, ELECTRICIAN, KOTTUNGAL PUTHIYAPURAYIL HOUSE, KATTAMPALLY CHIRAKKAL AMSOM, PUZHATHI DESOM, KANNUR DISTRICT. ADV. SRI.K.V.SOHAN FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/01/2011, ALONG WITH RSA NO. 955 OF 2006 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RSA.No. 952 of 2006() 2 ORDER IN I.A NO.2333/2006 DISMISSED. 03/01/2011 Sd/- S.S.SATHEESACHANDRAN JUDGE P.A TO JUDGE S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A Nos.952 OF 2006 & 955 OF 2006 --------------------------------------------------- Dated this the 3rd day of January 2011 JUDGMENT These two appeals have arisen from a common judgment rendered by the learned Sub Judge, Thalassery in two appeals, both of which in turn arose from a common judgment passed by the Learned Munsiff, Kannur, disposing of two suits, O.S No.818/1999 and O.S No.46/2000. 2. The appeals are preferred by the plaintiff in O.S No.818/1999 who is also the first defendant in O.S No.46/2000. His wife is the second defendant in O.S No.46/2000, which was preferred by the common first respondent in both the present appeals, who is none other than the elder brother of the appellant. 3. The appellant herein preferred O.S No.818/1999 for partition of the plaint property covered by Ext.A1 settlement deed. Admittedly, Ext.A1 settlement deed was executed by the mother of the appellant and first respondent namely Matha who obtained such property in recognition of her tenancy rights under a certificate issued by the Land Tribunal. The controversy arising in the suit, in respect of which separate possession by way of partition was claimed, relate to the question whether pursuant to R.S.A Nos.952/2006 & 955/2006 - 2 - execution of Ext.A1 settlement deed by the mother in favour of the appellant, his brother and their sister, the second defendant in O.S No.818/1999, whether the appellant and the aforesaid sister had released their rights under Ext.B1 in favour of the first respondent. The appellant instituted the suit for partition contending that he had not executed Ext.B1 release deed, and playing fraud on him, the first respondent, his brother, had got his signature in some papers at the registry office. Claiming to be a co-owner in possession of the suit property, the appellant sought for division of his one third share in the property. Suit claim for partition was resisted by the first respondent contending that on the very same day of execution of Ext.A1 settlement deed by the mother, Matha, the appellant and also his sister, second defendant in O.S No.818/1999, had executed Ext.B1 deed releasing their rights over the suit property receiving valuable consideration. Pending O.S No.818/1999, the common first respondent as plaintiff filed O.S No.46/2000 seeking a decree of mandatory injunction to compel the defendants, the appellant and also his wife, to vacate from the house situate in the plaint property. Later, that suit was amended for a declaration of title of the plaintiff over the suit property. Suit claim for declaration and R.S.A Nos.952/2006 & 955/2006 - 3 - mandatory injunction canvassed by the first respondent was resisted by the appellant herein disputing the genuineness of Ext.B1 release deed and asserting his right over the suit propertiy as a co-owner. Ext.B1 deed was a sham document, which from the inception was void was the gist of the challenge set up by the appellant asserting his co-ownership right under Ext.A1 settlement deed over the properties executed by his mother. 4. Both the courts, on the materials placed, have concurrently found that the claim of co-ownership canvassed by the appellant disputing the genuineness of Ext.B1 release deed was unworthy of any merit. Ext.B1 deed was found to be executed by the appellant along with his sister (second defendant in O.S No.818/1999) releasing whatever rights they had obtained under Ext.A1 settlement deed in favour of the common first respondent, their brother, the plaintiff in O.S No.46/2000. The concurrent decision rendered by the courts below dismissing O.S No.818/1999 and decreeing the suit O.S No.46/2000, in favour of the common first respondent, is challenged in these two appeals. 5. The following substantial questions of law have been raised for hearing in these appeals. R.S.A Nos.952/2006 & 955/2006 - 4 - i) Have the courts below correctly considered the legal effect of Ext.B1 and the question whether the said document has been acted upon? Has the evidence on record been appreciated in accordance with law? ii) Is O.S No.46/2000, from which R.S.A No.952/2006 arises, sustainable in law in the absence of a prayer for recovery of possession? Is the decree granted by the trial court, without such relief being claimed, sustainable in law? 6. I heard the counsel on both sides. Both the courts below have overlooked the crucial circumstances presented on the materials tendered in the case, which would unerringly point out that Ext.B1 deed was a product of fraud, misrepresentation and undue influence, and as such, totally inoperative and void, is the submission of the learned counsel for the appellant. It is further submitted that minor discrepancies in the evidence have been given too much importance by the court below and without appreciating the evidence on record in the correct perspective, it has formed wrong conclusions and that has resulted injustice, according to the counsel. The appellant is a physically handicapped person and illiterate, was not given due consideration by the court below in appreciating whether Ext.B1 deed was executed by him and further there was no evidence as to payment of any consideration as contended by the first R.S.A Nos.952/2006 & 955/2006 - 5 - respondent is the submission of the counsel. The finding entered by the courts below that Ext.B1 deed is genuine, according to the counsel, is unsustainable. On the other hand, the learned counsel for the common first respondent submitted that both the courts have meticulously appreciated the evidence on record and the finding concurrently entered that Ext.B1 deed is genuine by which the appellant had released his rights in the suit property in favour of the first respondent, does not suffer from any infirmity, whatsoever. A co-executant of Ext.B1, the second defendant in O.S No.818/1999, who is none other than the sister of the plaintiff and the first defendant in that suit, who was examined as DW2, has asserted that on the same day of execution of Ext.A1, the appellant with the above witness had executed Ext.B1 deed accepting consideration from the common first respondent, their brother. Execution of Ext.B1 is further proved by the evidence of DW3 and DW4, the attesting witnesses to that document, according to the counsel. After release of their rights over the suit property under Ext.B1 deed by the appellant and his sister (second defendant in O.S No.818/1999), the first defendant had mortgaged the property twice under Ext.B4 and Ext.B4(a) deeds, which show time gap of nearly nine years, according to the R.S.A Nos.952/2006 & 955/2006 - 6 - counsel, is an eloquent circumstance demonstrating that pursuant to Ext.B1 the first respondent continued as the full owner of the suit properties. So much so, the challenge now raised to resist his ownership contending that Ext.B1 is a sham document, as correctly found by both the courts below, is totally meritless and deserve to be taken note of only for its rejection. 7. Perusing the judgments rendered by the courts below, I find, the evidence let in the case had been properly and correctly appreciated by both the courts below to form the conclusion concurrently that the challenge against Ext.B1 deed as vitiated by fraud, undue influence and misrepresentation is totally bereft of any value. The execution of Ext.B1 document by the appellant with his sister, the second defendant in O.S No.818/1999 has been proved by the evidence tendered by DW2 to DW4. DW2 is the above said second defendant. She has asserted that from the consideration received from the common first respondent on executing Ext.B1 release deed, she had handed over a sum of Rs.5,000/- to the appellant to improve his business carried out in a shop room situate in the suit property. DW3 and DW4 are attesters to Ext.B1 deed. They have also given cogent and convincing evidence proving execution of that deed by the R.S.A Nos.952/2006 & 955/2006 - 7 - appellant with his sister, the second defendant. Further more, it is also seen from the evidence tendered in the case that Matha, the mother of the appellant and the common first respondent had executed other settlement deeds also on the same day when she executed Ext.A1 settlement deed in favour of the parties in O.S No.818/1999, which indicates that all the family members were present when such deeds were registered at the sub registry office. Whereas in the allegations stated in O.S No.818/1999, the appellant herein had put forward a case that his signature was obtained in blank papers, to dispute the genuineness of Ext.B1 deed, in his written statement in answer to the suit filed by the common first respondent as plaintiff, O.S No.46/2000, he had contended that he was directed to sign on a document which was purported to be a gift deed executed by the mother Matha. That itself would indicate that the appellant had no consistent case at all and his challenge against Ext.B1 deed denying its execution by him, was totally false. Further more, he had no definite case as to in what manner Ext.B1 deed is void. An omnibus contention that Ext.B1 deed is a sham document impeaching it as vitiated by fraud, undue influence and misrepresentation setting forth such a defense on the basis that he is a physically handicapped person R.S.A Nos.952/2006 & 955/2006 - 8 - and more or less illiterate, is not sufficient to doubt its genuineness especially where the co-executant in that document, his own sister, examined ad DW2, had given unimpeachable evidence as to its due execution. The courts below have found that the defense sought to be projected to impeach Ext.B1 deed by the appellant on the basis that he is an illiterate cannot be accepted at all. Evidence tendered in the case indicated that he has studied upto 7th standard and is capable to read and write. The allegations in the suit filed by the appellant seeking partition would not show of his incapacity to read and write but only that Ext.B1 document was not read over to him before his signature was obtained. That case canvassed by him to contend that he was unaware of the contents of that document to sustain a plea of 'non est factum' has to be taken note of only for rejection as the burden was upon him to show the circumstances under which his signature was obtained in that deed. Repetition of the words fraud, misrepresentation or undue influence that alone to sustain a plea that the document challenged is a sham and inoperative, would not assist or aid the party to impeach the same. In fact, fraud, undue influence or misrepresentation operate in different situation and circumstance, with one distinct from the other, and R.S.A Nos.952/2006 & 955/2006 - 9 - a party impeaching a written contract, challenging the genuineness of the deed had to plead specifically in what manner the document is vitiated. No such circumstance has been shown leave alone the absence of total paucity of pleading as to the material particulars to impeach Ext.B1 release deed. As already indicated, the execution of Ext.B1 deed challenged by the appellant has been found to be meritless by both the courts concurrently, taking note of the evidence tendered, which included that of DW2, the co-executant in Ext.B1 and also the two attesting witnesses in that deed, DW3 and DW4. Challenge against the concurrent finding entered by both the courts upholding the genuineness of Ext.B1 deed is unworthy of any merit. 8. Substantial question of law raised in the appeal as No. (2), is seems, does not arise. Perusing the judgment with the reliefs canvassed in O.S No.46/2000, the suit filed by the common first respondent, it is noticed that mandatory injunction is claimed only in respect of the house situate in the plaint property wherein, admittedly, all the parties to that suit including the appellant with his wife are having cohabitation. From the submissions made, it is noticed that the challenge to impeach the R.S.A Nos.952/2006 & 955/2006 - 10 - decree of mandatory injunction was raised contending that the suit should have been one for recovery of possession in view of apprehension of threat of eviction of the appellant from the shop building situate in the suit property. The evidence in the case would disclose that the common first respondent had initiated some proceedings for eviction under the Rent Control Act as against the wife of the appellant in respect of the shop building. The relief canvassed in the suit and also granted by the courts is confined to the residential building and not of the shop building. So much so, I find that the second substantial question of law raised in these appeals does not arise for consideration. 9. Both the appeals are found to be devoid of any merit, and they are dismissed directing the parties to suffer their costs. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv