IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25343 of 2010(O)
1. K.SAMBU EMBRANTHIRI,S/O.KRISHNAN
... Petitioner
2. K.DURGAVATHI ANTHARJANAM,
Vs
1. KODAMAD GOPALAKRISHNAN EMBRANTHIRI,
... Respondent
For Petitioner :SRI.T.SETHUMADHAVAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :12/08/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) Nos.25343 & 25374 of 2010
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Dated this the 12th day of August, 2010.
JUDGMENT
Notice to respondents is dispensed with in view of the order I propose to
pass in these Writ Petitions.
2. These Writ Petitions concern common order passed by the learned
Munsiff, Mananthavady on I.A.Nos.672 of 2009 and 715 of 2009 in O.S.No.66 of
1991 and 67 of 1991 (Ext.P6 in W.P.(C) No.25343 of 2010 and Ext.P5 in W.P.
(C) No.25374 of 2010). Respondents sued petitioners for recovery of
possession of plaint B schedule with mesne profits. Their case is that plaint B
schedule belonged to their father and it was gifted to them as per Ext.A1
(marked in the suit), gift deed. Petitioners resisted the suit contending that plaint
B schedule belonged in title to them, they have perfected title over the property
by adverse possession and law of limitation, respondents’ father had no right
over the property to gift the same in favour of respondents and that the gift deed
is sham. Petitioners then filed additional written statement in both the cases
contending that property dealt with under the gift deed did not belong to the
father of respondents. That additional written statement was received and the
suit was decreed in favour of respondents. Petitioners challenged that
judgment and decree in appeal and they got remand of the case. Trial court was
directed to frame issue whether impugned gift deed is a sham document.
WP(C) Nos.25343 & 25374/2010
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While so petitioners filed application for amendment of the written statement to
state about the alleged invalidity of the gift deed. That application was
dismissed by the trial court against which petitioners filed C.R.P.No.3076 of 2001
in this Court. That revision was allowed and petitioners were permitted to amend
the written statement. It is thereafter that petitioners filed the present
applications again to amend the written statement to delete the admission
regarding execution of gift deed and to facilitate a plea regarding denial of its
execution. In the affidavit in support of the applications petitioners say that it
was by an inadvertent mistake that they happened to admit execution of the gift
deed in the written statement and additional written statement. That explanation
did not find favour with the learned Munsiff who dismissed the applications vide
impugned orders as above stated. Those orders are under challenge in these
Writ Petitions. Learned counsel contends that there is nothing wrong in a
defendant taking up inconsistent pleas and that petitioners have already been
permitted to take up such inconsistent pleas. Court below should have
permitted to amend the written statement as prayed for vide order on
I.A.Nos.672 and 715 of 2009.
3. On the facts and circumstances of the case, I am not persuaded to
accept the argument of the learned counsel. It is in several installments that
petitioners have developed a case concerning the gift deed relied on by the
respondents. Going through the contentions raised by petitioners so far, they
proceeded on the basis that respondents’ father had executed Ext.A1, gift deed
in favour of respondents. They also contended that donor of property had no
WP(C) Nos.25343 & 25374/2010
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right title or interest over the property to be conveyed to the donee, it has not
taken effect and that the document is invalid for the reasons stated by the
petitioners. I am not persuaded to think that admission regarding execution of
gift deed was an inadvertent mistake as circumstances tell me. I must bear in
mind that before the suit was initially decreed, gift deed was marked in evidence
as Ext.A1 in view of the admission made by the petitioners that the gift deed
was executed by the executant. Now consequence of allowing petitioners to
resile from the admission regarding execution of gift deed is that additional
burden is cast on the respondent to prove execution of the gift deed as
provided under Section 68 of the Indian Evidence Act. I have gone through the
pleadings of petitioners at different levels and I am not inclined to accept that
admission regarding gift deed was due to any inadvertent mistake. In the
circumstances request for amendment was rightly declined by the learned
Munsiff.
Writ Petitions are therefore dismissed.
THOMAS P.JOSEPH,
Judge.
cks