IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 25TH JANUARY 2010 / 5TH MAGHA 1931 RSA.No. 33 of 2010() -------------------- AS.312/2008 of DISTRICT COURT,KOLLAM OS.77/2003 of PRINCIPAL MUNSIFF COURT, KOLLAM .................... APPELLANTS/APPELLANTS/DEFENDANTS 4 AND 5 ------------------------------------------------------------ 1. DHANA BOSE, AGED 44 YEARS, S/O.BHASKARAN, ERATHU VEEDU, PRAKKULAM CHERRY, THRIKKARUVA VILLAGE REPRESENTED BY POWER OF ATTORNEY HOLDER MAYA RANI, W/O.DHANA BOSE, ERATHU VEEDU, PRAKKULAM CHERRY, THRIKKARUVA VILLAGE. 2. MAYA RANI, AGED 37 YEARS, W/O.DHANA BOSE, ERATHU VEEDU, PRAKKULAM CHERRY, THRIKKARUVA VILLAGE. BY ADV. SRI.RAJA VIJAYARAGHAVAN SRI.M.T.SURESH KUMAR RESPONDENT(S): RESPONDENTS/PLAINTIFF AND DEFENDANTS 2 AND 3 ----------------------------------------------------------- 1. RAMANI BHAI, AGED 59 YEARS, W/O.SASIDHARAN, REMANI SADHANAM, CHARUKADA CHERRY, PANAYAM VILLAGE FROM NELLIPUZHA VEEDU, PRAKULAM CHERRY, THRIKKARUVA VILLAGE, KOLLAM DISTRICT. 2. ROOPATHY @ SIVADASAN, AGED 54 YEARS, ERATHU VEEDU, PRAKULAM CHERRY, THRIKKARUVA VILLAGE FROM NELLIPUZHA VEEDU, PRAKULAM CHERRY, THRIKARUVA VILLAGE, KOLLAM. 3. RADHAS, AGED 47 YEARS, S/O.BHASKARAN, NELLIPUZHA VEEDU, PRAKULAM CHERRY, THRIKARUVA VILLAGE, KOLLAM. ADV. SRI.P.SREEKUMAR(CAVEATOR-R1) SRI.K.S.MANU (CAVEATOR-R1) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.33 of 2010 -------------------------------------- Dated this the 25th day of January, 2010. JUDGMENT Defendant Nos.4 and 5 in O.S.No.77 of 2003 of the court of learned Principal Munsiff, Kollam are the appellants. Parties are referred to as plaintiff and defendants as in the trial court for convenience. 2. Defendant No.1 died pending the suit. His legal representatives who were already on the party array were recorded as such. Plaintiff and defendant Nos.2 to 4 are children of defendant No.1 and the late Arundhathi. Plaintiff claimed that suit property originally belonged to defendant No.1 and the said Arundhathi and they executed Ext.A1, settlement deed No.1458 of 1997 dated 7.7.1997 in favour of the plaintiff regarding 32 cents in survey No.464/6 in Block No.4 (old survey No.3736) reserving a life interest for defendant No.1 and the mother, Arundhathi and right to reside in the building in the suit property until their death. It is also the claim of plaintiff that she was given possession of the said property with a right to effect mutation and accordingly she effected mutation and was paying revenue for the property. Exts.A2 to A8 prove mutation and payment of revenue. It is also her case that similar settlement deeds were executed by defendant No.1 and the mother, Arundhathi in favour of defendant Nos.2 to 4 (evidenced by Exts.A9 to A11, copy of the deeds) which were cancelled by defendant No.1 and Arundhathi as per document No.727 of 1998 RSA No.33/2010 2 dated 18.4.1998. Regarding that defendant No.3 filed O.S.No.572 of 1998. Defendant No.1 and Arundhathi wanted plaintiff to depose in their favour in that suit which plaintiff refused. Enraged, defendant No.1 and Arundhathi cancelled Ext.A1, settlement deed in favour of plaintiff as per Ext.A12, cancellation deed. It is the further case that pursuant to the cancellation the suit property was assigned to defendant No.5 at the instance of defendant No.4. Hence the suit for a declaration that the cancellation deed is null and void and for injunction against defendant Nos.4 and 5 trespassing into the suit property. Defendant No.1 contended that possession of the suit property remained with him and that he has assigned the property to defendant No.5 as per Ext.A13, assignment deed. He claimed that the cancellation deed is legal and proper. Defendant Nos.4 and 5 raised the same contention. Courts below found that Ext.A1, settlement deed has taken effect, it is three years thereafter that defendant No.1 and Arundhathi cancelled the said document, there is no power for cancellation retained by settlers as per Ext.A1 and hence in the light of the decision of this Court in Gopalakrishnan v. Rajamma (2006 (4) KLT 377) cancellation could only have been through the process of court. Holding so, cancellation deed was found to be null and void and relief was granted in favour of the plaintiff. Defendant Nos.4 and 5 challenged judgment and decree of the trial court in A.S.No.312 of 2008. Since that appeal was filed with a delay of 453 days, appellants/defendant Nos.4 and 5 filed I.A.No.1586 of 2008 to RSA No.33/2010 3 condone the delay. Learned District Judge found that there is no sufficient reason to condone the delay, dismissed I.A.No.1586 of 2008 and consequently the appeal as well. Hence the Second Appeal urging by way of substantial question of law whether first appellate court committed an error by not permitting defendant Nos.4 and 5 (appellants) to adduce evidence to substantiate the cause for delay and whether first appellate court has correctly construed Section 5 of the Limitation Act liberally in order to render substantial justice to the parties? 3. True, at this stage this Court is concerned with the question whether defendant Nos.4 and 5 had sufficient cause for not filing the appeal within the prescribed time. But, even if it is shown that there was sufficient cause, it is within the discretionary jurisdiction of the court to condone the delay or not as held by the Supreme Court in Ramlal and others v. Rewa Coalfields Ltd. (AIR 1962 SC 361). There it has been held that mere proof of existence of sufficient cause does not, under Section 5 of the Limitation Act ipso facto compel the court to extent time. Court has discretion to admit or refuse the appeal even if sufficient cause is made out as is made clear by expression “may be admitted” in Section 5 of that Act. Hence two things arise for RSA No.33/2010 4 consideration, whether defendant Nos.4 and 5 had sufficient cause for not filing the appeal on time and whether assuming so, first appellate court ought to have exercised the discretionary jurisdiction to admit the appeal. 4. Reason stated for the delay in the affidavit of defendant No.5 (appellant No.2) is that after the suit was decreed on 9.3.2007, she had made arrangements with her advocate and his clerk to get certified copy of judgment and decree and though she was repeatedly demanding the certified copy of judgment and decree, clerk did not make it available stating that it would require time to get the same. Though she complained to the advocate, there was no result. She then made enquiry through another advocate clerk and learnt that there was no application for copy of judgment and decree of the trial court. Thereafter she engaged another counsel and obtained certified copy of judgment and decree on 5.9.2008. In the meantime, she was laid up with viral fever and hence the delay. Application was opposed by plaintiff contending that the reason stated are not true and at any rate, not sufficient. Learned District Judge observed that version of defendant No.5 regarding the cause for delay cannot be accepted, no evidence has been adduced and that at any rate it is difficult to believe that defendant No.5 was laid up with viral fever for about 34 days as claimed by her. One ground urged in the memorandum of appeal is that no opportunity was given to defendant Nos.4 and 5 to adduce evidence. But I do RSA No.33/2010 5 not find any material to hold so. There is no case that any request was made to learned District Judge to allow defendant Nos.4 and 5 to adduce evidence and that request was refused. Medical certificate concerning the alleged sickness of defendant No.5 was not produced in the first appellate court. In the circumstances, first appellate court cannot be found fault for not accepting version of defendant Nos.4 and 5 regarding the delay. 5. Ext.A1, settlement deed was executed by defendant No.1 and Arundhathi in favour of plaintiff (respondent No.1) as early as on 7.7.1997. Going by the judgment of the trial court plaintiff was authorised to effect mutation in her name and pay revenue for the said property which she has done as revealed from Ext.A2 to A8. Thus there was sufficient evidence before trial court to hold that Ext.A1 which is neither onerous nor conditional has taken effect. It is settled law that so far as acceptance of gift/settlement is concerned slight evidence is sufficient. Even recitals in the deed would some time be sufficient. Trial court has observed that defendant No.1 and Arundhathi have divested themselves of their right, title and interest in the property and only a life interest was retained for them. Thus, it is in evidence that much prior to Ext.A12, cancellation deed the settlement (Ext.A1) has taken effect. If that be so defendant No.1 and Arundhathi could not have cancelled Ext.A1 and assigned the property in favour of defendant No.5. Learned Munsiff has referred RSA No.33/2010 6 to the relevant decisions on the point to hold so. Therefore I am of the view that even if sufficient cause was shown there was no reason why the discretionary jurisdiction ought to have been exercised in favour of defendant Nos.4 and 5. First appellate court is justified in declining to condone the delay. I am not satisfied that any substantial question of law do arise for a decision in this Second Appeal. Resultantly the Second Appeal is dismissed in limine. I.A.Nos.81 & 82 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks