High Court Kerala High Court

K.Sambu Embranthiri vs Kodamad Gopalakrishnan … on 12 August, 2010

Kerala High Court
K.Sambu Embranthiri vs Kodamad Gopalakrishnan … on 12 August, 2010
       

  

  

 
 
  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.
                            --------------------------------------
                      W.P.(C) Nos.25343 & 25374 of 2010
                            --------------------------------------
                   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

2

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

3

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.

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