IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 631 of 1999(A)
1. V.D.SREEMATHIYAMMA
... Petitioner
Vs
1. V.D.RADHAMMA6
... Respondent
For Petitioner :I.SHEELA DEVI
For Respondent :SRI.M.NARENDRA KUMAR
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :12/10/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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S.A.No.631 of 1999
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Dated this the 12th day of October, 2010
JUDGMENT
Defendants 2 to 4 in O.S.No.332/1987 on the file
of the Additional Munsiff’s Court, Kottayam are the
appellants.
2. The above suit was filed by the 1st respondent
as plaintiff for a declaration of title and recovery of
possession. The 4th defendant in the suit is the 2nd
respondent in the appeal. Subject matter involved in the
suit was 3.24 cents of land comprising a building.
Admittedly, the suit property originally was under the
occupation of one Itty Devadas. Both the plaintiff and also
the defendant claimed right over the suit property as the
legal heirs of Itty Devadas. Whereas the 1st
respondent/plaintiff contended that she is the daughter and
sole legal heir of Itty Devadas, born out of the wedlock with
Kutty @ Kurumba, defendants 1 to 3 contended that the 1st
defendant was the wife of Itty Devadas and defendants 2
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and 3 are the children of 1st defendant and Itty Devadas.
Admittedly, 4th defendant was a foster child of Itty Devadas,
and he is the son of his younger brother. Plaintiff laid the
suit for declaration of title over the suit property and
sought for its recovery contending that the 1st defendant
was only a concubine of late Itty Devadas and defendants 2
and 3 are not the children of Itty Devadas, and the 4th
defendant has no right over the suit property. After the
death of Itty Devadas, the owner of the suit property had
executed a sale deed (A1) in favour of the plaintiff and also
defendants 1 to 4 transferring title and possession jointly in
their favour. The right conveyed under that sale deed
would enure only to the legal heir of Itty Devadas, the
plaintiff, was her case for seeking the declaration over the
property, as indicated above. The 4th defendant remained
ex parte. The other defendants, the present appellants,
filed a joint written statement, in which they claimed
absolute right over the suit property and set up a
claim of kudikidappu as well, contending that the 1st
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defendant has obtained such right over the building and
premises scheduled in the plaint. A1 sale deed was
repudiated by these defendants contending it was executed
collusively by the previous owner with plaintiff. The claim
of kudikidappu raised by 1st defendant was referred to the
Land Tribunal, which, after enquiry, entered a finding that
the 1st defendant does not have any independent
kudikidappu right over the plaint schedule property.
Though both parties have repudiated A1 sale deed, the trial
court found that the rights of parties are crystallised under
A1 sale deed and none of them is competent to repudiate
the transfer effected under that deed. In that view of the
matter, the trial court granted a declaration to the effect
that the plaintiff has 1/5th right over the suit property. After
passing a declaratory decree, as indicated above, that court
directed the plaintiff to file a fresh suit for partition to have
separate possession for 1/5th share over the suit property.
The decree so granted by the trial court was challenged by
the plaintiff reiterating the contentions set up in her suit to
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claim exclusive title and possession over the suit property.
The appellate court, re-appreciating the materials,
examined the disputed questions involved with reference to
the legitimacy of the marriage of the 1st defendant with Itty
Devadas and ultimately arrived at the conclusion that there
was no valid marriage between them and as such, 1st
defendant and her children are not entitled to have any
share in the suit property. Placing reliance on the decision
reported in Kallyani Amma v. Devi {1989 (2) KLT 80},
which has been since reversed, it was held that defendants
2 and 3 are not entitled to the benefit of Section 16 of the
Hindu Marriage Act to claim any right over the property as
the illegitimate children of Itty Devadas. In that view of the
matter, modifying the decree of the trial court, a decree
was granted in favour of the plaintiff by the lower appellate
court as applied for in her suit. Defendants 2 and 3 have
challenged that decree by preferring this appeal.
3. I heard the counsel on both sides. Having
regard to the submissions made and also perusing the
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judgments rendered by both the courts with reference to
the materials tendered, I find, the question whether the 1st
defendant was the legally wedded wife of Itty Devadas and
her children defendants 2 and 3 are the legitimate or
illegitimate children of Itty Devadas has no significance, in
the given facts of the case, where title over the property by
virtue of A1 sale deed executed by the previous Jenmi
vested on both parties jointly. Though the plaintiff and also
defendants 1 to 3 have challenged the validity of A1 sale
deed, the former contending that it has no legal sanctity
and defendants 1 to 4 are not the legal heirs of Itty
Devadas and the latter impeaching that deed as a collusive
and fraudulent transaction at the instance of the plaintiff
with the prior owner, as rightly and correctly found by the
trial court, A1 registered sale deed, in the absence of a
challenge and further a declaration for setting aside or
cancelling such document, can never be ignored or be
treated as nullified on the rival case presented by the
partiies. Though the plaintiff has impeached A1 sale deed
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contending that she alone is the legal heir of Itty Devadas
entitled to the suit property, it has to be noted that in the
suit she has not moved for cancelling that sale deed. In the
absence of a specific prayer for cancellation of that
document, and further establishing that case, merely by
alleging that the document executed by the Jenmi in favour
of the plaintiff and defendants has no value or legal
sanctity, the case canvassed by the plaintiff can never be
entertained. In Prem Singh and others v. Birbal and
others {2006(5) SCC 353}, the Apex Court has
considered the difference between a fraudulent
misrepresentation as regards the character of a document
and also as to its contents. In the case of
misrepresentation, as regards the contents of a document,
it has been held that the document is only voidable. But in
the case of misrepresentation, as regards the character,
the document is void. As the plaintiff has impeached A1
sale deed with reference to the fraudulent nature of the
contents of the document, but not of its character, it was
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only voidable, even assuming that the plaintiff’s case is
true, by seeking its cancellation. That having not been
done and the document A1 sale deed which, at the most,
was voidable remains unimpeached, it follows that it is
binding on the plaintiff. Such being the position, the
finding entered by the trial court acting upon A1 sale deed,
though not on the above reasoning, that the plaintiff is
entitled to 1/5th share in the suit property and not to
exclusive title and possession, is unimpeachable. The trial
court, after granting such a decree has directed the
plaintiff to work out her remedy to have separate
possession filing a suit for partition. Even in a declaratory
suit if it is so found, it is competent for the court to pass a
preliminary decree for partition subject to further
directions as may be required including remittance of court
fee, if any, needed with respect to the valuation of the suit.
It would be pointless to drive either party to a fresh suit for
partition, where a preliminary decree for partition in terms
of the declaration of right found can be granted in the
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present suit (see Vadekannu v. Kuttathi and others
{1960 (II) K.L.R. 258}. A fresh suit, for partition, no
doubt would take its own time, for passing an effective
decree. So much so, the decree granted by the trial court
shall stand modified to the effect that it shall be treated as
a preliminary decree allowing the plaintiff to have 1/5th
share in the suit property, with liberty to work out the
actual division and separate possession in the final decree
proceedings. It is also open to the defendants, if so
interested, to move for passing of another preliminary
decree for allotment of their share, remitting the court fee
payable thereof.
Appeal is disposed of as indicated above,
directing both sides to suffer their costs.
Sd/-
(S.S.SATHEESACHANDRAN)
JUDGE
sk/-
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