Kerala High Court
Kamalakshan vs Usha on 17 February, 2025
RFA NO. 460 OF 2015
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 17TH DAY OF FEBRUARY 2025 / 28TH MAGHA, 1946
RFA NO. 460 OF 2015
AGAINST THE JUDGMENT DATED 31.03.2015 IN OS NO.569 OF 2010
OF PRINCIPAL SUBORDINATE JUDGE, IRINJALAKUDA
APPELLANT/1ST PLAINTIFF:
KAMALAKSHAN, S/O LATE KRISHNAN,
AGED 52 YEARS
MULANGIL KRISHNAN, MELADOOR DESOM, PO 678005, THRISSUR
BY ADV. K G BALASUBRAMANIAN
RESPONDENTS/1ST DEFENDANT AND 2ND PLAINTIFF:
1 USHA
AGED 56 YEARS
D/O LATE KRISHNAN, W/O RADHAKRISHNAN, 4/85, USHUS
GARDENS, MATTUMANTHA, S N PURAM PO PALAKKAD DT., PIN -
678005
2 VENUGOPALAN,
AGED 55 YEARS
S/O LATE KRISHNAN, MULANGIL HOUSE, MELADOOR DESOM PO,
THRISSUR DT, ALATHOOR VILLAGE, MUKUNDAPURAM TALUK., PIN
- 680741
BY ADV. KALEESWARAM RAJ - R1
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
17.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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CR
A. BADHARUDEEN J.
========================
R.F.A. No. 460 of 2015
===========================
JUDGMENT
Dated this the 17th day of February, 2025
This regular first appeal has been filed under Section 96 read
with Order XLI Rule 1 of the Code of Civil Procedure, 1908.
2. In this appeal, the 1st plaintiff in O.S. No. 569 of 2010 on
the files of Principal Sub Court, Irinjalakuda assails decree and
judgment in the above case dated 31.03.2015 whereby the suit
filed by plaintiffs 1 and 2 was dismissed by the trial court.
3. Respondents in this appeal are the 1st defendant and the
2nd plaintiff.
4. Heard the learned counsel for the 1st plaintiff/appellant
and the learned counsel appearing for the 1st respondent/1st
defendant in detail. Perused the pleadings, evidence, and the
decisions placed by the learned counsel for the 1st defendant/1st
respondent.
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5. For effective and easy discussion, the parties in this appeal
will be referred to as 'plaintiffs', '1st defendant', and '2nd
defendant' hereafter.
6. The plaintiffs' case in brief:-
Plaintiff Nos. 1 and 2, who are the male children born to
Mulangil Krishnan and Devaki - the 2nd defendant would assert
right over the plaint schedule property on the strength of a
settlement deed No. 2372/1972 of Mala S.R.O. executed by the
parents. According to the plaintiffs, after completion of the
educational and marriage expenses of their sisters, the plaint
schedule property was allotted to them, as per the settlement
deed.
7. The contention raised by the plaintiffs further is that
despite having no absolute right over the plaint schedule property
to the 2nd defendant, the 2nd defendant executed sale deed
No.1666 of 2009 in favour of the 1st defendant and assigned the
plaint schedule property to the 1st defendant and therefore, the
sale deed is illegal. Accordingly, plaintiffs prayed to adjudge sale
deed No.1666 of 2009 of Annamanada S.R.O. dated 10.08.2009 as
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a void instrument, and order the same to be delivered up and
cancelled. In addition, permanent prohibitory injunction to restrain
the 1st defendant from alienating, creating any charge, or
executing any further documents on the strength of the sale deed
No.1666 of 2009 is also sought for.
8. The 2nd defendant did not file written statement and she
was set ex-parte. While so she died during the pendency of the
suit.
9. The 1st defendant filed written statement and resisted the
suit. According to the 1st defendant, the 2nd defendant obtained
absolute right over the plaint schedule property on the strength of
the settlement deed No.2372 of 1972, and accordingly, the plaint
schedule property was properly sold by the 2nd defendant in favour
of the 1st defendant. Therefore, the sale deed executed by the 2nd
defendant in favour of the 1st defendant requires no interference.
She also denied the incapacity pleaded as against the 2nd
defendant to execute the sale deed.
10. The trial court raised necessary issues and tried the
matter. PW1 was examined and Exts. A1 to A8 were marked on
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the side of the plaintiffs. First defendant was examined as DW1
and Exts. B1 to B13 were marked on the side of the 1st defendant.
However, the trial court dismissed the suit holding that Ext.B2 - the
sale deed (copy of the same is Ext.A1) as a genuine document
supported by consideration.
11. The learned counsel for the 1st plaintiff vehemently
challenged the finding of the trial court by reading the recitals in
Ext.A2 settlement deed No.2372 of 1972, and it is specifically
pointed out that Ext.A2 was executed by Krishnan (father) along
with Devaki - the 2nd defendant (his wife) with a view to ensure
the education, marriage, etc, of the female children, and
accordingly, a right was given to the 2nd defendant to sell the
properties covered by the settlement deed or portion thereof during
the lifetime of Krishnan, for the said purposes and in such
contingency, Krishnan also to be joined as a party to the said
conveyance as a witness during his lifetime. Further right to sell the
property after the death of Krishnan also provided in Ext.A2 for the
said purpose. Apart from that no absolute right transferred in the
name of Devaki.
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12. According to the learned counsel for the 1st plaintiff, the
second part of the settlement deed stipulates that after meeting
the education and marriage expenses of the female children during
the lifetime of Krishnan, and Devaki, after their death, the
property would go to the male children viz. Venugopalan, and
Kamalakshan who are plaintiffs 2 and 1 in the suit. It is also
pointed out that in the last portion of the settlement deed, there is
specific recital further that Devaki also have the right to reside in
the house situated in the property, and no other right specifically
vested to Krishnan or Devaki. Here, as per the evidence given by
DW1 itself, it is admitted that the education and marriage of the
female children were completed during the lifetime of Krishnan and
Devaki, and therefore, by operation of the recitals in Ext.A2, the
property shall go in favour of the plaintiffs, and Devaki did not have
any independent or absolute right to transfer the same after
meeting the educational and marriage expenses of the female
children and therefore Ext.B2 sale deed executed by Devaki in
favour of the 1st defendant is ab initio void and the same would not
confer any title or right upon the 1st defendant. Therefore, the
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trial court went wrong in non-suiting the plaintiffs, and the decree
and judgment would deserve reversal.
13. Resisting his contention, the learned counsel for the 1st
defendant submitted that on reading Ext.A2, there are so many
stipulations; but ultimately, as per Ext.A2, Krishnan transferred his
absolute right over the property in favour of the 2nd defendant -
Devaki, and on the date of execution of Ext.A2 itself Devaki
became the absolute owner of the property. Therefore, the property
remained after selling properties for the marriage of one of the
daughters and giving share to another daughter covered by Ext.A2
i.e. the paint schedule property absolutely owned and possessed by
Devaki and the same was transferred in favour of the 1st defendant
in terms of Ext.A2. Therefore the sale deed executed by the 2nd
defendant in favour of the 1st defendant marked in Ext.A1/B2 is
legally valid and the same could not be declared as void. Thus the
trial court verdict is only to be confirmed.
14. According to the learned counsel for the 1st defendant in
so far as the stipulations as pointed out by the learned counsel for
the 1st plaintiff in Ext.A2 are concerned, the same are hit by
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Sections 10 and 11 of the Transfer of Property Act. According to
him, conditions restraining alienation by providing restrictive
interest created by the conveyance deed to be treated as void to
hold the document as one which would confer absolute title upon
the person who receives benefit out of it.
15. That apart, learned counsel also pointed out that in this
matter, the proceedings before the trial court is bad in law for
non-joinder of necessary parties. According to him, as per
paragraph No.10 of the trial court judgment itself, the trial court
observed that during pendency of the suit, i.e., on 13.03.2015, the
2nd defendant who is the mother of the parties in the suit died. If
so, the trial court ought to have given an opportunity to the
plaintiffs to implead the legal heirs/legal representatives of the 2nd
defendant to proceed further in this matter. Therefore the
proceedings are barred by non-joinder, though the same is not
specifically stated in the written statement, because the same is a
subsequent event during the pendency of proceedings, after filing
written statement by the 1st defendant. In this connection, the
learned counsel placed Division Bench judgment of this court
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reported 2018 SCC OnLine Ker 2771 P S Radhakrishnan v. A
Indu, the reference paragraph No. 15 where this court held that,
whether a person is a necessary party or not is a question of fact
depending upon the relief claimed in the suit. But once it is
established or the court is satisfied that he is a necessary party to
the suit, it becomes a question of law and therefore can be raised
for the first time in appeal.
16. Negating the contention as to non-joinder, it is submitted
by the learned counsel for the 1st plaintiff that in this matter, a sale
deed executed by the 2nd defendant in favour of the 1st defendant
is sought to be declared as void and therefore the 2nd defendant or
her legal representatives or legal heirs are not necessary parties in
the suit. Therefore the question of non-joinder does not arise.
17. In view of the rival contentions, the points which would
require answers are as under:
1. Whether absolute right over the property has been
transferred in the name of Devaki as per Ext.A2
settlement deed?
2. Whether the recitals in the form of stipulations in Ext.A2
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are hit by Sections 10 and 11 of the Transfer of Property
Act?
3. What is the legal sanctity of Ext.A1/B2 sale deed?
4. Whether the plaintiffs obtained title over the plaint
schedule property on the strength of Ext.A2?
5. Whether the question of non-joinder raised by the
learned counsel for the 1st defendant assumes
significance?
6. Is it necessary to interfere with the verdict of the trial
court?
7. Reliefs and costs?
18. In order to address the questions raised, thorough
scrutiny of the recitals in Ext.A2 is necessary. By nomenclature,
Ext.A2 is titled as a settlement deed (dhananishchayadharam).
The intent behind the execution of Ext.A2 and how the same would
operate could be gathered from the recitals in paragraph No.2 and
the same is extracted as under:-
ഒന്നാം നമ്പ്രകാരന്റെ ജീവിതകാലത്തു പെണ്മക്കളായ മേൽ വിവരിച്ച മൂന്നു
പേരുടെയും വിദ്യാഭ്യാസം, വിവാഹം മുതലായ ചിലവുകൾ നടത്തുവാൻ സാധിക്കാതെ
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വന്നാൽ ഒന്നാം നമ്പറുകാരന്റെ ജീവിതകാലത്തു തന്നെയോ, ഒന്നാം നമ്പറുകാരന്റെ
മരണാനന്തരമോ പട്ടികയിൽ വിവരിക്കുന്ന സ്ഥാവരവഹകളിൽ ഏതാനും ക്രയവിക്രയം
ചെയ്തോ മറ്റു വിധത്തിലോ സംഖ്യ ഉണ്ടാക്കി പെണ്മക്കളുടെ വിവാഹാദികൾ നടത്തുവാൻ
രണ്ടാം നമ്പറുകാരിക്ക് തനിച്ചു അധികാരവും അവകാശവും ഉള്ളതും അപ്രകാരം രണ്ടാം
നമ്പറുകാരിക്ക് തനിച്ചു് അധികാരവും അവകാശവും ഉള്ളതും അപ്രകാരം രണ്ടാം നമ്പറുകാരി
തനിച്ചു ചെയ്യുന്ന കരണത്തിനു നമ്മൾ രണ്ടു പേരും കൂടി ചെയ്താൽ ഏത് പ്രകാരമോ
അപ്രകാരം പ്രാബല്യം ഉള്ളതും എന്നാൽ ഒന്നാം നമ്പറുകാരന്റെ ജീവിത കാലത്ത് രണ്ടാം
നമ്പറുകാരി എതെങ്കിലും കരണം ചെയ്യേണ്ടതായി വന്നാൽ ആ വക കരണങ്ങളിൽ ഒന്നാം
നമ്പറുകാരൻ സാക്ഷി എന്ന നിലയിൽ ഒപ്പിടേണ്ടതും ആകുന്നു. നമ്മളുടെ ജീവിത കാലത്ത്
പെൺമക്കളുടെ വിദ്യാഭ്യാസം, വിവാഹം മുതലായത് നടന്നിരുന്നാൽ നമ്മൾ രണ്ടാളുടെയും
മരണാന്തരം പട്ടിക എല്ലാ വഹകളും ആണ്മക്കളായ വേണുഗോപാലൻ, കമലാക്ഷൻ എന്നീ
രണ്ടു പേരും കൂടി സമാവകാശമായും ഭാഗിച്ചും ജമ തിരിച്ചു പട്ടയം വാങ്ങിയും ജന്മികളായി
നേരിട്ടും നിയമപ്രകാരം ജന്മം വാങ്ങിയും കരം മുതലായത് തീർത്തും സകല ക്രയവിക്രയ
സ്വാതന്ത്ര്യങ്ങളോടും കൂടി അനുഭവിച്ചു കൊള്ളേണ്ടതും നമ്മളുടെ ജീവിത കാലത്ത്
പെണ്മക്കളുടെ വിവാഹാദികൾ നടക്കാതിരുന്നാൽ മക്കൾ വേണുഗോപാലൻ, കമലാക്ഷൻ
എന്നീ രണ്ടു പേരും കൂടി പെണ്മക്കളുടെ വിവാഹം സംരക്ഷണം മുതലായതുകൾ നടത്തിയും
വഹകൾ മേൽ പ്രകാരം അനുഭവിചു കൊള്ളേണ്ടതും ആകുന്നു. മേൽ വിവരിച്ച വിധം രണ്ടാം
നമ്പറുകാരിയുമായി യോചിച്ചു വഹകളുടെ ആദായങ്ങൾ എടുത്തും കുടുംബാവശ്യങ്ങൾക്ക്
ഉപയോഗിക്കാനും പട്ടിക വഹകളിൽ ഉള്ള പുരയിൽ താമസിയ്ക്കാനും ഉള്ള അവകാശം ഒന്നാം
നമ്പറുകാരനും വഹകളുടെ ആദായങ്ങൾ എടുത്തും കുടുംബാവശ്യത്തിനും ഉപയോഗിക്കാനും
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പെണ്മക്കളുടെ വിവാഹ ചിലവിലേക്ക് വേണ്ടി വന്നാൽ യുക്തമെന്നു തോന്നുന്ന വഹകളെ
ക്രയവിക്രയം ചെയ്യുവാനും പട്ടിക വഹകളിൽ ഉള്ള പുരയിൽ ജീവിത കാലം വരെ
താമസിക്കാനും രണ്ടാം നമ്പറുകാരിക്കും അവകാശം ഉള്ളതല്ലാതെ താഴെ വിവരിക്കുന്ന
സ്ഥാവരവഹകളിൽമേൽ നമുക്ക് പ്രത്യേകമായി യാതൊരു അവകാശ ബാധ്യതകളും
ഉണ്ടായിരിക്കുന്നതല്ലെന്നും പരസ്പരം നിശ്ചയിച്ചും സമ്മതിച്ചും താഴെ എഴുതുന്ന സാക്ഷികൾ
കാണെ ഇതിൽ ഒപ്പിട്ടിരിക്കുന്നു.
The translation of the above text is as under:-
"If, during the lifetime of the first person, the three women
mentioned above are unable to cover their educational,
marriage, and other expenses, either during the first person's
lifetime or after their death, and if any of the immovable
properties listed are sold or used in any other way to generate
funds for the marriage expenses of the women, the second
person has the right and authority to do so independently. In
this manner, the second person has the authority and rights to
carry out such actions. If the second person needs to take any
action during the first person's lifetime, the first person must
sign as a witness for those actions. During our lifetime, if the
educational or marital expenses for the women were not
covered, after our deaths, the rights to the immovable
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properties listed in the inventory will be shared equally between
the two of us, and the children, Venu Gopalan and
Kamalakshan, will also share the inheritance. This inheritance
will include the right to purchase or acquire property, as well as
the right to live according to the law. If the marriages of the
women do not take place during our lifetime, the children, Venu
Gopalan and Kamalakshan, will be responsible for securing the
marriages and other related expenses.
As per the above-mentioned details, the second person has the
right to collect the income from the properties, use them for
family expenses, and live in the property listed in the inventory.
Similarly, the first person also has the right to collect income
from the properties for family expenses, and if necessary for the
marriage expenses of the women, it is allowed to sell the
properties. Both the first and second persons have the right to
live in the properties listed in the inventory for the duration of
their lives. However, the second person does not have any right
or obligation over the specific properties mentioned below. Both
persons have mutually agreed and consented to this, and the
witnesses below have signed this agreement.
19. A specific narration in Ext.A2 is that the entire properties
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covered by Ext.A2 were obtained by Krishnan by various title deeds
described in the schedule, and the properties were jointly
possessed and enjoyed by Krishnan and Devaki. The further recital
is that there are five children to Krishnan and Devaki viz.
Venugopalan and Kamalakshan (male children), Usha, Lalithambika
and Prema (female children) under the custody of them. Ext.A2
would recite that the properties were jointly enjoyed for the benefit
for the family.
20. Summarising the stipulations in Ext.A2 it is discernible
that Krishnan owned the property and the property was jointly
enjoyed by Krishnan and Devaki. At this juncture, with the prime
aim to protect the interest of the female children viz. education
marriage etc, Krishnan and Devaki jointly executed Ext.A2,
whereby Devaki was authorized to deal with the property for the
purpose of the welfare of the female children, and sell the same if
necessary for their education and marriage. Ultimately, it was
intended by Krishnan that if any property remains after the
accomplishment of the needs of the female children, the same shall
go to the male children who are the plaintiffs herein. This intention
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of Krishnan and Devaki could be gathered from the last clause in
Ext.A2 whereby it has been specifically described that apart from
the stipulations, either Krishnan or Devaki did not have any other
right over the property.
21. Since it is contended by the learned counsel for the 1st
defendant that the stipulations in Ext.A2 are against Sections 10
and 11 of the Transfer of Property Act (for short, "the TP Act). It is
necessary to extract the said provisions. The same read as under:-
"10. Condition restraining alienation.--Where property
is transferred subject to a condition or limitation
absolutely restraining the transferee or any person
claiming under him from parting with or disposing of his
interest in the property, the condition or limitation is void,
except in the case of a lease where the condition is for the
benefit of the lessor or those claiming under him:
Provided that property may be transferred to or for the
benefit of a woman (not being a Hindu, Muhammadan or
Buddhist) so that she shall not have power during her
marriage to transfer or charge the same or her beneficial
interest therein.
11. Restriction repugnant to interest
created.--Where, on a transfer of property, an interest
therein is created absolutely in favour of any person, but
the terms of the transfer direct that such interest shall be
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applied or enjoyed by him in a particular manner, he shall
be entitled to receive and dispose of such interest as if
there were no such direction."
22. Section 10 of the TP Act prevents absolute restrains on
alienation which are conditions that completely prohibit the transfer
of property, and Section 11 of TP Act prevents repugnant conditions
that are in consistent with the interest transferred. In fact,
Sections 10 and 11 of the TP Act prevent owners from being unduly
restricted after transferring their property. Section 10 focuses on
the owner's ability to transfer their property, while Section 11
focuses on the transferee's ability to enjoy and manage the
property. Thus as per Section 10 of the TP Act condition restraining
the transferee or any other person claiming under him from parting
with or disposing of his interest is void. As per Section 11 of the TP
Act, when a property is transferred and an absolute interest therein
is created in favour of any person, but the terms of the transfer
direct that such interest shall be applied or enjoyed by him in a
particular manner, the transferee would be entitled to receive and
dispose of such interest as if there were no such conditions.
23. In the instant case, as already discussed, what is
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transferred in favour of Devaki by Krishnan is right to enjoy and
collect usufruct there from for the benefit of the family and also to
sell the property or a portion thereof for the education and
marriage, etc of the female children. In fact, no absolute right
transferred in the name of Devaki though she was given right to
sell the property for the education and marriage purpose of the
female children with a further clause that the property remaining
thereafter would go in favour of the plaintiffs. Thus the said
property was enjoyed by Devaki for the said purpose, and some
portions thereof were sold or given to the female children in terms
of Ext.A2. But the second part of Ext.A2 is clear on the point that
any property remains after meeting the expenses of their female
children in connection with their education and marriage, the said
portion of the property would go in favour of the plaintiffs and the
same in no way are conditions repugnant to Sections 10 and 11 of
the TP Act. It is discernible that Section 10 of the TP Act would
apply in cases where there is an absolute transfer of right then
restraining disposing of the transferee's interest thereafter.
Similarly, Section 11 of the TP Act also would apply in relation to
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absolute transfer of property in favour of the transferee. Here as
per Ext.A2, the portion of the property available after meeting the
expenses of the female children shall go to male children. Since
the plaint schedule property so remained, no doubt, by operation of
Ext.A2 the same shall go in favour of the plaintiffs being male
children of Krishnan and Devaki.
24. If so, without much ado the intention behind Ext.A2 is the
welfare of female children, and for the said purpose, right to deal
and sell the property was given to Devaki, and no independent
right apart from the same assigned in favour of Devaki. If so, the
property which is left out after spending the same for the needs of
the female children, shall go to the plaintiffs and thereby the
plaintiffs obtained title over the plaint schedule property. If so,
Devaki had no rights whatsoever in the property so as to sell the
same to anybody thereafter.
25. In this connection a pertinent aspect which would require
mention is with regard to a specific contention raised by the
plaintiffs in Paragraph No. 3 of the plaint. It is pleaded by the
plaintiff that "thereafter the 1st plaintiff in love and affection to his
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sisters including the 1 st
defendant has paid a sum of Rs.50,000/-
each and obtained receipts on 18.03.1998. The 1st defendant who
was never satisfied with anything given to her will frequently come
to visit the 2nd defendant and induce her to grab more money." In
so far as this plea is concerned, there is no specific denial in the
written statement. As per Order VIII Rule 5 of CPC every
allegation of fact in the plaint, if not denied specifically or by
necessary implication, or stated to be not admitted in the pleading
of the defendant, shall be taken to be admitted except as against a
person under a disability. Proviso to Order VIII Rule 5 states that
the court may in its discretion require any facts so admitted to be
proved otherwise than by such admission. Thus failure to deny a
specific allegation in the plaint specifically or by necessary
implication shall be taken as admitted, since the 1st defendant has
no disability. In this connection, it is to be noted that while
examining the 1st defendant as DW1, Ext.A3 series with reference
to Ext.A3(b) whereby she had received Rs.50,000/- from
Kamalakshan/the 1st defendant is confronted she did not deny
Ext.A3(b). As per Ext.A3(b) there is an admission by the 1st
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defendant that she had received due share from the properties of
Krishnan and Devaki and despite that she received Rs.50,000/-
which was voluntarily given by Kamalakshan. Other two female
children who are the siblings of the 1st defendant also issued
similar receipts as Ext.A3(a) and (c). Even though it is argued by
the learned counsel for the 1st defendant that relinquishment over
an immovable property worth rupees more than hundred would
require registration and therefore Ext.A3 series are inadmissible in
evidence, in fact in Ext.A3 series including Ext.A3(c) there is no
relinquishment of right, rather an admission that she had received
her share due from her parents, earlier. Therefore Ext.A3(a) would
show that the 1st defendant is well aware of the fact that in terms
of Ext.A2 the plaint schedule property would devolve upon the
plaintiffs and with the said knowledge she obtained Ext.B2 sale
deed as an experimental tactics. Be it so, the sale deed in the
name of the 1st defendant executed by the 2nd defendant is void
ab initio, and the same has no binding effect on the rights of the
plaintiffs over the property.
26. Regarding the question of non-joinder argued by the
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learned counsel for the 1st defendant is concerned, the legal
position is not in dispute that a suit shall proceed by joining all the
necessary parties. When the question of non-joinder is found by an
appellate court, the appellate court also shall address the same and
do the needful to make an effective adjudication of the lis by
joining all necessary parties therein. Otherwise, the adjudication
becomes meaningless. Generally, parties to a suit can be
categorized as 'necessary party' or a 'proper party'. A 'necessary
party' is someone whose presence is absolutely essential for the
court to effectively adjudicate the matter at hand, meaning without
them, a proper decision cannot be reached. A 'proper party' is
someone whose presence would be beneficial to fully resolve the
issue, but the court can still make a final conclusive decision even if
the said party is not included in the case.
27. In the instant case, originally, Devaki got arrayed as the
2nd defendant, and the relief sought in the suit is to cancel the sale
deed executed by the 2nd defendant in favour of the 1st defendant.
During trial stage, Devaki was set ex-parte initially and thereafter,
she died. If so, if the sale deed would be set aside, the ultimate
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loser is the 1st defendant, and the sale deed is found to be
genuine, the beneficiary also is the 1st defendant. Once the sale
deed is found to be one executed by the 2nd defendant without
having right to execute the same, the same is non-est, and in such
contingency also, the property would go to the plaintiffs herein in
terms of Ext.A2 settlement deed. In this connection, it is relevant
to refer Order XXII Rule 4 of the Code of Civil Procedure and the
same provides as under:-
(4) The Court whenever it thinks fit, may exempt the
plaintiff from the necessity of substituting the legal
representatives of any such defendant who has failed to
file a written statement or who, having filed it, has failed
to appear and contest the suit at the hearing; and
judgment may, in such case, be pronounced against the
said defendant notwithstanding the death of such
defendant and shall have the same force and effect as if it
has been pronounced before death took place.
28. As per Order 4(4), the court has the power to exempt the
plaintiff from the necessity of substituting the legal representatives
of any such defendant who has failed to file a written statement or
who, having filed it, has failed to appear and contest the suit at the
hearing; and judgment may, in such case, be pronounced against
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the said defendant notwithstanding the death of such defendant
and shall have the same force and effect as if it has been
pronounced before death took place. In the instant case as already
observed, the 2nd defendant was set ex-parte before the trial court
and she did not file any written statement. If so, in view of Order
XXII Rule 4(4) in the instant case, the court has the power to
exempt the impleadment of legal heirs of the 2nd defendant.
Otherwise, the 2nd defendant is only a proper party and not a
necessary party. Therefore, the trial court is fully justified in
holding that the legal representatives of the 2nd defendant are not
necessary for deciding the matter in issue. Therefore, the said
contention also must fail. In view of the matter, the question of
non-joinder raised by the learned counsel for the 1st defendant
would not succeed.
29. In view of the above discussions, the dismissal of the suit
by the trial court holding the view that Ext.A1 sale deed is genuine
would require interference so as to reverse the decree and
judgment.
30. In the result, the appeal is allowed, and the decree and
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judgment of the trial court are set aside. Consequently, the suit is
decreed, and sale deed No. 1666 of 2009 of Annamada SRO dated
10.08.2009 is declared as a void instrument and ordered the same
to be delivered up and cancelled and the same shall not affect the
right of the plaintiffs in the plaint schedule property. Consequently,
the 1st defendant is restrained by permanent prohibitory injunction
from alienating, creating any charge, or executing any further
documents on the strength of the sale deed No. 1666 of 2009.
Considering the nature of this case, both parties are directed
to suffer their respective costs.
Sd/-
A. BADHARUDEEN
JUDGE
RMV
