Kerala High Court

Sasikumar vs Santhakumari on 5 October, 2021

  OP(C).1921/18                     1




          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
                THE HONOURABLE MR.JUSTICE V.G.ARUN
  TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                      OP(C) NO. 1921 OF 2018
     AGAINST THE ORDER/JUDGMENT IN OP 1/2017 OF MUNCIFF
             MAGISTRATE COURT,MANNARKAD, PALAKKAD
PETITIONER/S:

    1     SASIKUMAR
          AGED 43 YEARS
          43 YEARS, S/O. LATE BALAN NAIR, MELU VEEDU,
          THENGARA AMSOM DESOM AND POST, MANNARKKAD TALUK,
          PALAKKAD DISTRICT.

    2     RADHAKRISHNAN
          AGED 48 YEARS
          48 YEARS, S/O. LATE PADMAVATHI AMMA.

    3     PRABHAKARAN
          AGED 46 YEARS
          46 YEARS, S/O. LATE PADMAVATHI AMMA.

    4     NIRMALA
          34 YEARS, D/O. LATE PADMAVATHI AMMA.

    5     SANTHYA
          AGED 30 YEARS
          30 YEARS, D/O. LATE PADMAVATHI AMMA.2 TO 5 ARE
          RESIDING AT VADAKKEMADATHIL VEEDU, THONARI,
          THENGARA AMSOM, DESOM AND POST, MANNARKKAD TALUK,
          PALAKKAD DISTRICT.

    6     DEEPA
          AGED 28 YEARS
          28 YEARS, W/O. BALASUBRAMANIAN, PATTAKKAL VEEDU,
          PAYYANEDAM, KUMARAMPUTHOOR AMSOM, DESOM,
 OP(C).1921/18                  2

        MANNARKKAD TALUK, PALAKKAD DISTRICT.

 7      RUGMINI
        AGED 54 YEARS
        54 YEARS, W/O. SREENIVASAN, SAVITHAM VEEDU,
        VELLINEZHI AMSOM, DESOM, OTTAPALAM TALUK.

 8      VELAYUDHAN
        AGED 52 YEARS
        52 YEARS, S/O. SREEDEVI AMMA, 1/916,
        MARIAMMANKOVIL STREET, ARIVOLI NAGAR, PALLADAM,
        THIRUPPUR, TAMIL NADU.

 9      RUGMINI AMMA
        AGED 65 YEARS
        65 YEARS, D/O. RAGHAVAN NAIR, KUNNUMMEL VEEDU,
        MYLAMPADAM, KUMARAMPUTHOOR AMSOM DESOM, MANNARKKAD
        TALUK.

 10     SREEDEVI AMMA
        AGED 43 YEARS
        43 YEARS, W/O. MADHUSOODANAN NAIR, THOTTUPURATH
        HOUSE, THAVALAM, ATTAPADI, MANNARKKAD TALUK.

 11     KUNJI KRISHNAN
        AGED 38 YEARS
        38 YEARS, S/O. LATE BALAN NAIR, MELUVEETTIL HOUSE,
        THENGARA AMSOM, DESOM AND POST, MANNARKKAD TALUK.

 12     MURALEEDHARAN
        AGED 36 YEARS
        36 YEARS, S/O. LATE BALAN NAIR.

 13     JAYASREE
        AGED 28 YEARS
        28 YEARS, D/O. LATE BALAN NAIR.

 14     KAMALAVATHI
        AGED 63 YEARS
        63 YEARS, W/O. LATE BALAN NAIR.12 TO 14 ARE
        RESIDING AT MELUVEETTIL HOUSE, THENGARA AMSOM,
        DESOM AND POST, MANNARKKAD TALUK.

        BY ADV SRI.K.RAJESH SUKUMARAN
   OP(C).1921/18                  3

RESPONDENT/S:
    1     SANTHAKUMARI
          AGED 64 YEARS
          64 YEARS, D/O. JANAKI AMMA, ATHIYARATH
          MELUVEETTIL, ARAKKUPARAMBA AMSOM, DESOM AND POST,
          PERINTHALMANNA TALUK, MALAPPURAM DISTRICT - 679
          322.

    2     DEVALI
          AGED 58 YEARS
          58 YEARS, D/O. PARUKUTTY @ KUNJIMALU AMMA,
          PRASANTHI, PULLUSSERY DESOM, KARAKKURISSI AMSOM
          AND POST, MANNARKKAD TALUK - 678 595.

    3     SIVADASAN NAIR
          AGED 64 YEARS
          64 YEARS, S/O. ATHIYARATH MELUVEETTIL PARUKUTTY @
          KUNJIMALU AMMA, B32, AASHRAY SOCIETY, NANDALAV
          ROAD, BAROOCH POST AND DISTRICT, GUJARAT, PIN -
          392001.

    4     VIJAYALAKSHMI
          AGED 53 YEARS
          53 YEARS, D/O. ATHIYARATH MELUVEETTIL PARUKUTTY @
          KUNJIMALU AMMA, PEYYANAPUZHA VEEDU, THENGARA
          AMSOM, DESOM AND POST, MANNARKKAD TALUK, PIN - 678
          761.

    5     KARTHIKA KARTHIKA RAMACHANDRAN
          AGED 53 YEARS
          53 YEARS, W/O. ATHIYARATH MELUVEETTIL LATE
          RAMACHANDRAN, MANIKKATH VEEDU, KARUKUTTY POST,
          ANGAMALLY - 683 576.

    6     PARVATHY PARVATHY RAMACHANDRAN
          AGED 31 YEARS
          31 YEARS, D/O. ATHIYARATH MELUVEETTIL LATE
          RAMACHANDRAN, MANIKKATH VEEDU, KARUKUTTY POST,
          ANGAMALLY - 683 576.

    7     VINOD C.NAIR
          AGED 38 YEARS
          38 YEARS, S/O. ATHIYARATH MELUVEETTIL LATE
          RAMACHANDRAN, MANIKKATH VEEDU, KARUKUTTY POST,
          ANGAMALY - 683 576.
   OP(C).1921/18                      4

            R1 BY ADVS.
            MATHEW B. KURIAN
            R3 by ADV.SRI.R.SREEHARI
            SRI.SACHIN VYAS
            K.T. THOMAS
            NIKHIL BERNY


     THIS    OP   (CIVIL)   HAVING   COME   UP   FOR   HEARING   ON
28.7.2021, THE COURT ON 05.10.2021 DELIVERED THE FOLLOWING:
    OP(C).1921/18                        5

                             V.G.ARUN, J.
              -----------------------------------------------
                     O.P(C).No. 1921 of 2018
              -----------------------------------------------
            Dated this the 5th day of October, 2021

                             JUDGMENT

The petitioners are aggrieved by Exhibit P6 order,

dismissing their application for impleadment in O.P.No.1 of 2017

pending on the files of the Munsiff's Court, Mannarkkad stands.

The essential facts, leading up to Exhibit P6 order, are as follows;

Nani Amma, the great-grandmother of the petitioners had

six children, Janaki Amma, Padmanabhan Nair, Balan Nair,

Raghavan Nair, Sreedevi Amma and Parukkutty Amma. As per

registered will No.59 of 1978 of SRO, Mannarkkad, Nani Amma

bequeathed her property in the name of the 1st respondent's

mother Janaki Amma. The bequest is subject to the condition that

Janaki Amma pays Rs.200/- each to her brothers Padmanabhan

Nair, Balan Nair and Raghavan Nair and Rs.200/- to the children

of Sreedevi Amma and Parukkutty Amma. The amount to be paid

as per the will was made a charge over the property. According to

the 1st respondent, her mother Janaki Amma paid Rs.200/- to

Padmanabhan Nair, Balan Nair, the wife and the children of

Raghavan Nair and the children of Sreedevi Amma under receipts

registered at the SRO, Mannarkkad. Even though Janaki Amma

offered Rs.200/- to the legal heirs of Parukkutty Amma, they

refused to accept the amount or to issue receipts. Janaki Amma

died on 10.11.2016. The 1st respondent filed O.P.No.1 of 2017

under Section 83 and 102 of the Transfer of Property Act read

with Section 151 CPC seeking permission of the court to deposit

the amount Rs.200/- due to the legal heirs of Parukkutty Amma

in court, to record the same and to vacate the charge created

over the properties. Only the legal heirs of Parukkutty Amma

were arrayed as respondents in the O.P. Petitioners are the legal

heirs of Padmanabhan Nair, Balan Nair, Raghavan Nair and

Sreedevi Amma. Pending the O.P., 2nd respondent herein filed

O.S.No.2 of 2018 before the Munsiff's Court,Mannarkkad seeking

partition of Nani Amma's properties. Petitioners are also arrayed

as defendants in the suit. The petitioners filed I.A.No.279 of 2018

in O.P.No.1 of 2017, seeking to get themselves impleaded. The

1st respondent opposed the application contending that the

petitioners are not necessary or proper parties and have no

subsisting right in the property, since their predecessors-in-

interest had received Rs.200/- from the petitioners' mother and

had issued receipts. After considering the rival contentions, court

below passed Exhibit P6 order, dismissing the application for

impleadment. Hence, this original petition.

2. Heard Sri.Rajesh Sukumaran, learned counsel for the

petitioner, Sri.K.T.Thomas, learned counsel for the 1st respondent

and Sri.R.Sreehari, learned counsel for the 3rd respondent.

3. Learned counsel for the petitioners contended that

O.P.No.1 of 2017 filed by the 1 st respondent and O.S.No.2 of 2018

filed by the 2nd respondent are pending before the same court

and pertains to the same issue. It is submitted that, since the

petitioners are denying the execution of the will and acceptance

of Rs.200 by their predecessors-in-interest, they are necessary

parties to be impleaded. No prejudice will be caused to the 1st

respondent by the impleadment and on the other hand, quietus

can be given to all disputes arising out of the will.

4. Learned counsel for the 1st respondent contended

that the petitioners are not necessary or proper parties for

deciding the dispute involved, inasmuch as the genuineness of

the will does not arise for consideration in the original petition.

Placing reliance on the decision in Narayana Kurup v.

Manoharan [1991 (2) KLT 330], it is contended that even though

the Indian Succession Act does not make any specific provision

regarding the mode of payment of the amount due to a legatee

under a will, the court's power under Section 151 CPC, to allow

deposit of the amount in the court cannot denied. Reference is

made to the decision in Bishwanath Prasad Singh v.

Rajendra Prasad and Another [(2006) 4 SCC 432] and

Vasantha Kumari v. Sarojini [2008 (1) KLT 451], to contend that

the proceedings under Section 83 of the Transfer of Property Act are

only ministerial, since nothing is heard and finally decided and the

directions will not operate as res judicata in any other proceedings.

5. The prayer in O.P.No.1 of 2017 is to permit the

petitioner to deposit the amount of Rs.200/- due to Parukutty

Amma in the name of her legal heirs and to remove the charge

over the property. The specific case of the petitioners is that the

will is not genuine and that the claim of having paid Rs.200 to

their predecessors-in-interest is false. The subject matter of

consideration in Vasantha Kumari (supra) was a similar clause

in a gift deed. Therein also the genuineness of the gift deed was

challenged by persons who refused to accept the amount. After

elaborately considering the question regarding maintainability of

an original petition under Section 83 of the Transfer of Property

Act and the dictum in Narayana Kurup and Bishwanath

Prasad Singh (supra) , this Court concluded as under;

"14. As per Section 100, all the provisions in the Transfer of Property Act which apply to simple mortgage, shall, as far as may be, apply to a charge. The amount payable as per the terms of the settlement deed, according to the petitioners, constitute a charge on the property. The petitioners wanted the charge to be redeemed and, therefore, filed the Original Petition with a prayer to permit them to deposit the amount payable under the terms of the settlement deed. In view of the provision in Section 100 that the provisions of the Transfer of Property Act relating to simple mortgage shall apply to the charge, the petitioners could file the Original Petition under Section 83 of the Transfer of Property Act.

Though the petition does not state that it was filed under

Section 83 of the Transfer of Property Act, in sum and substance, the petition is under Section 83 as the averments in the petition and the relief prayed for in the petition would disclose. In order to record the deposit under Section 83 of the Transfer of Property Act or to record the same by invoking Section 151 of the Code of Civil Procedure, the Court is not expected to decide the disputes between the parties relating to the genuineness or otherwise of the document or the respective rights and liabilities of the parties or the entitlement of any party to receive any amount or as to the sufficiency of the amount or any other matter which is required to be settled in a properly constituted civil suit The jurisdiction of the Court in disposing of such an Original Petition is only procedural and ministerial in character as held by the Supreme Court in (2006) 4 SCC 432. The Court need only look into the document and ascertain whether the petitioners are liable to pay certain amounts to the respondents as per the terms of the said document. If the Court is satisfied that there is such a liability, permission can be granted to the petitioners to make the deposit. The court shall not in such case decide the question whether the settlement deed is genuine or whether the donor had the required sound disposing state of mind at the time of execution of the document or whether the document is vitiated by fraud, undue influence or coercion. Such question are alien to a petition under Section 83 of the Transfer of Property Act or one under Section 151 of the Code of Civil Procedure to record the deposit. Once the deposit is recorded, the liability of the person bound under the document to

discharge the liability would come to an end. The petitioners cannot be compelled to indulge in a suit on title or a suit for declaration, when according to them, there is no cloud on their title or when they do not want any declaration in respect of their title. It is not for the court to compel a parly to institute a suit When a petition of the nature now under consideration is filed, the only requirement is to ascertain whether the petitioners are liable to pay the amount and whether they are prepared to make the deposit. After service of notice on the respondents, the court can record the deposit and relegate the parties to agitate all their contentions and the defence in a properly constituted civil suit."

6. The petitioners had sought impleadment on the

premise that the will is not genuine and their predecessors-in-

interest had not accepted the amount of Rs.200/-. As held in

Vasantha Kumari (supra), such contentions are beyond the

scope of the original petition filed under Section 83 of the T.P Act

and the remedy of the petitioners is to raise those contentions in

a properly constituted suit. The second respondent has already

resorted to such remedy. Hence, I find no reason to interfere with

the impugned order.

In the result, the original petition is dismissed.

Sd/-

V.G.ARUN, JUDGE