High Court Kerala High Court

Kurien E.Kalathil vs Indian Bank on 15 December, 2008

Kerala High Court
Kurien E.Kalathil vs Indian Bank on 15 December, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 35024 of 2008(T)


1. KURIEN E.KALATHIL, AGED 58 YEARS,
                      ...  Petitioner

                        Vs



1. INDIAN BANK, REPRESENTED BY CHIEF
                       ...       Respondent

                For Petitioner  :SRI.A.V.THOMAS

                For Respondent  :SRI.BECHU KURIAN THOMAS

The Hon'ble MR. Justice S.SIRI JAGAN

 Dated :15/12/2008

 O R D E R
                         S. SIRI JAGAN, J.
                 ------------------------------------
                   W.P.(C)No.35024 OF 2008
               ----------------------------------------
             Dated this the 15th day of December, 2008

                            JUDGMENT

The petitioner claims to have purchased certain properties

comprised of the Ponmudi Estate from the legal heirs of one late

M.Chettiyappan. A former owner of the property one Sri. K.T.

Thomas, who obtained the same by virtue of sale deed

No.2016/1972 of Thiruvananthapuram Sub Registrar’s office, who

is stated to have sold the same to late Sri. M. Chettiyappan on

7.9.1991 had obtained a loan from the respondent bank by

mortgaging the estate by depositing the title deeds namely sale

deed No.2016/1972 along with other documents. The petitioner

claims to have discharged the loan liability to the bank, in respect

of the said loan transaction. The petitioner made a request to

the respondent bank on 29.4.2005 to release the original title

deed namely sale deed 2016/1972 to him. Since the same was

not done, the petitioner filed W.P.(C) No.30692/2007 before this

Court and this Court by judgment dated 07.11.2007 disposed of

the writ petition directing release of the documents. Two of the

W.P.(c)No.35024/08 2

additional respondents, who are legal heirs of K.T. Thomas and

have impleaded themselves in this writ petition, filed a review

petition against that judgment, which was admitted and the

judgment was stayed. That review petition is still pending. In

respect of part of the properties, proceedings were initiated

under the Kerala Forest (Vesting and Management of

Ecologically Fragile Lands) Act 2003. The petitioner filed O.A.

No.1/2008 before the Forest Tribunal, Kollam under Section 10

of the said Act for a declaration that an extent of 353.265

hectares of land in Survey N.3992, 3993 and 3995/1 in

Thennur Village and Nedumangad Taluk, principally cultivated

with tea, cardamom, rubber, coffee, pepper and arecanut, is

exempt from the purview of the Act. The petitioner contends

that the title deeds and other documents deposited with the

respondent bank in the loan transaction are necessary for

adjudication of the dispute before the Forest Tribunal, which

are still in the custody of the respondent bank. The petitioner

now wants copies of those documents. Some of the

documents are ancient and handling of the same except by

experts may even destroy the same. Therefore, the said

documents can be preserved only with the assistance of the

W.P.(c)No.35024/08 3

Archaeological Department. The petitioner is stated to have

contacted the Archaeological Department regarding the

feasibility of preserving the old/crumbled documents and they

are stated to have agreed to take appropriate steps, which, if

done, so that a copy of the same can be obtained by the

petitioner for production before the Tribunal. It is under the

above circumstances, the petitioner has filed this writ petition

seeking the following reliefs:

“i) issue of writ of mandamus or any other
appropriate writ, order or direction directing the
respondent Bank to issue attested copies of the
documents mentioned in Ext.P5 forthwith;

ii) issue of writ of mandamus or any other
appropriate writ, order or direction directing the
respondent Bank to permit the Archaeological
Department to take steps to preserve and protect the
documents that are in a crumbled state due to old
age”.

2. Additional respondents 2 to 4 stoutly opposes the

prayers of the petitioner. According to them, the petitioner is

not entitled to the reliefs prayed for. They would submit that

a serious dispute regarding title to the property is pending.

Therefore, if attested photocopies of the documents are issued

to the petitioner, the petitioner is likely to misuse the same is

the contention raised. It is further submitted that nothing

W.P.(c)No.35024/08 4

prevents the petitioner from obtaining, under Section 57 of the

Registration Act, certified copies of the documents from the

concerned Sub Registrar’s Office. They further submit that

under Section 55(3) of the Transfer of Property Act, the

petitioner can obtain copies of the documents only from

respondents 2 to 4, who are the real owners of the property.

3. In answer to the above contentions, the learned

Counsel for the petitioner would submit that the dispute raised

by respondents 2 to 4 regarding the title to the property has

been rejected by the Civil Court, although respondents 2 to 4

have filed an appeal against the decree of the Civil Court which

is pending. He further submits that some of the documents,

copies of which are requested for, are of the years 1880, 1888,

1896,1910, 1911 and 1917. Therefore, it is in the interest of

both the petitioner and respondents 2 to 4 that the same is

preserved by the Archaeological Department. The learned

counsel for the petitioner would further submit that being old

documents, they may not be available with the Sub Registrar’s

Office. Further he points out that not all documents requested

for are registered documents, some of which are unregistered

documents, which also have to be preserved. He further

W.P.(c)No.35024/08 5

submits that there is no chance of the petitioner misusing the

copies. According to him the purpose for which copies are

requested is for production before the Forest Tribunal, Kollam.

4. I have considered the rival contentions. The

documents, copies of which are requested for by the petitioner

are as follows:

“1) Title Deed Number 174 dated 6.8.1880.

2) Deed of Declaration dated 13.3.1888.

3) Title Deed No.207 dated 12.8.1896.

4) Title Deed No.208 dated 12.8.1896.

5) Conveyance deed executed by the Ponmudi
Tea Co. Ltd, and its liquidator to the Ponmudi Tea and
Rubber Co.Ltd, dated 2.6.1910.

6) Copy of Conveyance Deed executed by Edward
James Tomes and others to the Ponmudi Tea & Rubber
Co. Ltd dated 19.7.1911.

7) Copy of Agreement entered into between The
Ceyler, Travancore Rubber & Tea Estates Ltd. and the
Ponmudi Tea & Rubber Co. Ltd, dated 12.6.1911.

8) The Indenture dated 7.3.1917 between the
Ponmudi Tea & Rubber Co. Ltd. and His Highness the
Maharaja of Travancore.”

5. The learned counsel for the 1st respondent – bank

admits the fact that the documents are in the danger of being

destroyed, if not properly handled. They have no objection

whatsoever, in handing over the documents to the

Archaeological Department for preservation.

W.P.(c)No.35024/08 6

6. Admittedly, the documents are very very old.

Naturally the same are of archaeological importance. The fact

that even most careful handling of the same may destroy the

documents themselves is not disputed before me by either

parties. As such it is only appropriate that experts in the field

is entrusted with the task of preserving the same. Therefore,

nobody would be prejudiced if the Archaeological Department

of the Government of Kerala is directed to take custody of the

documents and take necessary steps to preserve the same for

posterity. That would be in the best interests of both the

petitioner as well as respondents 2 to 4. In fact a parallel

proceedings before the Forest Tribunal, Palakkad filed by the

predecessor-in-interest of the petitioner, in which respondents

2 to 4 are also parties is pending. Naturally, copies of these

documents would be required for adjudication of the dispute in

that proceedings also. In the above circumstances, I am

satisfied that the Archaeological Department should be

directed to take custody of the documents now lying with the

1st respondent – bank and to preserve the same by taking

appropriate steps in that regard.

W.P.(c)No.35024/08 7

8. Despite the vehement objections raised by

respondents 2 to 4, I am not satisfied that the issue of mere

copies of these documents to the petitioner and respondents 2

to 4 would in any way prejudice the right of respondents 2 to

4, if any, in the properties. Further respondents 2 to 4 would

also require copies of the same for the purpose of production

before the Forest Tribunal, Palakkad. Therefore, after

preserving the documents, it is only appropriate that the

Archaeological Department issues attested copies of those

documents to both the petitioners as well as respondents 2 to

4 with the endorsement thereon to the effect that the same

are issued for the purpose of production before the respective

Forest Tribunal.

Accordingly, the writ petition is disposed of with a

direction to the Archaeological Department of the Government

of Kerala, on production of a certified copy of this judgment to

take over the above said documents from the 1st respondent –

bank and to take appropriate steps to preserve the same for

posterity. Thereafter, the Archaeological Department shall

issue attested copied of these documents to both the petitioner

as well as respondents 2 to 4 with endorsement that the same

W.P.(c)No.35024/08 8

are issued for the purpose of production before the Forest

Tribunal, Kollam and the Forest Tribunal, Palakkad. The above

shall be done, on payment of charges fixed for the same by the

Archaeological Department, within a period of six weeks from

the date of production of a certified copy of this judgment

before the Archaeological Department.

S. SIRI JAGAN, JUDGE

Acd

W.P.(c)No.35024/08 9