IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 RSA.No. 1329 of 2008() ---------------------- AS.3/2004 of DISTRICT COURT, MANJERI OS.43/2000 of MUNI-MAGISTRATE COURT,PERINTHALMANNA .................... APPELLANT: (APPELLANT/PLAINTIFF) ---------------------------------------------------- VENUGOPAL, S/O.PARANTHODIYIL DECEASED AYYAPPAN EZHUTHASSAN, PAITHAKKARA AMSOM AND DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENT(S): (RESPONDENTS/DEFENDANTS) --------------------------------------- 1. SAROJINI, D/O.PARANTHODIYIL DECEASED AYYAPPAN EZHUTHASSAN, PATHAIKKARA AMSOM AND DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. 2. RUGMINI, D/O.-DO-, R/AT -DO- -DO- 3. P.RAJALAKSHMI, D/O.-DO-, R/AT -DO- -DO- 4. P.GEETHA, D/O.-DO-, R/AT -DO- -DO- 5. P.RAMADAS, S/O.-DO-, R/AT -DO- -DO- 6. P.PREETHA, D/O. -DO- VELLIAHCHERI AMSOM AND DESOM, PERINTHALMANNA TALUK. 7. PAPPI AMMA, W/O.PARANTHODIYIL DECEASED AYYAPPAN EZHUTHASSAN, PATHAIKKARA AMSOM AND DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * R.S.A. NO. 1329 of 2008 * * * * * * * * * * * * * * * * * * Dated: 20-1-2009 JUDGMENT The plaintiff in O.S. No. 43 of 2000 on the file of the Munsiff's Court Perinthalmanna is the appellant in this Second Appeal. The said suit was one for partition and separate possession of the plaintiff's 1/5 share over the plaint schedule property admeasuring 25 cents with a residential building thereon. According to the plaintiff, the plaint schedule property belonged to his father deceased Ayyappan Ezhuthassan and the death of the father in the year 1999 the property devolved equally on plaintiff's mother the 7th defendant and all his seven children who are defendants 1 to 6 and the plaintiff. The title traced in favour of Ayyappan Ezhuthassan was as per Ext.A1 assignment deed dated 24-1- 1940. 2. The suit was resisted by defendants 6 and 7 contending inter alia as follows:- During his life time Ayyappan Ezhuthassan gifted the plaint schedule property to his wife the 7th defendant as per Ext.B1 R.S.A. NO. 1329 of 2008 -:2:- registered gift deed dated 11-09-1971 and the 7th defendant in turn had executed Ext.B7 assignment deed dated 15-5-2000 assigning the plaint schedule property to one of her daughters namely the 6th defendant. The courts below accepted the defence contention and dismissed the suit. Hence, this Second Appeal. 3. The following are the questions of law formulated in the memorandum of Second Appeal:- i) Whether in the light of Ext.B2 purchase certificate obtained on 5-11-1976 by the donor in his name has not the Courts below erred in holding that Ext.B1 gift deed dated 11- 9-1971 has been accepted ? ii) Whether in the light of Ext.B2 and Section 72 (K) of the KLR Act, the finding of the Courts below that Ext.B1 has been accepted is legally sustainable ? iii) Whether the decision of the Courts below are vitiated for non-consideration of material documentary and oral evidence available in the case ? 4. The learned counsel appearing for the appellant/plaintiff made the following submissions in support of the appeal:- The specific case of the plaintiff is that Ext.B1 gift deed was snot acted upon by the 7th defendant donee and, therefore, Ext.B7 subsequent assignment by the 7th defendant is sham and nominal. The said contention is re-inforced by the fact that notwithstanding Ext.B1 R.S.A. NO. 1329 of 2008 -:3:- gift deed executed by Ayyappan Ezhuthassan on 11-09-1971 , he had obtained Ext.B2 purchase certificate on 5-11-1976 pursuant to Ext. A5 order dated 17-1-1976 passed by the competent Land Tribunal. If Ayyappan Ezhuthassan had parted with his possession to his wife the 7th defendant under Ext.B1 gift deed then there was no occasion for him to obtain certificate of purchase under Sec. 72 (K) of the Kerala Land Reforms Act which pre-supposes that he was the cultivating tenant in possession of the property. Moreover, this is a case where the execution of Ext.B1 gift deed is impliedly denied. Hence, by virtue of the proviso to Section 68 of the Evidence Act it was incumbent upon the contesting defendants to prove Ext.B1 by examining at least one of the attesting witnesses thereto as was held by the Apex Court in the recent decision in Laxmanan v. Padmini - 2009 (1) KLT 29 (SC) . 5. I am afraid that I cannot agree with the above submissions. It is true that the plaint schedule property admeasuring 25 cents with a building thereon belonged to Ayyappan Ezhuthassan. The parties are makkathayees. Ayyappan Ezhuthassan died in the year 1999 leaving behind his wife the 7th R.S.A. NO. 1329 of 2008 -:4:- defendant and his five daughters namely defendants 1 to 4 and 6 and two sons the 5th defendant and the plaintiff. Ext.B1 is a registered gift deed executed by Ayyappan Ezhuthassan during his life time on 11-09-1971 whereunder he had gifted the plaint schedule property to his wife Pappi Amma, the 7th defendant. The document recites that the possession of the plaint schedule property is also handed over to the donee, the 7th defendant. Ext.B5 is the true copy of a statement made on 7-11-1998 by Ayyappan Ezhuthassan before the Village Officer, Pathaikara to the effect that he had gifted the plaint schedule property to his wife and he has no objection in effecting mutation in her name in the revenue registers. It is true that Ext.B2 purchase certificate is in the name of Ayyappan Ezhuthassan. But then it cannot be ignored that the said purchase certificate was issued pursuant to Ext.A5 order dated 17-1-1976 passed by the Land Tribunal in suo moto proceedings initiated as S.M.P. No. 1920 of 1975. The said suo moto proceedings must have been initiated on the report of the Revenue Inspector who might have been in the dark regarding Ext.B1 gift deed and Ext.B7 subsequent assignment deed. Hence, R.S.A. NO. 1329 of 2008 -:5:- merely because in a suo moto proceedings which were not initiated at the instance of Ayyappan Ezhuthassan, a certificate of purchase was issued in his name, it does not follow that Ayyappan Ezhuthassan was in possession of the plaint schedule property not withstanding Ext.B1 gift deed. This is, particularly, so when we find that even as late as in 1998 Ayyappan Ezhuthassan had asserted before the Village Officer that he had gifted the property in favour of his wife. Except filing the suit as if Ayyappan Ezhuthassan died having subsisting right over the plaint schedule property, the plaintiff did not specifically deny the execution of Ext.B1 gift deed by Ayyappan Ezhuthassan either by filing a rejoinder to the written statement or by way of amendment of plaint. On the contrary, what was sought to be contended was Ext.B7 subsequent sale deed was obtained by fraud and it had no legal validity. Hence, the proviso to Sec. 68 of the Evidence Act was not attracted obliging the defendants 6 and 7 to examine the attestors Ext.B1. That apart, when as per Ext.B5 statement the donor himself had re- iterated that he had gifted the property to his wife and the original of Ext.B1 gift deed was also in the custody of his wife R.S.A. NO. 1329 of 2008 -:6:- and she had executed Ext.B 7 assignment deed in favour of the 6th defendant tracing her title to Ext.B1 gift deed it was futile for the appellant/plaintiff to contend that Ext.B1 gift deed was not acted upon. Moreover, it is to be noted that Ext.B1 gift deed on the date of trial was a 30 year old document and it came from proper custody within the meaning of Section 90 of the Evidence Act. Hence, the courts below were fully justified in accepting the contention of the defendants. No question of law, much less, any substantial question of law arises for consideration . The questions of law formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 20th day of January, 2009. Sd/-V. RAMKUMAR, (JUDGE) /true copy/ ani.