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.
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W.P.(C)No.35024 OF 2008
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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
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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
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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.
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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.
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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
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