Kerala High Court
Balachandran vs S.Sujatha on 27 February, 1998
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
MONDAY,THE 2ND DAY OF DECEMBER 2013/11TH AGRAHAYANA, 1935
AS.No. 331 of 2000 ( )
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AGAINST THE JUDGMENT IN OS 1436/1994 of I ADDL.SUB
COURT,TRIVANDRUM DATED 27-02-1998
APPELLANT/PLAINTIFF:
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BALACHANDRAN, S/O. DAMODARAN,
RESIDING AT UDAYALAYAM, CHACKAI,
THIRUVANANTHAPURAM.
BY ADVS. SRI. L.G.POTTI.
SRI.G.AJAYA GHOSH
RESPONDENTS/DEFENDENTS:
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1. S.SUJATHA, WIDOW OF P.SUNDARESWARAN,
RESIDING AT SRINILAYAM, THIRUVANANTHAPURAM.
2. LEKSHMY, D/O. SUJATHA, MINOR, -DO-
3. LENIN, S/O. SUNDARESWARAN, MINOR -DO-
4. SYAMALA SENAN, D/O. KAMALAKSHY,
RESIDING AT SHYAMA COTTAGE, PETTAH,
THIRUVANANTHAPURAM.
(DEFENDANTS 2 & 3 ARE MINORS REPRESENTED BY
THEIR MOTHER AS THE NEXT FRIEND)
R1 TO R3, BY ADV. SRI.R.S.KALKURA
R, R4 BY ADV. SRI.V.JAYAKUMAR
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 31-10-2013,
THE COURT ON 02-12-2013 DELIVERED THE FOLLOWING:
"CR"
S.S.SATHEESACHANDRAN, J.
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A.S.No.331 OF 2000 ()
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Dated this the 2nd day of December, 2013
J U D G M E N T
~~~~~~~~ Plaintiff is the appellant. Suit was for partition and allotment of 1/3rd share in plaint schedule property to plaintiff declaring that a gift deed in favour of the predecessor of defendants 1 to 3 over that property is void. In the alternative setting aside of that deed, if so warranted, and, declaring that such deed is not binding on plaint property and plaintiff was also sought for. Suit was dismissed by the learned Sub Judge, and aggrieved, the plaintiff has preferred this appeal.
2. Plaintiff, late Sundaresan (husband of first defendant and father of defendants 2 and 3), and fourth defendant are the children of one Kamalakshy. She had another son, namely, Rajappan, who, as unmarried predeceased her. After the death of her husband, Kamalakshy and her children entered into Ext.A1 partition A.S.No.331/2000 2 deed in which 'A' schedule was allotted to Kamalakshy and her son Rajappan. 'A' schedule has an extent of 23.125 cents and, on death of Rajappan, Kamalakshy became the absolute owner of that property. Later Kamalakshy executed a gift deed over 9 cents of land out of the above property in favour of plaintiff. Remaining extent of property in 'A' schedule, 14.125 cents, is the plaint property. Kamalakshy died on 14.9.1992. Demand for partition of plaint property by plaintiff to his brother, Sundaresan, and after his death to defendants 1 to 3 as well were not heeded, and, on enquiry he came to know that at the instance of his brother, Sundaresan, a deed had been registered over the plaint property as if it had been gifted to him by the mother, Kamalakshy, is his case. Gift deed allegedly executed by late Kamalakshy in favour of Sundaresan is a fabricated document and Kamalakshy was not having the capacity to identify or understand matters or execute document at her fag end of life, is his further case. Plaintiff claimed partition of his 1/3rd right in the plaint A.S.No.331/2000 3 property seeking declaration that the document obtained by his brother over that property is void, and in the alternative, for setting aside that deed if so found necessary. Suit was contested by defendants 1 to 3 alone, and the 4th defendant remained exparte. Suit claim for partition and declaration was resisted by defendants 1 to 3 contending that late Kamalakshy had executed Ext.B2 gift deed dated 22.5.1992 over the plaint property in favour of Sundaresan. Accepting the gift Sundaresan was in possession and enjoyment of that property till his death and, thereafter, these defendants are in absolute possession and enjoyment of the property as its absolute owners, according to them. Challenge against the gift deed as a fabricated document was resisted by the defendants, who disputed the partible right claimed by plaintiff over the plaint property.
3. Fourth defendant in the suit, daughter of Kamalakshy and sister of plaintiff, remained exparte.
4. On the issues framed on the pleadings of parties both sides adduced evidence. Plaintiff was examined as A.S.No.331/2000 4 PW1 and Ext.A1 partition deed was marked on his side. First defendant was examined as DW1 and Exts.B1 and B2 were marked. Appreciating the materials produced with reference to the pleadings of parties and submissions made by their counsel, learned Sub Judge negatived the challenges canvassed by plaintiff to impeach Ext.B2 gift deed as a fabricated document. Suit was dismissed holding that the plaintiff and fourth defendant have no partible right over the property, Ext.B2 gift deed has come into effect and the property is not available for partition. That decree of dismissal is challenged in this appeal.
5. I heard counsel on both sides. Learned counsel for appellant/plaintiff placing emphasis on issue no.2 raised in the suit over the validity of Ext.B2 contended that when execution of that gift deed had been challenged by plaintiff without proof of its due execution by examining at least one of the attestors of the deed in the suit as mandated under Section 68 of the Evidence Act it cannot be used in evidence. None of the attesting witnesses in the deed was A.S.No.331/2000 5 summoned and examined by defendants to prove due execution and attestation, and, an application belatedly moved by them after closing of evidence, to reopen the evidence and examine some witnesses including one of the attestors to the deed, had been dismissed by the court below, submits the counsel. Gift deed was marked as Ext.B2 during the cross examination of plaintiff subject to objections raised over receiving it in evidence. Marking of the gift deed in evidence which was subject to objections of plaintiff, would not relieve defendants from proving its execution by Kamalakshy which had been denied by plaintiff, is the submission of counsel. Learned counsel relied on Rosammal Isseetheenammal Fernandez v. Joosa Mariyan Fernandez [2000(7) SC 189] to contend that when none of the attesting witnesses in a gift deed had been summoned and examined in a case where its execution stood denied, that deed cannot be used in evidence, for non-compliance of the mandate under Section 68 of the Evidence Act. Learned Sub Judge was not justified A.S.No.331/2000 6 in accepting and acting upon Ext.B2 gift deed when that deed has not been proved as genuine and duly executed by the executant, by the defendants, to negative the claim for partition by plaintiff and nonsuit him, is the further submission of counsel. Where Ext.B2 has not been proved as duly executed by Kamalakshy a preliminary decree should have been passed in the suit in favour of plaintiff declaring his 1/3rd right in the plaint property and also that the above gift deed is void, according to counsel.
6. Two applications have been moved in appeal by appellant/plaintiff, one for reception of additional evidence and the other for remand of the case to provide him an opportunity to compare the signature and thumb impression of the executant in Ext.B2 gift deed with those appearing in the gift deed executed in his favour earlier, which has been produced with the petition for reception of additional evidence. To advance ends of justice and for a fair adjudication of the suit, document produced as additional evidence has to be received and admitted in evidence and A.S.No.331/2000 7 also an opportunity has to be extended to plaintiff to have examination of Ext.B2 gift deed with the gift deed executed in his favour earlier by his mother, through an expert, to substantiate his case that Ext.B2 is a fabricated document, is the submission of counsel urging for setting aside the decree of dismissal and remitting the case for fresh disposal.
7. Counsel for fourth respondent (fourth defendant), who remained exparte before the court below, supported the challenges against the decree canvassed by the counsel for appellant.
8. Learned counsel appearing for respondents 1 to 3 (defendants 1 to 3 in the suit) contended that there is no merit in the appeal and the decree passed by the court below dismissing the suit of plaintiff in the proved facts and circumstances of the case does not call for any interference. Plaintiff, who questioned the genuineness of Ext.B2 gift deed to claim partition of the plaint property, did not place any material before the court to rebut the presumption over the genuineness of that registered document, submits the A.S.No.331/2000 8 counsel. His claim for partition impeaching Ext.B2 gift deed without placing any material to doubt its genuineness was rightly and correctly repelled by the court below and that decree of dismissal cannot be assailed contending that there was failure on the part of defendants 1 to 3 in proving due execution of Ext.B2 gift deed, according to the counsel. Suit claim for partition canvassed by the plaintiff was without any merit and it was rightly and correctly negatived by the court below, and the decree of dismissal of suit is only to be upheld, submits the counsel urging for dismissal of the appeal.
9. Ext.B2 gift deed has been received in evidence and acted upon by the court below overlooking the mandatory interdiction under Section 68 of the Evidence Act demanding examination of one of the attesting witnesses where execution of that document stood disputed by the other party is the challenge raised by appellant to assail the decree of dismissal of the suit. Ext.B2 gift deed improperly received in evidence was acted upon by the court below to A.S.No.331/2000 9 non suit the plaintiff negativing his claim of partition, is the further grievance. In appreciating the challenges canvassed, what is the case canvassed by plaintiff to seek partition of his 1/3rd right in the plaint property has to be scrutinised. Kamalakshy and one of his sons Rajappan, who predeceased her, both of them together, were allotted 23 cents when a partition of the property was effected by members of the family. On the death of Rajappan unmarried, Kamalakshy became the absolute owner of that property. Out of the above property 9 cents was given to plaintiff under a gift deed executed by Kamalakshy. Over the remaining extent, the plaint property, she continued to be the owner till her death, and, demand for partition of his share in the plaint property by plaintiff was resisted by defendants 1 to 3, widow and children of his brother Sundaresan, setting forth exclusive claim over that property under a gift deed allegedly executed by Kamalakshy, was the case of Plaintiff. He thereupon instituted the suit for partition and allotment of his share seeking declaration that the gift deed A.S.No.331/2000 10 relied upon by defendants is void, and, in the alternative he sought for setting aside that gift deed, if so required. How far and to what extent on the allegations set out in the plaint, reliefs claimed and evidence let in by plaintiff the challenge now canvassed to assail the decree of dismissal of the suit for improper reception of Ext.B1 gift deed in evidence is acceptable has to be examined.
10. Suit claim for partition by plaintiff is essentially founded on the declaration applied for that Ext.B1 gift deed allegedly executed by Kamalakshy, his mother, in favour of his brother, Sundaresan, is void or otherwise voidable and not binding on him. In paragraphs 12 to 15 of the plaint, plaintiff has set out the allegations to impeach the validity of Ext.B1 gift deed. The aforesaid paragraphs read thus:
"12. Late Kamalakshy was putting her signature in English letters and was evidenced by the partition deed and also the gift deed No.265/1998. But settlement deed No.2069/92 was fabricated by late Sundaresan and the signature of late Kamalakshy was put in vertical line. In the first page of the settlement deed, three letters were first put; but subsequently three vertical A.S.No.331/2000 11 lines were put.
13. Late Kamalakshy was aged and was not having the capacity to execute documents at that time. She cannot identity or understand matters at her fag end of life.
14. The document was executed on 22nd day of May, 1992 and she died on 14.9.1992.
15. The placing of the thumb impression also will prove that it is a forged document. Usually signatures affixed on the other side."
Plaintiff has also alleged in Paragraph 17 of the plaint that the document impeached has created a cloud on his title and as such it has to be declared void, or, in any case, if the court finds it so necessary, it has to be set aside. Setting forth the allegations as aforesaid, but not even producing a copy of the document impeached, plaintiff sought reliefs in the suit for partition and declaration. (B) relief canvassed in the suit reads thus:
"To declare that document No.2069/92 dt.22nd May, 1992 of Trivandram Sub Registry office, is void and on the alternative if this Hon'ble finds that the document is to be set aside, it may be set aside and also declare that the same is not binding on the plaint schedule property and the plaintiff."
A.S.No.331/2000 12
11. Plaintiff's claim for partition was founded on the relief of declaration canvassed in the suit that the gift deed is either void, or it has to be set aside, if so found necessary, by the court. Even on his admitted case it has caused a cloud on his title. When such be the case of plaintiff to seek partition of his share in the plaint property, failure of defendants to prove Ext.B2 satisfying the mandate under Section 68 of the Evidence Act would have relevance only if plaintiff has discharged his burden of establishing the vitiating factors over the execution of Ext.B1 gift deed by the executant named. Where he has sought a declaration that Ext.B1 gift deed is void or it has to be set aside, if so found, specifically imputing that the deed has caused a cloud on his title, without establishing his entitlement to such declaration placing such materials before the court to doubt the execution and genuineness of the deed impeached, only on the weakness of the defendants to prove execution of that deed in terms of Section 68 of the Evidence Act he cannot claim a decree for A.S.No.331/2000 13 partition in the suit.
12. Section 31 of the Specif Relief Act provides reliefs over cancellation of an instrument at the instance of a person against whom the instrument is void or voidable, when he has reasonable apprehension that such instrument, if left outstanding, will cause him serious injury. Three conditions are to be satisfied to grant such declaration:
i) that the written instrument in question is either void or voidable as against the plaintiff.
ii) Plaintiff may reasonably apprehend serious injury from the instrument being left outstanding.
iii) In view of all circumstances of the case the court considers it reasonable and proper to administer the protective and preventive justice asked for.
Where the plaintiff has sought a declaration impeaching Ext.B1 gift deed on the allegations set forth in the plaint indicated earlier, before asking the defendant to prove the execution and genuineness of that deed he has to discharge his burden of showing the existence of facts which he A.S.No.331/2000 14 asserts to impeach the deed as void or atleast voidable. Section 101 of the Evidence Act casts a burden on the plaintiff when he seeks a judgment based on a legal right or liability depending on the existence of facts which he asserts that those facts exist. In the absence of reasonable proof over the facts alleged by the plaintiff imputing the execution of Ext.B1 gift deed by his mother showing that it is a fabricated deed created by his bother, late Surendran, failure of defendants to prove the genuineness of such deed in terms of the mandate under Section 68 of the Evidence Act cannot be given any consideration, especially where the suit claim of plaintiff for partition is founded on the declaratory relief canvassed that the deed is void, or liable to be set aside if found to be only voidable.
13. Section 68 of the Evidence Act has to be read and understood with reference to the object of attestation. Certain documents - mortgage, gift and will - require attestation, to make them valid. The object of attestation is to protect the executant from being required to execute a A.S.No.331/2000 15 document by force, fraud or undue influence. Where any document is required by law to be attested Section 68 of the Evidence Act interdicts its use in evidence if its execution by the executant has been specifically denied, until an attesting witness atleast is examined to prove its execution, provided such witness is alive and subject to powers of court and capable of giving evidence. Where the defendants have relied on Ext.B1 gift deed executed in favour of their predecessor Sundaresan, the execution of which has been denied by the plaintiff seeking declaration that it is void or liable to be set aside as voidable and not binding on him, no doubt, defendants have to prove the genuineness of that deed to substantiate their defence. But that would arise only on plaintiff placing materials before court satisfactorily discharging the burden cast upon him in showing prima facie that there are suspicious circumstances to doubt the execution of Ext.B1 gift deed by his mother.
14. No material other than his self serving evidence as PW1 was tendered by plaintiff to challenge Ext.B1 gift A.S.No.331/2000 16 deed for the declaration canvassed in the suit. His version before court is that after the death of his mother he demanded partition to his brother Sundaresan. Photocopy of Ext.B1 gift deed was then handed over to him through another and on its perusal he found that the signature appearing in the deed as subscribed by his mother was different. Thumb impression of his mother was seen affixed at a different place in the document and not at the spot usually affixed in a deed. To the question asked by the court whether the thumb impression was that of his mother, he answered that he was not an expert. His mother usually signed by writing her name in English was his assertion placing reliance on Ext.A1 partition deed. Other than casting suspicion over the signature of his mother, executant in Ext.B1, and also that her thumb impression was at a place different from where it is usually affixed in a deed, plaintiff has not presented any circumstance to rebut the presumption over Ext.B1, a registered document, the executant of which had admitted its execution and signed A.S.No.331/2000 17 before the registering officer. Though plaintiff canvassed a case that his aged mother was not having the capacity to execute documents at the relevant time nor identify or understand matters at her fag end of life, there is not even a whisper on those aspects in his evidence, but, only of suspicion over the signature and thumb impression of his mother in Ext.B1 gift deed. The executant in the deed had signed putting some lines and, previously, his mother used to sign by writing her name in English, without anything more, is hardly sufficient to doubt the execution or genuineness of the deed. Plaintiff has not taken any steps to prove that the thumb impression appearing in the document in Ext.B1 gift deed was not of his mother, Kamalakshy. He has produced in the suit Ext.A1 partition deed in which she had affixed her thumb impression. From the 'A' schedule in Ext.A1, she had executed a gift deed in favour of plaintiff for nine cents. Now, before this Court producing that gift deed he has moved two applications, one for receiving that document as additional evidence and the A.S.No.331/2000 18 other for remitting the case to provide him an opportunity to send Ext.B1 gift deed with the gift deed produced to compare the signature and thumb impression of his mother. The only reason stated in the affidavit sworn to in the application why the gift deed in his favour was not produced and also not taking steps for the examination of the documents canvassed is that he was not 'advised' to do so. He has moved the above applications knowing fully well that his failure to take steps producing his gift deed before the trial court was fatal to his claim for partition. He has not made out any case for receiving the document produced as additional evidence and also for remanding the case. Applications are only to be turned down, and I do so.
15. Learned counsel for plaintiff has relied on Rosammal Isseetheenammal Fernandez v. Joosa Mariyan Fernandez [2000(7) SC 189] to contend that once it is shown that Ext.B2 gift deed cannot be used in evidence for non-compliance of Section 68 of the Evidence Act he is entitled to declaration of his share and partition of A.S.No.331/2000 19 the plaint property. Facts involved in the reported case would show that the plaintiffs in that suit, two daughters claimed partition based on the custom in their community that both daughters and sons get equal share, in which they challenged execution of two gift deeds as well. The trial court upheld their challenge against the execution of the gift deeds, but, dismissed the suit holding that they have not proved the existence of the custom pleaded. In the appeal from that decree the case was remitted. After remand the trial court decreed the suit holding that custom alleged was proved, and, disbelieving the execution of the two gift deeds. Appeal by defendants against that decree was allowed by the first appellate court, and it was affirmed by the High Court. By the time, the second appeal was considered by the High Court the decision in Mary Roy and others v. State of Kerala [1986 KLT 508] rendered by the Apex Court concluded the question over custom pleaded and that question in the suit became irrelevant. High Court in that case applied the proviso to Section 68 of the A.S.No.331/2000 20 Evidence Act and held that there was no specific denial of the gift deed by plaintiffs casting a burden on defendants to prove due execution of such deeds. Apex Court scrutinising the pleadings of the case, and also allegations raised in the plaint found that there was specific denial of the execution of gift deeds. Reversing the decision of the High Court affirming that of first appellate court, the decree of the trial court was thereupon restored. The only question that was considered in that decision with reference to Section 68 of the Evidence Act in the further challenges raised from a decree where the trial court had disbelieved the execution of gift deeds in question to grant a decree in favour of the plaintiff was whether there was specific denial in the pleadings of such gift deeds casting burden on the defendants to prove due execution of those deeds. Further more it was not a case where suit claim for partition was founded on declaration sought by plaintiff that the gift deed is void or for setting it aside, if so found necessary, as voidable. The decision rendered in Rosammal's+ case A.S.No.331/2000 21 (supra) has no application to the facts of the present case, where plaintiff had failed to tender any material to sustain the declaration canvassed to impeach Ext.B1 gift deed as not duly executed by his mother Kamalakshy. When his claim for partition was based on such declaration and where he failed to show his entitlement for the declaration he cannot bank upon the weakness of defendants to prove Ext.B1 gift deed canvassing support from Section 68 of the Evidence Act.
There is no merit in the appeal, and dismissal of the suit has only to be upheld.
Appeal is dismissed with costs of the contesting respondents (respondents 1 to 3). Fourth respondent is directed to suffer her costs.
sd/-
S.S.SATHEESACHANDRAN JUDGE ps/27/11 //True copy// PA to Judge