Kerala High Court
Beena vs Rema on 17 February, 2025
RSA NOS.937/2011 & 1011/2011
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
MONDAY, THE 17TH DAY OF FEBRUARY 2025 / 28TH MAGHA, 1946
RSA NO. 937 OF 2011
AGAINST THE JUDGMENT&DECREE DATED 05.07.2011 IN AS NO.73 OF 2008 OF
SUB COURT,KOCHI ARISING OUT OF THE JUDGMENT& DECREE DATED 04.08.2007 IN OS
NO.349 OF 2005 OF ADDITIONAL MUNSIFF COURT, KOCHI
APPELLANT/RESPONDENT No.1/PLAINTIFF:
BEENA,W/O.GOPALAKRISHNAN,AGED 47
CHATHANTHARA HOUSE, NAYARAMBALAM P.O.,, VYPIN.
BY ADVS.
SRI.K.S.MADHUSOODANAN
SRI.P.K.RAKESH KUMAR
SMT.M.A.RUXANA
SRI.THOMAS CHAZHUKKARAN
SRI.THUSHAR NIRMAL SARATHY
SRI.M.M.VINOD KUMAR
RESPONDENTS/APPELLANTS/DEFENDANTS 2 TO 4 AND DEFENDANTS 1 AND 5:
1 REMA, AGED 45, D/O.SEKHARAN
PATTARUMADOM HOUSE, NAYASRAMBALAM P.O.,, VYPIN-682 509.
2 BABY AGED 49
D/O.SEKHARAN, RESIDING DO.
3 VIJAYA, AGED 41,D/O.SEKHARAN - DO.
4 PRIYA AGED 31, D/O.SEKHARAN - DO.
5 VINOD AGED 35
S/O.SEKHARAN, DO.
RSA NOS.937/2011 & 1011/2011
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R1 TO R3 BY ADVS.
SRI.SUNIL N.SHENOI
SRI.P.VISWANATHAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 7.02.2025,
ALONG WITH RSA.1011/2011, THE COURT ON 17.02.2025 DELIVERED THE FOLLOWING:
RSA NOS.937/2011 & 1011/2011
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
MONDAY, THE 17TH DAY OF FEBRUARY 2025 / 28TH MAGHA, 1946
RSA NO. 1011 OF 2011
AGAINST THE JUDGMENT&DECREE DATED 05.07.2011 IN AS NO.74 OF 2008 OF
SUB COURT KOCHI ARISING OUT OF THE JUDGMENT&DECREE DATED 04.08.2007 IN
OS NO.220 OF 2006 OF MUNSIFF COURT, KOCHI
APPELLANTS/RESPONDENTS 1&2/DEFENDANTS 1&2:
1 BEENA
W/O.GOPALAKRISHNAN, CHATHANTHARA HOUSE,, NARAYAMBALAM P.O.,
VYPIN.
2 GOPALAKRISHNAN AGED 53
S/O.KRISHNANKUTTY, CHATHANTHARA HOUSE,, NAYARAMBALAM P.O.,
VYPIN.
BY ADVS.
SRI.K.S.MADHUSOODANAN
SRI.P.K.RAKESH KUMAR
SMT.M.A.RUXANA
SRI.THOMAS CHAZHUKKARAN
SRI.THUSHAR NIRMAL SARATHY
SRI.M.M.VINOD KUMAR
RESPONDENTS/APPELLANTS 1 TO 4/ DEFENDANTS 3 TO 5/PLAINTIFFS 1 TO 7:
1 RADHAKRISHNAN
S/O.SEKHARAN, PATTARUMADOM HOUSE,, NAYARAMBALAM P.O., VYPIN-
682509.
2 BABY AGED 49 D/O.SEKHARAN
DO. DO.
3 REMA AGED 45
D/O.SEKHARAN, DO. DO.
RSA NOS.937/2011 & 1011/2011
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4 VIJAYAKUTTY AGED 41
D/O.SEKHARAN, DO. DO.
5 RATHI AGED 39
D/O.SEKHARAN, DO. DO.
6 VINOD AGED 35 SO.SEKHARAN
DO. DO.
7 PRIYA AGED 31
D/O.SEKHARAN, DO. DO.
BY ADVS.
SRI.AJITH VISWANATHAN
SRI.P.VISWANATHAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 7.02.2025,
ALONG WITH RSA.937/2011, THE COURT ON 17.02.2025 DELIVERED THE FOLLOWING:
RSA NOS.937/2011 & 1011/2011
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JUDGMENT
[RSA Nos.937/2011, 1011/2011]
1. These two Regular Second Appeals arise from two suits -
O.S.No.349/2005 & O.S.No.220/2006, which are disposed of by
a common judgment by the Trial Court, and hence these
Appeals are disposed of by a common judgment.
2. The plaint schedule property in both the suits is one and the
same, having an extent of 5.714 cents, and the residential
building therein covered in Ext.B1 Purchase Certificate. Ext.B1
Purchase Certificate is issued in the name of one Kallu.
3. O.S.No.220/2006 is filed by the plaintiffs who are the seven
children of Shekharan and Kallu. The defendants therein are
wife and husband, of whom the 1st defendant purchased the
Plaint Schedule property from Kallu as per Ext.B2 Sale Deed.
4. O.S No.349/2005 is filed by the 1st defendant in O.S
No.220/2006. The defendants in O.S.No. 349/2005 are the
plaintiffs in O.S. No.220/2006 except plaintiffs Nos. 1 & 5.
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5. The first suit is O.S. No. 349/2005. The said suit was filed
seeking a mandatory injunction on the strength of the title of the
plaintiff therein as per Ext.B2 Sale Deed, directing the
defendants therein to surrender the plaint schedule property.
6. O.S.No.220/2006 is filed for a declaration that Ext.B2 Sale Deed
is null and void and not binding on the plaint schedule property
and the plaintiffs therein, on the ground that Kallu executed
Ext.B2 in favour of the 1st defendant therein as the security for
a loan of Rs.20,000/- availed from the defendants and that Kallu
did not have any saleable interest in the plaint schedule
property.
7. In both suits, the legality of the Ext.B2 Sale Deed was the main
question.
8. The Trial Court jointly tried both suits together treating O.S.No.
220/2006 as the leading case.
9. The Trial Court decreed O.S.No. 349/2005 granting a
mandatory injunction directing the defendants therein to
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surrender vacant possession of plaint schedule property within
a period of one month with cost of litigation and dismissed O.S
No.220/2006 with costs.
10. The defendants 2 to 4 in O.S.No. 349/2005 filed A.S No.
73/2008 and the plaintiffs 1 to 4 in O.S. No. 220/2006 filed A.S
No.74/2008 challenging the judgments and decrees in the
respective suits.
11. The First Appellate Court allowed both the Appeals setting aside
the judgments and decrees of the Trial Court in both the suits
and dismissing O.S.No. 349/2005 and decreeing in O.S
No.220/2006 declaring that the plaintiffs therein have right, title,
and interest over the plaint schedule property as
Kudikidappukars as per Ext.B1 Purchase Certificate in favour of
Kallu and that Ext.B2 Sale Deed in favour of the 1st defendant
therein is null and void as far as the plaintiff's right in the
property and that it will not bind the plaintiffs.
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12. The plaintiff in O.S.No. 349/2005 filed R.S.A. No. 937/2011 and
the defendants 1 and 2 in O.S.No.220/2006 filed
R.S.A.No.1011/2011 challenging the respective judgments and
decrees passed by the First Appellate Court.
13. This Court admitted both the Appeals formulating the
following substantial questions of law.
. Even if Ext.B1 Kudikidappu Certificate was taken as enuring to the
benefit of Shekharan, and on his death his rights devolved on his legal
heirs including the children, when two of the children were attesting
witnesses to Ext.B2 Sale Deed where under Kallu transferred the
plaint schedule property in favour of the plaintiffs in O.S No. 349/2005
and O.S No. 220/2006 to set aside Ext.B2 sale deed was instituted
after three years from the date of execution of Ext.B2 Sale Deed,
whether the suit is not barred by limitation and if so, whether a decree
could have been granted in favour of the plaintiffs in O.S
No.220/2006?
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. When Ext.B1 Kudikidappu Certificate shows Kallu was a
Kudikidappukari, who purchased Kudikidappu and for valid
consideration, plaintiffs in O.S.No. 349/2005 purchased the plaint
schedule property under Ext.B2 Sale Deed from Kallu, was the First
Appellate Court justified in holding that plaintiffs did not derive any
right under Ext.B2 Sale Deed.
14. I heard the learned Counsel for the appellant, Sri.M.M. Vinod
Kumar, and the learned Senior Counsel for the contesting
respondents, Sri.P. Viswanathan, instructed by Advocate Sri.
Amal.
15. Hereafter, the parties are referred to according to their status in
O.S. No. 220/2006. In other words, the children of Shekharan
and Kallu are referred to as the plaintiffs, and the Purchaser in
Ext.B2 and her husband are referred to as the defendants.
16. In view of the substantial questions of law formulated in this
appeal and the arguments advanced by both sides, certain
admitted facts alone are sufficient for the disposal of the
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Appeals. They are: The plaint schedule property originally
belonged to Nayarambalam Bhagavathy Devaswom in
Jenmom. The paternal grandmother of the plaintiffs
Smt.Ammalu filed an Application as O.A No. 5796/1970 before
the Land Tribunal, Vypin claiming Kudikidappu, and the same
was allowed in the name of Ammalu. Ammalu failed to remit the
purchase price and hence the Land Tribunal cancelled the order
in O.A No.5796/1970. Ammalu died in the year 1980 leaving her
only son Shekharan as legal heir. Kallu, who is the wife of
Shekharan, submitted Ext.B7 Application dt. 10.08.1981 as O.A
No. 465/81 before the Land Tribunal Vypin for Purchase
Certificate claiming Kudikidappu. Ext.B8 is the photocopy of the
Statement under Rule 86 in O.A.No.465/1981. Ext.B9 is the
certified copy of the Report dated 25.11.1982 in O.A.No.
465/1981. Ext.B7 Application was allowed by the Land Tribunal
as per Ext.A10 Order dt. 24.03.1983. In Ext.A10, it is stated that
Ammalu had obtained Purchase Certificate for the very same
property, and the said order was cancelled for nonpayment of
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the purchase price, and that Shekharan S/o Ammalu endorsed
no objection for issuing Purchase Certificate in favour of Kallu.
On the basis of the Ext.A10 order, Ext.B1 Purchase Certificate
dt 27.05.1983 was issued in favour of Kallu. Shekharan died in
the year 1989. Kallu executed Ext.B2 Sale deed dated
09.09.1999 in favour of the 1st defendant with respect to the
plaint schedule property. The plaintiff Nos.6 and 7 are the
witnesses who identified Kallu before the Sub Registry Office.
17. The Trial Court Judgement and Decrees are based on the
findings that O.S.No. 220/2006 seeking a declaration of Ext.
B2 Sale Deed as null and void is barred by limitation; that Ext.B1
Purchase Certificate is issued in the name of Kallu in her
capacity as Kudikidappukari as well as her capacity as the
assignee of husband Shekharan who was the sole legal heir of
Ammalu whose assignment was cancelled by the Land Tribunal;
that there is no evidence to show that Ext.B2 Sale Deed is
executed by practicing any of the vitiating elements; and that
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Ext.B2 executed by Kallu is valid and the same is not liable to
be set aside.
18. The First Appellate Court Judgement and Decrees are based
on the findings that mere non payment of purchase price does
not automatically cancel the order of purchase in view of the
decision of this Court in Narayani v. Aravindakshan, 1989(1)
KLT 326; that Kallu obtained Ext B1 Purchase Certificate not in
her individual capacity but her capacity as wife of Shekharan
and on behalf of him; that Kallu was in possession of the
property on the basis of Ext.B1 Purchase Certificate in her
capacity as co-owner and it will be treated as a trust for and on
behalf of other co-owners; that the rights obtained by Kallu as a
co-owner will enure the benefit of other heirs who are the
plaintiffs; that Kallu had no right over the property in exclusion
of Shekharan and his children on the basis of Ext.B1 Purchase
Certificate; that Ext.B2 Sale Deed executed by Kallu will not
affect the right of other legal heirs since they are not parties; that
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Ext.B1 Sale deed executed by Kallu is void as far as the children
of Kallu and Shekharan and it will not bind their right over the
plaint schedule property; and that O.S.No. 220/2006 is within
the period of limitation as the limitation period started from the
day when the cause of action had arisen, i.e. when the plaintiffs
sought to be dispossessed from the land in the year 2005.
19. The learned Counsel for the appellants contended that,
admittedly, the Ext.B1 Purchase Certificate was obtained by
Kallu in her individual capacity. Ext.B7 Application would reveal
that she submitted the Application claiming that she is the
Kudikidappukari. There is nothing to show that Ext.B7
Application was submitted for and on behalf of Shekharan. In
view of S.72K of the Kerala Land Reforms Act, the Purchase
Certificate issued by the Land Tribunal in favour of Kallu is a
conclusive proof of her title over the property. Ext.A10 order by
which Ext.B1 Purchase Certificate was granted in favour of
Kallu would reveal that the earlier order in favour of Ammalu
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was cancelled for non payment of purchase price. The said
Order cancelling Purchase Certificate in favour of Ammalu was
not challenged by anybody, and the said order has become final.
The decision relied on by the First Appellate Court in Narayani
(supra) that mere nonpayment of purchase price does not
automatically cancel the order of purchase, is clearly
distinguishable as the said decision was rendered after the
deletion of Clause (c) of S.80(3) of the Kerala Land Reforms
Act. In view of the decisions relied on by the First Appellate
Court, the principle is well settled that if a co-owner obtains the
Purchase Certificate, it will enure to the benefit of the other co-
owners as well. But in the case on hand, either as on the date
of submitting Ext.B7 Application or on the date of obtaining
Ext.B1 Purchase Certificate Kallu was not a co- owner of the
plaint schedule property. Kallu sold the property as per Ext.B2
Sale Deed in favour of the first defendant in which the plaintiffs
Nos. 6 and 7 are the witnesses. The plaintiffs could not be heard
to say that they had no knowledge about the Ext.B2 Sale Deed.
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The relevant article for the limitation period is Article 58 of the
Limitation Act and the suit is to be filed within three years when
the right to sue first accrues. Since two of the plaintiffs had
knowledge about the Ext.B2 Sale deed in the year 1999 itself,
O.S.No. 220/2006 filed after the period of three years is clearly
time-barred. The learned counsel concluded his arguments by
praying that the judgment and decrees passed by the First
Appellate Court be set aside restoring the judgment and
decrees passed by the Trial Court in both the suits.
20. On the other hand, the learned Senior Counsel for the
respondents contended that the judgments and decrees passed
by the First Appellate Court in both Appeals are perfectly legal
and valid. It is not liable to be interfered with in these Second
Appeals. It is clear from the pleadings and evidence that Kallu
had been residing with Shekharan and his children, and
Shekharan was the sole legal heir of Ammalu, who was the
Kudikidappukari of the plaint schedule property. It is on record
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that Ammalu obtained Purchase Certificate in her name on the
strength of her Kudikidapu right. It is well settled by the decision
of this court in Narayani(supra) that mere non payment of
purchase price is not a ground to cancel the Order granting
Purchase Certificate. Hence, the Order granting the Purchase
Certificate in favour of Ammalu could not be treated as invalid
for this reason. The sole legal heir of Ammalu, namely
Shekharan submitted Ext.B7 Application through his wife Kallu,
for obtaining Purchase Certificate on account of his absence at
the place. Ext.B1 Purchase Certificate is to be treated as a
Purchase Certificate obtained by Shekharan through his wife
Kallu. Apart from the relation of Kallu as the wife of Shekharan,
Kallu did not have any right over the plaint schedule property. In
Ext.A10 Order passed in favour of Kallu itself, it is stated that
Ext.B1 Purchase Certificate is issued to Kallu on the
cancellation of Purchase Certificate in favour of Ammalu and in
view of the no objection endorsed by Shekharan. If Shekharan
had objected to the assignment, Kallu would not have obtained
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the Ext.B1 Purchase Certificate. Learned Senior Counsel
invited my attention to Column No.8 of Ext.B7 Application
submitted by Kallu for Purchase Certificate in which the back file
number is specifically stated as O.A. No.5796/1970 which
relates to the Application for Purchase Certificate submitted by
Ammalu. In Ext.A10 also, the proceedings were processed in
continuation of the file in O.A.No.5796/70. Since the Purchase
Certificate was issued in continuation of the proceedings in O.A
No.5796/1970, the consent of the only legal heir of Ammalu
Shekharan is obtained for issuance of the Purchase Certificate
in favour of Kallu. Every reference in Ext.A10 was made to
O.A.NO. 5796/1970, which would clearly indicate that Kallu
obtained Purchase certificate in continuation of the proceedings
initiated by Ammalu. The Land Tribunal already found that
Ammalu is the Kudikidappukari with respect to the plaint
schedule property. The said right is an interest on immovable
property and the same could be transferred only by a registered
document in view of Section 17 of the Registration Act. Since
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Kallu did not obtain such Kudikidappu right by a registered
document, Ext.B1 Purchase Certificate obtained by Kallu is to
be treated as the Purchase Certificate issued for the
Kudikidappu of Ammalu.It would make it amply clear that the
Ext.B1 Purchase Certificate was issued in favour of Kallu,
respecting the Kudikidappu right of Ammalu. The learned
Counsel further contended that since Kallu did not have any
saleable interest in the plaint schedule property as on the date
of execution of Ext.B2 Sale Deed, Ext.B2 Sale Deed executed
by Kallu is null and void and it could be very well ignored by the
plaintiffs who are the real title holders of the plaint schedule
property. There is no need to seek any declaration with respect
to a document which is null and void. The declaration of Ext.B2
as null and void was necessitated when the first defendant
attempted to dispossess the plaintiffs by filing a suit in the year
2005. It is the cause of action for O.S.No.220/2006 and hence
the said suit is perfectly within limitation. Since Kallu did not
have any right over the plaint schedule property, the first
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defendant could not derive any right over the plaint schedule
property on the strength of Ext.B2 Sale Deed. Learned counsel
concluded his argument by submitting that there is no
substantial questions of law involved in the Appeals warranting
interference under Section 100 CPC.
21. I have considered the rival contentions.
QUESTION OF LAW NO.1
22. Ext.B7 application would reveal that it is submitted by Kallu in
her personal capacity. There is nothing to show in Ext.B7 that
the said Application was submitted for and on behalf of
Sekharan who is the only legal heir of Ammalu. There was no
impediment for Sekharan to submit an Application for Purchase
Certificate. The reason stated by the plaintiff is that Sekharan
was in Tamil Nadu during that time, and hence, the Application
was submitted in the name of his wife, Kallu. In that case also,
Sekharan should have made some authorisation to Kallu for
making Application on behalf of him. So, the Ext.B7 Application
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could not be treated as an Application submitted for and on
behalf of Sekharan
23. On the date of submission of the Ext.B7 Application, going by
the case of the plaintiff, the Kudikidappu right was inherited by
Sekharan from his mother Ammalu as her sole legal heir. If
Sekharan was the sole owner of the plaint schedule property,
Kallu could not be a co-owner who obtained Ext.B1 Purchase
Certificate. She was not a co-owner of the plaint schedule
property either at the time of Ext.B7 Application or on the date
of Ext.A10 order or on the date of Ext.B1 Purchase Certificate.
Hence, I find that the Ext.B1 Purchase Certificate obtained by
Kallu is not on behalf of any co-owner. Since Kallu obtained the
Purchase Certificate at a time when she was a total stranger to
the plaint schedule property, she could not be treated as a co-
owner, and it could not be assumed that Kallu obtained Ext.B1
Purchase Certificate as a co-owner and it will enure to the
benefit of the other co-owners. As a matter of fact, there could
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not be any co-ownership at that time, going by the case of the
plaintiff that Shekharan was having exclusive right over the
plaint schedule property on inheritance pursuant to the death of
Ammalu as her sole legal heir.
24. As pointed out by the learned Senior Counsel for the
respondents, the File number of the Application of Ammalu is
referred to in Ext.B7 Application as the back file number. In
Ext.A10 all references are made to the O.A No.5796/1970 of
Ammalu. Kallu was granted the Purchase Certificate since as
per Order in O.A No.5796/1970, the Applicant therein was
allowed to purchase 5.714 cents of land towards Kudikidappu.
In Ext.B9 Report also, it is reported that there are seven
Kudikidappukars in the property of the landlord. The reference
to Kudikidappu, which is referred to in Ext.B10, could be only of
Ammalu and of Kallu. All this would indicate that the Ext.B7
Purchase Certificate was issued in the name of Kallu on the
basis of the Kudikidappu obtained by Ammalu. There is nothing
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on record to show that Kallu was a Kudikidappukari of the plaint
schedule property. As rightly pointed out by the learned Senior
Counsel for the respondents that the Kudikidappu right of
Ammalu was not transferred in the name of Kallu by a registered
document. If Ext.B1 purchase Certificate was granted to Kallu,
treating her as a Kudikidappukari, there was no need for
obtaining consent from Shekharan for issuing Purchase
Certificate in favour of Kallu. These facts would indicate that
Kallu applied for the Purchase Certificate on the basis of the
Kudikidappu right of Ammalu.
25. But when the legal effect of Ext.B1 Purchase Certificate is taken
into consideration the said Certificate is issued under S.72K of
the Kerala Land Reforms Act. Section 72 K of the Kerala Land
Reforms Act, specifically provides that Certificate of Purchase
issued under Sub Section (1) shall be conclusive proof of
assignment to the tenant of the right, title, and interest of the
land owner and the intermediaries, if any, over the holding or
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portion thereof to which the assignment relates. Ext.B1
Purchase Certificate is issued in the name of Kallu showing her
as a tenant. Hence, in view of the conclusive nature of the
Ext.B1 Certificate, the only conclusion which is possible is that
Kallu derived exclusive right over the plaint schedule property
as per Ext.B1 Purchase Certificate.
26. The plaint schedule property was sold by Kallu to the first
defendant as per Ext.B2 Sale Deed dated 09.09.1999. By that
time Shekharan also died. If the plaint schedule property
belonged to Ammalu as claimed by the plaintiffs, the same
would have been inherited by Sekharan, and on the death of
Sekharan, the plaintiffs and Kallu would have become the co-
owners of the plaint schedule property. In such a case, Kallu has
only a fractional right over the plaint schedule property. Ext.B2
Sale deed was executed by Kallu in favour of the first defendant
as the exclusive owner of the plaint schedule property. It is
stated that Kallu derived the property as per Ext.B1 Purchase
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Certificate. It is seen from Ext.B2 that it is the plaintiffs 6 and 7
who identified Kallu before the Sub Registry Office. It would
indicate that the said sale deed was executed with the
knowledge of the plaintiffs. Even then, plaintiffs did not opt to
execute the said document along with Kallu claiming co-
ownership over the plaint schedule property. They allowed Kallu
to sell the plaint schedule property to the first defendant as its
exclusive owner. They, by their conduct, allowed the first
defendant to believe that Kallu is the exclusive owner of the
plaint schedule property on the basis of the Ext.B1 Purchase
Certificate. In other words, the plaintiffs accepted and respected
Kallu as the exclusive owner of the property on the basis of
Ext.B1. In such a situation, the plaintiffs are estopped from
contending that they had co-ownership over the plaint schedule
property and that Kallu did not have ownership of the plaint
schedule property at the time when the Ext.B2 document was
executed. Hence, the claim of the plaintiffs that they are the co-
owners of the plaint schedule property, and hence the Ext.B2
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document executed by Kallu is null and void and not binding
with respect to their share is unsustainable.
27. Though the plaintiffs in O.S.No.220/2006 contended that Ext.B2
was executed only to secure Rs. 20,000/- borrowed from the 2nd
defendant, no such contention is seen taken in their Written
Statement in O.S.No.349/2005. There is no evidence to prove
the alleged borrowal. Ext.B2 will show that the sale
consideration is Rs.40,000/- and the stamp paid Rs.4,000/-. If
the borrowal was only Rs.20,000/-, there was no need to
execute Ext.B2 for Rs.40,000/- paying stamp of Rs.4,000/- and
registration charges thereon. Hence, the contention of the
Senior Counsel for the respondents that Ext.B2 is executed as
security for a loan is unsustainable. They could not plead and
prove that the Sale was vitiated by any of the vitiating elements.
28. The contention of the Senior counsel for the respondents that in
view of the decision of this Court in Narayani (supra), the Order
granting the Purchase Certificate in favour of Ammalu for non
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payment of purchase price is void, is unsustainable. The Sub
Section (3) of Section 80C of Kerala Land Reforms Act was
deleted by Act, 15 of 1976. The said sub-section (3) provided
that where a Kudikidappukaran failed to deposit the first
installment of purchase price defaulted on or before the due
date, the order of the Land Tribunal under Sub section (3) of
S.80C shall stand cancelled and the Kudikidappukaran shall
continue as Kudikidappukaran. It is not in evidence as to when
was the Order granting Purchase Certificate passed in favour of
Ammalu and when was the said Order cancelled. Going by the
deletion of S.80C (3), the Order issuing Purchase certificate in
favour of Ammalu could not be cancelled after Act 15 of 1976. If
it was before the date of Act 15 of 1976, it was liable to be
cancelled. Going by the number of the Original Application, it is
of the year 1970, and it appears that the Order granting
Purchase Certificate and the order cancelling the said Order
might have been passed before the deletion of S.80C (3) of the
Kerala Land Reforms Act. It is clear from the said decision of
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this Court that the Application for Purchase Certificate therein
was allowed on 16.08.1978 which is much after the deletion of
S.80C(3). Hence, the said decision is clearly distinguishable on
the facts of the present case. Even assuming that the said
decision is applicable, it is only a ground to challenge the
cancellation order, and the cancellation order could not be
treated as null and void since the same remained unchallenged.
29. The plaintiffs filed O.S.No.220/2006 on 29.05.2006. The
declarations sought are that the right, title, and interest of the
plaintiffs over the plaint schedule property and that Ext.B2 Sale
Deed is null and void and not binding on the plaintiffs. The cause
of action which is shown in the suit is that it arose on
25.06.2005, the date on which the 2nd defendant threatened the
plaintiffs by claiming untenable right over the plaint schedule
property and on 31.07.2005 on which date notice was served
on the plaintiffs, in OS 349/2005. Since the prayers are for a
declaration that the relevant article under the Limitation Act, is
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Article 58 which provides three years for filing the suit. The
limitation period starts when the right to sue first accrues. In this
case, it is clear that the plaintiffs had knowledge about Ext.B2
Sale Deed on the date of execution of Ext.B2 itself. The
contention of the learned Senior Counsel for the respondents is
that since plaintiffs 6 and 7 are only witnesses to Ext.B2, the
knowledge about the contents of the documents could not be
attributed to them. It is true that in normal circumstances, the
knowledge about the contents of the documents could not be
attributed to the witness. But here is a case where document is
executed by Kallu who is the mother of the plaintiffs and the
plaintiffs 6 and 7 are the persons who identified Kallu in the Sub
Registry Office. It would indicate that plaintiffs 6 and 7 actively
participated in the registration of Ext.B2 document. It is quite
improbable that they had no knowledge about the nature of the
document executed by their mother. The plaintiffs 1 to 5 do not
have a case that they had any dispute or difference of opinion
with plaintiffs 6 and 7. Hence, the knowledge of plaintiffs 6 and
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7 is to be treated as knowledge to all the plaintiffs about the
execution and registration of the Ext.B2 Sale deed. Then, the
right to sue first accrued on the date of execution of the Ext.B2
document itself, and the suit ought to have been brought within
three years from the date of registration of the Ext.B2 Sale deed.
Hence, O.S.No.220/2006 is clearly time barred.
30. The first part of the Substantial Question of Law No.1 with
respect to limitation is answered in the affirmative. The second
part of the Substantial Question of law No.1 is answered in the
negative holding that the decree could not have been granted in
favour of the plaintiffs in O.S No. 220/2006. The Substantial
Question of Law No.2 with respect to limitation is answered in
the negative. Both the Substantial Questions of Law are
answered in favour of the appellant and against the
respondents.
31. This Regular Second Appeal is allowed without costs setting
aside the judgment and decrees passed by the First Appellate
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Court in both the appeals and restoring the judgments and
decrees passed by the Trial Court in both the suits.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
jma
