IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN MONDAY, THE 21ST DAY OF MARCH 2011/30TH PHALGHUNA 1932 SA.No. 15 of 1995 (B) AGAINST THE DECREE DATED 25.6.1994 IN AS.NO.7/1990 OF THE DISTRICT COURT, KOLLAM FROM THE DECREE DATED 31.1.1989 IN OS.NO.130/1985 OF ADDITIONAL SUB COURT, KOLLAM APPELLANTS:RESPONDENTS: DEFENDANTS 1 & 2: 1. KARTHIYANI PILLAI JANAKI PILLAI, CHEMPAKAL VEEDU, KOVOOR MURI, MYNAGAPPALLY VILLAGE FROM KOTHAMANGALATHU KOTHETHU PUTHEN VEEDU, NADUVILAKARA, THEVALAKKARA. (DIED-LRS. IMPLEADED) 2. PADMANABHAN NAIR ARAVINDAKSHAN NAIR OF -DO- BY ADVS.SRI.P.R.VENKETESH SRI.P.R.RAJA RESPONDENT: APPELLANT: PLAINTIFF: VELUPILLAI VISWANATHA PILLAI, KONTHAYIL PUTHEN VEEDU, ARINALLOOR MURI, THEVALAKKARA FROM CHEMPAKAL VEEDU, KOVOOR MURI, MYNAGAPPALLY VILLAGE.(DIED-LRS. IMPLEADED) ADDL.R2 TO R5 IMPLEADED: ADDL.R2. JANAKI PILLAI RAJAMMA PILLAI, KONTHAYIL PUTHEN VEEDU, THEVALAKKARA, ARANELLOOR P.O., QUILON DISTRICT. ADDL.R3. JANAKI PILLAI SARASAMMA PILLAI, KOCHUVEETTIL THEKKETHIL, KOVOOR, MYNAGAPPALLY VILLAGE, ARANELLOOR P.O., QUILON DISTRICT. ADDL.R4 JANAKI PILLAI PONNAMMA PILLAI, MADATHIL KIZHAKKETHIL VEEDU, CHERUTHANA VADAKKU, CHERUTHANA P.O., ALLEPPEY DISTRICT. ADDL.R5 PADMANABHAN NAIR RAVEENDRAN PILLAI, CHEMPAKAL HOUSE, KOVOOR, ARANELLOOR P.O., QUILON DISTRICT. (DIED.LRS. IMPLEADED) ADDL.R6 TO R9 IMPLEADED: SA.No. 15 of 1995 (B) :: 2 :: ADDL.R6 VIMALAMMA PILLAI, KONTHAYIL PUTHEN VEEDU, THEVALAKKARA, ARANALLOOR P.O., QUILON DISTRICT. ADDL.R7 VIJAYALEKSHMI @ PODICHI, -DO- -DO- ADDL.R8 VIKRAMAN PILLAI, -DO- -DO- ADDL.R9 VIDHYADARAN PILLAI, -DO- -DO- ADDL.R10 AND R11 IMPLEADED: ADDL.R10 PRASANNA KUMARI, W/O.RAVEENDRAN, CHEMPAKAL HOUSE, KOVOOR, ARANELLOOR P.O., QUILON DISTRICT. ADDL.R11 REMYA, D/O.RAVEENDRAN, -DO- -DO- THE SECOND APPELLANT IS RECORDED AS ONE OF THE LEGAL HEIRS OF THE DECEASED FIRST APPELLANT AND THE OTHER LEGAL HEIRS OF THE DECEASED FIRST APPELLANT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 2 TO 5 AS PER THE ORDER DATED 21.3.2011 IN C.M.P.NO.1239 OF 1998. THE LEGAL HEIRS OF THE DECEASED ADDITIONAL SECOND RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 6 TO 9 AND THE FIRST RESPONDENT IS RECORDED AS ONE OF THE LEGAL HEIRS OF THE DECEASED ADDITIONAL SECOND RESPONDENT AS PER THE ORDER DATED 21.3.2011 IN I.A.NO.2151 OF 2010. THE LEGAL HEIRS OF THE DECEASED ADDITIONAL FIFTH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 10 AND 11 AS PER THE ORDER DATED 21.3.2011 IN I.A.NO.2150 OF 2010. ADDL.R2, R3 & R5 BY ADV. SRI.N.DHARMADAN (SR.) BY ADV. SMT.D.P.RENU BY ADV. SRI.S.T.ALEXANDER THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 2-11-2010, THE COURT ON 21.3.2011 DELIVERED THE FOLLOWING: I.A.NO.48/1995 IN S.A.NO.15/1995 B DISMISSED 21/3/2011 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ K.T.SANKARAN, J. ----------------------------------------------- S.A. NO. 15 OF 1995 B ------------------------------------------------ Dated this the 21st day of March, 2011 JUDGMENT Defendants 1 and 2 in O.S.No.130 of 1985, on the file of the Court of the Subordinate Judge of Kollam, challenge the judgment and decree in A.S.No.7 of 1990 on the file of the Court of the District Judge, Kollam, in this Second Appeal. 2. The suit was filed by the respondent in the Second Appeal for declaration of title and for recovery of possession of the plaint schedule property on the basis of title. Recovery of possession was sought after removing the furniture and other equipments belonging to the defendants and also after shifting the class rooms. The trial court dismissed the suit. On appeal by the plaintiff, the appellate court decreed the suit. 3. The plaint schedule property is having an extent of 40 cents. According to the plaintiff, he has title to the said extent of land. 4. Janaki Pillai (first defendant) and Padmanabhan Nair have a son S.A.NO.15 OF 1995 :: 2 :: and a daughter, namely, Aravindakshan Nair (second defendant) and Rajamma Pillai. Velu Pillai is the husband of Rajamma Pillai. The plaintiff, Viswanatha Pillai, is the son of Rajamma Pillai. Padmanabhan Nair died in 1956. According to the plaintiff, his father Velu Pillai purchased the plaint schedule property as per Exts.A2 and A3 sale deeds dated 25.10.1960 and 5.11.1960. That property belonged to the brothers of Velu Pillai. As per Ext.A1 settlement deed dated 20.1.1975, Velu Pillai and Rajamma Pillai gifted certain items of properties to the plaintiff and his sister. The plaint schedule property was gifted to the plaintiff. 5. Janaki Pillai was the Manager of Kovoor Upper Primary School. Velu Pillai, the son-in-law of Janaki Pillai, was the Correspondent of that school. In the year 1956, Ext.A7 partition took place among the defendants, Rajamma Pillai and others. As per the partition deed, the properties where the School was functioning were allotted to Janaki Pillai, who was also the Manager of the School. Ext.A7 partition deed also recognizes the right of Velu Pillai to continue as the Correspondent of the School during his lifetime. However, the post of Correspondent ceased to exist as per the government orders. The plaint schedule property was later annexed to the school compound, after the property was purchased as per Exts.A2 and A3 sale deeds. S.A.NO.15 OF 1995 :: 3 :: 6. According to the plaintiff, while Velu Pillai was functioning as the Correspondent of the School, it was found that sufficient space was not available for conducting the School. Therefore, Velu Pillai purchased the plaint schedule properties from his brothers and constructed the school buildings. There was a consensus among the members of the family that after the death of Janaki Pillai, Velu Pillai would be the Manager of the School. It was on that basis, after purchase of the plaint schedule property, it was permitted to be used for the purpose of the School. Janaki Pillai did not spend any amount for construction of the buildings. Even after cessation of the post of Correspondent, Velu Pillai continued to manage the affairs of the School and he was under the belief that he would be the next Manager of the School. 7. It is alleged by the plaintiff that contrary to the agreement, the first defendant executed Ext.A4 gift deed in 1982 transferring the property of the School and its management to her son, the second defendant. The plaintiff contended that the defendants have no right over the plaint schedule property. The plaintiff prayed for the reliefs mentioned above. However, in paragraph 11 of the plaint, it was stated that taking into account the fact that part of the School is situated in the plaint schedule S.A.NO.15 OF 1995 :: 4 :: property, the plaintiff offers to sell the property to the second defendant on a reasonable market value. 8. The defendants contended that after the death of Padmanabhan Nair, his son-in-law Velu Pillai came to the house of the first defendant as a helper. Velu Pillai was looking after the affairs of the first defendant. At the time of death of Padmanabhan Nair, his children were minors. The first defendant decided to purchase the plaint schedule property for the purpose of the School. The first defendant spent amounts for the purchase. However, the property was purchased in the name of Velu Pillai. The consideration for Exts.A2 and A3 sale deeds was given by the first defendant. Even before the execution of Exts.A2 and A3, possession of the property was given to the first defendant. Buildings were constructed in the property by Velu Pillai, but funds for the same were provided by the first defendant. Velu Pillai continued as the Correspondent of the School till 1962. In 1982, Ext.A4 was executed by the first defendant in favour of the second defendant. The management of the School was also transferred to him. The second defendant is in possession of the School and its properties. The plaint schedule property was purchased and buildings were constructed therein by spending the money given by the first S.A.NO.15 OF 1995 :: 5 :: defendant. Velu Pillai did not spend any amount for that purpose. The contention that there was a mutual agreement that the managership of the School will vest in Velu Pillai after the death of Janaki Pillai, the first defendant, was denied. The first defendant had sufficient funds for investment for the purpose of the School. The plaint schedule property and the School compound are lying as a single compound and there is no demarcating boundary between the plaint schedule property and the rest of the property. Even if the plaintiff had any right in the property, it is barred by limitation. 9. The trial court arrived at the following findings: (a) No relief is sought for in the plaint based on the alleged oral agreement to transfer the management of the School to Velu Pillai. Therefore, the existence or otherwise of the oral agreement does not arise for consideration. b) Since recovery of possession is sought for, it is impliedly admitted that the plaintiff is not in possession of the property. It is not pleaded when he lost possession. The father of the plaintiff was managing the affairs of the School up to 1982. It is not clear whether the plaintiff asserts that this amounted to his possession or possession of his father. S.A.NO.15 OF 1995 :: 6 :: c) The father of the plaintiff (Velu Pillai) and the first defendant were capable of acquiring the plaint schedule property and they had the financial capability for the same. Therefore, financial position of the parties is immaterial in deciding the question as to who acquired the plaint schedule property. d) The evidence adduced in the case is not sufficient to prove that Velu Pillai had spent money for the purpose of construction of the buildings in the plaint schedule property. e) There is no positive evidence from the side of the defendants to prove that the buildings were constructed by the first defendant with her money. f) The title deeds in respect of the plaint schedule property stood in the name of Velu Pillai and he transferred those rights in favour of the plaintiff. g) The acquisition was made for the purpose of the School. h) There is no acceptable evidence to show that Velu Pillai continued to manage the affairs of the School up to 1982. i) There is a presumption that the Manager of the School incurred the expenditure for construction of the buildings. That presumption is inconsistent with the title to the property as per Exts.A2 and A3 sale deeds. S.A.NO.15 OF 1995 :: 7 :: j) The plea of adverse possession is not established. The contention of the first defendant is that the acquisition was made with her funds. This contention is something different from the plea of adverse possession. k) No case was set up that the transaction was a benami transaction. The case of the defendants is that Velu Pillai fraudulently got the sale deeds executed in his name in violation of the confidence reposed in him. l) As per the statutory provisions, the Manager of the School is bound to be in possession of the properties. Exts.B1 and B2 statements submitted to the Education Department in which Velu Pillai was also a signatory, would support the contention of the defendants that Exts.A2 and A3 sale deeds were fraudulently obtained in the name of Velu Pillai. m) Taking into account the state of affairs which continued for several years, the prayer for recovery of possession cannot be granted. 10. The lower appellate court held that the second defendant did not get any right over the plaint 'A' schedule property by virtue of Ext.A4 gift deed. The extent of the property covered by Ext.A4 gift deed is only 90 cents. The plaint schedule property having an extent of 40 cents was not S.A.NO.15 OF 1995 :: 8 :: included in Ext.A4. The plaint schedule property was purchased by Velu Pillai as per Exts.A2 and A3 in the year 1960. The contention of the first defendant that the plaint 'A' schedule property was purchased in the name of Velu Pillai with the funds of the first defendant and therefore Velu Pillai has no title, is hit by the provisions of the Benami Transactions (Prohibition) Act, 1988. The plaintiff has title to the plaint schedule property and building. The burden of proof of adverse possession is on the defendant, under Article 65 of the Limitation Act. There is no satisfactory and convincing evidence to prove that the defendants have perfected title by adverse possession and limitation. The right of Velu Pillai over the plaint schedule property is not lost. His proprietary right subsists. As Velu Pillai had transferred the property to the plaintiff as per Ext.A1, the plaintiff has title to the property. Velu Pillai only permitted the defendants to make use of the plaint schedule property for the purpose of conducting the School. Permissive possession cannot be said to be adverse possession. The defendants have not perfected title by adverse possession. The lower appellate court also held that since the plaint schedule property is not the property belonging to Kovoor U.P.School, the restriction imposed on alienation of the property of the School under Section 6 of the Kerala Education Act does not apply. The lower appellate court held that the plaintiff is entitled to get the reliefs. S.A.NO.15 OF 1995 :: 9 :: 11. The substantial questions of law formulated in the Second Appeal and on which notice was ordered are the following: “(i) When with the funds of the first defendant property is purchased and buildings are put up by an agent, will Section 4 of the Benami Transactions (Prohibition) Act be attracted? (ii) When an agent holding a fiduciary capacity purchased the property and effects improvements with the funds of the principal, is he not holding them as trustee and is answerable under Section 88 of the Trust Act? (iii) Is not the plaintiff estopped from claiming right to the property and buildings in view of the statements submitted by Velu Pillai to the department that the property and buildings belong to the school? (iv) When over 23 years possession is asserted by the first defendant and the alleged owner only acted as an agent of the first defendant, will not the right of the alleged agent be lost on account of the adverse possession and limitation? (v) Is not the claim for declaration of title and recovery of possession of the suit property and the buildings barred under Section 6 and 7 of the Kerala Education Act? S.A.NO.15 OF 1995 :: 10 :: (vi) Is not the claim for recovery made by plaintiff barred by adverse possession?” 12. The learned counsel for the appellant submitted that in Ext.A4, reference is made to the property purchased for the purpose of the School, which evidently indicates that it is the property covered by Ext.A2 and A3 sale deeds executed in favour of Velu Pillai. The counsel pointed out that Velu Pillai was acting as the agent of the first defendant and he was the Correspondent of the School. Velu Pillai was having a fiduciary relationship with the first defendant. Velu Pillai himself treated the plaint schedule property as the property of the School. That is clear from Exts.B1 and B2, the applications submitted for maintenance grant for the School. In Exts.B1 and B2, the first defendant as well as Velu Pillai put their signature in their capacity as Manager and Correspondent. The total extent of the site of the School is shown as 148 cents, which includes the plaint schedule property as well. The learned counsel for the appellant also submitted that clause (b) of sub-section (3) of Section 4 of the Benami Transactions (Prohibition) Act, 1988 would apply in the case and therefore, the bar under Section 4(2) will not apply. It is also submitted that Section 88 of the Indian Trusts Act, 1882 will apply in the case. S.A.NO.15 OF 1995 :: 11 :: 13. Learned senior counsel appearing for the respondent submitted that the findings arrived at by the court below are findings of fact. The substantial questions of law raised in the Second Appeal really do not arise for consideration as they are not supported by pleadings and evidence. He also relied on the decisions reported in Krishnamurthy S.Setlur (dead) by L.Rs. v. O.V.Narasimha Setty and others (AIR 2007 SC 1788), Abubakar Abdul Inamdar (dead) by LRs. and others v. Harun Abdul Inamdar and thers (AIR 1996 SC 112), Gaya Parshad Dikshit v. Dr.Nirmal Chander and another (AIR 1984 SC 930), Pawan Kumar Gupta v. Rochiram Nagdeo (AIR 1999 SC 1823), P.Lakshmi Reddy v. L.Lakshmi Reddy (AIR 1957 SC 314), Raman Ittiyathi and others v. Pappy Bhaskaran and others (AIR 1990 Kerala 112). 14. The substantial question of law Nos.(ii) and (iv) do not really arise for consideration as they are not supported by sufficient pleadings and evidence. There is no case for the defendants that there was a fiduciary relationship between the first defendant and Velu Pillai and that Velu Pillai was acting as a trustee or agent. Therefore, I am not inclined to accept the contentions based on substantial question of law Nos.(ii) and (iv) referred to above. S.A.NO.15 OF 1995 :: 12 :: 15. There is no dispute that Ext.A4 title deed in favour of the second defendant covers only 90 cents of land. It is also not in dispute that the total extent of the school compound is one acre 28 cents. The extent of land covered by Exts.A2 and A3 is 40 cents. The second defendant cannot, therefore, claim title to the plaint schedule property on the basis of Ext.A4 title deed. Thus it is clear that the title to the plaint schedule property vested in Velu Pillai, going by Exts.A2 and A3 sale deeds. 16. In Pawan Kumar Gupta v. Rochiram Nagdeo (AIR 1999 SC 1823), the Supreme Court held that the plaintiff who claims title on the basis of a registered sale deed has no burden to establish that the transaction was consistent with the apparent tenor of the document and the burden is on the opposite party to prove the facts which are variance with the terms of the document. The burden of proof is on the person who asserts that the real transaction is not what is apparently contained in the registered document. In the present case, the plaint schedule property was purchased by Velu Pillai from his brothers as per Exts.A2 and A3 registered sale deeds dated 25.10.1960 and 5.11.1960. The apparent tenor of the document is that the brothers of Velu Pillai were having title to the property and they sold the property to Velu Pillai on receiving adequate S.A.NO.15 OF 1995 :: 13 :: consideration for the same. The plaintiff who claims under Velu Pillai has no burden to establish that the recitals contained in Exts.A2 and A3 truly represented the real state of affairs. On the other hand, the defendants contend that for the purpose of purchasing Exts.A2 and A3 properties, money was advanced by the first defendant and the transactions were really intended for the purpose of the School. These contentions really go against the apparent tenor of the document. Evidently, the burden of proof is on the defendants to establish their contentions. The defendants have failed to prove the same. Even the trial court held that Velu Pillai was having sufficient funds for purchasing Exts.A2 and A3 properties. There is no evidence to indicate that Velu Pillai was depending on the first defendant for his livelihood or that he was incapable of purchasing properties. 17. The suit was filed after coming into force of the Benami Transactions (Prohibition) Act, 1988. Therefore, going by Section 4(2) of the Benami Transactions (Prohibition) Act, 1988, the defendants were not entitled to take a defence that the property was held by Velu Pillai as benami for the first defendant. The exemption contained in Section 4(3)(b) of the Benami Transactions (Prohibition) Act, 1988 cannot be sought in aid by the defendants as they had no case that Velu Pillai was a trustee or a S.A.NO.15 OF 1995 :: 14 :: person standing in a fiduciary capacity and that the property was held by him for the benefit of the first defendant, for whom he was a trustee or towards whom he was standing in a fiduciary capacity. In fact, the defendants have not raised a contention that the acquisition was made in the name of Velu Pillai as benamidar of the first defendant. Evidently, the defence was taken after the commencement of the the Benami Transactions (Prohibition) Act, 1988. The case of the defendants in the written statement is that though the property was purchased with the funds of the first defendant, the name of Velu Pillai was fraudulently entered in the title deeds. In this factual scenario, I am not inclined to accept the contention raised by the learned counsel for the appellant that clause (b) of sub-section (3) of Section 4 of the Benami Transactions (Prohibition) Act, 1988 would apply in the case. 18. As regards the contention of estoppel raised in question of law No.(iii), it is relevant to note that no plea of estoppel was raised in the written statement. Estoppel should be pleaded and proved. If the appellants are allowed to take the plea of estoppel, the plaintiff would be put to prejudice as he was not afforded an opportunity to put forward his contentions and to adduce evidence on that aspect. Therefore, I reject the plea of estoppel raised at the second appellate stage. S.A.NO.15 OF 1995 :: 15 :: 19. It was contended that since the first defendant was in possession of the property with the knowledge of Velu Pillai, continuously and without interruption, the suit is barred by adverse possession. No hostile animus is pleaded. The contention raised in the written statement would show that the defendants were claiming some sort of a right in the plaint schedule property. If so, the defendants cannot have hostile animus to possess adversely to the right of the plaintiff. When the defendants plead that the property was purchased with the funds provided by the first defendant and that the name of Velu Pillai was included in the title deeds fraudulently, it has got the colour of title on the part of the first defendant. The claim of title and the plea of adverse possession are mutually destructive and inconsistent. Moreover, there is no evidence to arrive at the conclusion that the defendants have perfected title by adverse possession and limitation. The lower appellate court held that “even though the defendants would contend that they have perfected title by adverse possession and limitation, there is absolutely no satisfactory and convincing evidence to prove that the defendants have perfected title by adverse possession and limitation”. The trial court also did not accept the plea of adverse possession. The trial court held that “presumably she would never intend to be in adverse possession of the plaint schedule S.A.NO.15 OF 1995 :: 16 :: property if, in fact the title of the plaint schedule property was with PW2”. (PW2 is Velu Pillai, father of the plaintiff.) Since both the courts below held on facts that the title of the plaintiff is not lost by adverse possession and limitation, I do not think that a different conclusion on facts could be made in the Second Appeal. Moreover, the defendants having claimed possession under a colour of title, they are not entitled to claim that they have perfected title by adverse possession. It is well settled that when a person claims possession under a colour of title, there could be no hostile animus to found a claim for adverse possession. 20. The contention raised by the defendants that the relief prayed for in the suit would be barred under Sections 6 and 7 of the Kerala Education Act is also without substance. Section 6 of the Kerala Education Act provides for restriction on alienation of property of aided school. It provides that no sale, mortgage, lease, pledge, charge or transfer of possession in respect of any property of an aided school shall be created or made except with the previous permission in writing of such officer not below the rank of a District Educational Officer, as may be authorised by the Government in this behalf. In the present case, there is no situation where the property of an aided school is sought to be transferred or alienated. In the suit, the