IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 2ND JANUARY 2008 / 12TH POUSHA 1929 SA.No. 886 of 1994(E) -------------------------------- OS.195/1988 of MUNSIFF COURT, NADAPURAM AS.26/1993 of SUB COURT, VADAKARA .................... APPELLANTS IN THE SECOND APPEAL/APPELLANTS/PLAINTIFFS 1,3,4 AND 5: --------------------------------------------------- *1. NADUKKANDIYIL AVULLA, S/O.MOIDEEN, AGED 60 YEARS, P.O. NITTOOR, (VIA) KAKKATTIL, KOZHIKODE DISTRICT. (D I E D) – LR'S IMPLEADED: 2. KOZHIYOTTUMMAL MARIYAM, D/O. KUTTIALI, P.O. NITTOOR, (VIA) KAKKATTIL, KOZHIKODE DISTRICT. 3. KOZHIYOTTUMMAL AYISHA, D/O.AVULLA, P.O. NITTOOR, (VIA) KAKKATTIL, KOZHIKODE DISTRICT. 4. KOZHIYOTTUMMAL MAMI, D/O. AVULLA, P.O. NITTOOR, (VIA) KAKKATTIL, KOZHIKODE DISTRICT. *1ST APPELLANT DIED. ADDL. APPELLANTS 5 TO 10 IMPLEADED: ADDL.5: NADUKKANDIYIL AYISHA, W/O.AVULLA, AGED 55 YRS, P.O. NITTOOR, (VIA) KAKKATTIL, KOZHIKODE DISTRICT. Kss ..2/- ....2..... S.A.NO.886/1994 ADDL.6: MOIDU, AGED 35 YEARS, S/O.AVULLA, NADUKKANDIYIL HOUSE, P.O. NITTOOR, (VIA) KAKKATTIL, KOZHIKODE DISTRICT. ADDL.7: KUNHAMI, AGED 40 YEARS, D/O.AVULLA, NADUKKANDIYIL HOUSE, P.O.NITTOOR, (VIA) KAKKATTIL, KOZHIKODE DISTRICT. ADDL.8: AMMAD, AGED 28 YEARS, S/O. AVULLA, ....DO..DO..... ADDL.9: PATHU, AGED 25 YEARS, D/O. AVULLA, ..DO..DO...... ADD.10: SOOPPY, AGED 24 YEARS, S/O. AVULLA, ...DO..DO... (*ADDL.APPELLANTS 5 TO10 ARE IMPLEADED AS LR'S OF DECEASED 1ST APPELLANT AS PER ORDER DTD. 13/09/07 ON I.A.NO.672/2006) BY ADV. SRI.C.VATHSALAN SRI.M.K.ABOOBACKER RESPONDENTS: RESPONDENTS:DEFENDANTS: ----------------------------------------------------------------------- 1. KOZHIYOTTUMMAL ALEEMA, D/O.AVULLA, P.O.NITTOOR, VADAKARA TALUK, KOZHIKODE DISTRICT. 2. NADUKKANDY MUHAMMED, S/O.MOIDEEN, VALAYAM AMSOM, NITTOOR DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 3. MADATHIL AVULLA, S/O.AMMAD MUSALIAR, KOZHIYOTTUMMAL, P.O. NITTOOR, VADAKARA, KOZHIKODE DISTRICT. R1 & R3 BY ADV. SRI.R.PARTHASARATHY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ........................................... S.A.No. 886 OF 1994 ............................................ DATED THIS THE 2nd DAY OF JANUARY, 2008 JUDGMENT Plaintiffs 1, 3, 4 and 5 in O.S.195 of 1988 on the file of Munsiff Court, Nadapuram are the appellants. Defendants are respondents. On the death of first appellant, additional appellants 5 to 10 were impleaded as his legal heirs. Appellants, along with deceased second plaintiff, instituted the suit seeking a decree for partition. Case of appellants was that plaint schedule property originally belonged to Ammed and first defendant is his widow. Ammed had three brothers, plaintiffs 1 and 2 and deceased Moideen. Second respondent is the son of deceased Moideen. Contending that on the death of Ammed, plaintiffs 1 and 2 are entitled to the property and they are in joint possession of the property, a decree for partition and allotment of separate share was sought. First defendant in the written statement contended that a portion of the plaint schedule property having an extent of 66 ½ cents was assigned by Ammed to third respondent, who was subsequently impleaded by plaintiffs, under Ext.B2 sale deed in 1978 and thereafter under Ext.B3 sale deed, the remaining property was also assigned by RSA 886/1994 2 Ammed to third respondent and therefore plaint schedule property is not available for partition. Plaintiffs impleaded third respondent thereafter contending that he is the son of first defendant in her first husband and deceased Ammed was not in a sound state of mind prior to his death and Ext.B1 and B2 are vitiated by fraud, misrepresentation and undue influence and Ext.B2 and B3 are liable to be cancelled. They sought a decree to set aside Ext.B2 and B3. It was also contended that Ext.B3 is bad due to Marzul Maud. Third respondent filed a written statement contending that he purchased the properties for a valuable consideration and in case as the suit was instituted after six years from the date of execution of sale deeds, it is liable to be dismissed. 2. Learned Munsiff, on the evidence of PWs 1 to 4, Dws 1 & 2, Exts.A1 to A7, B1 to B16, C1 and C2 and X1, dismissed the suit holding that appellants failed to establish that Exts.B2 and B3 are vitiated and in any case suit is barred by time as not instituted within three years from the date of execution of the sale deeds. Appellant challenged the judgment before Sub Court, Badakara in A.S.26 of 1993. Learned Sub Judge, on RSA 886/1994 3 reappreciation of evidence, found that the challenge against Ext.B3 on the ground that the entire properties were transferred by Ammed without the consent of other legal heirs is not sustainable as the said principle is applicable only in the case of a gift and principles of Marzul Maud cannot be applied in a case of sale. Learned Sub Judge, also found that appellants failed to establish that Ext.B2 and B3 are vitiated by fraud, undue influence or misrepresentation and also confirmed the findings of learned Munsiff that suit is barred by limitation. Appeal was dismissed. It is challenged in the second appeal. 3. Second appeal was admitted formulating the following substantial questions of law. 1)When appellants claimed a share in the property by inheritance, whether notice of registration as provided under Section 3 of Transfer of Property Act could be applied as against appellants who are not subsequent purchasers from the executant of Ext.B2 and B3. 2)Whether principles of Mohamedan Law as to Marzul Maud is applicable with regard to Ext.B3 sale deed. 3)Are not the parties to a compromise bound by the recitals and RSA 886/1994 4 contents of the compromise, even though it was dispelled by one of the parties subsequently. 4)Whether courts below were justified in not considering the action of the parties in arriving at a compromise in connection with pleadings in the suit so as to conclude which of the pleadings are true. 4. Learned counsel appearing for appellants and respondents were heard. 5. The argument of the learned counsel appearing for appellants is that courts below on the evidence should have found that Ext.B2 and B3 sale deeds are vitiated by fraud, undue influence and misrepresentation and those sale deeds were executed in favour of the son of first defendant, in her former husband, at a time when deceased Ammed was living with them and he was not capable of exercising his free mind due to illness and lack of mental capacity. It was argued that when a decree for cancellation and setting aside of Ext.B2 and B3 was instituted on the ground that the documents are vitiated by fraud, courts below were not justified in holding that suit is barred by limitation as such a case is governed by Section 17 of Limitation RSA 886/1994 5 Act and the date is to be computed only from the date of knowledge of the execution of document and not from the date of execution and therefore suit is perfectly maintainable. The Learned counsel fairly agreed that the principles of Marzal Maud is applicable only in the case of a gift and not in the case of a sale deed and therefore applying that principle, Ext.B3 cannot be held to be invalid. 6. Admittedly Ext.B2 and B3 sale deeds were executed by deceased Ammed in favour of third respondent who is the son born to first respondent wife in her former husband. It is also admitted case that they were living together. But on that ground alone, it cannot be held that Ext.B2 and B3 are vitiated. As rightly found by courts below, burden is definitely on appellants to establish that Ext.B2 and B3 are either vitiated by fraud or misrepresentation or undue influence. Appreciating the evidence, trial court found that there is no evidence to hold that Ext.B2 and B3 are vitiated by fraud, undue influence or misrepresentation. First appellate court, on reappreciation of evidence, confirmed those findings. These findings of facts cannot be interfered by reappreciation of evidence or RSA 886/1994 6 substituting the findings of courts below by the finding of this court. The finding of fact of first appellate court is final. Though it was argued that appreciation of evidence was not proper, it cannot be said that appreciation of evidence was perverse warranting a reappreciation of evidence. Courts below considered each and every item of evidence and appreciated them in the proper perspective. Therefore the finding of fact that Ext.B2 and B3 are not vitiated by fraud, misrepresentation or undue influence cannot be interfered. 7. The argument of learned counsel is that courts below failed to consider Section 17 of Limitation Act and when Ext.B2 and B3 are challenged on the ground that they are vitiated by fraud as provided under Section 17, the period has to be computed from the date of knowledge of disclosure of the fraud and not from the date of execution of document. When it is already found that Ext.B2 and B3 are not vitiated by fraud, the question whether suit is barred by limitation is only of academic interest. The question whether as provided under Section 3 of Transfer of Property Act, notice is to be imputed on the date of execution of the documents is also not very relevant as appellant RSA 886/1994 7 failed to establish fraud, undue influence or misrepresentation. In view of the fact that Ammed who is competent to execute a sale deed have executed Ext.B2 and B3, courts below found that appellants are not entitled to claim a share as legal heir of deceased Ammed, as on the date of his death, Ammed had no right in the property to be inherited by the legal heirs. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR, JUDGE lgk/-