V.C. John vs State Of Kerala Represented By Its ...

Kerala High Court

V.C. John vs State Of Kerala Represented By Its ... on 23 May, 2024

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
        THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
                        WP(C) NO. 15409 OF 2024
PETITIONER:

            V.C. JOHN
            AGED 73 YEARS
            S/O. LATE CHACKO, VELUVADAKETHIL HOUSE, FROM
            KUNNUMPARAMBIL, VALIAKUNNAM MURI, PERUMPETTY VILLAGE,
            MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT.,
            PIN - 689592
            BY ADVS.
            P.HARIDAS
            BIJU HARIHARAN
            SHIJIMOL M.MATHEW
            P.C.SHIJIN
            RISHIKESH HARIDAS
            ROSHIN MARIAM JACOB


RESPONDENTS:

    1       STATE OF KERALA REPRESENTED BY ITS SECRETARY
            DEPARTMENT OF FINANCE, GOVERNMENT SECRETARIAT,
            THIRUVANANTHAPURAM, PIN - 695001
    2       DISTRICT COLLECTOR
            PATHANAMTHITTA, COLLECTORATE,
            PATHANAMTHITTA DISTRICT., PIN - 689645
    3       INSPECTOR GENERAL OF REGISTRATION
            DEPARTMENT OF REGISTRATION, VANCHIYOOR P.O.
            THIRUVANANTHAPURAM. KERALA, PIN - 695035
    4       SUB-REGISTRAR
            VENNIKULAM, SUB REGISTRAR OFFICE, VENNIKULAM,
            PATHANAMTHITTA DISTRICT., PIN - 689544

            BY SRI.AJITH VISWANATHAN, (GOVERNMENT PLEADER)
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C).No. 15409 of 2024
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                          J U D G M E N T

Dated this the 23rd day of May, 2024 This writ petition is preferred by the petitioner, aggrieved by the refusal on the part of the 4 th respondent/Sub Registrar to register Ext.P2 document. The objection of the 4th respondent is based on the injunction contemplated in relief no.2 in Ext.P1 judgment in the suit O.S.No.364/2018 of the Munsiff Court, Thiruvalla.

2. Heard the learned counsel for the petitioner and the learned Government Pleader, who appears for all the respondents, including the 4th respondent/Sub Registrar.

3. The suit O.S.No.364/2018 was one for partition. The petitioner herein was the plaintiff in that suit. The property originally belonged to the brother of the petitioner, one V.C.Varghese. W.P.(C).No. 15409 of 2024

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s His wife predeceased him. The said V.C.Varghese also died intestate on 22.04.1999, whereupon the property devolved upon the plaintiff and three other persons, who are his siblings, each having 1/5 undivided right in the property. While so, one among the siblings sold the property to two persons, husband and wife, who are arraigned as defendants 8 and 9 in the suit, purporting to convey the entire rights in the property, the vendor claiming as the absolute owner thereof. Partition was sought for, ignoring the said document. The suit was allowed, finding that the property is liable to be partitioned into five equal shares, whereby the plaintiff and other siblings were entitled to 1/5 share each. The second relief granted in the said suit is the centre of controversy, which is extracted here below:

"(2) Defendants 3,6,7 to 9 and men under them are restrained from cut and remove valuable trees standing in plaint schedule property, W.P.(C).No. 15409 of 2024 ..4..

s causing any damages to the plaint schedule property, executing any documents in respect of the plaint schedule property and also from erecting any new structures or buildings in the plaint schedule property."

(underlined for emphasis) The extent and scope of the above injunction as against defendants 3, 6 and 7 to 9, from creating any document in respect of the plaint schedule property is the question herein.

4. Before addressing the same, the factual parameters which are liable to be taken stock of are that, there has been an understanding between the purchasers (defendants 8 and 9 in the suit) and between the plaintiff/petitioner, whereby the former have agreed to sell their share under the document to the petitioner/plaintiff. As already indicated, the said document was executed by one among the siblings, who had only 1/5 share in the property. Though the document purports to convey W.P.(C).No. 15409 of 2024 ..5..

s the entire right over the property, the only legal effect of the document is that, the 1/5 share which the executant had stood conveyed to the purchasers, who were defendants 8 and 9 in the suit. It is the said 1/5 share, which the said defendants seek to convey to the petitioner/plaintiff.

5. This Court, having been appraised the facts and circumstances, is of the opinion that, the restraint in respect of creation of document will not operate in the case of a document being executed in favour of the plaintiff. The same will avail only in respect of creating documents in favour of 3rd persons, in derogation of the rights of the plaintiffs, as also, other sharers. The said direction is essentially one to preserve the subject matter of the property for the purpose of final decree.

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6. In these circumstances, the restraint/ injunction contained in relief no.2 in Ext.P1 judgment need not stand in the way of registration of the proposed Ext.P2 document in favour of the petitioner/plaintiff. Consequently, there will be a direction to the 4th respondent/Sub Registrar to register Ext.P2 sale deed, as and when the same is presented, upon satisfaction that all other requirements for registration (except the injunction, the effect of which has already been explained above) are complied with. The Writ Petition (Civil) is disposed of, as above.

Sd/-

C. JAYACHANDRAN JUDGE TR W.P.(C).No. 15409 of 2024 ..7..

s APPENDIX OF WP(C) 15409/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE JUDGMENT IN OS NO.

364/2018 OF MUNSIFF COURT, THIRUVALLA DATED 20.11.2019 Exhibit P2 TRUE COPY OF THE DRAFT SALE DEED DRAWN ON THE STAMP PAPER DATED 22.3.2024 Exhibit P3 TRUE COPY OF THE NOTICE ISSUED BY SUB REGISTRAR, VENNIKULAM DATED NIL