{"id":39803,"date":"2009-10-21T00:00:00","date_gmt":"2009-10-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/balakrishnan-vs-kalyani-on-21-october-2009"},"modified":"2018-04-02T15:08:36","modified_gmt":"2018-04-02T09:38:36","slug":"balakrishnan-vs-kalyani-on-21-october-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/balakrishnan-vs-kalyani-on-21-october-2009","title":{"rendered":"Balakrishnan vs Kalyani on 21 October, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Balakrishnan vs Kalyani on 21 October, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nSA.No. 21 of 1995(C)\n\n\n\n1. BALAKRISHNAN\n                      ...  Petitioner\n\n                        Vs\n\n1. KALYANI\n                       ...       Respondent\n\n                For Petitioner  :SRI.P.R.VENKETESH\n\n                For Respondent  :SRI.B.GOPAKUMAR\n\nThe Hon'ble MR. Justice THOMAS P.JOSEPH\n\n Dated :21\/10\/2009\n\n O R D E R\n                               THOMAS P. JOSEPH, J.\n                              --------------------------------------\n                                   S.A.No.21 of 1995\n                              --------------------------------------\n                     Dated this the 21st day of October, 2009.\n\n                                        JUDGMENT\n<\/pre>\n
        Second Appeal        arises at the instance of defendant Nos.1 and 2 in<\/p>\n
O.S.No.23 of 1988. Parties are referred to as plaintiff and defendants as in the<\/p>\n
trial court for convenience.\n<\/p>\n<\/p>\n
        2.      Plaintiff, defendant Nos.1, 4 and 10, the late Velayudhan, the late<\/p>\n
Padmanabhan and the late Karthyayani are children of Achuthan (he died in the<\/p>\n
year 1959). Padmanabhan died as a bachelor. Defendant No.3 is the wife of the<\/p>\n
late Velayudhan.       Defendant Nos.5 to 9 are children of the late Karthyayani.<\/p>\n
Defendant No.11 claimed to have entered into some agreement with defendant<\/p>\n
No.1 to purchase a portion of the suit property. Case of the plaintiff is that late<\/p>\n
Achuthan was residing in the building in the suit property since long        taking<\/p>\n
income therefrom. While so, a document was obtained on 17.7.1957 in the<\/p>\n
name of defendant No.1 from the prior owner, Keralavarma Thampuran getting<\/p>\n
assignment of the entire right over the property in favour of defendant No.1.<\/p>\n
According to the plaintiff, at the time of that document Achuthan was aged about<\/p>\n
70 years and was dependant on defendant No.1. That document was taken by<\/p>\n
defendant No.1 without the consent of the plaintiff or other legal representatives<\/p>\n
(of Achuthan). While so, defendant No.1 executed a document in favour of<\/p>\n
Velayudhan, husband of defendant No.3 as document No.896 of 1957 dated<\/p>\n
SA No.21\/1995<\/p>\n
                                          2<\/span><\/p>\n
26.9.1957. Plaintiff would say that the said document has not taken effect, it<\/p>\n
was not intended to take effect,        nor does it bind the plaintiff or others.<\/p>\n
Document No.632 of 1958 dated 23.7.1958 was got executed by defendant<\/p>\n
No.1 from late Achuthan getting release of his right in the suit property for a<\/p>\n
consideration of Rs.2,300\/-. Plaintiff would say that there was no occasion for<\/p>\n
executing such document and that Achuthan did not have the mental capacity or<\/p>\n
financial stability to execute such document. Moreover, defendant No.1 had no<\/p>\n
right to get any document executed without the consent of other legal<\/p>\n
representatives. It is stated that document No.632 of 1958 was got executed<\/p>\n
by defendant No.1 exercising undue influence.          Plaintiff learnt about the<\/p>\n
document only recently when defendant No.11 asked her about her right in the<\/p>\n
suit property. Plaintiff claimed that she has been in joint possession of the<\/p>\n
property with other legal representatives of Achuthan and that the right which<\/p>\n
Achuthan had in the suit property existed even now. That right is heritable and<\/p>\n
thus, plaintiff and other legal representatives     got right in the suit property.<\/p>\n
Accordingly she prayed for partition and separate possession of her one sixth<\/p>\n
share in the suit property “after finding that the above said documents are null<\/p>\n
and void and are sham”. Defendant Nos.1 and 2 resisted the suit contending<\/p>\n
that the late Achuthan was residing in the suit property as a ‘kudikidappukaran’<\/p>\n
and that the suit property originally belonged to the Cochin Royal Family in jenm.<\/p>\n
The property was owned by the late Kavoo Thampuran. While so, there was a<\/p>\n
partition in the Royal Family and the suit property was allotted to the share of<\/p>\n
SA No.21\/1995<\/p>\n
                                          3<\/span><\/p>\n
Keralavarma Thampuran,        son of .Kavoo Thampuran. He executed document<\/p>\n
No.718 of 1057 dated 17.7.1957           transferring his right, title, interest and<\/p>\n
possession     of the suit    property in favour of defendant No.1 receiving<\/p>\n
consideration of Rs.3,752\/-. The amount retained with defendant No.1 to be<\/p>\n
paid to the   late Achuthan was       paid to   him and received by him.        It is<\/p>\n
contended that 30 cents out of the suit property was sold to Velayudhan, eldest<\/p>\n
brother of defendant No.1 on 26.9.1957. Later defendant No.1 executed a gift<\/p>\n
deed in favour of defendant No.2 in the year 1968 and presently defendant No.2<\/p>\n
is in possession of the suit property. It is incorrect to say that the documents<\/p>\n
are got executed in the manner stated in the plaint. It is also not correct to say<\/p>\n
that the documents have not taken effect or are sham. Plaintiff has no right or<\/p>\n
interest in the suit property. Plaintiff was aware of execution of the documents<\/p>\n
during the relevant time itself.    Defendant No.3 adopted the contentions of<\/p>\n
defendant Nos.1 and 2. She claimed that defendant No.1 sold 30 cents from the<\/p>\n
suit property to her husband, the late Velayudhan on 26.9.1957 as per a<\/p>\n
registered document. Defendant Nos.4 and 10 supported defendant Nos.1 and<\/p>\n
2. Learned Munsiff found that plaintiff has no partiable right in the suit property<\/p>\n
and dismissed the suit. Plaintiff took up the matter in appeal. First appellate<\/p>\n
court found that Exts.A1 to A3 are sham documents which have not taken effect<\/p>\n
and reversing the judgment and decree of the trial court the suit was decreed. A<\/p>\n
SA No.21\/1995<\/p>\n
                                          4<\/span><\/p>\n
preliminary decree for partition was passed in favour of the plaintiff. That<\/p>\n
judgment and preliminary decree are under challenge in this Second Appeal at<\/p>\n
the instance of defendant Nos.1 and 2.\n<\/p>\n<\/p>\n
        3.    Following substantial questions of law are framed for a decision:<\/p>\n
              i.     When there are registered documents in respect of a<\/p>\n
property and right is claimed only as a sharer by the plaintiff, could partition be<\/p>\n
allowed without a declaration to the effect that plaintiff is entitled to a share in<\/p>\n
the suit?\n<\/p>\n
              ii.    Was not the first appellate court wrong in concluding that<\/p>\n
Exts.A1 to A3 are sham transactions, in the absence of any evidence in that<\/p>\n
line?\n<\/p>\n
It is contended by learned counsel for appellants\/defendant Nos.1 and 2 that in<\/p>\n
the nature of the averments in the plaint attacking the relevant documents,<\/p>\n
plaintiff could not succeed without incorporating a prayer for declaration of the<\/p>\n
right claimed by her or, to set aside the documents which according to her,<\/p>\n
stand against her. It is also the contention of learned counsel that the first<\/p>\n
appellate court was not legally correct in concluding that Exts.A1 to A3 are sham<\/p>\n
documents in the absence of any evidence to that effect. Learned counsel<\/p>\n
contends that the failure of plaintiff to mount the witness box is fatal and placed<\/p>\n
reliance on the decisions in Iswar Bhai C.Patel v. Harihar Behera<\/a> [AIR<\/p>\n
SA No.21\/1995<\/p>\n
                                           5<\/span><\/p>\n
1999 SC 1341] and Vidhyadhar v. Manikrao<\/a> [AIR 1999 SC 1441].<\/p>\n
Per contra, it is contended by learned counsel for plaintiff that the only contention<\/p>\n
raised by the plaintiff in the trial court and the first appellate court as regards<\/p>\n
the documents in question is that the said documents are sham, which does not<\/p>\n
require a declaration to that effect. According to the learned counsel it is<\/p>\n
sufficient that plaintiff avoided the said documents by appropriate plea and<\/p>\n
produced evidence to show that the said documents are sham and have not<\/p>\n
taken effect. Learned counsel would contend that the first appellate court was<\/p>\n
justified on evidence in concluding that Exts.A1 to A3 are sham and have not<\/p>\n
taken effect. Further contention is that the said finding is one on fact, no<\/p>\n
substantial question of law is involved and this Court is not justified in interfering<\/p>\n
on a finding of fact entered by the first appellate court.<\/p>\n
        4.      Ext.A1 is the certified copy of sale deed dated 17.7.1957 executed<\/p>\n
by Keralavarma Thampuran in favour of defendant No.1 purporting to transfer<\/p>\n
his right, title, interest and possession over the suit property – 1.46 = acres for<\/p>\n
the consideration mentioned therein and directing that defendant No.1 shall pay<\/p>\n
certain amount to Achuthan, his father who has been residing in the suit property<\/p>\n
since time immemorial looking after that property. Ext.A2 is the certified copy of<\/p>\n
sale deed dated 26.9.1957 executed by defendant No.1 in favour of his eldest<\/p>\n
brother, the late Velayudhan (husband of defendant No.3) conveying right, title,<\/p>\n
interest and possession of 30 cents from the said 1.46 = acres. Ext.A3 (Ext.B2<\/p>\n
SA No.21\/1995<\/p>\n
                                          6<\/span><\/p>\n
is the original) is the certified copy of release deed dated 23.7.1958 executed<\/p>\n
by the late Achuthan in favour of defendant No.1 releasing his right over 1.15 =<\/p>\n
acres from out of the suit property (less 30 cents covered by Ext.A2) for the<\/p>\n
consideration mentioned therein. Ext.A4 is the certified copy of gift deed dated<\/p>\n
5.7.1968 executed by defendant No.1 in favour of defendant No.2 concerning<\/p>\n
1.46 = acres. I shall refer to the rest of documents a bit later.<\/p>\n
       5.       According to the plaintiff,     as seen from the averments in<\/p>\n
paragraph No.3 of the plaint Ext.A1 was got executed by defendant No.1 without<\/p>\n
the consent of plaintiff or other legal representatives (meaning those       were<\/p>\n
entitled to a share in the suit property after the death of Achuthan). So far as<\/p>\n
Ext.A2 is concerned the averment in the plaint is that it is a sham document<\/p>\n
which has not taken effect, nor intended to take effect.        When it comes to<\/p>\n
Ext.A3, averment in paragraph No.3 of the plaint is that there was no occasion<\/p>\n
for Achuthan to execute any such document, nor had he the mental capacity to<\/p>\n
do so. In paragraph No.4 of the plaint it is stated that it was exercising undue<\/p>\n
influence that Ext.A3 was got executed. In the relief portion it is stated that the<\/p>\n
said documents are null and void, sham and holding so, plaintiff may be granted<\/p>\n
a decree for partition and separate possession of her one sixth share.<\/p>\n
       6.     Contention raised by learned counsel for defendant Nos.1 and<\/p>\n
2\/appellants is that in that nature of the attack against Exts.A1 to A3, without a<\/p>\n
prayer for declaration regarding the validity of the said documents in the manner<\/p>\n
SA No.21\/1995<\/p>\n
                                          7<\/span><\/p>\n
pleaded by the plaintiff or, without setting aside those documents plaintiff could<\/p>\n
not ask for the relief of partition as if she were a co-owner of the suit property.<\/p>\n
Learned counsel for plaintiff in response would contend that the plea raised<\/p>\n
concerning Exts.A1 to A3 is only that the said documents are sham and that<\/p>\n
was how those documents were attacked in the first appellate court also That<\/p>\n
being the plea, a declaration or setting aside of the documents is not required<\/p>\n
before seeking partition, according to the learned counsel.<\/p>\n
       7.     If a document is sought to be attacked on the ground that it is null<\/p>\n
and void or it is sham having not taken effect, a declaration to that effect or<\/p>\n
setting aside the document is not required. Reason is that so far as a document<\/p>\n
which is null and void is concerned, it is non est in the eye of law and can be<\/p>\n
ignored by proving the same to be null and void. When a document is attacked<\/p>\n
on the ground that it is sham, then also in my view, a declaration to that effect<\/p>\n
or setting aside that document is not required since a sham document cannot<\/p>\n
create rights or obligations or affect the rights of parties concerned.       The<\/p>\n
decision of the Madras High Court in Venkatrama Aiyar and others v.<\/p>\n
Krishnammal and another [AIR 1927 Madras 255] and the decision of<\/p>\n
this Court in Gouri Amma Vaidehi Amma v. Parameswaran Pillai<\/p>\n
Madhavan Pillai<\/a> [1956 KLT 431] support that view. Therefore, so far as<\/p>\n
the contention of plaintiff that the documents are sham is concerned, even<\/p>\n
SA No.21\/1995<\/p>\n
                                            8<\/span><\/p>\n
without setting aside those documents or seeking a declaration to that effect, it<\/p>\n
was well within the right of the plaintiff to seek partition and separate possession<\/p>\n
of the share claimed by her. But, if a document is attacked on the ground that<\/p>\n
the executant was not having the mental capacity to execute that document or it<\/p>\n
was got executed under undue influence, then it is only voidable in nature,<\/p>\n
remains valid till avoided and has to be set aside in the manner known to law.<\/p>\n
In the plaint, it is stated that at the time Ext.A3 was executed by late Achuthan<\/p>\n
he did not have the mental capacity to do so. It is also stated that the said<\/p>\n
document was got executed by defendant No.1 using undue influence. Son of<\/p>\n
plaintiff when examined as PW1 asserted in chief examination that at the time<\/p>\n
Ext.A3 was executed Achuthan was not having sound disposing state of mind.<\/p>\n
He further stated that it was executed fraudulently. If that be so, plaintiff had to<\/p>\n
set aside the said document (Ext.A3) before claiming partition. However, it is<\/p>\n
stated by learned counsel for the plaintiff that plaintiff is not pursuing such a<\/p>\n
contention and her contention is only that Ext.A3 is sham and has not taken<\/p>\n
effect.   Though what is stated in the relief portion in the plaint is not a substitute<\/p>\n
for pleadings, what is prayed for is that partition may be ordered after holding<\/p>\n
that Exts.A1 to A3 are sham and null and void. That is how plaintiff presented<\/p>\n
her case in the first appellate court also as seen from the finding entered by that<\/p>\n
SA No.21\/1995<\/p>\n
                                          9<\/span><\/p>\n
court and the learned counsel for plaintiff submits. In the circumstances I hold<\/p>\n
that a declaration or setting aside of the documents as suggested by learned<\/p>\n
counsel for defendant Nos.1 and 2, before seeking partition was not necessary.<\/p>\n
        8.    Now I shall come to the question           whether finding of the first<\/p>\n
appellate court, in reversal of the finding of the trial court that Exts.A1 to A3 are<\/p>\n
sham and that plaintiff has partiable interest in the property is supported by any<\/p>\n
evidence. What is stated in the plaint is that late Achuthan was residing in the<\/p>\n
building in the suit property and taking yield from time immemorial. Apart from<\/p>\n
the said averment there is nothing averred in the plaint to indicate that Achuthan<\/p>\n
had any other right or interest in the suit property. Though it is contended by<\/p>\n
learned counsel for plaintiff that the recital in Ext.A1 would show that Achuthan<\/p>\n
had been making customary payments to Keralavarma Thampuran which is<\/p>\n
indicative of a tenancy in favour of the late Achuthan, I do not find any such<\/p>\n
averment in the plaint nor evidence on the side of PW1 who testified for the<\/p>\n
plaintiff. There is no averment in the plaint that suit property was entrusted to<\/p>\n
the   late Achuthan for effecting      cultivation or that he was empowered or<\/p>\n
authorised to effect such cultivation. A ‘cultivating tenant’ is defined in Section<\/p>\n
2(8) of the Kerala Land Reforms Act as ” a tenant who is in actual possession of<\/p>\n
and is entitled to cultivate the land comprised in his holding”. I do not find any<\/p>\n
such averment in the plaint or evidence in that line. Exts.A1 and A3 (which<\/p>\n
ofcourse plaintiff challenge as ‘sham’) only say that late Achuthan was             a<\/p>\n
SA No.21\/1995<\/p>\n
                                         10<\/span><\/p>\n
caretaker of the suit property residing in the house therein since long. That does<\/p>\n
not make him a cultivating tenant. Therefore, that contention of the learned<\/p>\n
counsel cannot be accepted.\n<\/p>\n
       9.      Learned counsel for plaintiff contended that there is no evidence to<\/p>\n
show that Keralavarma Thampuran, the executant of Ext.A1 had any right over<\/p>\n
the suit property as stated in Ext.A1. Ext.A1 states that it was by way of a<\/p>\n
partition in the Royal Family that Keralavarma Thampuran got the suit property<\/p>\n
absolutely,   but the copy of that partition deed is not produced. Here also I<\/p>\n
must also say that there is no averment in the plaint that Keralavarma<\/p>\n
Thampuran had no right in the property so that, he could not execute Ext.A1.<\/p>\n
On the other hand what is stated in paragraph No.2 of the plaint is that<\/p>\n
defendant No.1 got Ext.A1 got executed from Keralavarma Thampuran, the<\/p>\n
owner of the property.    Moreover, PW1 has given evidence that Keralavarma<\/p>\n
Thampuran was the owner of the property. It is true that when defendant No.1<\/p>\n
was in the box, he was questioned whether he had seen the partition deed<\/p>\n
referred to in Ext.A1 or any other document showing the title of Keralavarma<\/p>\n
Thampuran over the property and he answered in the negative. But in the light<\/p>\n
of what is stated in paragraph No.2 of the plaint, lack of averments in the plaint<\/p>\n
that Keralavarma Thampuran had no property and the evidence of PW1 that<\/p>\n
the property belonged to Keralavarma Thampuran, I am unable to accept that<\/p>\n
contention of the learned counsel for plaintiff.\n<\/p>\n
       10.    So far as Ext.A1 is concerned, it recites that Keralavarma<\/p>\n
SA No.21\/1995<\/p>\n
                                          11<\/span><\/p>\n
Thampuran assigned his right, title, interest and possession of the suit property<\/p>\n
in favour of defendant No.1 on receipt of the consideration mentioned therein<\/p>\n
and it is also stipulated in Ext.A1 that defendant No.1 was to pay certain amount<\/p>\n
to the late Achuthan in consideration of his looking after the properties staying<\/p>\n
there since time immemorial. Defendant Nos.1 and 2 produced Ext.B1 to show<\/p>\n
that the amount recited to be paid to Achuthan was paid. Ext.B1 is a photocopy<\/p>\n
of receipt dated 15.7.1957 said to have been executed by Achuthan in favour of<\/p>\n
defendant No.1 receiving the sum of Rs.3,752\/- recited in Ext.A1 to be paid to<\/p>\n
him. Ext.A1 is however dated 17.7.1957.           First appellate court   held that<\/p>\n
execution of Ext.A1 itself is doubtful in so far as the amount recited in Ext.A1 to<\/p>\n
be paid to Achuthan is seen paid by Ext.B1 to the said Achuthan two days prior<\/p>\n
to Ext.A1. I shall refer to acceptability of that contention a bit later. Ext.A2<\/p>\n
states that defendant No.1 sold 30 cents out of 1.46 = acres to Velayudhan,<\/p>\n
husband of defendant No.1 for consideration. It is as per Ext.A3 that the late<\/p>\n
Achuthan is said to have released his right over the remaining 1.15 = acres in<\/p>\n
favour of defendant No.1, and later comes Ext.A4, gift deed dated 5.1.1968<\/p>\n
executed by defendant No.1 in favour of defendant No.2, but in respect of the<\/p>\n
entire 1.46 = acres.\n<\/p>\n
       11.    First appellate court found that Ext.B1 could not have been<\/p>\n
executed by the late Achuthan two days prior to Ext.A1. A further finding is that<\/p>\n
though as per Ext.A2, defendant No.1 had sold 30 cents to his eldest brother,<\/p>\n
Velayudhan (husband of defendant No.3) from out of 1.46 = acres, it would<\/p>\n
SA No.21\/1995<\/p>\n
                                         12<\/span><\/p>\n
appear from Ext.A4, gift deed dated 5.1.1968 that defendant No.1 gifted the<\/p>\n
entire 1.46 = acres (including the 30 cents covered by Ext.A2) to defendant<\/p>\n
No.2, wife.    Thus first appellate court came to the conclusion that Ext.A1 to A3<\/p>\n
are sham transactions.\n<\/p>\n
       12.    I am afraid, the first appellate court has not gone into the evidence<\/p>\n
or considered the relevant aspects in depth while holding so.        Assuming that<\/p>\n
Ext.B1(it is the photocopy of an unregistered receipt) came into existence two<\/p>\n
days prior to Ext.A1, that could be a reason to discard Ext.B1 but, not sufficient<\/p>\n
to ignore Ext.A1 which is a registered document. Execution of Exts.A1 to A3 are<\/p>\n
not being disputed by the plaintiff before me. Though registration by itself is not<\/p>\n
proof of execution of a document, binding authorities on the point say that<\/p>\n
registration is prima facie evidence of valid execution of the document which is<\/p>\n
required by law to be registered.     Therefore that Ext.B1 was got executed two<\/p>\n
days prior to Ext.A1 is no ground to hold that Ext.A1 has not taken effect. May<\/p>\n
be Ext.B1 can be ignored which does not affect the right of defendant Nos.1 and<\/p>\n
2 over the property. It is also true that as per Ext.A2, 30 cents was assigned to<\/p>\n
Velayudhan (late husband of defendant No.3) from out of 1.46 = acres and<\/p>\n
Ext.A4 would say that the entire property including the said 30 cents was gifted<\/p>\n
to defendant No.2.     From that also it is not possible to say, in the light of<\/p>\n
evidence on record that either Ext.A2 or Ext.A4 has not taken effect. What<\/p>\n
could be said is that Ext.A4 does not affect the 30 cents sold as per Ext.A2.<\/p>\n
       13.    Learned Munsiff observed that so far as Exts.A1 to A3 and Ext.B1<\/p>\n
SA No.21\/1995<\/p>\n
                                         13<\/span><\/p>\n
are concerned, the presumption under Section 90 of the Evidence of Act (for<\/p>\n
Short, “the Act”) is available to it. That finding in my view is not legally correct<\/p>\n
for, Exts.A1 to A3 are only certified copies and though, for certified copies also a<\/p>\n
presumption under Section 90 could be drawn,            two conditions are to be<\/p>\n
satisfied: firstly, the said documents are brought in evidence after complying with<\/p>\n
the requirements of Section 63 of the Act and secondly, the certified copies by<\/p>\n
themselves are of thirty years old (see the decision of the Supreme Court in<\/p>\n
Lakhi Baruah v. Padma Kanta Kalita (AIR 1996 SC 1253).\n<\/p>\n
Therefore, the presumption under Section 90 of the Act is not available to<\/p>\n
Exts.A1 to A3. So far Ext.B1 is concerned, the same principle must apply since<\/p>\n
it is a photocopy and Ext.B1, I stated cannot be accepted in the light of Ext.A1<\/p>\n
and for the reason which I have already stated above.\n<\/p>\n
        14.     It has come in evidence that defendant Nos.5 to 9, children of late<\/p>\n
Karthyayani (daughter of the late Achuthan) filed O.A.No.813 of 1970 before the<\/p>\n
Land Tribunal making defendant No.2 as the opposite party and claiming right of<\/p>\n
kudikidappu. That application comes after Ext.A4, gift deed in her favour. It is<\/p>\n
not disputed that the said application was concerning the portion of property<\/p>\n
covered by Ext.A4 and excluding the 30 cents covered by Ext.A2. Ext.B4 is the<\/p>\n
copy of application dated 28.3.1970 preferred by defendant Nos.2 to 5 before<\/p>\n
the Land Tribunal. Ext.B5 is the copy of notice dated 28.10.1970 issued to<\/p>\n
defendant No.2 from Land Tribunal in O.A.No.813 of 1970. Ext.B6 is the sketch<\/p>\n
SA No.21\/1995<\/p>\n
                                        14<\/span><\/p>\n
of the land to be assigned to defendant Nos.5 to 9 by way of kudikidappu.<\/p>\n
Ext.B7, notice in O.A.No.813 of 1970 shows that the purchase price was<\/p>\n
deposited by defendant Nos.5 to 9 in the Land Tribunal and notice of the deposit<\/p>\n
was given to defendant No.2. Ext.B7 reveals that kudikidappu was assigned to<\/p>\n
defendant Nos.5 to 9 from property belonging to defendant No.2 as per Ext.A4.<\/p>\n
That also indicates that the gift in favour of defendant No.2 to the extent it<\/p>\n
concerned 1.15 = acres had taken effect.\n<\/p>\n
       15.   Now I shall refer to the evidence let in by the plaintiff. She has not<\/p>\n
gone to the box. True, her son was examined as PW1 on the strength of the<\/p>\n
order passed on an application to examine him on behalf of plaintiff stating that<\/p>\n
she is laid up. Evidence reveals that PW1 was not even born at the time of<\/p>\n
Exts.A1 to A3. Certainly PW1 was not competent to give evidence regarding<\/p>\n
Exts.A1 to A3.    He admitted that defendant No.1 was in possession of the<\/p>\n
property from 1957 onwards though, according to him on behalf of all legal<\/p>\n
representatives. At one stage, he stated that defendant No.1 is in possession<\/p>\n
from 1958 onwards. Admittedly, Achuthan died only in the year 1959. In other<\/p>\n
words, possession of defendant No.1 from 1957 or 1958 (as PW1 says) can be<\/p>\n
traced to Ext.A1 and as recited therein. Though it is contended by the plaintiff<\/p>\n
that she has been in joint possession of the suit property with other legal<\/p>\n
representatives and was sharing the income therefrom, there is no evidence in<\/p>\n
that line except the interested version of PW1. It is not disputed that plaintiff is<\/p>\n
residing with her family elsewhere. It is admitted by PW1 that the revenue for<\/p>\n
SA No.21\/1995<\/p>\n
                                        15<\/span><\/p>\n
the suit property is being paid by defendant No.1. Defendant No.1 on the other<\/p>\n
side gave evidence that he got right, title and possession of the suit property as<\/p>\n
per Ext.A1 and since then he is in possession and enjoyment of the property as<\/p>\n
the owner. He has also referred to execution of Exts.A2 to A4. He claimed that<\/p>\n
right from 1957-58 onwards he has been paying revenue for the suit property,<\/p>\n
effecting mutation in his name. True, revenue receipts are not produced. But, in<\/p>\n
the light of evidence of PW1 that revenue was paid by defendant No.1 there is<\/p>\n
no reason to disbelieve the evidence of DW1. It is also seen from Ext.B11,<\/p>\n
certified copy of mortgage deed        No.719 of 1959 dated 20.8.1959, that<\/p>\n
defendant No.1 had mortgaged the suit property to the         Dakshina Bharatha<\/p>\n
Bank.      These circumstances are sufficient to show that     contention of the<\/p>\n
plaintiff that Exts.A1 to A3 have not taken effect is not correct.<\/p>\n
        16.   Defendant No.11 came to the picture claiming that there was an<\/p>\n
agreement for sale of a portion of the property belonging to defendant No.2.<\/p>\n
Exts.B8 to B10 are produced to prove the same. Exts.B8 to B10 are notices<\/p>\n
dated 15.4.1988, 21.10.1988 and 30.3.1989 issued on behalf of defendant<\/p>\n
No.11 to defendant No.2 referring to the alleged agreement for sale.<\/p>\n
        17.   So far as the right of the late Achuthan in the suit property is<\/p>\n
concerned I found that there is no plea or evidence of tenancy and in the light of<\/p>\n
Exts.A1 and A3 no such contention could also stand. Defendant Nos.1 and 2<\/p>\n
on the other hand contended that Achuthan was a            kudikidappukaran but,<\/p>\n
plaintiff does not have such a case and no relief is claimed based on any right of<\/p>\n
SA No.21\/1995<\/p>\n
                                          16<\/span><\/p>\n
kudikidappu of the late Achuthan. Therefore, it is not necessary to go into that<\/p>\n
question in this appeal.\n<\/p>\n
        18.     I have gone through the judgment and decree under challenge and<\/p>\n
I find that learned Munsiff has considered the evidence on record and concluded<\/p>\n
that the contention that Exts.A1 to A3 are sham cannot stand. On the other<\/p>\n
hand, first appellate court after narrating the contention raised by both sides<\/p>\n
stated in paragraph No.12 of the judgment that Exts.A1 to A3 are sham<\/p>\n
documents without referring to the evidence on record and merely for the<\/p>\n
reasons that Ext.B1 is seen executed two days before the execution of Ext.A1<\/p>\n
and that inspite of sale of 30 cents to the late husband of defendant No.3 as per<\/p>\n
Ext.A2, defendant No.1 has gifted the entire property to defendant No.2 as per<\/p>\n
Ext.A4.      I stated that these circumstances are not at all sufficient to hold that<\/p>\n
Exts.A1 to A3 are sham documents. I also stated that first appellate court has<\/p>\n
not considered the evidence on record before holding that Exts.A1 to A3 are<\/p>\n
sham documents. Finding of the first appellate court regarding Exts.A1 to A3 is<\/p>\n
without referring to the evidence on record. In such a situation it is open to the<\/p>\n
second appellate court to interfere as held in Maria Colaco v. Alba Flora<\/p>\n
Herminda D’souza<\/a>[(2008) 5 SCC 268]. There it was held that normally in<\/p>\n
the Second Appeal the High Court should not interfere on the question of fact.<\/p>\n
But if on the scrutiny of evidence it is found that the finding recorded by the first<\/p>\n
appellate court is totally perverse, then, certainly the High Court can interfere in<\/p>\n
SA No.21\/1995<\/p>\n
                                        17<\/span><\/p>\n
the matter as it constitutes a substantial question of law.      I am satisfied that<\/p>\n
finding of the first appellate court is of that nature and hence it involved a<\/p>\n
substantial question of law permitting and requiring this Court to interfere in this<\/p>\n
Second Appeal. On going through the evidence and hearing learned counsel on<\/p>\n
both sides I am unable to sustain the finding entered by the first appellate court.<\/p>\n
The substantial questions of law raised are answered as above.<\/p>\n
       Resultantly, this Second Appeal succeeds. Judgment and decree of the<\/p>\n
first appellate court are set aside and that of the trial court are restored. Parties<\/p>\n
shall suffer their cost through out.\n<\/p>\n<\/p>\n
       C.M.P.No.56 of 1995 and I.A.No.1351 of 2003 will stand dismissed.<\/p>\n
                                                 THOMAS P.JOSEPH,
\n                                                          Judge.\n<\/p>\n
cks<\/p>\n
SA No.21\/1995<\/p>\n
                 18<\/span><\/p>\n
                    Thomas P.Joseph, J.\n<\/p>\n
                    S.A.No.21 of 1995<\/p>\n
                    JUDGMENT<\/p>\n
                    21st October, 2009.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Balakrishnan vs Kalyani on 21 October, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM SA.No. 21 of 1995(C) 1. BALAKRISHNAN … Petitioner Vs 1. KALYANI … Respondent For Petitioner :SRI.P.R.VENKETESH For Respondent :SRI.B.GOPAKUMAR The Hon’ble MR. Justice THOMAS P.JOSEPH Dated :21\/10\/2009 O R D E R THOMAS P. JOSEPH, J. ————————————– […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-39803","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nBalakrishnan vs Kalyani on 21 October, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/balakrishnan-vs-kalyani-on-21-october-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Balakrishnan vs Kalyani on 21 October, 2009 - 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