IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 RSA.No. 1293 of 2008() ---------------------- AS.296/1999 of DISTRICT COURT,KOZHIKODE OS.39/1997 of III ADDL.SUB COURT, KOZHIKODE .................... APPELLANTS/APPELLANTS/DEFENDANTS 1 AND 2 ----------------------------- 1. AATOOR RAMADASAN, S/O. KUTTAN, RESIDING AT MELE ADOOR HOUSE, KUNDUPARAMBA, KARUVASSERY.P.O, CALICUT-10. 2. PADMANABHAN, S/O. KUTTAN, RESIDING AT -DO- BY ADV. SHRI M.C.SEN (SENIOR ADVOCATE) SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN RESPONDENT(S): RESPONDENTS/DEFENDANTS 3 TO 9 AND LEGAL HEIRS OF DECEASED PLAINTIFF: -------------------------- 1. AATOOR CHOYIKUTTY, RESIDING AT YAMUNA CHEMBAKA HOUSING COLONY, BEYPORE AMSOM DESOM, KOZHIKODE TALUK. 2. SAJEEVAN, AGED 34 YEARS, S/O. KARUNAKARA KURUP, VALASSERY HOUSE, EDAKAD AMSOM AND DESOM, KOZHIKODE TALUK. 3. PRASEETHA, AGED 27 YEARS, W/O. SAJEEVAN, -DO- 4. JAYADEVAN, AGED 60 YEARS, S/O. KELAN, PRAJEESH, THENGARAKANDI, KARUVASSERI AMSOM DESOM, KOZHIKODE TALUK. 5. MANNAMBATH JAYARAJAN, AGED 37 YEARS, S/O. NARAYANAN, KARUVASSERI ASOM DESOM, KOZHIKODE TALUK. RSA No.1293/2008 2 6. GEETHA, AGED 30 YEARS, W/O. JAYARAJAN, MANNAMBATH HOUSE, KARUVASSERI AMSOM DESOM, KOZHIKODE TALUK. 7. MANHOLI RAMACHANDRAN, AGED 57 YEARS, S/O. KANDAKUTTY, KARUVASSERI AMSOM DESOM, KOZHIKODE TALUK. 8. ANILKUMAR, AGED 44 YEARS, S/O. KUMARAN, PALAYULLAKANDIYIL HOUSE, KARUVASSERI AMSOM DESOM, KOZHIKODE-10. 9. VIJAYALAKSHMI, AGED 52 YEARS, D/O. KUMARAN, -DO- 10. INDIRA, AGED 54 YEARS, W/O. RAJAN, CHEKKIYEDATHU VEEDU, CHETTIKULAM, ELATHUR VILLAGE, ELATHUR AMSOM DESOM, ELATHUR.P.O. ADV. SRI.R.BINDU SASTHAMANGALAM FOR R8 TO R10 SRI.PRASANTH M.P FOR R8 TO R10 SRI.P.N.SREENIVASAN FOR R8 TO R10 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/11/2009, ALONG WITH RSA NO. 948 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.Nos.1293 of 2008 & 948 of 2009 -------------------------------------- Dated this the 11th day of November, 2009. JUDGMENT These appeals arise from the common judgment and decree of learned District Judge, Kozhikode in A.S.No.296 of 1999 and 295 of 1999, respectively arising from judgment and decree of learned Additional Sub Judge-III, Kozhikode in O.S.Nos.39 of 1997 and 237 of 1997, respectively. 2. Facts necessary for consideration of these appeals are: Properties which are subject matter of litigation belonged to Kunhipennu who, it is not disputed died in the year 1921. Her children are Raman (who predeceased her), Raru, Kuttan and Matha (Matha died in the year 1931, unmarried). Defendant No.3 in O.S.No.39 of 1997 is the son of Raru. Plaintiff and defendant Nos.1 and 2 in that suit are the children of Kuttan. O.S.No.39 of 1997 is a suit for partition and separate possession of the share claimed by the plaintiff therein who is the daughter of Kuttan and Madhavi. She claimed that on the death of Matha, properties devolved on Raru and Kuttan and consequent to their death she got right in the property. Defendants in O.S.No.39 of 1997 contended that Kunhipennu had no daughter by name, Matha, on the death of Kunhipennu the property devolved on Raru and Kuttan, her sons who executed assignment deed in the year 1926 (Ext.B1 is its copy) in favour of Madhavi, wife RSA Nos.1293/2008 & 948/2009 2 of kuttan and some of their children. Defendants claimed that item No.2 of the plaint schedule in O.S.No.39 of 1997 is not partiable in the light of Ext.B1, assignment deed and the subsequent devolution of title. Defendant Nos.1 and 2 in O.S.No.37 of 1997 filed O.S.No.237 of 1997 against the plaintiff in O.S.No.39 of 1997 and two others claiming absolute title and possession over plaint schedule item No.2 for the reason aforesaid. Trial court found that Kunhipennu had a daughter by name, Matha died in the year 1931 and since parties are Thiyyas following Hindu Mithakshara Law in the matter of intestate succession, on the death of Kunhipennu the properties devolved on Matha. It was also found that Raru and Kuttan executed Ext.B1, assignment deed in the year 1926 at a time when they had no right, title, interest or possession of plaint schedule item No.2 in O.S.No.39 of 1997 since Matha was alive then and died only in the year 1931. Hence Raru and Kuttan had no right, title or interest over plaint schedule item No.2 in O.S.No.39 of 1997 to be conveyed to Madhavi, wife of Kuttan and some of their children. Hence defendants in O.S.No.39 of 1997 cannot claim right over plaint schedule item No.2 on the strength of the said assignment (Ext.B1). Accordingly preliminary decree for partition was passed. Item No.1 of the plaint schedule was allotted to the share of defendant No.3 while item No.2 of the plaint schedule was allotted to the plaintiff and defendant Nos.1 and 2. Consequently, O.S.No.39 of 1997 was dismissed. Aggrieved, RSA Nos.1293/2008 & 948/2009 3 parties took up the matter in appeal. In the first appellate court a contention was raised on behalf of the contesting defendants in O.S.39 of 1997 and plaintiffs in O.S.No.237 of 1997 that at any rate, they are entitled to the protection of Section 43 of the Transfer of Property Act (for short, “the Act”) since consequent to the death of Matha in the year 1931, her right devolved on Raru and Kuttan and hence on the rule of estoppel feeding the grant assignees under Ext.B1 are entitled to claim right over the property dealt with by them. The first appellate court thought that the matter has to be considered by the trial court and remanded the case. Remand judgment was challenged in this Court in C.M.A.Nos.14 of 2002 and 25 of 2002. While disposing of the C.M.Appeals as per judgment dated 14.6.2007 this Court directed, with reference to the plea under Section 43 of the Act that “since all necessary materials are on record” the lower appellate court should have considered that matter also by itself. Observing so, judgment of the first appellate court remanding the case was set aside and the matter was remitted to the first appellate court for fresh consideration. Thereafter the first appellate court considered the matter and held that so far as the claim under Section 43 of the Act is concerned, there is neither plea nor evidence and the circumstances did not justify grant of equitable relief under that provision. Accordingly judgment and decree of the trial court were confirmed. That is under challenge in these Second Appeals RSA Nos.1293/2008 & 948/2009 4 raising by way of substantial questions of law whether the provision of Section 43 of the Act is applicable in the facts and circumstances of the case and whether first appellate court was justified in not upholding the plea under Section 43 of the Act for the reason of absence of pleadings when this Court in the judgment in Civil Miscellaneous Appeals directed that all necessary materials are on record in order to determine the question. It is contended by learned Senior Advocate for appellants that even if it is assumed that the transferors under Ext.B1 had any fraudulent intention, still the assignees are entitled to protection under Section 43 of the Act so far as it is not shown that they are parties to the fraud. According to the learned Senior Advocate it is to protect situations like this that Section 43 of the Act is enacted. Learned counsel for respondent Nos.8 to 10 in R.S.A.No.1293 of 2008 and respondents in R.S.A.No.948 of 2009 contend that basis for application of Section 43 of the Act is lacking and hence, no interference is required with the judgment and decree of the trial court. 3. Section 43 of the Act states: “43. Transfer by unauthorised person who subsequently acquires interest in property transferred.-Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to RSA Nos.1293/2008 & 948/2009 5 transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.” Going by the binding authorities on the point, even if the transferor had fraudulent intention or erroneously transferred the property, so far as it is not shown that transferee had no such intention, was not a party to the fraud or was not aware of want of title for the transferor, the transferee is entitled for the protection under Section 43 of the Act provided other conditions are satisfied one of which being that the transfer was for consideration. In this case appellants came with the allegation that Kunhipennu had no daughter by name, Matha. DW1, respondent No.2/defendant No.2 in R.S.A.No.1293 of 2008 who is also appellant No.1/plaintiff No.1 in O.S.No.237 of 1997 was asserting through out his evidence their avowed stand that Kunhipennu had no daughter by name Matha. Even as per the submission of the learned Senior Advocate a plea regarding protection under Section 43 of the Act came for the first time only RSA Nos.1293/2008 & 948/2009 6 before the first appellate court before the remand. Courts below found and that finding has become final that Matha is the daughter of Kunhipennu and she died as a spinster in the year 1931 while the assignment deed is executed by Raru and Kuttan a few years prior to the death of Matha as if they inherited the property from Kunhipennu. It is not disputed that as per the Hindu Mithakshara Law which was being followed by the parties, on the death of Kunhipennu her properties devolved on her only daughter, Matha. Courts below rightly found that Raru and Kuttan, sons of Kunhipennu had no right, title or interest to convey plaint schedule item No.2 to the transferees under Ext.B1. 4. It is not disputed that the assignees under Ext.B1 are the wife and some of the children of Kuttan. Going by the evidence of DW1, respondent No.2 in R.S.A.No.1293 of 2008 and appellant No.1 in R.S.A.No.948 of 2009 he was a major at the time of Ext.B1. Still, he just denied that Kunhipennu had a daughter by name Matha. It is not disputed that at the time of Ext.B1, the assignor as well as assignees were living together. It is difficult to believe that in the circumstances, at least the majors among the assignees under Ext.B1 on account of their close relationship with the assignor and living together under the same roof were unaware that Kunhipennu had a daughter by name Matha and she was alive at the time of Ext.B1. Therefore, it is only reasonable to think that RSA Nos.1293/2008 & 948/2009 7 with eyes wide open as to the lack of title of Raru and Kuttan the assignees took the properties under Ext.B1. Question is whether in such a circumstance the equitable rule of estoppel feeding the grant should be invoked in their favour. The Supreme Court has stated in Jumma Masjid Mercara v. Kodimaniandra Deviah and others (AIR 1962 SC 847) that Section 43 of the Act embodies a rule of estoppel and enacts that a person who makes representation shall not be heard to allege the contrary as against a person who acts on that representation. What is material is whether the transferee has been misled. Where the transferee knows as a fact that the transferor does not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. On the facts of this case, for the reason stated above I am unable to accept the contention particularly when the appellants were asserting through out that Kunhipennu had no daughter by name, Matha, that they were unaware that Matha is the daughter of Kunhipennu, she was alive at the time of execution of Ext.B1 and under the law which the parties were following, absolute owner of the property was Matha. It is true that Ext.B1 recites that consideration passed from the assignees to the assignor. Here also, it has to be borne in mind that the assignees are none other than wife RSA Nos.1293/2008 & 948/2009 8 and some of the children of one of the assignors, other assignor being his own brother. First appellate court observed that it is doubtful whether even consideration passed under Ext.B1. 5. It is contended by learned counsel for appellants that first appellate court was not justified in holding that there is lack of sufficient plea regarding the invocation of Section 43 of the Act when this Court observed in the judgment in the Civil Miscellaneous Appeals that since all materials are available on record, the issue has to be considered by the first appellate court. I am unable to find from that observation anything to the effect that this Court concluded that there is sufficient plea raised in the pleadings of the appellants. True, the document as well as the evidence of the parties which are also 'materials' were available on record. Even if it is assumed that there was sufficient plea as contended by the appellants there is no sufficient evidence to show that on the facts and circumstances of this case equitable relief under Section 43 of the Act must be conferred on the appellants. 6. A substantial question of law would arise when the question is debatable, not settled by Statute or by adjudicatory process and has a bearing on the decision of the case. Here, as to the circumstances under which Section 43 of the Act would apply there are binding decisions one of which I have RSA Nos.1293/2008 & 948/2009 9 indicated above. On that question a further debate is not required and as such the question whether Section 43 of the Act is applicable on the facts of this case do not in my view present any substantial question of law requiring admission of the Second Appeal. 7. So far as the decision in O.S.No.237 of 1997 which is challenged in R.S.A.No.948 of 2009 is concerned, it follows the decision in O.S.No.39 of 1997 which was confirmed in A.S.No.269 of 1999. No substantial question of law is involved in that Second Appeal as well. The Second Appeals are dismissed in limine. THOMAS P.JOSEPH, Judge. cks