IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 848 of 2008(A)
1. P.P. MANZIL, S/OLATE FRANCIES,
... Petitioner
2. P.F. ANTONY, DOOR NO. 47/1227,
Vs
1. RAI ABHILASH, S/O UPENDRA RAO,
... Respondent
For Petitioner :SRI.T.KRISHNANUNNI(SR.)
For Respondent :SRI.S.SREEKUMAR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :03/11/2008
O R D E R
V. RAMKUMAR, J.
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R.S.A.Nos.848 & 905 of 2008
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Dated this the 3rd day of November, 2008
JUDGMENT
The defendants in O.S.Nos.846 of 1996 and 891 of 1996
respectively on the file of the Munsiff’s Court, Ernakulam are
the appellants in these second appeals. The said suits were
filed by the common plaintiff seeking fixation of boundary of
the plaint B schedule property after excluding the plaint C
schedule property in the respective suits. Both suits were
dismissed by the trial court. On appeal preferred by the
plaintiffs, the lower appellate court reversed the decrees and
decreed the suit. Hence these second appeals by the
respective defendants.
2. The facts which are either proved or admitted are
the following:-
One acre of land comprised in Survey No.1062/1 of
Cheranelloor village of which Thirumala Devasawam is the
Jenmi was taken on lease by one Mr.Payyappillil Marzalinja
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and he constructed a house in 4 cents of land. Plaint C
Schedule property in O.S.No.846 of 1996 is the said 4 cents
of land. Thereafter the balance extent of 96 cents was
possessorily mortgaged by the said Marzalinja to one
Paradessy as per two document Nos. 355 and 356 of 1097
ME corresponding to the year 1922. In the year 1099 ME the
said Marzalinja transferred his equity of redemption over the
said 96 cents in favour of one Anthappan. The said
Anthappan in turn assigned the said equity of redemption to
the mortgagee Paradessy as per Ext.A2 sale deed of the year
1103 ME corresponding to the year 1928. Thus the equity of
redemption came to vest in the mortgagee Paradessy who
thus got the entire rights of Marzalinja over the said 96 cents.
In a subsequent partition, the rights of Paradessy came to
vest in a female heir of Paradessy by name Koditheertha. The
1st plaintiff namely Kalavathy who died pending the suit is the
only daughter of the said Koditheertha. In the plaint there
was an averment that the 1st plaintiff got the rights of her
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mother Koditheertha as per a will executed by Koditheertha.
The said will was not produced before court. Consequent on
the death of the 1st plaintiff, Kalavathy the additional 2nd
plaintiff namely Rai Abhilash who is her son was impleaded in
the suit. The 2nd plaintiff claimed the rights of his mother also
by virtue of Ext.A1 registered will executed by his mother.
Koditheertha and her daughter and 1st plaintiff had sold
portions of the said 96 cents. Ext.A4 to A7 are the assignment
deeds executed by Kalavathy and Exts.A8 to A10 are the
assignment deeds executed by the mother Koditheertha.
According to the plaintiffs a total extent of 40.927 cents were
thus assigned by Koditheertha and her daughter to strangers.
Another extent of 7 = cents was compulsorily acquired for
the purpose of widening a road forming the boundary. Thus,
according to the plaintiffs the plaint B Schedule property
admeasuring 47.575 cents was the balance extent which was
in the possession of the plaintiffs. They therefore wanted
fixation of the boundary of the plaint B Schedule Property
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after excluding 4 cents belonging to Marsalinja described as
plaint C schedule property in O.S.No.846/96 and after
excluding 3 cents described as plaint C Schedule in
O.S.No.891/96 forming the Kudikidappu of late Joseph the
father of the defendants in O.S.No.891/96.
3. The main reason given by the trial court for
dismissing the suit was that what was produced as Exts.A4 to
A10 were only Photostat copies of the original sale deeds
executed by Kalavathy and her mother Koditheertha and they
could not be relied on to accept the alleged transfer and
therefore the plaintiffs had failed to substantiate their
contention that they were in possession of the alleged balance
extent of 47.575 cents described as plaint B Schedule
property. The lower appellate court, however, relied on
Exts.A4 to A10 to accept the alienations pleaded by the
plaintiffs and granted a decree excluding 4.180 cents in stead
of 4 cents in O.S.No.846 of 1996 in addition to the
appurtenant land of 0.918 cents. Likewise, a decree was
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granted in O.S.No.891/96 fixing the boundary after excluding
3 cents described as plaint C Schedule Property as well as
0.355 cents shown as the appurtenant land. It is the said
appellate decree which is assailed in these second appeals.
4. I heard the learned Senior Advocate appearing for
the appellants in these second appeals. Assailing the decrees
passed by the lower appellate court the learned senior
Advocate made the following submissions before me:-
Exts.A4 to A10 are only Photostat copies of the
assignment deeds allegedly executed by Koditheertha and her
daughter Kalavathay. These Photostat copies are only
secondary evidence and are admissible as such only on proof
of foundation made out for reception of secondary evidence.
That is why the trial court had eschewed of these documents
from consideration since the plaintiffs had not made out a
case for reception of Photostat copies as secondary evidence.
The lower appellate court has not given any reason to rely on
these documents which were rightly discarded by the trial
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court. It was by relying on those inadmissible documents
that the lower appellate court had held that Ext.A2
assignment of the equity of redemption and the prior
documents were not sham and nominal documents as
contented by the defendants. The plaintiffs had come to court
with a specific allegation in the plaint that Koditheertha’s
right came to be vested in the 1st plaintiff, Kalavathy on the
strength of the will executed by Koditheertha. But strangely
enough, the said will has not been produced before court.
When a testamentary succession is put forward as the basis
for devolution of title, it is impermissible for the party to give
a go bye to the said case pleaded in the plaint and fall back
upon intestate succession. When there is nothing to show
that Marzalinja had parted with his possession of the entire
96 cents comprising of the plaint A Schedule Property, the
case of the plaintiffs that there was a mortgage of the said
property in favour of Paradessy who subsequently obtained
the equity of redemption etc. cannot be accepted for a
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moment, particularly when the specific defence contention is
that the said mortgage as well as transfer of equity of
redemption were all sham transactions which were never
acted upon.
5. I am afraid that I cannot agree with the above
submissions:-
It is true that the plaintiffs have pleaded that the rights
of Koditheertha had devolved on the 1st plaintiff, Kalavathy
under a will executed by Koditheertha. It is also true that the
said testamentory document has not been produced before
court. But it must be remembered that the additional 2nd
plaintiff who was examined as PW1 in the case after the
death of Kalavathy has deposed before the court in
unmistakable terms that the rights of Koditheertha came to
vest in Kalavathy as the sole surviving daughter. There is no
dispute that Kalavathy was the sole surviving daughter of
Koditheertha. This being the position, whether it was
testamentary or intestate succession, since the plaintiff’s
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contention was that it was Kalavathy, the only daughter who
got the property under a will executed by the mother
Kalavathy being the sole surviving daughter of Koditheertha
would have even otherwise inherited the plaint B Schedule
property. Hence, the non-production of the will by the
plaintiffs does not alter the position.
6. It is no doubt true that Exts.A4 to A10 are only
Photostat copies of their originals. Without preparing the
foundation for reception of secondary evidence within the
meaning of Section 63(2) of the Evidence Act, technically
speaking, those Photostat copies could not have been
received in evidence. But then, the specific plaint averment
that as per 7 registered documents, a total extent of 40.927
14.92 cents had been assigned by Koditheertha and her
daughter Kalavathy and 7= cents had been acquired for the
purpose of widening a road had not been specifically denied
in the written statement. Moreover, the 2nd defendant in
O.S.No.846 of 1996 examined as DW1 had unambiguously
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admitted that 40 cents has been assigned by 1st plaintiff and
mother that, he knows the location of the properties which
have been assigned and that the assignees under the 7
documents are in possession of their respective portions.
With regard to the 7 = cents acquired for the purpose of
widening the road he pleaded ignorance. But the 2nd
defendant in O.S.No.891/96 examined as DW2 has clearly
admitted that 7= cents of land had been acquired for
widening the road and it was the 1st plaintiff Kalavathy who
received the compensation for the said acquisition. DW1 has
further confessed that the plaint B Schedule Property is the
property which remains after excluding the properties so
transferred under the 7 documents and after the acquisition
for the road. In the face of these admissions by DWs.1 and 2
even if the plaintiffs had not produced Exts.A4 to A10 that
would not in any way weaken the case of the plaintiffs. It is
well known that an admitted fact need not be proved and
when both Dws1 and 2 have admitted the assignments alleged
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by the plaintiffs, it was not necessary for the plaintiffs to
prove the said admitted fact. Hence, even if Exts.A4 to A10
are eschewed from consideration that does not in any way
alter the position.
The lower appellate court has found that the plaint B
Schedule Property in both the suits is the property which
remains after excluding the assignments effected by
Kalavathy and her mother Koditheertha. If so, the decrees
granted by the lower appellate court do not suffer from any
illegality. No questions of law, much less any substantial
question of law arises for consideration in this second appeal.
The questions of law formulated in the memoranda of appeals
do not arise for consideration in these second appeals which
are accordingly dismissed in limine.
Dated this the 3rd day of November, 2008.
V. RAMKUMAR, JUDGE
sj