Kerala High Court
P.K.Kurian@Baby vs George Kurian on 29 January, 2025
2025:KER:7070
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 29TH DAY OF JANUARY 2025 / 9TH MAGHA, 1946
RSA NO. 38 OF 2025
AGAINST THE JUDGMENT AND DECREE DATED 30.08.2024 IN AS
NO.79 OF 2022 OF SUB COURT, PALA ARISING OUT OF THE JUDGMENT
AND DECREE DATED 14.10.2022 IN OS NO.149 OF 2018 OF MUNSIFF
MAGISTRATE, ERATTUPETTA
APPELLANTS/APPELLANT/1ST DEFENDANT:
P.K.KURIAN @ BABY,
AGED 62 YEARS,
POTTAMPLAKKAL HOUSE, VELLIKULAM P.O.,
THALANADU VILLAGE, PIN - 686580
BY ADV. C.S.BISSIMON
RESPONDENTS/RESPONDENTS/PLAINTIFF & 2ND DEFENDANT:
1 GEORGE KURIAN
AGED 56 YEARS,
POTTAMPLAKKAL HOUSE, VELLIKULAM P.O.,
VADAKKEKKARA KARA, THALANADU VILLAGE, PIN - 686580
2 JOHN KURIAN
AGED 58 YEARS
POTTAMPLAKKAL HOUSE, VELLIKULAM P.O.,
THALANADU VILLAGE, PIN - 686580
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 29.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
1. This is an appeal filed by the 1 st defendant in the suit. The
suit was for mandatory injunction and prohibitory injunction
filed by the plaintiff.
2. As per plaint allegations, the plaint Schedule Item No.1
property as per Ext.A1 settlement Deed executed by the
father of the plaintiff. The defendants are the brothers of the
plaintiff. Defendant No.2 is having property on the southern
side of item No.1 property. The defendants trespassed into
plaint scheduled item No.1 property and erected a temporary
shed using wooden sticks and tarpaulin which is included in
Plaint Schedule Item No.2. Defendant No.2 cleared about 30
cents of land on the western side of the said shed and the
said property is included in Plaint Schedule Item No.3.
Hence, the suit is filed to remove item No.2 shed and also to
restrain the defendants from trespassing into the plaint
scheduled Item No.1 property.
3. The defendants opposed the suit prayers contending inter
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alia that the father of the parties retained life interest over the
property. The plaintiff did not comply with the terms and
conditions in Ext.A1, and hence, the father canceled Ext.A1
Settlement by Ext.B2 Cancellation deed, and thereafter, out
of the said property, 30 cents was given to defendant No.1
and 50 cents was given to the defendant No.2 orally. The
defendants have been residing in the said properties
cultivating the same from the year 2006 onwards. They have
no intention of trespassing into the remaining portion of the
plaint scheduled property which is in the possession of the
plaintiff.
4. The Trial Court decreed the suit, and the 1 st defendant filed
appeal before the First Appellate Court and the same was
dismissed, confirming the judgment and decree of the Trial
Court.
5. I heard the learned counsel for the appellant, Sri. C.S.
Bissimon.
6. The learned counsel for the appellant contended that, Ext.A1
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Settlement is non est on account of two fundamental legal
defects with respect to the same. The first legal defect is that
the derivation of the property is wrongly stated in Ext.A1. In
Ext.A1, the property is stated as derived as per Ext.B1
Document No.643/2003, whereas Ext.B1 would prove that
the property and the survey number are different. The
second legal defect is that there are no witnesses in Ext.A1
Settlement as required under Section 123 of the Transfer of
Property Act. But the Trial Court, as well as the First
Appellate Court, illegally treated the Scribe and the
Document Writer as attesting witnesses, which is in violation
of Rule 30 of the Kerala Registration Rules. The learned
counsel invited my attention to Rule 30, which mandates that
if the document is a non-testamentary document presented
for registration, the Document Writer, as well as the Scribe,
shall attest the document.
7. On consideration of the above contentions, I find that,
admittedly, the property which is scheduled in Ext.A1
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originally belonged to the father. Ext.B2 Cancellation Deed
also affirms that the property covered by Ext.A1 belonged to
the father of the parties, and hence, he executed Ext.B2 to
get back the property. The Trial Court and the First Appellate
Court have found that Ext.B1 is not the prior Deed of Ext.A1
as the properties and survey numbers are different. The
defendants do not have a case that the property scheduled in
Ext.A1 is not the property of the father. A mere mistake in the
derivation of title in ExtA1 is not sufficient to hold that the said
settlement is invalid. When the father has made his intention
clear with respect to the settlement of his property as per the
description in the said document, and the property could be
identified, the mistake in the derivation is not at all relevant.
A Settlement Deed is valid even without stating the derivation
of the title. Hence, I am of the view that the first ground
raised by the learned counsel for the appellant is
unsustainable.
8. The next ground is that Ext.A1 is not properly attested by two
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independent witnesses. It is seen from Ext.A1 that two
numbers are given with the heading 'witnesses'. Of course,
the Scribe is witness No.1, and the Document Writer is
witness No.2. From the reading of Ext.A1, it is seen that the
Scribe, as well as the Document Writer, stood as the
attesting witnesses. It is mandatory under Rule 30 of the
Registration Rules that the Document Writer and the Scribe
shall attest the document if the document is a non-
testamentary document. That does not mean that there is
any legal impediment for them to stand as attesting
witnesses to the document. It is well settled by the decisions
of this Court that there is no prohibition for the Document
Writer or Scribe to stand as a witness. The only requirement
is that there should be animus attestandi for the witnesses.
From the document, it is clear that the Document Writer and
the Scribe signed Ext.A1 in a dual capacity. It stated that
they are Witnesses No.1 & 2 and that they are Scribe and
Document Writer. There is animus attestandi for them while
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signing Ext.A1. Hence, the second ground raised by the
learned counsel for the appellant is also unsustainable.
9. Accordingly, I do not find any ground or reason to interfere
with the judgments and decrees of the Trial Court and the
First Appellate Court. Hence the Regular Second Appeal is
dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
ANS
