IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 SA.No. 830 of 1994(F) --------------------- AS.242/1986 of I ADDL. DISTRICT COURT, TRIVANDRUM OS.137/1984 of PRL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT: APPELLANT:PLAINTIFF: ------------------------------------------------------- EDWARD GARDEN WITHERS RALPH JOSEPH WITHERS, 32/8/6 MOTILAL MALLIK LANE, CALCUTTA FROM MARGRET COTTAGE, THENNOOR, ANAND MURI, PERINGAMALA VILLAGE, POWER OF ATTORNEY HOLDER GANGADHARAN PILLAI MADHAVAN NAIR, MARGRET COTTAGE,OF..DO...FROM VILAYIL VEEDU OF ..DO..DO... BY ADV. SRI.M.BALAGOVINDAN SRI.L.MOHANAN RESPONDENT:RESPONDENT:DEFENDANT: ----------------------------------------------------------------- *KESAVAN KUNJU KUNJU, PORPPANA VEEDU, KUNDALAMKUZHI, KOTTAKKAKAM M URI, VITHURA VILLAGE ( D I E D) – LR'S IMPLEADED: *ADDL.R2: P.K.REMANI, D/O. P.K.KUNJU KUNJU, AAGED 44, RAJI SADANAM, KUNDALAMKUZHI, THENNOOR P.O., VITHURA VILLAGE. R3: P.K. RAJI CHANDRAN, S/O.P.K.KUNJU KUNJU, AGED 40 OF ..DO..DO.. R4: P.K.SAJEENDRA KUMAR, S/O. P.K. KUNJU KUNJU, AGED 35 OF ..DO..DO... (*ADDL.R2 TO 4 IMPLEADED AS THE LR'S OF THE DECEASED SOLE RESPONDENT VIDE ORDER DTD. 13/12/07 IN I.A.2168/06) BY ADV. SRI.R.S.KALKURA SRI.M.RAMASWAMY SRI.G.S.REGHUNATH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/01/2008 ALONG WITH SA NO. 864 OF 1994, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A.NOs.830/94 & 864/94 ------------------------------------------ Dated 10th January 2008 J U D G M E N T Plaintiff in O.S.137/1984 on the file of Munsiff court, Nedumangad is the appellant in S.A.830/1994. He is the power of attorney holder of Edward Garden Withers Ralph Joseph Withers, admitted owner of the plaint schedule property. Appellant is the defendant in O.S.81/1984 before the same court. Respondent in S.A.830/1994 is the respondent in S.A.864/1994 also. He is the plaintiff in O.S.O.S.81/1984. O.S.81/1984 was filed seeking a decree for permanent prohibitory injunction restraining appellant from trespassing into the plaint schedule property. O.S.137/1984 was filed for redemption of Ext.A1 mortgage dated 16/7/1981. Plaint schedule property in both the suits is the same. It originally belonged to William Peeter Withers. William Peeter Withers executed Ext.A1 which is same as Ext.B1. mortgage deed on 16/7/1981 in favour of the respondent. Mortgage money was Rs.3,000/-. Period of SA 830/94 & 864/94 2 mortgage was one year. O.S.137/1984 was instituted for redemption of the mortgage on deposit of mortgage money contending that the mortgagor William Peeter Withers died as a bachelor and his rights devolved only his sole surviving legal heir, the brother Ralf Joseph Withers and he executed Ext.B2 power of attorney in favour of appellant in S.A.864/1994 and as respondent is only a mortgagee and period of mortgage expired, the mortgaged property is liable to be redeemed. Respondent resisted that suit contending that William Peeter Withers did not die and William Peeter Withers was not a bachelor and he has a wife and daughter and therefore the brother Edward William Peeter Withers did not derive any title to the property and on the strength of the power of attorney the suit for redemption is not maintainable. Respondent mortgagee filed O.S.81/1984 on the allegation that as he is a mortgagee, he cannot be dispossessed without redeeming the mortgage and appellant has no right to trespass into the plaint schedule property. Appellant filed a written statement in that suit contending that there was no attempt to trespass and the mortgage is sought to be redeemed in O.S.137/1984 and therefore respondent is not entitled to SA 830/94 & 864/94 3 the decree sought for. SA 830/94 & 864/94 4 2. Learned Munsiff tried both the suits jointly. O.S.81/1984 was treated as the main case. Respondent was examined as PW1 and a witness was examined as PW2. Exts.A1 and A2 were marked on the side of plaintiff in that suit. First cousin sister of William Peeter Withers was examined as DW1 and power of attorney holder of plaintiff in O.S.137/1984 was examined as DW2. Exts.B1 to B5 were marked. Learned Munsiff on the evidence found that appellant did not establish that William Peeter Withers died as claimed and Ralf Joseph Withers, his brother is the sole legal heir. Learned Munsiff also found that though certificate issued from Burning Ghat was marked as Ext.B5, it is not possible to fix the identity of the deceased person basing on Ext.B5. Though Ext.B4 affidavit of brother of William Peeter Withers was relied on by appellant, learned Munsiff found that the affidavit cannot be relied on. It is therefore found that factum of death or right of the executant of Ext.B2 power of attorney was not proved and dismissed O.S.137/1984. A decree was granted in O.S.81/1984. Appellant challenged judgment before District court, Thiruvananthapuram in A.S.242/1986 and 243/1986 respectively filed against the SA 830/94 & 864/94 5 judgments in O.S.137/1984 and O.S.81/1984. Learned Additional District Judge on re-appreciation of evidence dismissed both the appeals confirming the judgment of the trial court. S.A.830/1994 is filed challenging the judgment in O.S.137/1984 and S.A.864/1994 is filed against judgment in O.S.81/1984. Appeals were admitted formulating the following substantial questions of law. 1) Is not the evidence of DW1 a near relative who has special means of knowledge relevant so as to raise a presumption that the principal of Ext.B2 is the sole heir of the mortgagor. 2) Is not Ext.B5 a conclusive proof of death of the mortgagor under Ext.A1, in view of Crematorium Rules of Calcutta Corporation. 3. Learned counsel appearing for appellant and respondent were heard. 4. Appellant produced a certificate issued by Health Department of Muncipal Corporation, Calcutta showing the death of William Peeter Withers on 23/8/1981. It was produced along with an application under Rule 27 Order XLI of Code of Civil Procedure to receive the same as additional evidence contending that the document could be received only after the disposal SA 830/94 & 864/94 6 of the suit and first appeal and therefore could not be produced before the courts below and for proper disposal of the appeal the document is to be received as additional evidence and the said certificate establish that the mortgagor of Ext.A1 William Peeter Withers died as claimed by appellant. It was also contended that fact that Edward Garden Withers Ralf Joseph Withers who executed Ext.B2 power of attorney is the brother of the mortgagor William Peeter Withers was admitted in the written statement and fact that the mortgagor Withers was residing at Calcutta in the address 32/8/6, Mothilal Malik Lane, Calcutta-35 was not disputed and admitted in the written statement and therefore identity of the deceased as shown in the certificate cannot be disputed and in such circumstance finding of courts below that the mortgagor William Peeter Withers is alive is not sustainable. 5. Learned counsel appearing for respondent argued that Ext.B5 certificate relied on by the appellant was issued by Sri Ramakrishna Burning Ghat and certificate now produced shows that the details are taken from the register of Cossipore Burning Ghat and therefore there is difference in the burning Ghat and SA 830/94 & 864/94 7 hence the said certificate cannot be received. Learned counsel also argued that a detailed objection was filed to the application filed by appellant to receive the certificate as additional evidence and without evidence the said certificate cannot be accepted in evidence and on the strength of that certificate appellant is not entitled to the decree sought for. 6. Facts that respondent is the mortgagee under Ext.A1 and the mortgage is liable to be redeemed by the mortgagor on deposit of mortgage money are not disputed. If William Peeter Withers the mortgagor is no more and case of appellant that he has only one brother and mortgagor died as a bachelor is true, then under Ext.B2 power of attorney executed by the brother, appellant is entitled to the decree for redemption. Hence the question is whether William Peeter Withers died and if so, executant of Ext.B2 power of attorney is his only legal heir. Though respondent contended that William Peeter Withers has a wife and a daughter, apart from the interested testimony of PW1 no other evidence was adduced. In such circumstance, the crucial question is whether there is evidence to prove the death of William Peeter Withers. SA 830/94 & 864/94 8 7. Though Ext.B5 certificate was produced before the trial court and based on Ext.B4 affidavit it was contended that the person whose body was cremated under Ext.B5 is William Peeter Withers, as rightly found by courts below without examination of the brother the author of Ext.B4 the affidavit cannot be relied on. Ext.B5 by itself does not help the appellant to prove the identity of the person whose body was cremated. If the certificate produced before this court could be accepted as additional evidence, it will throw much light into the controversy. But even then without further evidence it is not possible to rely on the said certificate and granted a decree in favour of the appellant without proving the relevant facts. 8. Case of the appellant is that the certificate now produced could be obtained only after disposal of first appeal. Certificate shows that it was obtained only on 20/12/1994, subsequent to filing of the appeal. In such circumstance when the document is necessary to pronounce a better judgment and appellant has satisfactorily explained the reason for its non production earlier, in the interest of justice it is necessary to receive the document as necessary evidence. SA 830/94 & 864/94 9 I.A.121/2004 is therefore allowed and the certificate is received as additional evidence and marked as Ext.B6. But without evidence on the identity of the person concerned under Ext.B6, it is not possible to hold that William Peeter Withers shown in Ext.B6 is the mortgagor under Ext.A1. To enable the appellant to prove the relevant facts in the interest of justice, it is necessary to remand the suit back to the trial court. As far as the decree in O.S.81/1984 is concerned even the appellant has no case that either the appellant nor the executant of Ext.B2 power of attorney has any right to enter into the mortgaged property before its redemption. In such circumstance, I do not find it necessary to interfere with the decree granted by courts below in favour of respondent in O.S.81/1984. But it is made clear that the decree will be effective only till the mortgage is redeemed. S.A.864/1994 is dismissed. 9. S.A.830/1994 is allowed. The decree and judgment passed by additional District Judge in A.S.243/1986 and the decree in O.S.137/1984 on the file of Munsiff court, Nedumangad are set aside. O.S.137/1984 is remanded back to Munsiff court, Nedumangad for fresh disposal in accordance with law. Munsiff shall grant SA 830/94 & 864/94 10 opportunity to the plaintiff to prove Ext.B6 certificate, now received as additional evidence in this appeal. Plaintiff is also allowed to adduce further evidence to prove the factum of death of the mortgagor as well as fact that his brother is the only legal heir. Defendant is also entitled to adduce further evidence if so advised, to prove that the mortgagor has other legal heirs. Parties are directed to appear before the learned Munsiff on 6/2/2008. Learned Munsiff is to dispose the suit expeditiously. Send back the records of the courts below and Ext.B6 to the courts below immediately. M.SASIDHARAN NAMBIAR, JUDGE. uj. SA 830/94 & 864/94 11 ORDER ON I.A.NO. 16/04 & 542/04 IN SA 830/94 DISMISSED 10/1/2008 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. SA 830/94 & 864/94 12 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT S.A.NO.830/94 & 864/94 10th January 2008 ============================