IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 RSA.No. 450 of 2008() --------------------- AS.192/2004 of III ADDL.SUB COURT, KOZHIKODE OS.520/2002 of ADDL.MUNSIFF'S COURT, KOZHIKODE-I .................... APPELLANTS/ APPELLANTS/PLAINTIFFS: ------------------- 1. MARYKUTTY CHACKO, 50 YEARS, W/O.N.M.CHACKO, 103/C, V.V.ROAD, LAKSHMIPURAM, MYSORE (DT.), KARNATAKA STATE. 2. BINDYA MARY CHACKO, 27 YEARS, D/O.N.M.CHACKO, 103/C. V.V.ROAD, LAKSHMIPURAM, MYSORE DT., KARNATAKA STATE. 3. NICKOLIN.C, ALPONS, 24 YEARS, D/O.N.M.CHACKO, 103/C. V.V.ROAD, LAKSHMIPURAM, MYSORE DT., KARNATAKA STATE. 4. CHRISTINA JACOB, 18 YEARS, D/O.N.M.CHACKO, 103/C. V.V.ROAD, LAKSHMIPURAM, MYSORE DT., KARNATAKA STATE. 5. IYLENA JACOB, 15 YEARS (MINOR), D/O.N.M.CHACKO, 103/C. V.V.ROAD, LAKSHMIPURAM, MYSORE DT., KARNATAKA STATE. (MINOR 5TH APPELLANT IS REPRESENTED BY HER NATURAL GUARDIAN, MOTHER MARYKUTTY CHACKO AS PER ORDER IN IA 3246/04 DT. 6-10-05). BY ADV. SRI.PHILIP ANTONY CHACKO SRI.M.R.MOUNEESH RESPONDENT/RESPONDENTS/DEFENDANTS: ------------------ 1. N.M.ABRAHAM, 66 YEARS, S/O.MATHAYI KOODATHAYI AMSOM, KORINTHIRI DESOM, KOZHIKODE DT. 2. JOHN MATHEW, 58 YEARS, S/O.MATHILUNKAL MATHEW, THAZHAKODE AMSOM DESOM, KOZHIKODE DT. 3. N.M.GEORGE, 53 YEARS, S/O.MATHAYI, KOODDATHAYI AMSOM, KORINTHIRI DESOM, KOZHIKODE DT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.450 OF 2008 --------------------------- DATED THIS THE 6th DAY OF AUGUST, 2009 JUDGMENT Plaintiffs in O.S.No.520/2002 on the file of the Additional Munsiff's Court, Kozhikode are the appellants. The Appeal is directed against the judgment and decree in A.S.No.192/2004 on the file of the Sub Court, Kozhikode. The suit was filed by the legal heirs of the deceased N.M. Chacko to declare that document No.2236/1990 is null and void and to set aside the preliminary and final decrees passed in O.S.No.403/97. The suit was dismissed by the trial court and confirmed in appeal. Hence, this second appeal. 2. The plaintiffs are the wife and children of deceased N.M. Chacko. Defendants 1 and 3 are the elder brothers of deceased N.M. Chacko. The suit property having an extent of 1 acre and 61 ½ cents originally belonged to Kallumadikkal Abraham and on his death it devolved upon his wife and 7 -2- R.S.A.No.450/2008 children. On 30/8/1987 the deceased Chacko entered into an agreement for sale of the plaint schedule property with the legal heirs of Kallumadikkal Abraham. The consideration fixed is Rs.1,70,000/-. According to the plaintiffs, on 2/1/1988 the deceased Chacko paid the balance sale consideration. For the purpose of execution and registration of the document in the name of Chacko, Chacko entrusted all the matters to his brother, who is the lst defendant, and also executed a power of attorney in his favour. The expenses for the registration of the document was sent to the lst defendant, who is the elder brother of Chacko. According to the plaintiffs, the lst defendant had informed Chacko that the sale deed has been executed in favour of Chacko and Chacko believed the words of the lst defendant. Chacko died on 7/11/1999. On l7/11/2001 the plaintiffs came to know that Advocate Commissioner had visited the plaint schedule property for measurement and on enquiry they came to know that instead of registering the sale deed in the name of Chacko, the lst -3- R.S.A.No.450/2008 defendant executed the document in favour of defendants 2 and 3 after obtaining the power of attorney from the legal heirs of Kallumadakkal Abraham. Only then they came to know that the 2nd defendant had filed a suit as O.S.No.403/97 for partitioning the properties. It is alleged that though Chacko was made a party to the suit O.S.No.403/97, his address was shown wrongly and to the knowledge of the plaintiffs he has not received any notice in the preliminary and final decree proceedings. According to the plaintiffs, Ext.A5 sale deed is a sham document and is not binding upon them. Similarly, the preliminary decree and final decree marked as Exts.A8 and A9 passed in O.S.No.403/97 are not binding on the plaintiffs and therefore are liable to set aside. 3. In the written statement the 2nd defendant denied the execution of agreement between N.M. Chacko and the legal heirs of Kallumadikkal Abraham and further denied the allegation that the entire sale consideration was paid by N.M. Chacko on 2/1/1988. Other material averments in the plaint are also denied. -4- R.S.A.No.450/2008 It is further stated that the plaint schedule property was purchased by defendants 2 and 3 for valuable consideration, that the lst defendant had valid legal power of attorney to execute the sale deed in favour of defendants 2 and 3 and accordingly defendants 2 and 3 purchased the plaint schedule property by Ext.A5 sale deed. It is also stated that the deceased Chacko had only 1/8 share in the plaint schedule property, that the remaining share was purchased by defendants 2 and 3 by virtue of Ext.A5 sale deed, that N.M. Chacko was aware of the sale in favour of defendants 2 and 3 and also aware of the joint possession and enjoyment of the plaint schedule property. During the pendency of the final decree proceedings Chacko died and subsequently notice was served to the plaintiffs and subsequently they were set ex parte. The plaintiffs filed a petition to set aside the ex parte order with a petition for condonation of delay of 509 days. The said petitions were dismissed by the trial court and thereafter a final decree was passed. -5- R.S.A.No.450/2008 4. The trial court examined the respective contentions of the parties on the basis of oral and documentary evidence, namely, PWs. 1 and 2, DW-1, Exts.A1 to A12 and B1 to B4. The trial court elaborately considered the facts, circumstances and evidence on record. The questions as to whether document No.2236/90 is liable to be set aside and whether the preliminary and final decrees in O.S.No.403/97 are binding on the plaintiffs were examined in detail. One of the legal heirs of the original owner (deceased Abraham) sold her 1/8 right in the plaint schedule property in favour of N.M. Chacko by virtue of Ext.A3 sale deed dated 8/12/1987. The 7/8 shares belonging to the 7 other legal heirs of the deceased Abraham were sold by the lst defendant in favour of defendants 2 and 3 and the sale deed was executed by the lst defendant in his capacity as the power of attorney holder of his legal heirs. Thus, the lst defendant is given absolute right to sell the plaint schedule property and to effect registration of document in respect of the property and to receive -6- R.S.A.No.450/2008 sale consideration on behalf of the legal heirs of the deceased Abraham. By virtue of the said power of attorney executed by the owners of the property in favour of the lst defendant, the lst defendant on 9/10/1990 assigned 7/8 share in favour of defendants 2 and 3. Ext.A5 is dated 9/10/1990. It is the case of the 2nd defendant that N.M. Chacko was aware of the sale in favour of defendants 2 and 3 and he had no dispute about the same during his life time. In 1997 the 2nd defendant, who is one of the co-owner of the property, by virtue of Ext.A5 sale deed, filed a suit O.S.No.403/97 before the Munsiff's Court, Calicut for partition of the plaint schedule property. N.M. Chacko was set ex parte. In the final decree petition Chacko remained absent and after his death notice was sent to his legal heirs, who are the plaintiffs in the suit. They did not appear before the court below and consequently they were set ex parte. Subsequently, they filed a petition for setting aside the ex parte decree with a petition to condone the delay of 509 days in filing the same. These petitions -7- R.S.A.No.450/2008 were dismissed. The matter was not further prosecuted by the plaintiffs. It is the defendants' case that there was proper service of notice and in spite of that Sri Chacko and the plaintiffs have chosen to remain absent in the proceedings. 5. It is the case of the plaintiffs that the entire sale consideration was paid on 2/1/1988 by the deceased Chacko. It was disbelieved by the court below, after taking into account the facts, circumstances and evidence on record and considering the contentions raised by the 2nd defendant that the writing made on the reverse side of the first page of the agreement regarding the receipt of the full amount of sale consideration is fabricated endorsement. The trial court on consideration of the question as to whether Ext.A5 sale deed is null and void held that it is not liable to be cancelled, as contended by the plaintiffs.The trial court observed that if Chacko paid the entire sale consideration on 2/1/1988 as contended by the plaintiffs and as spoken by PW- 2, what was the necessity for executing Ext.A4 power of attorney -8- R.S.A.No.450/2008 in favour of the lst defendant instead of executing and registering the sale deed in favour of Chacko. The trial court also noticed that even in the absence of Chacko, he got Ext.A3 assignment deed registered in his name. The trial court found that there was no explanation about the motive behind executing Ext.A4 power of attorney in the name of the lst defendant by the legal heirs of Abraham authorising the lst defendant to sell the property and to execute the sale deed. The power of attorney does not specify that the property shall be sold to Chacko only. There is no stipulation that the property shall be sold to Chacko, who had paid the entire sale consideration. Ext.A4 is a general power of attorney authorising the lst defendant to sell the property to anybody he likes. The trial court observed that the plaintiffs have no case that N.M. Chacko had made any request to the legal heirs of deceased Abraham to execute Ext.A4 power of attorney in favour of the lst defendant. Therefore, the trial court held that the version given by PWs.1 and 2 that the entire sale -9- R.S.A.No.450/2008 consideration of Rs.1,70,000/- was paid by N.M. Chacko and that in spite of the said payment, the legal heirs of Kallumadikkal Abraham chosen to execute Ext.A4 power of attorney in the name of the lst defendant instead of execution of sale deed in favour of Chacko is quite unbelievable. The trial court also seriously noted the fact that in spite of the contention that deceased Chacko paid the entire sale consideration on 2/1/1988, he did not enquire about the registration of the sale deed in his favour from 1988 till his death in the year 1999. There is no explanation offered by the plaintiffs as to why Chacko did not enquire about the execution and registration of the sale deed in his favour pursuant to Ext.A2 agreement. The trial court therefore held that the conduct of N.M. Chacko in not taking any steps to get the sale deed executed and registered in his name, in spite of the alleged payment of a huge sum of Rs.1,70,000/- cast serious doubt on the version of PW-1 that deceased Chacko paid a sum of Rs.1,70,000/- as sale -10- R.S.A.No.450/2008 consideration in pursuance of Ext.A2 agreement. The trial court also noticed the conduct of Chacko as to why he did not take any steps to execute the sale deed in his favour till his death in the year 1999 and since there is no explanation regarding this aspect, it is said that the question remains unanswered. Considering the entire facts and circumstances of the case, the trial court observed that there is merit in the argument advanced by the learned counsel for the 2nd defendant that defendants 1 and 3 have colluded with the plaintiffs in filing the suit. 6. The trial court also examined the circumstances under which Ext.A4 power of attorney was executed in the name of the lst defendant, who has nothing to do with the transaction between Chacko and the legal heirs of the deceased Kallumadikkal Abraham. The power of attorney was executed by 7 out of 8 legal heirs of deceased Abraham in favour of the lst defendant and the lst defendant was given power to execute the sale deed of the plaint schedule property on behalf of them. The -11- R.S.A.No.450/2008 trial court also held that there is no proof to show that the power of attorney was executed in favour of the lst defendant at the instance of deceased Chacko, who is the brother of the lst defendant. Other contentions were raised by the learned counsel for the plaintiffs that the consideration shown in Ext.A5 sale deed is only Rs.28,800/- whereas in Ext.A2 agreement the total consideration is shown as Rs.1,70,000/- which is projected in support of their case that Ext.A5 was executed fraudulently. The trial court held that the learned counsel for the lst defendant submitted that the value of the remaining 7 shares shown in Ext.A5 sale deed is reasonable and there is no wide disparity compared to the amount shown in Ext.A3 document. The other important aspect of this case is that the executants of Ext.A4 power of attorney never challenged the sale in favour of defendants 2 and 3. They have no case that the power of attorney is intended for execution of the sale deed in favour of Chacko or his legal heirs. The trial court rightly held that the sale deed in -12- R.S.A.No.450/2008 favour of defendants 2 and 3 by virtue of Ext.A5 assignment deed is valid. The contentions of the plaintiffs regarding the decree in O.S.No.403/97 and the final decree proceedings are not binding on them, are also untenable for the reasons elaborately considered and discussed by the trial court. Defendants 2 and 3 and the deceased Chacko became the co-owners of the property. Therefore, there is nothing wrong in the 2nd defendant filing a suit O.S.No.403/97 for partition. The defendants 2 and 3 by virtue of Ext.A5 document purchased 7/8 share of the plaint schedule property. Ext.A8 is the certified copy of the preliminary decree in O.S.No.403/97. Ext.A9 is the certified copy of the judgment in O.S.No.403/97. Ext.A11 is the certified copy of the order passed in the final decree I.A.665/99. The trial court, after elaborately considered the questions, held that there was proper service of notice on the deceased Chacko and on his death to his legal heirs, who are the plaintiffs in the suit. 7. I have already discussed the factual circumstances, -13- R.S.A.No.450/2008 the preliminary decree and final decree proceedings and about the service of notice, the manner in which notice was served and further petitions filed by the plaintiffs to set aside the ex parte decree and its dismissal. The trial court held that there is proper service of summons in the preliminary and final decree proceedings. All the contentions raised by the plaintiffs challenging the preliminary and final decree proceedings are found to be unsustainable and therefore the decree passed by the court below are found to be binding on them. On an elaborate consideration of the facts and circumstances, the trial court found that the plaintiffs are not entitled to any relief sought for. 8. In the appeal filed by the plaintiffs as A.S.No.192/2004 the Sub Court again re-appreciated the contentions and issues at the instance of the plaintiffs. The Lower Appellate Court after considering all the contentions raised by the plaintiffs, held that the court below analysed the evidence in correct perspective and invoked the right provisions -14- R.S.A.No.450/2008 of law to enter findings and observed that the said court does not have slightest of reason to interfere with the judgment and decree passed by the court below. The Lower Appellate Court examined the contentions raised by the appellants one by one and agreed with the findings of the trial court on facts and evidence. 9. The learned counsel re-agitated the contentions raised in the suit and appeal before this Court. This Court elaborately considered the findings and reasonings of the trial court and the first Appellate Court. The findings entered by the court courts below are based on the facts and evidence, which the appellants failed to assail successfully before this Court. The facts finding court correctly assessed and appreciated the facts and arrived at the findings. On an examination of the findings and issues, I am of the view that the views taken by the courts below are the only views possible in the given circumstances. Moreover, this is a case where all the findings are rested on facts. Therefore, this Court has no jurisdiction to entertain the appeal -15- R.S.A.No.450/2008 by invoking Section 100 of the C.P.C. No question of law much less any substantial question of law arises for consideration in this second appeal. In the result, the appeal fails and it is accordingly dismissed in limine. HARUN-UL-RASHID, Judge. kcv.