IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 11TH JANUARY 2011 / 21ST POUSHA 1932 RSA.No. 795 of 2008() --------------------- AS.102/2003 of PRL.SUB COURT,THALASSERY OS.817/1999 of PRL.MUNSIFF COURT, KANNUR .................... APPELLANT ------------------- KAMALAKSHI, D/O. AMBU, AGED 58, RESIDING AT REEJA NIVAS, ELAYAVOOR AMSOM, MUNDAYADU DESOM, P.O. THAZHE CHOVVA, KANNUR. BY ADV. SRI.GOPAKUMAR G. (ALUVA) RESPONDENT(S): RESPONDENT ------------------------- BHARATHAN.M.C, S/O. RAMAN, AGED 66, SWARAJ NIVAS, NADAL, P.O. EDAKKAD, KANNUR. ADV. SRI.M.RAMESH CHANDER FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.795 OF 2008 -------------------------------- Dated this the 11th day of January 2011 JUDGMENT Plaintiff is the appellant in O.S No.817/1999 on the file of Principal Munsiff Court, Kannur. Concurrent decision rendered by the two courts below that the plaintiff is not entitled to the reliefs canvassed in her suit, which initially was filed as one for injunction, but, later amended for declaration of her title and possession over the suit property as well, is challenged in the appeal. Suit property has been described as having an extent of 26 cents of paddy land. Resisting the claim for decree of injunction, the defendant, who is none other than the husband of the younger sister of the plaintiff, contended that over 5 ½ cents covered by the suit property, the plaintiff had executed Ext.B1 sale deed in his favour receiving the consideration thereof. Pursuant to Ext.B1 sale deed, he got title and possession over the aforesaid 5 ½ cents of land was the case of the defendant. He also contended that as against the husband of the plaintiff, execution proceedings were pending towards the debt to be realised from him under a money decree and, to discharge such debt, the property covered by Ext.B1 was conveyed to him for a R.S.A No.795 OF 2008 - 2 - consideration of Rs.2,25,000/-. However, the sale price shown under Ext.B1 deed was a lesser sum to have reduction of the stamp fee payable thereof. Contentions as above being raised by the defendant persuaded the plaintiff to seek amendment for declaration of her title and possession over the suit property impeaching the sale deed as void. Ext.B1 was a fraudulent document was her case alleging that she is an illiterate lady. On the materials placed by both sides, challenge raised by the plaintiff against Ext.B1 as a product of fraud was found meritless by the trial court, which noticed that the son of the plaintiff with another was an attester to that deed. The trial court found that the defense raised by the defendant that Ext.B1 sale deed was executed to discharge a decree debt was acceptable. DW2, who was examined by the defendant to substantiate his defense was none other than the brother of the plaintiff. He also supported the case of the defendant. It was also noticed that Ext.B1 sale deed was executed within two weeks after the plaintiff had discharged the decree debt of more than rupees two lakhs. The dismissal of the suit by the trial court after reappreciating the materials tendered was confirmed in appeal by the lower appellate court turning down the challenges to such decree raised by the R.S.A No.795 OF 2008 - 3 - appellant herein. As against that concurrent decision, the present Second Appeal is preferred. 2. Respondent who had filed a caveat has entered appearance through counsel. I heard the counsel on both sides on the entertainability of the appeal. The insufficiency of the consideration stated in Ext.B1 sale deed, which was stated as having been done to avoid the stamp fee payable, even from the admission made by the defendant, according to the learned counsel for the appellant, would advance the case of the appellant that the said deed was a product of fraud. I do not find any merit in that submission. Even assuming that the stamp fee and registration fee paid on the deed is insufficient, it is a matter for the competent authority as under the Kerala Stamp Act to initiate appropriate proceedings under Section 45(B) of that Act to realise the balance amount, if any, payable towards deficit registration and stamp fee. A lessor amount was shown as consideration in the deed and it was got registered not paying the amount of stamp fee required on the actual consideration cannot be given any merit to consider the validity of that deed. At any rate, that circumstance canvassed by the counsel for the appellant to impeach the decision concurrently rendered by the R.S.A No.795 OF 2008 - 4 - courts below that the appellant is not entitled to the reliefs canvassed, declaration and also injunction, has no merit at all. I find no infirmity leave alone any illegality in the concurrent decision rendered by the court below. The appeal is devoid of any merit, and is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv