Kerala High Court
Prasanna vs Nesamma * (Died) Lhrs Impleaded) on 9 October, 2025
2025:KER:74353
RSA Nos.1337/12 & 108/13
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 9TH DAY OF OCTOBER 2025 / 17TH ASWINA, 1947
RSA NO. 1337 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 24.09.2012 IN AS
NO.111 OF 2010 OF II ADDITIONAL DISTRICT COURT,
THIRUVANANTHAPURAM ARISING OUT OF THE JUDGMENT AND DECREE
DATED 10.06.2010 IN OS NO.180 OF 2006 OF SUB COURT,
NEYYATTINKARA
APPELLANTS IN RSA/APPELLANTS IN AS/PLAINTIFFS IN SUIT:
1 PRASANNA
D/O. DASAMMA, KALLINGAL VILAKATHU VEEDU,
KARINGAL, KANDALA P.O., NEYYATTINKARA.
2 VASANTHI
D/O. DASAMMA, KALLINGAL VILAKATHU VEEDU,
KARINGAL, KANDALA P.O., NEYYATTINKARA.
3 PUSHPAM
D/O. DASAMMA, KALLINGAL VILAKATHU VEEDU,
KARINGAL, KANDALA P.O., NEYYATTINKARA.
4 DHARMAN
S/O. SIMON, KALLINGAL VILAKATHU VEEDU, KARINGAL,
KANDALA P.O., NEYYATTINKARA.
BY ADVS.
SHRI.P.B.KRISHNAN (SR.)
SRI.P.B.SUBRAMANYAN
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RSA Nos.1337/12 & 108/13
2
SHRI.N.AJITH
SMT.GEETHA P.MENON
SRI.P.M.NEELAKANDAN
SRI.SABU GEORGE
SMT.B.ANUSREE
SRI.MANU VYASAN PETER
SMT.MEERA P.
RESPONDENT IN RSA/RESPONDENT IN AS/DEFENDANT(S) IN SUIT:
1 NESAMMA (DIED) LRS IMPLEADED)
(WRONGLY SPELLED AS DASAMMA IN THE JUDGMENT OF
THE LOWER APPELLATE COURT), D/O. THANKAMMA,
RESIDING AT THEKKE KULAMANKUZHI, PUTHEN VEEDU,
KANDALA P.O., MARANALOOR, NEYYATTINKARA,
THIRUVANANTHAPURAM-695121.
ADDL. R2 SUSEELA
AGED 55 YEARS
D/O LATE NESAMMA, RESIDING AT KALLINGAVILAKAM
VEEDU, PULINKOTTUKONAM, KANDALA P O,
THIRUVANANTHAPURAM - 695 512.
ADDL. R3 BARNABUS
AGED 52 YEARS
S/O LATE NESAMMA, RESIDING AT KALLINGAVILAKAM
VEEDU, PULINKOTTUKONAM, KANDALA P O,
THIRUVANANTHAPURAM - 695 512.
ADDL. R4 RUTHU
AGED 50 YEARS
D/O LATE NESAMMA, RESIDING AT KALLINGAVILAKAM
VEEDU, PULINKOTTUKONAM, KANDALA P O,
THIRUVANANTHAPURAM - 695 512.
ADDL. R5 SOLAMON
AGED 48 YEARS
S/O LATE NESAMMA, RESIDING AT KALLINGAVILAKAM
VEEDU, PULINKOTTUKONAM, KANDALA P O,
THIRUVANANTHAPURAM - 695 512.
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RSA Nos.1337/12 & 108/13
3
ADDL. R6 LATHA
AGED 47 YEARS
D/O LATE NESAMMA, RESIDING AT KALLINGAVILAKAM
VEEDU, PULINKOTTUKONAM, KANDALA P O,
THIRUVANANTHAPURAM - 695 512.
[THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE RESPONDENT
ARE IMPLEADED AS ADDITIONAL RESPONDENTS R2 TO R6 VIDE ORDER
DATED 20.05.2025 IN IA 3187/2014. (IA 5/2024)]
BY ADVS.
SRI.V.SURESH FOR R1
SRI.G.SUDHEER FOR R1
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
16.09.2025, ALONG WITH RSA.108/2013, THE COURT ON 09.10.2025
DELIVERED THE FOLLOWING:
2025:KER:74353
RSA Nos.1337/12 & 108/13
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 9TH DAY OF OCTOBER 2025 / 17TH ASWINA, 1947
RSA NO. 108 OF 2013
AGAINST THE JUDGMENT AND DECREE DATED 24.09.2012 IN AS
NO.111 OF 2010 OF II ADDITIONAL DISTRICT COURT,
THIRUVANANTHAPURAM ARISING OUT OF THE JUDGMENT AND DECREE
DATED 10.06.2010 IN OS NO.180 OF 2006 OF SUB COURT,
NEYYATTINKARA
APPELLANT/RESPONDENT/DEFENDANT:
1 DESAMMA, (DIED - LRS IMPLEADED)
DAUGHTER OF THANKAMMA, THAKKE KULAMANKUZHI PUTHEN
VEEDU, KANDALA P.O., NEYYATTINKARA.
ADDL.A2 LATHA
DAUGHTER OF NESAMMA, AGED 52 YEARS,
THEKKEKULAMANKUZHI PUTHENVEEDU, KARINGAL, KANDALA
P.O., THIRUVANANTHAPURAM, PIN:695512.
ADDL.A3 VIJAYAN,
HUSBAND OF LATE RUTH, AGED 58 YEARS, SANAL
BHAVAN, KARINGAL, KANDALA P.O., MARANALLOOR,
NEYYATTINKARA, PIN: 695512.
ADDL.A4 SANAL KUMAR
SON OF LATE RUTH, AGED 35 YEARS, SANAL BHAVAN,
KARINGAL, KANDALA P.O., MARANALLOOR,
NEYYATTINKARA, PIN: 695512.
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5
ADDL.A5 SANILA
DAUGHTER OF LATE RUTH, AGED 29 YEARS, SANAL
BHAVAN, KARINGAL, KANDALA P.O., MARANALLOOR,
NEYYATTINKARA, PIN: 695512.
[THE LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE
IMPLEADED AS ADDL. APPELLANTS 2 TO 5 AS PER ORDER DATED
20/05/2025 IN IA 1/2021].
BY ADVS.
SRI.V.SURESH
SMT.N.P.ASHA
SMT.M.JAYASREE
SRI.G.SUDHEER
RESPONDENTS/APPELLANTS/PLAINTIFFS:
1 PRASANNA
DAUGHTER OF DASAMMA, KALLINGAL VILAKATHU VEEDU
KARINGAL, KANDALA P.O., NEYYATTINKARA, PIN.695
121.
2 VASANTHI
DAUGHTER OF DASAMMA, KALLINGAL VILAKATHU VEEDU
KARINGAL, KANDALA P.O., NEYYATTINKARA, PIN.695
121.
3 PUSHPAM, DAUGHTER OF DASAMMA, KALLINGAL VILAKATHU
VEEDU KARINGAL, KANDALA P.O., NEYYATTINKARA,
PIN.695 121.
4 DHARMAN, SON OF SIMSON
KALLINGAL VILAKATHU VEEDU KARINGAL, KANDALA P.O.,
NEYYATTINKARA, PIN.695 121.
ADDL.R5 BARNABAS
SON OF NESAMMA, AGED 70 YEARS, THEKKEKULAMANKUZHI
PUTHENVEEDU, KARINGAL, KANDALA P.O.,
THIRUVANANTHAPURAM, PIN: 695 512
ADDL.R6 SUSEELA
DAUGHTER OF NESAMMA, AGED 65 YEARS,
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6
THEKKEKULAMANKUZHI PUTHEN VEEDU, KARINGAL,
KANDALA P.O., THIRUVANANTHAPURAM, PIN: 695 512.
ADDL.R7 SOLOMAN,
SON OF NESAMMA, AGED 60 YEARS, THEKKEKULAMANKUZHI
PUTHEN VEEDU, KARINGAL, KANDALA P.O.,
THIRUVANANTHAPURAM, PIN: 695 512.
[THE LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE
IMPLEADED AS ADDL. RESPONDENTS 5 TO 7 AS PER ORDER DATED
20/05/2025 IN IA 1/2021.]
R1 TO R4 BY BY ADVS.
SRI.SABU GEORGE
SRI.P.B.SUBRAMANYAN
SHRI.N.AJITH
SMT.GEETHA P.MENON
SHRI.P.B.KRISHNAN (SR.)
SRI.P.M.NEELAKANDAN
SMT.B.ANUSREE
SRI.MANU VYASAN PETER
SMT.MEERA P.
R5 TO R7 BY ADV.SRI.SABU GEORGE (B/O)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
16.09.2025, ALONG WITH RSA.1337/2012, THE COURT ON 09.10.2025
DELIVERED THE FOLLOWING:
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RSA Nos.1337/12 & 108/13
7
'C.R.'
EASWARAN S., J.
------------------------------------
RSA Nos.1337 of 2012 & 108 of 2013
-------------------------------------
Dated this the 9th day of October 2025
JUDGMENT
Aggrieved by the concurrent findings rendered by the Sub Court,
Neyyattinkara in OS No.180/2006, a suit for declaration, recovery of
possession and injunction, and the II Addl. District Court,
Thiruvananthapuram, the plaintiffs have come up in RSA No.1337/2012;
while the counterclaim plaintiff (defendant) in that suit approached this Court
in RSA No.108/2013 aggrieved by the reversal of the judgment and decree in
the counterclaim.
2. The facts for disposal of the cases will be as narrated in RSA
No.1337/2012, since the said appeal is preferred by the plaintiffs.
3. The plaintiffs claim that they are the only legal heirs entitled to
inherit the property of one Nesamony, who is the brother of the defendant.
During the lifetime of Nesamony, four settlement deeds numbered as 85/98,
155/01, 153/01 & 154/01, and a release deed No.35/02 and an original Will
No.2/98 were executed. The defendant, sister of the plaintiffs' father, filed
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OS No.644/86 for partition, which was decreed, and the property was
partitioned. Thereafter, Nesamony was in possession of his share. The
plaintiffs were born to one Dasamma, in the wedlock of one Simson. After
the death of Simson, Nesamony married the plaintiffs' mother, Dasamma.
Late Nesamony executed Exts.A3 & A4 settlement deeds dated 21.1.1998 in
favour of the 4th plaintiff and plaintiffs 1 to 3, respectively, and Exts.A5 and
A6 settlement deeds dated 5.2.2001 in favour of the 2 nd and the 3rd plaintiffs,
respectively. OS No.152/01 was instituted on 19.2.2001 by late Nesamony
for declaration of title and putting up of boundaries against the defendant and
while so, a release deed was alleged to have been executed in favour of the
plaintiffs on 9.1.2002 (Ext.A23). On 31.5.2002, OS No.152/2001 was
decreed, and on 10.12.2002, an execution petition was filed as EP
No.417/2002. On 27.4.2003, Nesamony passed away and EA No.353/2003
was preferred by the appellants herein for impleading themselves as the legal
heirs of the deceased decree holder Nesamony. On 28.11.2003, the defendant
also preferred EA No.938/2003 seeking herself to be impleaded as the legal
heir of the deceased Nesamony. On 12.1.2004, the application preferred by
the appellants was dismissed and the application preferred by the defendant
was allowed. Challenging the common order dated 12.01.2004 in EA
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Nos.353/2003 and 938/2003, WP(C) No.17393/2004 was filed. By judgment
dated 29.6.2004, this Court allowed the writ petition, and the matter was
remanded for fresh consideration, and thereafter a fresh order was passed on
17.3.2005. The said order was questioned in WP(C) No.14478/2005 and by
judgment dated 11.10.2006, the writ petition was closed with the observation
that, the appellants are at liberty to institute a fresh suit for declaration of title
and if they succeed, the benefit accrued to the petitioner in EA No.938/2003
will enure to them. Accordingly, the present suit, OS No.180/2006, was filed.
On 24.9.2007, the plaintiffs sought amendment of the reliefs to include
recovery of possession, and the defendant filed an additional written
statement incorporating a counterclaim seeking declaration of title, recovery
of possession and injunction. Subsequently, IA No.789/2009 was preferred
by the plaintiffs to exclude the counterclaim from the written statement,
which was dismissed by order dated 15.10.2009. The defendant resisted the
suit, contending that the executing court in an earlier proceeding had already
found that the settlement deeds relied on by the plaintiffs are fabricated
documents and therefore, the same are not binding on her. If the plaintiffs
are excluded, the defendant is the sole legal heir and entitled to the entire
property of the deceased Nesamony. The plaintiffs, on the other hand,
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contended that in the light of the observations made by this Court in WP(C)
No.14478/2005, the order passed in EA Nos.353/03 and 938/03 is not final
and not binding upon the defendant. On behalf of the plaintiffs, Exts.A1 to
A26 documents were marked and PW1 to PW5 were examined. On behalf
of the defendant, Exts.B1 to B17 documents were marked and DW1 was
examined. Ext.C1 is the report of the advocate commissioner and Ext.C1(a)
is the sketch. Ext.X1 is the certified copy of settlement deed No.153/01
executed by Nesamony in favour of the 2nd plaintiff. The trial court, on
appreciating the oral and documentary evidence, framed the following issues
for consideration:
"1. Whether the plaintiffs are entitled for a declaration as
prayed for?
2. Whether the plaintiffs are entitled to get a permanent
prohibitory injunction against the defendant as prayed for?
3. Whether the plaintiffs are entitled to get recovery of
possession as prayed for?
4. Whether the defendant is entitled to get a declaration over
the counter claim schedule property as prayed for?
5. Whether the defendant is entitled to get recovery of
possession over the counter claim schedule property as prayed
for?
6. Whether the defendant is entitled to get permanent
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prohibitory injunction against the plaintiffs as prayed for?
7. Reliefs and costs."
4. On conclusion of the trial, the Sub Court concluded that the
plaintiffs were not successful in proving the execution of the settlement deeds
and that, there exists an apparent conflict between the testimonies of PW2
and PW3, who are stated to be the attesting witnesses, who deposed that they
had affixed signatures in the settlement deeds prior to the settler, late
Nesamony, affixing his signature. The capacity of the settler to execute the
documents was also doubted, and the findings rendered by the executing
court in EA No.938/03 were put against the plaintiffs on the application of
the principle of res judicata. Accordingly, the suit was dismissed, and the
counterclaim was decreed. Aggrieved, the plaintiffs preferred AS
No.111/2010 before the Addl. District Court-II, Thiruvananthapuram. The
Addl. District Court-II on reappreciation of the evidence and the law as
discussed by the trial court came to the conclusion that the
appellants/plaintiffs are entitled to succeed in part and accordingly, allowed
the appeal in part by affirming the judgment and decree in dismissing the suit,
but, however, reversing the judgment and decree in the counterclaim on the
ground that the defendant has not sought for cancellation of the documents.
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As against the aforesaid judgment, both the plaintiffs and the defendant have
come up in RSA Nos.1337/2012 and 108/2013, respectively. While
admitting RSA No.1337/2012 on 7.11.2012, the following substantial
questions of law were framed:
"1) Is the title of the plaintiffs barred on account of estoppel by
election?
2) In the absence of a plea, issue, argument or consideration by
the trial court of the question of estoppel by election, is the lower
appellate court justified in entertaining and accepting such a plea
in appeal?
3) When the settlement deeds are held to be voidable documents
and no challenge thereto is laid within the time prescribed by law,
is not the title of the plaintiffs under the dispositions
unimpeachable?
4) Is the lower appellate court justified in ignoring the totality of
the evidence on the execution and attestation of the settlement
deeds and the impact of Sec.71 of the Evidence Act in entering a
finding that the documents are not proved?
5) Whether the judgment and decree of the lower appellate court
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confirming the dismissal of the suit is sustainable in law?"
The following are the substantial questions of law framed in RSA
No.108/2013 while admitting the matter on 6.2.2013:
(1) Since Ext.A3 and A8 were not proved to have been executed by
deceased Desamani, is the lower appellate court justified in holding
that the appellants should have sued to set aside the documents?
(2) When the contesting parties have no case that Desamma (the mother
of the plaintiff) has any right over the property, is the lower appellate
court justified in declining the relief sought for in the counterclaim
filed by the appellant/defendant?
5. Heard Sri.P.B.Subramanyan, the learned counsel appearing for
the appellants/plaintiffs and Sri.G.Sudheer, the learned counsel appearing for
the respondent-appellant in RSA No.108/2013 (counterclaim plaintiff).
6. Sri.P.B.Subramanyan, the learned counsel appearing for the
appellants, submitted that both the courts below erred egregiously in
appreciating the evidence of PW2 and PW3 to hold that the plaintiffs have
not proved the execution of the settlement deeds by late Nesamony. It is
further pointed out that unlike the case of a Will, which requires to be proved
in terms of the proviso to Section 68 of the Indian Evidence Act, 1872, in a
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RSA Nos.1337/12 & 108/13
case of settlement deed, there should be a specific denial by the executant
himself in order to attract the rigor of the proviso to Section 68, which
requires the beneficiary to prove the settlement deeds by examining at least
one attesting witness. The defendant has no locus standi to deny execution
of the settlement deeds. The trial court, on a perverse appreciation of the
evidence of PW2 and PW3, concluded that the attestation of the settlement
deeds is not valid. It is nobody's case that the attestation was invalid. But,
on contrary, the execution of the settlement deeds is denied by the defendant.
Since the settlement deeds are registered documents, there arise a prima facie
presumption regarding their execution and that the defendant did not step into
the box and gave evidence only through the power of attorney, which is not
sufficient to discharge the burden on her to shift the same to the shoulders of
the plaintiffs. The finding of the trial court that the suit is barred by res
judicata cannot be sustained since no issues were framed on the point. It is
further contended that the first appellate court had erroneously found the
application of the principle of the doctrine of estoppel. The first appellate
court misdirected itself in applying the aforesaid doctrine, despite a clear
finding by this Court in WP(C) No.14478/2005, wherein the plaintiffs were
given liberty to redress their grievance by filing an appropriate suit for
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declaration of title. It is further submitted that since the appellant in RSA
No.108/2013 had not chosen to set aside the registered documents within
three years from the date of knowledge, the prayer in the counterclaim itself
is time barred under Article 58 of the Limitation Act, 1963.
7. Per contra, Sri.G.Sudheer, the learned counsel appearing on
behalf of the appellant in RSA No.108/2013, contended that both the courts
have concurrently found that the settlement deeds were not validly executed
and therefore, the courts below have correctly applied the law and the facts
and dismissed the suit and decreed the counterclaim. According to the
learned counsel, the first appellate court erroneously reversed the findings of
the trial court decreeing the counterclaim. It is further contended that the
requirement to set aside the documents will not arise, since according to the
appellant/counterclaim plaintiff, the documents are forged documents and
hence, void and not binding on her. As regards limitation, it is submitted that
since the counterclaim plaintiff has sought recovery of possession, the period
of limitation prescribed is under Article 65 and not under Article 58 or 59 of
the Limitation Act, 1963. In support of his contention, he relied on the
decisions of the Supreme Court in Shanti Devi (Since Deceased) Through
Lrs. Goran v. Jagan Devi [2025 KHC OnLine 6790] and Hussain Ahmed
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Choudhury v. Habibur Rahman (Dead) Through Lrs [2025 KHC
OnLine 6381 : 2025 SCC OnLine 892] and of this Court in Cherian K.M.
v. Ammini [2025 KHC OnLine 746].
8. I have considered the rival submissions raised across the bar and
perused the judgments rendered by the courts below and also the records of
the case.
9. Since the substantial questions of law raised in these two appeals
are substantially different, this Court deems it appropriate to deal with the
substantial questions of law raised in RSA No.1337/2012. The answers to
those questions of law will necessarily decide the fate of RSA No.108/2013.
10. The primary reason given by the first appellate court to decline
the reliefs in favour of the appellants/plaintiffs is on the ground that the plea
of the appellants is hit by the doctrine of estoppel. At the outset itself, this
Court fails to comprehend as to how the first appellate court could have
bestowed its consideration on this issue without anyone raising the question
before it. Therefore, this Court cannot but conclude that extraneous
consideration passed on the minds of the first appellate court while deciding
the lis. In fact, the first appellate court committed a serious irregularity in
holding that the present suit is hit by the doctrine of estoppel. The perverse
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appreciation of the evidence and the law is writ large on the face of the
judgment itself, especially when the first appellate court chose deliberately
to ignore the judgment of this Court in WP(C) No.14478/2005 (Ext.A26)
granting liberty to the plaintiffs to file an appropriate suit for declaration of
title. Therefore, this Court sees no reason to subscribe to the finding rendered
by the first appellate court in holding that the present suit is hit by the doctrine
of estoppel. Accordingly, the first and second substantial questions of law
are answered in favour of the appellants/plaintiffs, and it is held that the suit
is not hit by the doctrine of estoppel.
11. The next question to be considered is as to whether the
settlement deeds are void or voidable. Since the validity of the settlement
deeds is raised, the issue needs to be addressed by this Court before
proceeding further. Admittedly, all the settlement deeds are registered. It is
beyond doubt that though the deeds are styled as settlement deeds, the same
are in effect gift deeds executed in favour of the appellants. If that be so,
provisions of Section 123 of the Transfer of Property Act, 1882 apply.
12. In Prem Singh v. Birbal [2006 (2) KLT 863], the Supreme Court
held that a registered document carries a degree of presumption as regards its
execution and therefore, when a document is valid, no question arises of its
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cancellation.
13. In Hari G Nair Vs Santha [2023(6) KLT 855], a Single Bench
of this Court held that a person who relies on the document would, under
normal circumstances, be entitled to the benefit of presumption. The burden
of proof to prove the non-execution would rest upon the person who
challenges the document.
14. The respondent/defendant in her written statement had denied
the execution of the documents in question. But then, the question is whether
a mere denial is sufficient. Should the defendant be burdened with something
more than a mere denial to succeed is the question for consideration here. It
must be remembered that unlike a Will, which requires to be proved in terms
of the mandate under Section 68 of the Indian Evidence Act 1872, in a case
of a settlement deed, the obligation to examine the attesting witness arises
only when the executant denies the execution of the deed. Even if it is
assumed that, on a mere denial by the defendant, the obligation under Section
68 is attracted, the larger question is whether the settlement deeds require to
be specially questioned by the defendant and a consequential relief to cancel
the same should be sought for.
15. It is beyond cavil that, in a claim for declaration of title, if a person
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is confronted with a registered document, there arises a necessity to formally
seek for cancellation of the document. If the normal rule as above is applied,
it is safe to conclude that the defendant in her counterclaim has not sought to
set aside the document. But, the learned counsel for the respondent/defendant
would point out that there is no requirement to set aside a void document and
hence the defendant is entitled to ignore the same. Extensive reliance is
placed on the findings of the execution court in Ext.A26 order, wherein the
validity of the documents was gone into. True, when a document is void ab
initio, a decree for setting aside the same may not be necessary, since the
same is non est in the eyes of the law as it could be nullity.
16. In Shanti Devi (Since Deceased) Through Lrs. Goran v.
Jagan Devi [2025 KHC OnLine 6790], the Supreme Court held that
notwithstanding Article 59, Article 65 will apply in a case where a document
is void ab initio and that a suit for possession based on the period of limitation
under Article 65 is perfectly maintainable.
17. The learned counsel for the respondent/defendant placed
extensive reliance on the above decision to contend that the defendant need
not seek cancellation of the document, which is void. This Court is afraid that
the facts leading to the decision of the Supreme Court are slightly different
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from the present case. In the case before the Supreme Court, a sale deed was
executed by a person who had no authority to execute the same. The plaintiff
claimed recovery of possession on the strength of his/her title as per the gift
deed. However, in the facts of the present case, the defendant had no case that
late Nesamony had no authority to execute the settlement deeds. The
contention to the contrary is that the settlement deeds are executed by playing
fraud. If that be so, when a claim for declaration of title is raised relying on
the settlement deeds, it cannot be said that the defendant can sustain the claim
without seeking to cancel the documents. This is more so when the defendant
had no case that, when the settlement deeds were executed, late Nesamony
had no right title and interest over the property. In short, the competence of
late Nesamony to execute the settlement deed is not under dispute.
18. For cancellation of a document, the time limit prescribed is 3
years from the date on which the facts entitling the person to seek cancellation
arise. The relevant Article which governs the field is Article 59 of the
Limitation Act, 1963. When a registered document is sought to be avoided
and a declaration as regards the title is sought for, necessarily, without setting
aside the document, the reliefs for declaration and recovery of possession
cannot be granted and, therefore, the relevant article which is applicable is
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Article 59 of the Limitation Act, 1963 and not Article 65, because without
setting aside the document, recovery of possession cannot be ordered.
Therefore, the contention of the respondent/defendant that in view of Article
65, which governs a larger period of limitation, she is entitled to ignore the
lesser period of limitation is unacceptable. At any rate, in the absence of any
prayer for setting aside the documents, the application of Article 65 of the
Limitation Act, 1963 does not arise at all for consideration.
19. In Hussain Ahmed Choudhury and Others v. Habibur
Rahman (Dead) through Lrs. and Others [2025 SCC OnLine 892], the
Supreme Court considering the purport of Section 31 of the Specific Relief
Act, 1963 held as follows:
"24. This observation made in Sk. Golam Lalchand*
(supra) must necessarily be understood in the context of our
preceding discussion. All that has been stated therein is that
as Section 31 of the Act, 1963 uses the word "may", it is not
a mandate, even as regards the parties to the instrument or the
persons claiming through or under them, to seek for the
cancellation of an instrument which is otherwise void and
therefore, it cannot be contended that a stranger to that
instrument must necessarily seek for its cancellation. By no
stretch of imagination can this be construed to mean that when
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there exists an instrument with respect to the same property
but executed by some other person, the plaintiff despite being
a stranger to that instrument would fall under the scope of
"any person" in Section 31 of the Act, 1963."
* Sk. Golam Lalchand v. Nandu Lal Shaw [2024 SCC OnLine SC 2456]
Affirming the views of the Madras High Court in Muppudathi Pillai v.
Krishaswami Pillai & Ors [1959 SCC OnLine Mad 314] and Sk. Golam
Lalchand v. Nandu Lal Shaw alias Nand Lal Keshri alias Nandu Lal
Bayes & Ors [2024 SCC OnLine SC 2456], the Supreme Court held that
any person referred to under Section 31 of the Specific Relief Act, 1963
cannot include a third party or a stranger to that instrument.
20. The learned counsel appearing for the appellant in RSA
No.108/2013 asserted before this Court that the point of law raised in these
appeals is covered by the decision of the Supreme Court in Hussain Ahmed
Choudhury (supra). On a close reading of the aforesaid judgment rendered
by the Supreme Court, this Court is of the considered view that the contention
of the appellant is untenable. This is for the reason that the decision of the
Madras High Court in Muppudathi Pillai (supra) dealt with a plea under
Section 39 of the Specific Relief Act, 1877 and that the expression "any
person" does not include a third party, but is restricted to a party to the written
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RSA Nos.1337/12 & 108/13
instrument or any person who can bind such party and that the relief under
Section 39 of the Specific Relief Act, 1877 was confined to be granted only
in respect of an instrument likely to affect the title of the plaintiff, and not of
an instrument executed by a stranger to that title.
21. In Md. Noorul Hoda v. Bibi Raifunnisa & Ors [(1996) 7 SCC
767], it was held that the expression "person" in Section 31 of the Specific
Relief Act has been held to include a person seeking a derivative title from
his seller. In this context, it is pertinent to note that the Supreme Court in
Hussain Ahmed Choudhury (supra) also held that when the executant of a
deed wants it to be annulled, he must seek cancellation of the deed under
Section 31 of the Specific Relief Act, 1963. But if a non-executant seeks
annulment of the deed, he has to only seek a declaration that the deed is
invalid, or non est, or illegal or that it is not binding on him.
22. When the facts intertwined in the present appeals are closely
scrutinized, the counterclaim plaintiff/appellant in RSA No.108/2013 cannot
have any right title and interest over the property in the normal course of
inheritance. But, since deceased Nesamony had no issues in the first marriage,
the defendant becomes the only natural legal heir. But, then, it is indisputable
that Nesamony married Dasamma, who had already four children in the
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RSA Nos.1337/12 & 108/13
wedlock with Simson. Therefore, necessarily, the position of the deceased
Nesamony is that of a stepfather, who is stated to have executed the
settlement deeds in favour of the plaintiffs. The defendant/counterclaim
plaintiff cannot contend that she has the right title and interest over the plaint
schedule property because of the derivation of title through other sources. In
fact, the counterclaim plaintiff also claims title under late Nesamony as a
legal heir in terms of the provisions of the Hindu Succession Act, 1956.
Therefore, when an intestate succession is claimed by the plaintiffs relying
on testamentary disposition of the property through settlement deeds, without
seeking to set aside or for cancellation of the documents, the counterclaim
plaintiff cannot successfully sustain the plea of declaration of title. No
consequences will follow from the prayer seeking recovery of possession
because the plea for recovery of possession can be sustained only on finding
that the counterclaim plaintiff has got title over the plaint schedule property
consequent to a finding on the validity of the settlement deeds. Therefore,
the reliance placed on by the learned counsel for the appellant in RSA
No.108/2013 that the larger period of limitation under Article 65 of the
Limitation Act is to be applied, is untenable.
23. In Janardhanam Prasad vs Ramdas [(2007) 15 SCC 174], the
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RSA Nos.1337/12 & 108/13
Supreme Court held that when a document is registered, a deemed notice of
the said fact can be construed, going by Explanation-III to Section 3 of the
Transfer of Property Act, 1882. Still further, the registered documents in the
form of settlement deeds were already produced before the executing court
in EA No.353/2003. The counterclaim plaintiff may argue that, in the light
of the findings rendered by the executing court, she was not bound to sue for
setting aside those documents. But, then, the findings rendered by this Court
in WP(C) No.14478/2005 would necessarily operate against her. Therefore,
as soon as a fresh suit was filed, necessarily, it was necessarily incumbent
upon the counterclaim plaintiff to have sued for cancellation of the said
documents.
24. In the light of what is discussed above, this Court answers the
third substantial question of law in favour of the appellants/plaintiffs and
holds that since no challenge was raised against settlement deeds within the
prescribed time provided under the law, the title of the plaintiffs under the
dispositions is unimpeachable.
25. Now, coming to the question regarding the validity of the
settlement deeds, the trial court proceeded on an assumption that the
settlement deeds executed in favour of the appellants/plaintiffs were invalid
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RSA Nos.1337/12 & 108/13
since there was no proper attestation. The primary reason for holding it so
was that the attesters had affixed their signatures prior to the executor affixing
his signature.
26. There cannot be any doubt as regards the requirement of law
when a gift or settlement deed is executed. Section 123 of the Transfer of
Property Act, 1882 reads as under:
"123. Transfer how effected.--
For the purpose of making a gift of immoveable
property, the transfer must be effected by a registered
instrument signed by or on behalf of the donor, and attested
by at least two witnesses.
For the purpose of making a gift of moveable
property, the transfer may be effected either by a registered
instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods
sold may be delivered."
The word "attested" is defined under Section 3 of the Transfer of Property
Act, 1882 and reads as under:
""attested", in relation to an instrument, means and shall be
deemed always to have meant attested by two or more
witnesses each of whom has seen the executant sign or affix
his mark to the instrument, or has seen some other person sign
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RSA Nos.1337/12 & 108/13
the instrument in the presence and by the direction of the
executant, or has received from the executant a personal
acknowledgement of his signature or mark, or of the signature
of such other person, and each of whom has signed the
instrument in the presence of the executant; but it shall not be
necessary that more than one of such witnesses shall have
been present at the same time, and no particular form of
attestation shall be necessary:"
27. The question before this Court is whether from the evidence of
PW2 and PW3, is it possible to conclude that since they had attested the
documents prior to the executant affixing his signature, thereby leading to an
inference that they had not seen the executant sign the documents. For
deciding the said issue, one needs to look into the evidence of PW2 and PW3
closely. The evidence of PW2 reads as under:
"ഒപ്പിടുന്നത് ഞാൻ കണ്ടു. ഞാൻ ഒപ്പിട്ടശേഷമാണ്
ശേേമണി ഒപ്പിട്ടത്. ഏതതാക്തക സാക്ഷികൾ ഒപ്പിട്ടു എന്ന്
ഓർക്കുന്നില്ല. സാക്ഷികൾ ഒപ്പിട്ട ശേഷമാണ് ശേേമണി
ഒപ്പിട്ടത്.
ശേേമണിയുതട ഒപ്പ് "വരയാണ്". ശേേമണിയുതട ശവതെ
ഒപ്പ് കണ്ടാൽ അെിയില്ല. മൂന്ന് "വരയാണ് ഒപ്പ്". അന്ന്
മൂന്ന് ആധാരങ്ങൾ എഴുതി. ശേേമണിയുതട കൂതട ധർമ്മൻ
ഉണ്ടായിരുന്നു. ഇടത് കക തകാണ്ടാണ് ഒപ്പിട്ടത്. ഞാൻ
എഴുതിയ ശേേ തകാണ്ടല്ല ശേേമണി ഒപ്പിട്ടത്. ഒശര
മഷിയാശണാ എന്ന് ഓർക്കുന്നില്ല. ആധാരങ്ങളിൽ ഞാോണ്
ആദ്യം ഒപ്പിട്ടത്. എഴുതിയതും സാക്ഷിയും ആയാണ് ഞാൻ
ഒപ്പിട്ടത്."
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RSA Nos.1337/12 & 108/13
28. Coming to PW3, who is the 2nd attesting witness, he reaffirmed
the fact that the deceased Nesamony had affixed his signature with his left
hand.
29. The learned counsel appearing for the appellant in RSA
No.108/2013 took serious exception to the evidence of PW3, inasmuch as his
licence was cancelled for impersonation during the year 2008, and according
to him, this affects his credibility. But however, the reason given by the
plaintiffs that the deceased Nesamony was having a paralysis of the right side,
which is supported by the evidence of PW5, and that is the reason why he
had signed the documents with his left hand by putting three lines, which fact
was further corroborated by PW3. Therefore, this Court does not find any
reason to hold that PW3 had spoken anything contrary to render the
settlement deeds as unenforceable.
30. Now, coming back to the form of attestation required in respect
of a gift deed, nothing is available either under the provisions of Section 123
or Section 3 of the Transfer of Property Act, 1882, prescribing in what
manner a document should be attested. It must be remembered that, the doubt
regarding the attestation arose only after the examination of PW2 and PW3,
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RSA Nos.1337/12 & 108/13
and not seen raised by the defendant-counterclaim plaintiff anywhere either
in the written statement or in the counterclaim. Therefore, it can safely be
concluded that the issue regarding the attestation was an issue which was
raised by the trial court itself. The oral testimony of PW2, which is extracted
by this Court above, will clearly show that the attesting witness has seen the
executant affixing the signature in the settlement deeds and that by itself
satisfies the conditions prescribed under the interpretation clause 'attested'
under Section 3 of the Transfer of Property Act, 1882. This, coupled with the
fact that the settlement deeds were registered, would add a presumptive value
for the same.
31. In M. Rangasamy vs Rengammal And Ors [(2003) 7 SCC
683], the Supreme Court considered the question of proof of attestation of a
gift deed and it was held that the court trying a case of undue influence and
fraud must consider two things to start with, namely; 1) Are the relations
between donor and the donee such that the donee is in a position to dominate
the Will of the donor? and 2) Has the donee used his position to obtain an
unfair advantage over the donor? Upon determination of these points, a third
point emerges, which is that of the onus probandi. If the transaction appears
to be unconscionable, then the burden of proving that the contract was not
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RSA Nos.1337/12 & 108/13
induced by undue influence lies upon the person who is in a position to
dominate the Will of the other.
32. It must be remembered that the trial court decreed the
counterclaim only on finding that the settlement deeds executed by the
deceased Nesamony were invalid and that the counterclaim plaintiff was
entitled to a declaration because of the natural flow of inheritance. The larger
question beckons before this Court is as regards the obligation on the part of
the counterclaim plaintiff to prove the execution of the settlement deeds. It
must be remembered that in the present case, the execution is denied by a
person other than the executant. The plea raised is not one of undue influence
but fraud. It is trite law that registration is a prima facie proof regarding
execution. Though the denial is vague, the first appellate court took the view
that as soon as there is a denial of execution, it is incumbent upon the
defendant to prove the requirement of law as per the mandate contained under
Section 68 of the Indian Evidence Act, 1872. In Surendra Kumar v.
Nathulal and Another [2001 (5) SCC 46], the Supreme Court, considering
the requirement of law under the proviso to Section 68 of the Indian Evidence
Act, 1872, held that the application of the proviso to Section 68 of the Indian
Evidence Act will arise only if the execution is denied by the executant
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RSA Nos.1337/12 & 108/13
himself and not otherwise.
33. Be that as it may, this Court has already found that there is
nothing in the evidence of PW3 to show any inconsistency as regards the
execution of the settlement deeds. The evidence of PW2 also shows that he
had spoken about the deceased Nesamony executing the settlement deeds,
although he affixed his signature before Nesamony had affixed his signature.
This Court is of the considered view that it is wholly impermissible to single
out the statement made by PW2 to hold that there is no valid attestation,
especially since there is no pleading with regard to the lack of proper
attestation on the settlement deeds in the counterclaim. Resultantly, this
Court holds that the first appellate court erred in ignoring the totality of the
evidence in the execution and attestation of the settlement deeds and the
impact of Section 71 of the Indian Evidence Act, 1872. As a result of the
above, the consequences should follow and answering the fifth question of
law, this Court holds that the dismissal of the appeal confirming the dismissal
of the suit is unsustainable in law.
34. As a result of the above discussion, this Court finds that the
answers to the substantial questions of law raised in RSA No.108/2013 are
only consequential. Therefore, in the light of what is discussed above, the
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RSA Nos.1337/12 & 108/13
substantial questions of law framed in RSA No.108/2013 are answered
against the appellant/counterclaim plaintiff and in favour of the respondents
therein/plaintiffs. Accordingly, RSA No.108/2013 is dismissed.
Resultantly, this Court is of the considered view that RSA
No.1337/2012 deserves to be allowed by reversing the judgment and decree
dated 10.6.2010 in OS No.180/2006 of the Sub Court, Neyyattinkara as
confirmed in AS No.111/2010 by the Addl. District Court-II,
Thiruvananthapuram and I do so. Consequently, the suit will stand decreed
as prayed for. The title of the plaintiffs/appellants over the plaint schedule
property is declared. The respondents/ legal heirs of the original defendant
are restrained by a prohibitory injunction from trespassing into the plaint
schedule property, demolishing the separating compound wall or committing
any waste to the plaintiffs' residential building or shed therein or committing
any sort of waste in the plaint schedule property. Consequently, the
counterclaim raised by the original defendant will stand dismissed. The
plaintiffs are entitled to costs throughout the proceedings.
Sd/-
EASWARAN S.
JUDGE
jg
