Kerala High Court
Lathakumari vs Satheesh Kumar on 28 February, 2025
RSA Nos.766/2014 & 160/2013
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 28TH DAY OF FEBRUARY 2025 / 9TH PHALGUNA, 1946
RSA NO. 766 OF 2014
AGAINST THE JUDGMENT&DECREE DATED 20.12.2013 IN I.A NO.1079/2012 IN
A.S NO.81 OF 2012 OF SUB COURT, NEDUMANGAD ARISING OUT OF THE JUDGMENT&
DECREE DATED 16.08.2004 IN OS NO.481 OF 2002 OF PRINCIPAL MUNSIFF
COURT,NEDUMANGAD
APPELLANT/PETITIONER/APPELLANT/PLAINTIFF:
LATHAKUMARI
AGED 49 YEARS
D/O.SAVITHRI, EANTHIKKUNNU, THADATHARIKATHU VEEDU,ANAD MURI,
PANAVOOR VILLAGE, FORMERLY RESIDING AT MARAMARUTHUKONIL
PUTHEN VEEDU, ANAD MURI,PANAVOOR VILLAGE.
BY ADV SRI.G.S.REGHUNATH
RESPONDENTS/RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 SATHEESHKUMAR
AGED 47 YEARS
S/O.VASU, MARAMARUTHUKONIL PUTHEN VEEDU,ANAD, PANAVOOR
VILLAGE, FORMERLY RESIDING ATPANKAJAVILASAM THOTTARIKATHU
VEEDU, KAVUVILAALAMPARA, NANNIYODE, PALODE
VILLAGE,TRIVANDRUM - 695 126.
2 SAVITHRI
AGED 72 YEARS
D/O.BHANUMATHI, MARAMARUTHUKONIL PUTHEN VEEDU,ANAD, PANAVOOR
VILLAGE, TRIVANDRUM - 695 126.
3 LEKHA
RSA Nos.766/2014 & 160/2013
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AGED 45 YEARS
D/O.SAVITHRI, CHANDRALEKHA, NAGACHERI, ANAD,PANAVOOR
VILLAGE, TRIVANDRUM - 695 126.
R1 BY ADV SRI.R.S.KALKURA
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28.02.2025,
ALONG WITH RSA.160/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA Nos.766/2014 & 160/2013
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 28TH DAY OF FEBRUARY 2025 / 9TH PHALGUNA, 1946
RSA NO. 160 OF 2013
AGAINST THE JUDGMENT&DECREE DATED 10.11.2010 IN AS NO.67 OF 2004 OF
SUB COURT, NEDUMANGAD ARISING OUT OF THE JUDGMENT&DECREE DATED 16.08.2004
IN OS NO.481 OF 2002 OF PRINCIPAL MUNSIFF COURT,NEDUMANGAD
APPELLANT/APPELLANT/2ND DEFENDANT:
LATHAKUMARI, AGED 45 YEARS
D/O.SAVITHRI,MARAMARUTHAKONIL PUTHEN
BUNGLOW,VATTARATHALA,ANAD MURI,PANAVOOR VILLAGE.
BY ADVS.
SRI.G.S.REGHUNATH
SRI.K.RAJESH KANNAN
SRI.A.S.SHAMMY RAJ
SRI.P.SHANES
RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 AND 3:
1 SATHEESH KUMAR
AGED 43 YEARS
S/O.VASU,PANKAJA VILASOM,THOTTARIKATHU VEEDU,KAVUVIL,AYANI
VILAKOM,ALAMPARA,NANNIYODE,PALODE VILLAGE-
PALODE P.O, TRIVANDRUM 695562
2 VASU,(DIED) LRS RECORDED
AGED 84 YEARS
S/O.VELAYUDHAN,PUTHEN BUNGLOW,MARAMARUTHAKONIL,ANAD
MURI,PANAVOOR VILLAGE, PANAVOOR P.O, TRIVANDRUM-695568.
(AS PER THE ORDER DATED 21.08.2015 IN MEMO DATED 30.07.2015
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BEARING C.F.4754/2015 THE SOLE APPELLANT AND RESPONDENTS 1
AND 3 WHO ARE ALREADY IN THE PARTY ARRAY ARE RECORDED AS THE
LHRS OF DECEASED RESPONDENT NO.2)
3 SAVITHRI
AGED 65 YEARS
W/O.VASU,PUTHEN BUNGLOW,MARAMARUTHAKONIL,ANAD MURI,PANAVOOR
VILLAGE, PANAVOOR P.O, TRIVANDRUM 695568.
BY ADVS.
SRI.HARISH GOPINATH
SRI.R.S.KALKURA
SRI.M.S.KALESH
SMT.PREETHY R. NAIR
SRI.M.RAMASWAMY PILLAI
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28.02.2025,
ALONG WITH RSA.766/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA Nos.766/2014 & 160/2013
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JUDGMENT
[RSA Nos.766/2014, 160/2013]
1. These two Regular Second Appeals arise from two suits - O.S
No.429/2002 and O.S No.481/2002 of the Principal Munsiff's
Court Nedumangad, which were disposed by a common
judgment and hence these Appeals are also disposed by a
common judgment.
2. O.S No. 429/2002 is a suit for declaration and injunction filed by
the plaintiff against his father, sister and mother as the
defendants 1 to 3. O.S No. 481/2002 is filed for injunction by the
2nd defendant in O.S No. 429/2002 against the plaintiff and the
defendants 1 and 3 in O.S No. 429/2002.
3. The parties are referred according to their status in O.S No.
429/2002.
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4. The plaint schedule property consists of two items of 30 cents
each which originally belonged to the 1st defendant father as per
Sale Deed No.1222 / 1974 and Sale Deed No. 1240/1977. There is
a residential building in plaint schedule Item No.1. The 1st
defendant executed Ext.A1 settlement Deed of the year 1994 in
favour of the plaintiff settling the plaint schedule property in
favour of the plaintiff.
5. The case of the plaintiff is that the 2nd defendant falsely created
Ext.A9/X1 Power of Attorney dated 19.02.1998 in favour of the 1st
defendant impersonating the plaintiff and thereafter the 1st
defendant executed Ext.A10/X2 and Ext.A11/X3 Sale Deeds dated
20.02.1992 as the power of attorney holder of the plaintiff
transferring the plaint schedule properties in favour of the 2nd
defendant. Hence, the plaintiff filed the suit for declaration of title
and possession of the plaint schedule property as per Ext.A1
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Settlement Deed ignoring Exts.X1 to X3 documents as void and, if
necessary, by setting aside those documents.
6. In O.S No. 481/2002, the 2nd defendant claimed title and
possession of the plaint schedule property on the strength of
Ext.X2 and X3 Sale Deeds and sought a permanent prohibitory
injunction restraining the defendants therein from trespassing
into the plaint schedule property and committing any waste
therein.
7. The defendants 1 and 3 supported the plaintiff in both the suits.
The plaintiff and the 2nd defendant opposed the respective suits
against them by filing a Written Statement raising the very same
contentions in their respective suits.
8. Both the suits were jointly tried treating O.S NO. 429/2002 as the
leading case.
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9. On the side of the plaintiff, the plaintiff was examined as PW1, and
the Scribe in Ext.X1 was examined as PW2 and proved Exts.A1 to
A11 documents. On the side of the 2nd defendant, she was
examined as DW1, and Exts.B1 to B11 were marked. Four
documents summoned from Sub Registry Office
Chadayamangalam were marked as Exts.X1 to X4. The
Commission Report and the Rough Plan were marked as Exts.C1
and C1(a).
10. The Trial Court decreed O.S No. 429/2002 with costs and
dismissed O.S No.481/2002. O.S No. 429/2002 was decreed
declaring the plaintiff's title and possession over the plaint
schedule property; granting a permanent prohibitory injunction
restraining the 2nd defendant from trespassing into the plaint
schedule property or in any way interfering with the plaintiff's
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peaceful enjoyment and possession over the same and
cancelling Ext.X1 to X3 documents declaring the same as void.
11. The 2 defendant filed A.S No. 67/2004 only against the judgment
nd
and decree in O.S No. 429/2002. Though a contention was taken
before the First Appellate Court that A.S NO. 67/2004 is barred by
res judicata for want of challenge against the judgment and
decree in O.S No. 481/2002, the First Appellate Court found that
the issues in both the suits were not common and the issues were
independent and accordingly found that A.S No.67/2004 is not
barred by the principle of res-judicata.
12. A S No. 67/2004 was dismissed with costs as per judgment dt.
10.11.2012. After the dismissal of A.S No. 67/2004, the 2nd
defendant, who is the plaintiff in O.S No. 481/2002, filed A.S NO.
81/2012 challenging the judgment and decree in O.S No.
481/2002 with I.A No. 1079/2012 seeking to condone the delay of
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2888 days in filing the appeal. The First Appellate Court
dismissed I.A No. 1079/2012 as per order dt. 20.12.2013 and
consequently dismissed A.S No. 81/2012 on the very same day.
13. The 2nd defendant filed R.S.A No. 160/2013 challenging the
judgment and decree in A.S No. 67/2004 confirming the judgment
and decree in O.S No. 429/2002.
14. This Court admitted R.S.A No. 160/2013 on the substantial
questions of law framed in the Memorandum of the Regular
Second Appeal:
1. Has not the Appellate Court failed to exercise its jurisdiction in not
independently considering and deciding the case on the basis of the
facts and evidence in the case?
2. Is not the judgment of the Appellate Court illegal, perverse and
arbitrary as vital admissions of the plaintiff are ignored in deciding the
case?
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3. Is not the Appellate Court bound to set aside the judgment of the trial
court and remand the case, as the finding of trial court that X1 was
not executed by plaintiff is based on a comparison of the signatures
in Exhibit-X1 and vakalath and plaint, which is not warranted
regarding a registered document containing thumb impression of
plaintiff?
4. When the Appellate Court has held that the lower Court has not framed
an issue regarding the title claimed by plaintiff and has not entered a
specific finding under that issue, should not the judgment of trial court
be set aside and matter remanded?
5. Is not the lower court bound to draw a presumption in favour of the
genuineness of Exhibit X1 as the same is a registered document?
6. Are not the observations of the Appellate Court on Exhibit X1 vitiated
by illegality and perversity in view of the non-consideration of
evidence and circumstances?
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15. The 2 nd
defendant who is the plaintiff in O.S.No. 481/2002 filed
R.S.A No. 766/2014 challenging the judgment and decree in A.S
No. 81/2012 taking grounds against the order refusing to condone
the delay in I.A No. 1079/2012. This Court admitted R.S.A
No.766/2014 on the following substantial questions of law
formulated in the Memorandum of Regular Second Appeal. They
are:
1. Has not the lower Court committed grave illegality in refusing to
condone the delay when the evidence adduced by the appellant
clearly establishes that there is no wilful default or negligence from
her part?
2. Is not the Appellate Court bound to condone the delay when no
malafides are alleged or proved by the respondents against the
appellant?
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3. Is not the judgment of the lower court illegal and arbitrary as the
Appellate Court has not considered the grounds alleged by the
appellant and the evidence adduced by the appellant?
4. When it is proved that the appellant has a strong case on merits, is
not the Court below bound to condone the delay irrespective of its
length?
16. I heard the learned counsel for the appellant, Sri. G. S.
Reghunath, and the learned Counsel for the first respondent, Sri.
R. S. Kalkura.
17. The learned counsel for the appellant contended that O.S
No.429/2002 filed by the plaintiff is clearly barred by limitation.
The plaintiff had filed O.S No. 123/1998 against the 1st defendant
earlier and the said suit was dismissed as withdrawn as per Ext.B4
Decree dated 09.06.1998. Ext.B5 Withdrawal Petition dated
05.06.1998 would indicate that the plaintiff had clear knowledge
about Exts.X1, X2 and X3 documents on the date of Ext.B5 itself.
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In view of Explanation 1 to S.3 of the Transfer of Property Act, when
a transaction relating to immovable property has been effected by
a registered document, the person having interest in the said
property shall be deemed to have notice of such instrument from
the date of registration. The suit ought to have been filed within
three years from the date of knowledge as per Article 59 of the
Limitation Act. Since the suit is filed after three years, the suit is
clearly time-barred. The learned counsel contended that since
Exts.X1, X2, and X3 are registered documents there is a
presumption in favour of validity of those documents in view of
S.114 (e) of the Indian Evidence Act. The plaintiff did not rebut the
presumption in favour of Ext.X1 to X3 on account of its
registration. The learned counsel for the appellant cited the
decision of this Court in Sarojini and others v. Ponnutty and
others [2001(1) KLJ 665] to substantiate the point that registration
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of a document is a solemn act to be performed in the presence of
Registrar whose duty is to ensure attendance of the parties during
registration and see that proper persons are present and are
competent to act and are identified to his satisfaction and that all
things done before him in his official capacity and verified by his
signature will be presumed to be done duly and in order and that
in the absence of any specific pleadings and evidence of fraud the
document has to be found genuine. The evidence would clearly
indicate that the plaintiffs sold the plaint schedule property to the
2nd defendant in order to discharge his liability to the Bank. The
plaintiff has not pleaded and proved any of the vitiating elements
under Sections.15 to 18 of the Indian Contract Act, to set aside
Ext.X1 power of attorney. In the pleading, the plaintiff has
specifically admitted the execution of Ext.X1 power of Attorney.
The recitals in Ext.X1 to X3 would reveal the facts and
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circumstances leading to the execution of those documents. The
learned counsel cited the decision of the Hon'ble Supreme Court
in Jindra and another v. State of Punjab [AIR 1979 SC 1708] to
substantiate the point that the science of identifying thumb
impression is an exact science and does not admit any mistake or
doubt. Though the plaintiff and the 2nd defendant filed
Applications before the Trial Court to send Ext.X1 for expert
evidence the same was illegally dismissed by the Trial Court on
the ground that there is substantial difference between the
signature of the plaintiff in Ext.X1 and admitted signatures of the
plaintiff in his vakalath plaint and deposition. The plaintiff
purposefully put a different signature in the vakalath, plaint and
deposition. If the Trial Court had sent the thumb impression in
Ext.X1 for comparison with the admitted thumb impression of the
plaintiff , the truth could have been easily found out by the Trial
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Court. The 2 defendant was greatly prejudiced on account of the
nd
refusal of the Trial Court to send the thumb impression in Ext.X1
for expert evidence. The Trial court did not consider the prayers in
O.S No. 481/2002 in the light of the evidence before it, but it
merely relied on its finding in O.S No.429/2002 to dismiss O.S NO.
481/2002. Since A.S No. 81/2012 filed against the judgment and
decree in O.S No. 481/2002 was dismissed on the ground of delay,
the prayers in OS No. 481/2002 were not considered even at the
First Appellate Stage. The learned counsel contended that since
the prayer is made for setting aside Exts.X1, X2, and X3
documents, the plaintiff has to pay a court fee on the market value
of the plaint schedule property for cancellation of those
documents under S.40 of the Kerala Court Fee and Suit Valuation
Act. The learned Counsel concluded that the appeals are to be
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allowed dismissing O.S No.429/2002 and decreeing O.S
No.481/2002 setting aside the impugned judgments and decrees.
18. The learned counsel for the 1 respondent contended that the
st
Trial Court as well as the First Appellate Court correctly
appreciated the pleadings and evidence and the law on the point
and arrived at the right conclusion. There is nothing to be
interfered invoking the jurisdiction of this Court under S.100 CPC.
There is no substantial questions of law in the matter. Neither
Ext.B4 or B5 would show that the plaintiff had knowledge about
Exts.X1 to X3 documents on the dates of those documents. O.S
No. 123/1998 was filed against the 1st defendant when the plaintiff
apprehended that inspite of executing Ext.A1 settlement deed,
the 1st defendant father will execute document with respect to the
plaint schedule property to others. In Ext.B5 it is stated that the
plaintiff came to know that document is executed by the 1st
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defendant to third parties and it does not in any way indicate that
those documents are the power of attorney executed by the
plaintiff himself in favour of the 1st defendant and the documents
executed by the 1st defendant representing the plaintiff as his
power of attorney holder. The plaintiff specifically pleaded in the
plaint that the plaintiff came to know about Exts.X1 to X3 on
30.07.2002 and showing the cause of action with reference to the
said date. In the written statement, the 2nd defendant has not
denied these specific averments of the plaintiff. The Trial Court
considered the Applications for sending Ext.X1 for expert
evidence and rightly dismissed those Applications, finding that
there is a substantial difference between the signature of the
plaintiff in Ext.X1 and the admitted signature of the plaintiff in
vakalath, plaint, and deposition. The Trial Court, as well as the
First Appellate Court, specifically found that the 2nd defendant did
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not have a case that the plaintiff is in the habit of putting different
signatures. The execution of Exts. X2 and X3 documents on the
next day of execution of Ext.X1 power of attorney on the strength
of Ext.X1 itself would reveal the falsity of those documents. The
defendants 1 and 3, who are the parents of the plaintiff, and the
2nd defendant, supported the case of the plaintiff. Their stand is
very much material especially when Ext.X1 is executed in favour
of the 1st defendant and the 1st defendant executed Exts. X2 and
Ext.X3 of the 2nd defendant. The specific case of the plaintiff is that
the plaintiff has not executed Ext.X1 power of attorney. the Trial
Court as well as the First Appellate Court after appreciation of the
evidence before it rightly found that Ext.X1 power of attorney is not
executed by the plaintiff. When it is found that Ext.X1 power of
attorney is not executed by the plaintiff, there is no need to set
aside Ext.X1 power of attorney and Ext.X2 and X3 sale deed, which
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are executed on the strength of Ext.X1 power of attorney. The
Court can perfectly grant decree declaring title in favour of the
plaintiff ignoring those documents. The learned counsel cited the
decision of the Hon'ble Supreme Court in Ningawwa v. Byrappa
Shiddappa Hireknrabar and others [AIR 1968 SC 956] to
substantiate the legal proposition that the starting point of
limitation is the date when the plaintiff discovered the true nature
of the deed. The learned counsel cited the decision of this court
in Poonath Devaki and others v. Vayalveettil Balakrishnan and
others [2011 KHC 563] to substantiate the legal proposition that
where an execution of document itself is denied the burden of
proof is on the party who asserted that the document is executed
by the opposite party ; that though registration could raise an
initial presumption regarding compliance of formalities required
for registration and about the validity of the execution of
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document, it cannot raise a presumption regarding execution
when the execution itself is disputed; that endorsement made by
the Registrar is not a substitute for proof or evidence of execution
if the execution is denied; and that it is permissible to the court to
compare the admitted and disputed signatures.
19. I have considered the rival contentions.
20. Admittedly, the property originally belonged to the 1st defendant
who was the father of the plaintiff and the 2nd defendant. It is an
admitted fact that 1st defendant executed Ext.A1 settlement deed
in favour of the plaintiff with respect to the plaint schedule
property. Even though the 2nd defendant contended that Ext.A1
was not acted upon and the plaintiff did not derive title over the
plaint schedule properties on the strength of Ext.A1 settlement
deed, the said contention was not pressed by the learned counsel
for the appellant before me. Even if the 2nd defendant maintains
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such a contention, such contention would be contradictory to the
contention that the 2nd defendant obtained the plaint schedule
properties from the plaintiff through Ext.X2 and X3 documents
executed by the 1st defendant on the strength of Ext.X1 power of
attorney executed by the plaintiff. Only if the 2nd defendant
accepts the title of the 1st defendant, the 2nd defendant can claim
title over the plaint schedule property on the strength of Ext.X2
and X3 documents. Hence the title of the plaintiff over the plaint
schedule property as per Ext.A1 settlement deed is proved before
the Court.
21. Since the 2 defendant claims the plaint schedule property as per
nd
Exts.X2 and X3 documents executed by the 1st defendant on the
strength of Ext.X1 power of attorney, the 2nd defendant is entitled
to succeed only if she proves execution of Ext.X1 power of
attorney by the plaintiff in favour of the 1st defendant. The Trial
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Court as well as the First Appellate Court has specifically found
that the signature in Ext.X1 and the signatures of the plaintiff in the
vakalath, plaint and the deposition are having substantial
difference. The contention of the counsel for the appellant is that
there is presumption in favour of the registered document in view
of S.114 (e) of the Indian Evidence Act. When a document is
registered, it is presumed that it is validly executed and registered
by the person who is shown in the document. It is true that there
is a presumption in favour of registered document. But the said
presumption could be rebutted by the person who challenges the
same. In the decision of this Court in Poonath Devaki (supra) this
Court has specifically held that though a registered deed carries a
presumption that the transaction was genuine one and that if the
execution of the deed is proved the onus is on the other party to
prove that the deed was not executed and it was a sham
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transaction. It is held that registration could raise an initial
presumption regarding compliance of formalities required for
registration, but registration by itself cannot raise a presumption
regarding the execution itself when it is disputed. In the present
case, the plaintiff has specifically denied the execution of Ext.X1
power of attorney. The Trial Court as well as the First Appellate
Court found substantial difference in the signature in Ext.X1 with
the admitted signatures of the plaintiff. As rightly found by the Trial
Court as well as the First Appellate Court, the 2nd defendant does
not have the case that the plaintiff is in the habit of making
different types of signatures. In view of the wide and glaring
difference in the signatures, the Trial Court dismissed the
applications filed by the plaintiff as well as the 2nd defendant to
send Ext.X1 for expert evidence. The Trial Court is fully justified in
refusing to send Ext.X1 for expert evidence when the Trial Court
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with its naked eyes found that there is difference in the signature.
The expert evidence is required to assist the Court to arrive at the
right conclusion. If the Court is able to arrive at the conclusion
even without any expert evidence, it could not be said that the
Court should send the documents for expert evidence. When
there is a wide difference between the disputed signature and the
admitted signatures, there is no need to send a thumb impression
of the plaintiff for expert evidence.
22. Another reason to disbelieve the execution of Ext.X1 is on account
of the place of its registration. The parties are admittedly residing
within the local limits of Sub Registry Office Nedumangad. The 2nd
defendant who is relying on Ext.X1 power of attorney could not
prove any special reason for executing Ext.X1 at
Chadayamangalam Sub Registry Office. It is stated that Ext.X1
power of attorney is executed by the plaintiff since he would not
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be available in station to execute Ext.X2 and X3 sale deeds in
favour of the 2nd defendant. Ext.X1 is executed on 19.02.1998.
Ext.X2 and X3 are executed on 20.02.1998, i.e., on the next day of
execution of Ext.X1 power of attorney. If the plaintiff wanted to
execute sale deeds in favour of the 2nd defendant, nothing
prevented him from executing the sale deeds directly in favour of
the 2nd defendant on 19.02.1998 itself. This fact also creates
strong suspicion about the execution of Ext.X1 power of attorney
by the plaintiff.
23. The contention of the learned Counsel for the appellant is
that the plaintiff did not plead and prove any of the vitiating
elements under Sections. 15 to 18 of the Indian Contract Act in
support of his challenge against Ext.X1 power of attorney. The
specific case of the plaintiff is that Ext.X1 is not executed by the
plaintiff, in such case, he need not plead and prove any of the
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vitiating elements under Sections 15 to 18 of the Indian Contract
Act.
24. When the execution of Ext.X1 power of attorney is denied by
the plaintiff and the plaintiff has brought evidence before the
Court which is sufficient to rebut a presumption in favour of a
registered document, it is the burden of the 2nd defendant to
prove the execution of Ext.X1 by the plaintiff. Plaintiff did not
adduce any evidence to prove the execution of Ext.X1 power of
attorney by the plaintiff. It is the plaintiff who examined the Scribe
whose name is shown in Ext.X1 as PW2. His evidence would
reveal that Ext.X1 is not executed by the plaintiff.
25. The contention of the 2nd defendant is that the plaintiff had bank
liability and to settle the said bank liability the 2nd defendant
helped the plaintiff by providing financial assistance and hence as
a consideration of the same the plaint schedule property was
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transferred to the 2 defendant. Here also, on going through the
nd
evidence of DW1 she does not have a consistent case in this
regard. In the evidence the 2nd defendant stated that she paid an
amount of Rs.2,50,000/- to the plaintiff for settling the bank
liability. There is no such contention in the plaint. The specific
case of the plaintiff is that the 2nd defendant, after separating from
her husband, started living with defendants 1 and 3, and during
this period, she took the 1st defendant to Chadayamangalam Sub
Registry Office to execute Ext.X1, X2, and X3, misrepresenting the
1st defendant. The said fact is admitted by the 1st defendant in his
pleadings.
26. The prime contention of the 2nd defendant is that the plaintiff did
not derive any title as per Ext.A1 settlement deed as Ext.A1
settlement deed did not come into force. Thereafter she claims
that she derived title from the plaintiff. The contradictory
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contentions taken by the plaintiff would itself disclose the falsity
of the case pleaded by the 2nd defendant.
27. The next contention raised by the counsel for the appellant is that
the court fee is not paid for the prayers to set aside Exts.X1 to X3.
On going through the prayer in the suit, the prayer is substantially
for the declaration of title of the plaintiff over the plaint schedule
properties on the basis of Ext.A1 settlement deed ignoring Exts.X1
to X3. It is true that in the prayer, the plaintiff has made a
statement that Exts.X1 to X3 are void ab initio, and the same is to
be ignored and, in case necessary to set aside the same. The
plaintiff has not paid the Court Fee under Section 40 of the Kerala
Court Fees and Suit Valuation Act for setting aside the
documents. As per Section 40, the plaintiff has to pay the Court
fee on the market value of the plaint schedule property in case the
plaintiffs pray for setting aside those documents. In the present
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case, the prayer is made to set aside the documents if necessary.
The specific case of the plaintiff is that the plaintiff has not
executed Ext.X1 power of attorney. If Ext.X1 power of attorney is
not executed by the plaintiff there is no need to set aside the
same. It is liable to be ignored. If Ext.X1 power of attorney is not
executed by the plaintiff the 1st defendant could not execute
Exts.X2 and X3 sale deeds as the power of attorney holder of the
plaintiff. Hence, Ext.X1, X2, and X3 documents are also liable to
be ignored. Since Exts.X1 to X3 has created a cloud on the title of
the plaintiff over the plaint schedule property, the plaintiff has
sought prayer for declaration of title, ignoring Ext.X1 to X3
documents. Hence, the contention that the plaintiff is liable to pay
court fees under Section 40 of the Kerala Court Fee and Suit
Valuation Act is unsustainable.
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28. On the question of limitation, the learned counsel for the
appellant contended that the suit with a prayer to set aside Ext.X1
to X3 documents should have been filed within three years from
the date when the plaintiff first came to know about those
documents in view of Article 59 of the Limitation Act. The
limitation has to be calculated at least from the date of Ext.B5
Withdrawal Petition as it would reveal that the plaintiff had
knowledge about Exts.X1 to X3 documents.
29. When the plaintiff has sought declaration, the relevant Article is
Article 58 of the Limitation Act, which provides from the date when
the right to sue first accrues. Ext.B5 Withdrawal Petition is dated
05.06.1998, and on the basis of Ext.B5 Withdrawal Petition, the
suit was dismissed as withdrawn with liberty to the plaintiff to file
a fresh suit as per Ext.B4 Decree dt. 09.06.1998. O.S No.123/1998
is filed by the plaintiff against the 1st defendant herein. Ext.B4
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would reveal that the relief sought is that the 1 defendant is to be
st
restrained from creating any documents with respect to plaint
schedule property without the knowledge and consent of the
plaintiff in favour of third parties causing loss and prejudice to the
plaintiff. Ext.B5 only refers to the sale deed executed by the 1st
defendant in favour of third party in violation of the injunction and
states that a new case is to be filed to set aside the document
executed by the 1st defendant after the institution of the said suit.
In view of the decisions cited by the learned Counsel for the 1st
respondent in Ningawwa (supra), the starting point of the
limitation is the date when plaintiff discovers the true nature of the
deed. The averments in Ext.B5 would reveal that the document
referred by the plaintiff therein is not any of Exts.X1 to X3
documents. If he had clear knowledge about Ext.X1 he would have
stated about Ext.X1 power of attorney is created in favour of the 1st
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defendant. The document referred in Ext.B5 is the document
executed by the 1st defendant and not the document executed by
the plaintiff in favour of the 1st defendant or the document
executed by the 1st defendant as power of attorney holder of the
plaintiff. Hence the date of Ext.B5 could not be taken as the
starting point of limitation. As rightly pointed out by the learned
Counsel for the contesting respondent that it is specifically
pleaded in the plaint that the plaintiff came to know about Exts.X1
to X3 on 30.07.2002 and the cause of action is shown with
reference to the said date. This specific plea is not seen denied in
the written statement of the 2nd defendant. Hence the knowledge
of the plaintiff about Exts. X1 to X3 on 30.07.2002 is a fact
admitted by the 2nd defendant and hence the 2nd defendant could
not advance a contention that the plaintiff had knowledge about
Exts. X1 to X3 from an earlier date. Hence the contention of the
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learned counsel for the appellant that O.S.No.429/2002 is barred
by limitation is unsustainable.
30. When the evidence of the 2 defendant is considered, there is
nd
every reason to suspect the execution of Ext.X1 document. When
the 2nd defendant was examined as DW1 she stated that she does
not know whether the plaintiff has executed a general power of
attorney in favour of the 1st defendant; that she had been paying a
bank loan and then the sale deed was executed in favour of her;
that she paid Rs.2.5 lakhs for purchasing the plaint schedule
property; that she did not go for registering the sale deed; that he
does not know the place where the sale deed was executed; that
she has been residing separately from her husband since the last
9 years; that she does not know the signature of the plaintiff; that
she does not know whether the signature shown in Ext.B5 belongs
to the plaintiff; that there is difference between the signatures in
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Ext.B5 and Ext.X1; that she does not know as to who has written
Ext.X1, who signed Ext.X1 and in which SRO it is executed; that her
husband also does not have any knowledge about Ext.X1 to X3.
The evidence of DW1 would reveal that she had no knowledge
about the execution of Exts.X1 to X3. She does not disclose the
person who has knowledge about those details. The evidence of
DW1 does not in any way support the due execution of Exts.X1 to
X3. PW2 admitted that Ext.X1 was executed in his presence, and
the person signed as Bhaskara Pillai is him. He stated that the
witnesses to Ext.X1 are the habitual witnesses of the Sub Registry
Office; that he does not know the person who executed Ext.X1 and
the person in favour of whom Ext.X1 is executed, directly; that he
was asked to write Ext.X1 by the person who sold the property and
the person who purchased the said property; and that the stamp
paper for executing Ext.X1 was purchased on 13.02.1998. the
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evidence in the case would reveal that the Trial Court correctly
appreciated the evidence and arrived at the right conclusion. The
Trial Court rightly decreed O.S No.429/2002 and the First
Appellate Court rightly confirmed the same. The substantial
questions of law formulated in R.S.A No. 160/2013 are answered
in the negative and in favour of the contesting respondents.
31. R.S.A No. 766/2014 arises from O.S.No.481/2002. The challenge
is essentially against the order refusing to condone delay in filing
A.S No. 81/2012. The judgment dismissing A.S No. 67/2004 arises
from O.S No. 429/2002 passed by the First Appellate Court on
10.11.2010. It is after the dismissal of A.S No. 67/2004, the 2nd
defendant who is the plaintiff in O.S No. 481/2002 filed A.S No.
81/2012 before the First Appellate Court challenging the judgment
and decree in O.S No. 481/2002 with I.A No. 1079/2002 to
condone the delay of 2888 days in filing the appeal. It is well
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settled by the decision of this court in Chandran N. V. v. Karikode
Naduvilethadam Bhagavathi Mariamman Temple [2024 KHC
OnLine 7004] that a party has no right to maintain an appeal
against the judgment and decree in a suit which is disposed of by
a common judgment along with other suits after disposal of
appeal from the judgment and decree in the other suit disposed
of as per the very same common judgment; that such subsequent
appeals are clear abuse of the process of the Court; that if such
subsequent appeals are allowed, it is against the principle of res
judicata, and it would be against the very purpose for which the
said principle evolved, namely, the finality of the proceedings; and
that the parties would be able to prolong the litigation and re-
agitate the matter again and again, one after another. In view of
this decision, the fling of A.S No. 81/2012 after the disposal of A.S
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No. 67/2004 is clearly impermissible, and it is an abuse of the
process of the court.
32. The reason stated by the 2 defendant for condonation of delay is
nd
that she did not receive any legal advice from her counsel about
the necessity to file an appeal against the judgment and decree in
OS No. 481/2002. The First Appellate Court has found that three
Counsel have appeared for the 2nd defendant. The 2nd defendant
admitted that she used to visit the office of the counsel and
enquire about the case on almost all postings. Though she alleges
laches on the part of earlier counsel, she has not made any
complaint against any of the counsel. Even after the disposal of
AS No. 67/2004 on 10.11.2012, it took further delay in filing A.S No.
81/2012. No sustainable reason is stated by the 2nd defendant
before the First Appellate Court in condoning the delay in I.A
No.1079/2012. The First Appellate Court is fully justified in
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dismissing the application to condone delay and passing
consequential judgment dismissing the appeal. The substantial
questions of law formulated in R.S.A.No 766/2014 are answered
in the negative and in favour of the 1st respondent.
33. Accordingly, both R.S.A Nos. 160/2013 and 766/2014 are
dismissed with costs.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
jma
