IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 16TH NOVEMBER 2009 / 25TH KARTHIKA 1931 RSA.No. 779 of 2003() --------------------- AS.89/1995 of III ADDL.SUB COURT, ERNAKULAM OS.48/1989 of II ADDL.MUNSIFF COURT, ERNAKULAM .................... APPELLANT/RESPONDENTS 3 - 4/PLAINTIFFS 2 & 3 ---------------------------------------------------------- 1. K.N.VISWANATHAN, S/O.NEELAKANDAN, AGED 45, RESIDING AT SMITHA BHAVAN, POOTHOTTA, MANAKUNNAM VILLAGE, NADAKKAVU P.O. 2. SAHADEVAN, S/O.NEELAKANDAN, AGED 36, R/AT KOLLAMPARAMBIL HOUSE, UDAYAMPEROOR DESOM, MANAKUNNAM VILLAGE, NOW R/AT ANJILIPARAMBIL HOUSE, WARD.NO.3, NADAKKAVU P.O., UDAYAMPEROOR. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.M.S.UNNIKRISHNAN RESPONDENT(S): APPELLANTS 1- 3 & IST RESPONDENT/DEFENDANTS ---------------------------------------------------------- 1. VELAYUDHAN, S/O.NEELAKANDAN, AGED 53, RESIDING AT KOLLAMPARAMBIL HOUSE, UDAYAMPEROOR DESOM, MANAKUNNAM VILLAGE, KANAYANNOOR TALUK. 2. K.N.RATNA BAI, W/O.VELAYUDHAN, AGED ABOUT 46, GOVERNMENT EMPLOYEE, RESIDING AT KOLLAMPARAMBIL HOUSE, UDAYAMPEROOR, MANAKUNNAM VILLAGE. 3. K.V.SREELEKHA, D/O.VELAYUDHAN, AGED ABOUT 19, RESIDING AT KOLLAMPARAMBIL HOUSE, UDAYAMPEROOR, MANAKUNNAM VILLAGE. RSA No.779/2003 2 4. VASU, S/O.NEELAKANTAN, AGED 63, RESIDING AT VADAYANEZHATHU HOUSE, S.D.P.Y. ROAD, PALLURUTHY, ERNAKULAM DISTRICT. ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R3 SRI.S.SREEKUMAR FOR R4 SRI.PEEYUS A.KOTTAM FOR R2&3 SRI NAVEEN THOMAS FOR R2 & R3 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX APPELLANTS' EXHIBITS: EXT.A22 - COPY OF JUDGMENT IN OS NO.446/1996 OF I ADDL.SUB COURT, ERNAKULAM EXT.A23 - COPY OF JUDGMENT IN OS NO.116/2000 OF I ADDL. SUB COURT, ERNAKULAM EXT.A24 - COPY OF JUDGMENT IN AS NO.333/2003 ID II ADDL.DISTRICT COURT, ERNAKULAM EXT.A25 - COPY OF SKETCH PREPARED BY ADV. COMMISSIONER ON OS NO.116/2000 OF I ADDL. SUB COURT, ERNAKULAM. THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.779 of 2003 -------------------------------------- Dated this the 16th day of November, 2009. JUDGMENT This Second Appeal arises from judgment and decree of learned Third Additional Sub Judge, Ernakulam in A.S. No.89 of 1995 reversing judgment and decree of learned Munsiff, Ernakulam in O.S. No.48 of 1989. Suit is for decree for ejection of defendant Nos.2 to 4 from the building in the plaint schedule and injunction against defendant Nos.1 to 4 committing waste or interfering with plaintiffs' possession of the suit property. Suit is based on a gift deed allegedly executed by plaintiff No.1 in favour of plaintiff No.2. Learned Munsiff granted relief (a) in the plaint (ejection of defendant Nos.2 to 4 from the building) but refused to grant rest of the reliefs. Defendant Nos.2 to 4 challenged the judgment and decree in A.S. No.89 of 1995. First appellate court held that the gift deed is not valid, plaintiffs are not entitled to any reliefs and consequently dismissed the suit reversing judgment and decree of the trial court. Plaintiff No.1 is no more. Plaintiff Nos.2 and 3 are aggrieved and have preferred the Second Appeal. The following substantial questions of law are framed for a decision: (i) Is the finding of the first appellate court that the that gift deed is void for want of proper attestation justified? RSA No.779/2003 2 (ii) Whether the right of co-mortgagor survives after the period of limitation after it was redeemed by one of the co-mortgagor? After hearing learned Senior Advocates on both side, the following substantial question of law is also framed for a decision: Whether first appellate court is legally correct in refusing relief to plaintiff Nos.2 and 3? Parties are referred to as plaintiffs and defendants as in the trial court for convenience. 2. Plaintiff No.1, Neelakandan died pending suit on 17.8.1991. Defendant No.1, Divakaran and Ambujakshy (who are not parties to this proceeding) are his children in his first wife, Kochumani who is also no more. Defendant No.3 is the wife of defendant No.2. Plaintiff Nos.2 and 3, Viswanathan and Sahadevan are the children of Neelakantan in his second wife, Indrani. It is not disputed that the suit property, 78 cents and building thereon was acquired in the name plaintiff No.1 and defendant No.1 as per Ext.A1, assignment deed dated 22.10.1951. While so, deceased plaintiff No.1 allegedly executed Ext.A2, gift deed dated 21.10.1964 in favour of plaintiff No.2. The gift is regarding the half share of plaintiff No.1 in the suit property including RSA No.779/2003 3 the building thereon. Plaintiffs claimed that though acquisition was made in the joint names of plaintiff No.1 and defendant No.1, the latter was a student at the time of the acquisition and was only a name lender in the document. Entire consideration for the acquisition was paid by plaintiff No.1 who constructed the building. Plaintiff No.2 redeemed the mortgage over the property. It is their further allegation that defendant No.1 who had no right or interest in the property inducted defendant Nos.2 to 4 into the building. They have also a case that subsequent to Ext.A2, gift deed which was accepted by plaintiff No.2, the latter relinquished his right in the building in the suit property in favour of plaintiff No.3. It is on the above averments that plaintiffs sought decree for ejection of defendant Nos.2 to 4 from the building and injunction against defendant Nos.1 to 4 interfering with plaintiffs' possession of property and against commission of waste. Defendant Nos.1 to 4 contended that the entire funds for the acquisition of the plaint schedule property as per Ext.A1 flowed from defendant No.1 who, then was employed in the Port Trust. Plaintiff No.1 had no right over the property. They denied execution of Ext.A2, gift deed in favour of plaintiff No.2. The gift deed is void and at any rate can only relate to the undivided half share of plaintiff No.1 in the suit property. They contended that defendant No.1 has right over the property and hence was competent to induct defendant Nos.2 to 4 in the building. Trial court accepted Ext.A2 and granted a decree for ejection of defendant Nos.2 to 4 from the building in the suit property but relief of RSA No.779/2003 4 injunction against defendant Nos.1 to 4 against interfering with the possession of plaintiffs in the schedule property was disallowed since according to the trial court defendant No.1 continued to be a co-owner (with plaintiff No.2) in joint possession of the entire property. Defendant No.1 did not challenge the judgment and decree. Defendant Nos.2 to 4 preferred appeal. First appellate court held that Ext.A2 is not valid as it is not properly attested as required under Section 123 of the Transfer of Property Act (for short, “the Act”). It was found that plaintiffs have no right over the property and hence trial court was not justified in granting decree for ejection of defendant Nos.2 to 4. Accordingly judgment and decree of the trial court were reversed and the suit was dismissed. Plaintiff Nos.2 and 3 are aggrieved and have come up in appeal urging the above substantial questions of law. It is contended by learned Senior Advocate appearing for plaintiff Nos.2 and 3 that finding of first appellate court that Ext.A2 is not valid is not sustainable. It is also contended that subsequent events have to be taken into account by this Court and mould the reliefs to put an end to the litigation which started 20 years back. Learned Senior Advocate for defendant Nos.2 to 4 contended that finding of first appellate court regarding validity of Ext.A2 requires no interference since the gift is not in compliance with Sec.123 of the Act and hence could confer no right on plaintiff No.2. It is contended that execution of Ext.A2 is specifically denied, but it is not proved as required under Section 68 of the Indian Evidence Act. It is RSA No.779/2003 5 also contended that defendant No.1 continued to be a co-owner of the suit property and hence no relief could be granted as against him or defendant Nos.2 to 4. Further contention is that so far as relief of injunction (relief (b) in the plaint) sought against defendant Nos.1 to 4 is concerned, trial court disallowed that prayer, plaintiff Nos.2 and 3 have not challenged that part of the decree by way of separate appeal or cross appeal, that part of the decree of the trial court became final and cannot be reopened in the Second Appeal. 3. Though in the plaint it is claimed that the mortgage over the property was redeemed by plaintiff No.2 and that he relinquished his right over the building in favour of plaintiff No.3 it is submitted by learned Senior Advocate appearing for plaintiff Nos.2 and 3 that the said contentions are not being persued in this Second Appeal that being not relevant for decision of this Second Appeal and is a claim between plaintiff Nos.2 and 3 inter se, which is not required to be settled in this Second Appeal. Hence it is unnecessary to answer the second substantial question of law framed. One of the substantial questions of law raised is as to the legal effect of Ext.A2, gift deed. It is true, its execution is denied by defendant Nos.1 to 4 in their joint written statement. It is true that apart from defendant No.1 who is directly concerned with Ext.A2, the gift deed defendant Nos.2 to 4 can also deny its execution once the document is put up against them and relief is sought against them also. But in my view, denial of execution by defendant Nos. 1 to 4 does not carry any weight since RSA No.779/2003 6 Ext.A2 was allegedly executed by plaintiff No.1 and he, along with plaintiff Nos.2 and 3 filed the suit asserting and acknowledging that he executed Ext.A2 in favour of plaintiff No.2. Person competent to say about execution or otherwise of Ext.A2 at that point of time was none other than plaintiff No.1 and during his lifetime he has affirmed that in favour of plaintiff No.2, the donee. There is no challenge to the competency of plaintiff No.1 to execute the document. Therefore there is no merit or weight in the contention of defendant Nos.1 to 4 that the document (Ext.A2) was not executed by plaintiff No.1. Since execution of Ext.A2 is expressly admitted by the executant, plaintiff No.1 there was no necessity to produce evidence of execution as required under Section 68 of the Evidence Act as held by this Court in Thayyullathil Kunhikannan v. Thayyullathil Kalliani (1990 (1) KLJ 114). 4. Learned Senior Advocate for defendant Nos.2 to 4 contends that at least consequent to the death of plaintiff No.1 on 17.8.1991 his legal representatives other than who are already on the party array should have been impleaded since they have a say in the matter and they are also competent to deny execution of Ext.A2. According to learned Senior Advocate in the absence of those legal representatives also on the party array, no finding as to the validity of Ext.A2 can be entered into. This argument also in my view has to fail for the reason that plaintiff No.1 during his lifetime admitted and asserted execution of Ext.A2 and even if other legal representatives of plaintiff No.1 were to be RSA No.779/2003 7 impleaded consequent to his death, they, in their capacity as legal representatives could not have raised a contention contrary to what plaintiff No.1 has admitted and asserted in the plaint. 5. So far as evidence on record is concerned, plaintiff No.2 has given evidence as P.W.1 and stated about execution of Ext.A2. Contra evidence is given by defendant No.1 as D.W.1. But DW1 has practically admitted that Ext.A2 was executed by plaintiff No.1. On going through the evidence of P.W1, I do not find any challenge to the execution of Ext.A2 by plaintiff No.1 or to signature of the latter in Ext.A2. Hence so far as the execution of Ext.A2 is concerned, finding has to be in favour of plaintiff Nos.2 and 3. Courts below also did not find against execution of Ext.A2. 6. Now the question is whether Ext.A2 can be taken as a valid gift in the light of the contention raised by Defendant Nos.1 to 4 that it is not valid. Contention is that while Sec.123 requires a gift deed to be attested by two or more witnesses, a perusal of Ext.A2 would show that it is not attested by two or more witnesses and there is no evidence in that line as well. Learned Senior Advocate appearing for defendant Nos.2 to 4 has placed reliance on the decision in N. Kamalam v. Ayyasamy (2001) 7 SCC 503) where necessity for compliance with Section 63(c) of the Succession Act as to the examination of attesting witnesses was highlighted. On the other hand learned Senior Advocate for plaintiff Nos.2 and 3 placing reliance on the decisions in RSA No.779/2003 8 Nirode Mohan Roy v. Charu Chandra Mazumdar (AIR 1950 Calcutta 401), Dhruba Sahu v. Paramananda (AIR 1983 Orissa 24) and Kamakshi Ammal v. Rajalakshmi (AIR 1995 Madras 415) contended that there is proper attestation of Ext.A2. 7. To understand the rival contentions it is necessary to refer to Ext.A2. In the concluding portion of Ext.A2 it is stated, “ Witness: 1. Vadakkekonnamveettil Krishna Pillai, Velayudhan Pillai (Sd/-). 2. Scribe No.ES/E8 Licensee Raman Kumara Menon (sd/-) Prepared by: No.D/339 Licensee Parameswaran Madhavan Pillai (Sd/-)” First appellate court observed that there is nothing on record to show that witness No.2, Ramam Kumara Menon, the scribe is an attesting witness in Ext.A2. Support for that finding was taken from the fact that the word “witness” is used in singular and if it were a case where the scribe also had attested Ext.A2 necessarily the word used would have been “witnesses”. 8. It is not disputed that a scribe also can be an attesting witness question whether the scribe has signed the document as an attesting witness RSA No.779/2003 9 being one of fact. In this case there was no challenge in the trial court that the scribe (witness No.2 in Ext.A2) had not signed the document as an attesting witness and that he signed the document only as a scribe. On the other hand it is seen from Ext.A2 that the scribe is shown as Serial No.2 under the caption “witness” under which the first witness, K.Velayudhan Pillai who admittedly is an attesting witness came. If in fact the scribe was not an attesting witness, there was no necessity to mention him as “witness No.2” following witness No.1 who admittedly is an attesting witness. It is also relevant to note that when it came to the signature of the document writer, no serial number was given to him under the caption, “witness” meaning thereby that he was not a witness to the execution. It is true that the word, “witness” is used in singular. But singular includes plural as well. The word 'scribe' appearing in Ext.A2 before the name of witness No.2 only describes him, it is only an additional information about the person who signed as witness No.2, that he is also the scribe. This view gets support from the decision in Nirod Mohan Roy's case (supra) which relied on the decision in Abinash Bidyanidhi's case -AIR (16) 1929 Calcutta 123. In Dhruba Sahu's case (supra) the Orissa High Court held that the scribe may perform a dual role of being the scribe as well as an attesting witness. Same view is taken in Kamakshi Ammal's case (supra). In short, the question whether a scribe is also an attesting witness is one of fact. No question in that regard was raised by defendant Nos.1 to 4 in the trial court when PW1 was in the box. First RSA No.779/2003 10 appellate court held that the scribe in Ext.A2 is not an attesting witness for the mere reason that the word “witness” in singular is used. Going by Ext.A2 what I can understand is that the scribe has signed Ext.A2 as “witness No.2” for execution. I also bear in mind that there was no challenge when PW1 was in the box that the document was not attested by the second witness shown in the document. In these circumstances I am unable to uphold the finding of the first appellate court that Ext.A2 is attested only by one witness and therefore it violates Sec.123 of the Act. 9. Yet another contention advanced on behalf of defendant Nos.2 to 4 is that there is no evidence to show that Ext.A2 was accepted or acted upon. So far as the gift deed which is not onerous is concerned it is settled position of law that it needs only slight evidence to prove its acceptance. Here is a case where acceptance of the gift was asserted by the donor as well as the donee in the plaint. Learned Senior Advocate for defendant Nos.2 to 4 contended that evidence of PW1 would show that he (plaintiff No.2) was not able to do anything in respect of the property even as on the date of suit. But that does not go against the evidence regarding acceptance of the Ext.A2. It has come in evidence that during the lifetime of plaintiff No.1, plaintiff No.2 on the strength of Ext.A2 filed Ext.A7, application (ADROP 130/1974) for redemption of mortgage over the property and based on Ext.A8, compromise the mortgage was redeemed. It is also to be borne in mind that the recital in Ext.A2 would show RSA No.779/2003 11 that plaintiff No.1, donor divested himself of his right, interest and possession in favour of plaintiff No.2. Even the recital in the gift deed in appropriate cases can be taken as indicating its acceptance. Production of the original gift deed by the donee can also be taken as a circumstance indicating acceptance of the gift. The original gift deed (Ext.A2) has been produced by the plaintiffs along with the plaint. In these circumstances I am satisfied that there is sufficient evidence to show that the gift was accepted by plaintiff No.2 during the lifetime of plaintiff No.1 10. Then the question is whether the first appellate court was justified in refusing relief to plaintiff No.2. First appellate court set aside the decree of the trial court because Ext.A2 was found to be not valid. I have already referred to the nature of reliefs which plaintiffs have sought for in the plaint. Though it is contended by learned Senior Advocate for plaintiff Nos.2 and 3 that the gift was in respect of the northern 39 cents and the building thereon out of the entire 78 cents, Ext.A1 does not support that contention. On the other hand Ext.A1 shows that it is the half share of plaintiff No.1 in the entire suit property and building that was gifted to plaintiff No.2. Learned Senior Advocate has referred to me the events that occurred subsequent to the institution of the suit. Indrani, second wife of deceased plaintiff No.1 along with some of her children who are not parties in the present suit filed O.S. No.446 of 1996 seeking partition of the entire property impleading all legal heirs of deceased plaintiff No.1 That RSA No.779/2003 12 suit was dismissed as per judgment dated 20.8.1999 holding that half right of deceased plaintiff No.1 was gifted to plaintiff No.2 (as per Ext.A2). None of the parties in O.S. No.446 of 1996 challenged that verdict and it became final. (Certified copy of judgment in O.S. No.446 of 1996 is produced along with I.A. No.2216 of 2009). Thereafter it was the turn of defendant No.1. He filed O.S. No.116 of 2000 in the Sub Court, Ernakulam seeking partition of the suit property. The trial court granted a preliminary decree on 21.3.2003 for partition and separate possession of his half share in the property. (Certified copy of judgment in O.S. No.116 of 2000 is produced along with I.A. No.849 of 2009). According to the learned Senior Advocate that judgment and preliminary decree were passed accepting Ext.A2, gift deed. That judgment and preliminary decree were challenged in A.S. No.333 of 2003 by defendant No.2. Learned Additional District Judge, Ernakulam vide judgment dated 5.7.2008 passed a modified preliminary decree to the extent that in respect of the half share as per Ext.A2, gift deed partition will be effected after the decision in the appeal. (Copy of judgment of the learned Additional District Judge, Ernakulam in A.S. No.333 of 2003 is produced along with I.A. No.2216 of 2009). Learned Senior Advocate also submits that a final decree was passed in O.S.No.116 of 2000 as per which the southern half (39 ½ cents) of the entire 78 cents was allotted to the share of defendant No.1 as demarcated by the advocate commissioner in the sketch (a certified copy of which is produced along with I.A.No.849 of 2009). It is RSA No.779/2003 13 submitted, the southern 39 cents was assigned by defendant No.1 to third parties by various documents. In I.A. Nos.849 and 2216 of 2009 it is requested that the documents produced along with these applications be received as additional evidence under Order XL1 Rule 27 of the Code of Civil Procedure (for short, “the Code”). Since these documents came into being subsequent to the disposal of the present suit by the trial court and are relevant and necessary for a just and proper decision of the controversy in this Second Appeal, I am inclined to allow the applications and the documents are marked as Exts.A22 to A25. In the light of Exts.A22 to A25 argument advanced by learned Senior counsel for plaintiff Nos.2 and 3 is that considering the fact that parties are litigating for the last 20 years and the learned Additional District Judge while disposing of A.S. No.333 of 2003 also stated that partition of the half share in the property will be subject to the decision of the appeal, this court may mould and grant reliefs to plaintiff Nos.2 and 3 in respect of the northern half share of the 78 cents and the building thereon. Learned Senior Advocate placing reliance on the decisions in Mohammad Afzal Khan v. Abdul Rahman and others (AIR 1932 PC 235), Padmanabha Pillai Krishnan Nair v. Punnosse Abraham and others (AIR 1971 Kerala 154) and Abraham v. Eapan (1979-85 KUC 32) has argued that the principle of substituted security would apply with equal vehemence in a suit for partition. Learned RSA No.779/2003 14 Senior Advocate appearing for defendant Nos.2 to 4 per contra contended that granting relief as prayed for to plaintiff Nos.2 and 3 would have the effect of passing a fresh final decree in O.S.No.116 of 2000 which is not contemplated or permissible under law. 11. So far as relief (a) prayed for in the plaint is concerned, it is ejection of defendant Nos.2 to 4 from the building in the suit property, to be more precise situated in the northern half of the suit property. According to the plaintiffs, defendant Nos.2 to 4 were put into occupation of that building by defendant No.1 who had no right to do so and hence their ejection was sought for. Relief (b) prayed for in the plaint is injunction against defendant Nos. 1 to 4 interfering with the possession of plaintiffs over the entire suit property. 12. Trial court granted relief (a) pursuant to its finding that Ext.A2 is the gift deed executed by plaintiff No.1 in favour of plaintiff No.2 and acted upon by the latter during the life time of former. Relief (b) was disallowed on the ground that defendant No.1 continued to be a co-owner of the entire suit property (along with plaintiff No.2). Plaintiff Nos.2 and 3 did not challenge that part of the decree refusing relief (b) while, defendant Nos.2 to 4 challenged the decree for their ejection from the building. Defendant No.1 has not challenged the judgment and decree of the trial court. It is in the meantime that Indrani, second wife of plaintiff No.1 filed O.S.No.446 of 1996 impleading all the legal representatives of deceased plaintiff No.1 seeking partition. That suit was RSA No.779/2003 15 dismissed vide Ext.A22, judgment holding that under Ext.A2, plaintiff No.1 had conveyed his half share in the suit property in favour of plaintiff No.2 while the remaining half share belonged to defendant No.1 as per Ext.A1. Indrani or her children