IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 795 of 2008()
1. KAMALAKSHI, D/O. AMBU, AGED 58,
... Petitioner
Vs
1. BHARATHAN.M.C, S/O. RAMAN,
... Respondent
For Petitioner :SRI.GOPAKUMAR G. (ALUVA)
For Respondent :SRI.M.RAMESH CHANDER
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :11/01/2011
O R D E R
S.S.SATHEESACHANDRAN, J
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R.S.A No.795 OF 2008
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Dated this the 11th day of January 2011
JUDGMENT
Plaintiff is the appellant in O.S No.817/1999 on the file
of Principal Munsiff Court, Kannur. Concurrent decision rendered
by the two courts below that the plaintiff is not entitled to the
reliefs canvassed in her suit, which initially was filed as one for
injunction, but, later amended for declaration of her title and
possession over the suit property as well, is challenged in the
appeal. Suit property has been described as having an extent of
26 cents of paddy land. Resisting the claim for decree of
injunction, the defendant, who is none other than the husband of
the younger sister of the plaintiff, contended that over 5 = cents
covered by the suit property, the plaintiff had executed Ext.B1
sale deed in his favour receiving the consideration thereof.
Pursuant to Ext.B1 sale deed, he got title and possession over the
aforesaid 5 = cents of land was the case of the defendant. He
also contended that as against the husband of the plaintiff,
execution proceedings were pending towards the debt to be
realised from him under a money decree and, to discharge such
debt, the property covered by Ext.B1 was conveyed to him for a
R.S.A No.795 OF 2008 – 2 –
consideration of Rs.2,25,000/-. However, the sale price shown
under Ext.B1 deed was a lesser sum to have reduction of the
stamp fee payable thereof. Contentions as above being raised by
the defendant persuaded the plaintiff to seek amendment for
declaration of her title and possession over the suit property
impeaching the sale deed as void. Ext.B1 was a fraudulent
document was her case alleging that she is an illiterate lady. On
the materials placed by both sides, challenge raised by the
plaintiff against Ext.B1 as a product of fraud was found meritless
by the trial court, which noticed that the son of the plaintiff with
another was an attester to that deed. The trial court found that
the defense raised by the defendant that Ext.B1 sale deed was
executed to discharge a decree debt was acceptable. DW2, who
was examined by the defendant to substantiate his defense was
none other than the brother of the plaintiff. He also supported the
case of the defendant. It was also noticed that Ext.B1 sale deed
was executed within two weeks after the plaintiff had discharged
the decree debt of more than rupees two lakhs. The dismissal of
the suit by the trial court after reappreciating the materials
tendered was confirmed in appeal by the lower appellate court
turning down the challenges to such decree raised by the
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appellant herein. As against that concurrent decision, the present
Second Appeal is preferred.
2. Respondent who had filed a caveat has entered
appearance through counsel. I heard the counsel on both sides
on the entertainability of the appeal. The insufficiency of the
consideration stated in Ext.B1 sale deed, which was stated as
having been done to avoid the stamp fee payable, even from the
admission made by the defendant, according to the learned
counsel for the appellant, would advance the case of the
appellant that the said deed was a product of fraud. I do not find
any merit in that submission. Even assuming that the stamp fee
and registration fee paid on the deed is insufficient, it is a matter
for the competent authority as under the Kerala Stamp Act to
initiate appropriate proceedings under Section 45(B) of that Act to
realise the balance amount, if any, payable towards deficit
registration and stamp fee. A lessor amount was shown as
consideration in the deed and it was got registered not paying the
amount of stamp fee required on the actual consideration cannot
be given any merit to consider the validity of that deed. At any
rate, that circumstance canvassed by the counsel for the
appellant to impeach the decision concurrently rendered by the
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courts below that the appellant is not entitled to the reliefs
canvassed, declaration and also injunction, has no merit at all. I
find no infirmity leave alone any illegality in the concurrent
decision rendered by the court below. The appeal is devoid of
any merit, and is dismissed.
Sd/-
S.S.SATHEESACHANDRAN
JUDGE
//True Copy//
P.A to Judge
vdv