IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 RSA.No. 33 of 2009() -------------------- AS.53/2004 of DISTRICT COURT, PALAKKAD OS.825/1999 of PRINCIPAL MUNSIFF COURT, PALAKKAD .................... APPELLANT/RESPONDENT/DEFENDANT -------------------------------------------------- ACHUTHAN S/O.LATE PARAMESWARAN, 44 YEARS CHANGATH HOUSE, EDAPRAMBA, PUTHUSSERY, PALAKKAD TALUK. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENT(S): APPELLANT/PLAINTIFF ---------------------------------- K.MANI S/O.KUNJAN, 73 YEARS, RAMASSERY VADAKKE VEEDU, VENGODI AMSON DESOM, PALAKKAD TALUK PALAKKAD DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.33 of 2009 -------------------------------------- Dated this the 14th day of October, 2009. JUDGMENT This Second Appeal arises from judgment and decree of learned District Judge, Palakkad in A.S.No.53 of 2004 reversing dismissal of O.S.No.825 of 1999 of the court of learned Principal Munsiff, Palakkad and granting decree for recovery of possession on the strength of title. 2. The property described in the plaint schedule is five (5) cents and a building which originally belonged to Chamy Achari. Respondent/plaintiff claimed that Chamy Achari executed Ext.A6, Will No.113 of 1984 dated 27.06.1984 in favour of his wife, Thankammal. On the death of Chamy Achari, by virtue of Ext.A6 Thankammal became the absolute owner of the suit property. One Parameswaran, a deceased brother of respondent was residing in the building in the suit property as permitted by Chamy Achari and Thankammal. While so, Thankammal executed Ext.A5, gift deed dated 24.08.1998 in favour of respondent conveying her right, title and interest in favour of the respondent. On the strength of Ext.A5 respondent claimed to be the absolute owner of the suit property. He stated that Parameswaran continued residence under him also in the building in the suit property. Respondent produced Ext.A1, receipt dated 29.07.1999 for payment of building tax by him and Ext.A2, receipt dated 17.09.1998 for payment of revenue for the suit property. Appellant is the son of RSA No.33/2009 2 deceased Parameswaran who continued residence in the building in the suit property. Respondent issued Ext.A3, notice dated 10.08.1999 requesting the appellant to vacate the premises. Service of notice on appellant is proved as per Ext.A3(a) and (b), postal receipt and acknowledgment card. Appellant claimed that he is the adopted son of Chamy Achari and Thankammal. He disputed execution of Ext.A6, Will and Ext.A5, gift deed and claimed that the said documents are fraudulently created. The further contention is that he has spent Rs.75,000/- for reconstruction of the building. Learned Munsiff found that the due execution of Ext.A5 is not proved and consequently dismissed the suit. Respondent took up the matter in appeal before learned District Judge. Learned District Judge after consideration of the evidence found in favour of due execution of the Will and gift deed, found that respondent has title over the property and allowed recovery of possession. That judgment and decree are under challenge in this Second Appeal raising the questions whether a document purported to have been executed by the executant be said to be genuine and had been validly executed in the absence of evidence to show that the signature therein is that of the executant and whether first appellate court was right in setting aside judgment and decree of the trial court based on oral evidence of witnesses whose demeanour the trial court had occasion to watch, in the absence of special features in the evidence of witness which had escaped the attention of the trial court. Learned counsel for appellant contends that the first appellate court was not justified in reversing the judgment and decree of the trial RSA No.33/2009 3 court without proper reasons. 3. Issue concerned is whether the due execution of Ext.A6, Will No.113 of 1984 said to be executed by Chamy Achari and Ext.A5, gift deed dated 24.08.1998 said to be executed by Thankammal have been proved. It is true that execution of the said documents is disputed by appellant and hence by virtue of Section 68 of the Indian Evidence Act (for short, “the Act”) respondent was obliged to prove its due execution and attestation. So far as Ext.A6, Will is concerned, two witnesses have been examined by respondent to prove its execution. They have given evidence regarding due execution and attestation. Learned Munsiff observed that scribe of the document is not examined and disbelieved the evidence of the witnesses. So far as Ext.A5, gift deed is concerned, PW2, the attestor was examined to prove due execution and attestation. On the other hand, appellant examined DW2, the Medical Officer who attended on late Thankammal. His evidence is that Thankammal was admitted in the hospital on 10.09.1995 with hemiplegia of the right hand for two days and on the date of admission, her both limbs may have been paralised and that her capacity to speak could be lost. Ext.B4(a) is the case sheet for admission and treatment of Thankammal. Learned District Judge found that the said evidence is not sufficient to show that Thankammal was incompetent physically or mentally to execute Ext.A5 on 24.08.1998 . Learned District Judge believed the evidence of attesting witnesses to Exts.A6 and A5. Ext.A7 shows that Thankammal died on 07.07.1989. Though, registration by itself is not RSA No.33/2009 4 evidence of genuineness it has been held that when a document is duly registered complying with the statutory requirements under the Registration Act which includes a query by the registering officer to the executant whether he has executed the document and proper identification of the executant by the registering officer that there is an initial presumption regarding genuineness. There is also evidence of attesting witnesses which the learned District Judge found is acceptable. Learned District Judge has considered the evidence and found that the finding of learned Munsiff against the due execution of Ext.A5 is not sustainable. 4. It is true that when the decision of the trial court depended on proper appreciation of the oral evidence, first appellate court will not justified in reversing the finding entered by the trial court on such oral evidence, unless there is something in the oral evidence which did not catch the attention of the trial court which if considered would tilt to the decision. In this case, it is not merely on oral evidence that is on record. There is also the documentary evidence, as also the fact of registration and its effect which I have stated above which the first appellate court found in favour of respondent. 5. So far as the plea of adoption made by the appellant is concerned, both courts did not find in favour of the appellant. That also is a finding on fact. 6. On the finding of the first appellate court on facts, High Court in Second Appeal could interfere only when the finding is based on no evidence or, when it is perverse. On going through the judgment and hearing learned counsel RSA No.33/2009 5 I am not satisfied that any such contingency arises in this appeal, there is no substantial question of law involved requiring admission of the appeal and issue of notice to the respondents. I find no merit in the Second Appeal. Resultantly, this Second Appeal is dismissed in limine. I.A.No.43 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks