Kerala High Court
Beena vs Rema on 17 February, 2025
RSA NOS.937/2011 & 1011/2011
1
2025:KER:12940
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
MONDAY, THE 17TH DAY OF FEBRUARY 2025 / 28TH MAGHA, 1946
RSA NO. 937 OF 2011
AGAINST THE JUDGMENT&DECREE DATED 05.07.2011 IN AS NO.73 OF 2008 OF
SUB COURT,KOCHI ARISING OUT OF THE JUDGMENT& DECREE DATED 04.08.2007 IN OS
NO.349 OF 2005 OF ADDITIONAL MUNSIFF COURT, KOCHI
APPELLANT/RESPONDENT No.1/PLAINTIFF:
BEENA,W/O.GOPALAKRISHNAN,AGED 47
CHATHANTHARA HOUSE, NAYARAMBALAM P.O.,, VYPIN.
BY ADVS.
SRI.K.S.MADHUSOODANAN
SRI.P.K.RAKESH KUMAR
SMT.M.A.RUXANA
SRI.THOMAS CHAZHUKKARAN
SRI.THUSHAR NIRMAL SARATHY
SRI.M.M.VINOD KUMAR
RESPONDENTS/APPELLANTS/DEFENDANTS 2 TO 4 AND DEFENDANTS 1 AND 5:
1 REMA, AGED 45, D/O.SEKHARAN
PATTARUMADOM HOUSE, NAYASRAMBALAM P.O.,, VYPIN-682 509.
2 BABY AGED 49
D/O.SEKHARAN, RESIDING DO.
3 VIJAYA, AGED 41,D/O.SEKHARAN - DO.
4 PRIYA AGED 31, D/O.SEKHARAN - DO.
5 VINOD AGED 35
S/O.SEKHARAN, DO.
RSA NOS.937/2011 & 1011/2011
2
2025:KER:12940
R1 TO R3 BY ADVS.
SRI.SUNIL N.SHENOI
SRI.P.VISWANATHAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 7.02.2025,
ALONG WITH RSA.1011/2011, THE COURT ON 17.02.2025 DELIVERED THE FOLLOWING:
RSA NOS.937/2011 & 1011/2011
3
2025:KER:12940
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
MONDAY, THE 17TH DAY OF FEBRUARY 2025 / 28TH MAGHA, 1946
RSA NO. 1011 OF 2011
AGAINST THE JUDGMENT&DECREE DATED 05.07.2011 IN AS NO.74 OF 2008 OF
SUB COURT KOCHI ARISING OUT OF THE JUDGMENT&DECREE DATED 04.08.2007 IN
OS NO.220 OF 2006 OF MUNSIFF COURT, KOCHI
APPELLANTS/RESPONDENTS 1&2/DEFENDANTS 1&2:
1 BEENA
W/O.GOPALAKRISHNAN, CHATHANTHARA HOUSE,, NARAYAMBALAM P.O.,
VYPIN.
2 GOPALAKRISHNAN AGED 53
S/O.KRISHNANKUTTY, CHATHANTHARA HOUSE,, NAYARAMBALAM P.O.,
VYPIN.
BY ADVS.
SRI.K.S.MADHUSOODANAN
SRI.P.K.RAKESH KUMAR
SMT.M.A.RUXANA
SRI.THOMAS CHAZHUKKARAN
SRI.THUSHAR NIRMAL SARATHY
SRI.M.M.VINOD KUMAR
RESPONDENTS/APPELLANTS 1 TO 4/ DEFENDANTS 3 TO 5/PLAINTIFFS 1 TO 7:
1 RADHAKRISHNAN
S/O.SEKHARAN, PATTARUMADOM HOUSE,, NAYARAMBALAM P.O., VYPIN-
682509.
2 BABY AGED 49 D/O.SEKHARAN
DO. DO.
3 REMA AGED 45
D/O.SEKHARAN, DO. DO.
RSA NOS.937/2011 & 1011/2011
4
2025:KER:12940
4 VIJAYAKUTTY AGED 41
D/O.SEKHARAN, DO. DO.
5 RATHI AGED 39
D/O.SEKHARAN, DO. DO.
6 VINOD AGED 35 SO.SEKHARAN
DO. DO.
7 PRIYA AGED 31
D/O.SEKHARAN, DO. DO.
BY ADVS.
SRI.AJITH VISWANATHAN
SRI.P.VISWANATHAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 7.02.2025,
ALONG WITH RSA.937/2011, THE COURT ON 17.02.2025 DELIVERED THE FOLLOWING:
RSA NOS.937/2011 & 1011/2011
5
2025:KER:12940
JUDGMENT
[RSA Nos.937/2011, 1011/2011]
1. These two Regular Second Appeals arise from two suits -
O.S.No.349/2005 & O.S.No.220/2006, which are disposed of by a common judgment by the Trial Court, and hence these Appeals are disposed of by a common judgment.
2. The plaint schedule property in both the suits is one and the same, having an extent of 5.714 cents, and the residential building therein covered in Ext.B1 Purchase Certificate. Ext.B1 Purchase Certificate is issued in the name of one Kallu.
3. O.S.No.220/2006 is filed by the plaintiffs who are the seven children of Shekharan and Kallu. The defendants therein are wife and husband, of whom the 1st defendant purchased the Plaint Schedule property from Kallu as per Ext.B2 Sale Deed.
4. O.S No.349/2005 is filed by the 1st defendant in O.S No.220/2006. The defendants in O.S.No. 349/2005 are the plaintiffs in O.S. No.220/2006 except plaintiffs Nos. 1 & 5. RSA NOS.937/2011 & 1011/2011 6 2025:KER:12940
5. The first suit is O.S. No. 349/2005. The said suit was filed seeking a mandatory injunction on the strength of the title of the plaintiff therein as per Ext.B2 Sale Deed, directing the defendants therein to surrender the plaint schedule property.
6. O.S.No.220/2006 is filed for a declaration that Ext.B2 Sale Deed is null and void and not binding on the plaint schedule property and the plaintiffs therein, on the ground that Kallu executed Ext.B2 in favour of the 1st defendant therein as the security for a loan of Rs.20,000/- availed from the defendants and that Kallu did not have any saleable interest in the plaint schedule property.
7. In both suits, the legality of the Ext.B2 Sale Deed was the main question.
8. The Trial Court jointly tried both suits together treating O.S.No. 220/2006 as the leading case.
9. The Trial Court decreed O.S.No. 349/2005 granting a mandatory injunction directing the defendants therein to RSA NOS.937/2011 & 1011/2011 7 2025:KER:12940 surrender vacant possession of plaint schedule property within a period of one month with cost of litigation and dismissed O.S No.220/2006 with costs.
10. The defendants 2 to 4 in O.S.No. 349/2005 filed A.S No. 73/2008 and the plaintiffs 1 to 4 in O.S. No. 220/2006 filed A.S No.74/2008 challenging the judgments and decrees in the respective suits.
11. The First Appellate Court allowed both the Appeals setting aside the judgments and decrees of the Trial Court in both the suits and dismissing O.S.No. 349/2005 and decreeing in O.S No.220/2006 declaring that the plaintiffs therein have right, title, and interest over the plaint schedule property as Kudikidappukars as per Ext.B1 Purchase Certificate in favour of Kallu and that Ext.B2 Sale Deed in favour of the 1st defendant therein is null and void as far as the plaintiff's right in the property and that it will not bind the plaintiffs. RSA NOS.937/2011 & 1011/2011 8 2025:KER:12940
12. The plaintiff in O.S.No. 349/2005 filed R.S.A. No. 937/2011 and the defendants 1 and 2 in O.S.No.220/2006 filed R.S.A.No.1011/2011 challenging the respective judgments and decrees passed by the First Appellate Court.
13. This Court admitted both the Appeals formulating the following substantial questions of law.
. Even if Ext.B1 Kudikidappu Certificate was taken as enuring to the benefit of Shekharan, and on his death his rights devolved on his legal heirs including the children, when two of the children were attesting witnesses to Ext.B2 Sale Deed where under Kallu transferred the plaint schedule property in favour of the plaintiffs in O.S No. 349/2005 and O.S No. 220/2006 to set aside Ext.B2 sale deed was instituted after three years from the date of execution of Ext.B2 Sale Deed, whether the suit is not barred by limitation and if so, whether a decree could have been granted in favour of the plaintiffs in O.S No.220/2006?
RSA NOS.937/2011 & 1011/2011 9 2025:KER:12940 . When Ext.B1 Kudikidappu Certificate shows Kallu was a Kudikidappukari, who purchased Kudikidappu and for valid consideration, plaintiffs in O.S.No. 349/2005 purchased the plaint schedule property under Ext.B2 Sale Deed from Kallu, was the First Appellate Court justified in holding that plaintiffs did not derive any right under Ext.B2 Sale Deed.
14. I heard the learned Counsel for the appellant, Sri.M.M. Vinod Kumar, and the learned Senior Counsel for the contesting respondents, Sri.P. Viswanathan, instructed by Advocate Sri. Amal.
15. Hereafter, the parties are referred to according to their status in O.S. No. 220/2006. In other words, the children of Shekharan and Kallu are referred to as the plaintiffs, and the Purchaser in Ext.B2 and her husband are referred to as the defendants.
16. In view of the substantial questions of law formulated in this appeal and the arguments advanced by both sides, certain admitted facts alone are sufficient for the disposal of the RSA NOS.937/2011 & 1011/2011 10 2025:KER:12940 Appeals. They are: The plaint schedule property originally belonged to Nayarambalam Bhagavathy Devaswom in Jenmom. The paternal grandmother of the plaintiffs Smt.Ammalu filed an Application as O.A No. 5796/1970 before the Land Tribunal, Vypin claiming Kudikidappu, and the same was allowed in the name of Ammalu. Ammalu failed to remit the purchase price and hence the Land Tribunal cancelled the order in O.A No.5796/1970. Ammalu died in the year 1980 leaving her only son Shekharan as legal heir. Kallu, who is the wife of Shekharan, submitted Ext.B7 Application dt. 10.08.1981 as O.A No. 465/81 before the Land Tribunal Vypin for Purchase Certificate claiming Kudikidappu. Ext.B8 is the photocopy of the Statement under Rule 86 in O.A.No.465/1981. Ext.B9 is the certified copy of the Report dated 25.11.1982 in O.A.No. 465/1981. Ext.B7 Application was allowed by the Land Tribunal as per Ext.A10 Order dt. 24.03.1983. In Ext.A10, it is stated that Ammalu had obtained Purchase Certificate for the very same property, and the said order was cancelled for nonpayment of RSA NOS.937/2011 & 1011/2011 11 2025:KER:12940 the purchase price, and that Shekharan S/o Ammalu endorsed no objection for issuing Purchase Certificate in favour of Kallu. On the basis of the Ext.A10 order, Ext.B1 Purchase Certificate dt 27.05.1983 was issued in favour of Kallu. Shekharan died in the year 1989. Kallu executed Ext.B2 Sale deed dated 09.09.1999 in favour of the 1st defendant with respect to the plaint schedule property. The plaintiff Nos.6 and 7 are the witnesses who identified Kallu before the Sub Registry Office.
17. The Trial Court Judgement and Decrees are based on the findings that O.S.No. 220/2006 seeking a declaration of Ext. B2 Sale Deed as null and void is barred by limitation; that Ext.B1 Purchase Certificate is issued in the name of Kallu in her capacity as Kudikidappukari as well as her capacity as the assignee of husband Shekharan who was the sole legal heir of Ammalu whose assignment was cancelled by the Land Tribunal; that there is no evidence to show that Ext.B2 Sale Deed is executed by practicing any of the vitiating elements; and that RSA NOS.937/2011 & 1011/2011 12 2025:KER:12940 Ext.B2 executed by Kallu is valid and the same is not liable to be set aside.
18. The First Appellate Court Judgement and Decrees are based on the findings that mere non payment of purchase price does not automatically cancel the order of purchase in view of the decision of this Court in Narayani v. Aravindakshan, 1989(1) KLT 326; that Kallu obtained Ext B1 Purchase Certificate not in her individual capacity but her capacity as wife of Shekharan and on behalf of him; that Kallu was in possession of the property on the basis of Ext.B1 Purchase Certificate in her capacity as co-owner and it will be treated as a trust for and on behalf of other co-owners; that the rights obtained by Kallu as a co-owner will enure the benefit of other heirs who are the plaintiffs; that Kallu had no right over the property in exclusion of Shekharan and his children on the basis of Ext.B1 Purchase Certificate; that Ext.B2 Sale Deed executed by Kallu will not affect the right of other legal heirs since they are not parties; that RSA NOS.937/2011 & 1011/2011 13 2025:KER:12940 Ext.B1 Sale deed executed by Kallu is void as far as the children of Kallu and Shekharan and it will not bind their right over the plaint schedule property; and that O.S.No. 220/2006 is within the period of limitation as the limitation period started from the day when the cause of action had arisen, i.e. when the plaintiffs sought to be dispossessed from the land in the year 2005.
19. The learned Counsel for the appellants contended that, admittedly, the Ext.B1 Purchase Certificate was obtained by Kallu in her individual capacity. Ext.B7 Application would reveal that she submitted the Application claiming that she is the Kudikidappukari. There is nothing to show that Ext.B7 Application was submitted for and on behalf of Shekharan. In view of S.72K of the Kerala Land Reforms Act, the Purchase Certificate issued by the Land Tribunal in favour of Kallu is a conclusive proof of her title over the property. Ext.A10 order by which Ext.B1 Purchase Certificate was granted in favour of Kallu would reveal that the earlier order in favour of Ammalu RSA NOS.937/2011 & 1011/2011 14 2025:KER:12940 was cancelled for non payment of purchase price. The said Order cancelling Purchase Certificate in favour of Ammalu was not challenged by anybody, and the said order has become final. The decision relied on by the First Appellate Court in Narayani (supra) that mere nonpayment of purchase price does not automatically cancel the order of purchase, is clearly distinguishable as the said decision was rendered after the deletion of Clause (c) of S.80(3) of the Kerala Land Reforms Act. In view of the decisions relied on by the First Appellate Court, the principle is well settled that if a co-owner obtains the Purchase Certificate, it will enure to the benefit of the other co- owners as well. But in the case on hand, either as on the date of submitting Ext.B7 Application or on the date of obtaining Ext.B1 Purchase Certificate Kallu was not a co- owner of the plaint schedule property. Kallu sold the property as per Ext.B2 Sale Deed in favour of the first defendant in which the plaintiffs Nos. 6 and 7 are the witnesses. The plaintiffs could not be heard to say that they had no knowledge about the Ext.B2 Sale Deed. RSA NOS.937/2011 & 1011/2011 15 2025:KER:12940 The relevant article for the limitation period is Article 58 of the Limitation Act and the suit is to be filed within three years when the right to sue first accrues. Since two of the plaintiffs had knowledge about the Ext.B2 Sale deed in the year 1999 itself, O.S.No. 220/2006 filed after the period of three years is clearly time-barred. The learned counsel concluded his arguments by praying that the judgment and decrees passed by the First Appellate Court be set aside restoring the judgment and decrees passed by the Trial Court in both the suits.
20. On the other hand, the learned Senior Counsel for the respondents contended that the judgments and decrees passed by the First Appellate Court in both Appeals are perfectly legal and valid. It is not liable to be interfered with in these Second Appeals. It is clear from the pleadings and evidence that Kallu had been residing with Shekharan and his children, and Shekharan was the sole legal heir of Ammalu, who was the Kudikidappukari of the plaint schedule property. It is on record RSA NOS.937/2011 & 1011/2011 16 2025:KER:12940 that Ammalu obtained Purchase Certificate in her name on the strength of her Kudikidapu right. It is well settled by the decision of this court in Narayani(supra) that mere non payment of purchase price is not a ground to cancel the Order granting Purchase Certificate. Hence, the Order granting the Purchase Certificate in favour of Ammalu could not be treated as invalid for this reason. The sole legal heir of Ammalu, namely Shekharan submitted Ext.B7 Application through his wife Kallu, for obtaining Purchase Certificate on account of his absence at the place. Ext.B1 Purchase Certificate is to be treated as a Purchase Certificate obtained by Shekharan through his wife Kallu. Apart from the relation of Kallu as the wife of Shekharan, Kallu did not have any right over the plaint schedule property. In Ext.A10 Order passed in favour of Kallu itself, it is stated that Ext.B1 Purchase Certificate is issued to Kallu on the cancellation of Purchase Certificate in favour of Ammalu and in view of the no objection endorsed by Shekharan. If Shekharan had objected to the assignment, Kallu would not have obtained RSA NOS.937/2011 & 1011/2011 17 2025:KER:12940 the Ext.B1 Purchase Certificate. Learned Senior Counsel invited my attention to Column No.8 of Ext.B7 Application submitted by Kallu for Purchase Certificate in which the back file number is specifically stated as O.A. No.5796/1970 which relates to the Application for Purchase Certificate submitted by Ammalu. In Ext.A10 also, the proceedings were processed in continuation of the file in O.A.No.5796/70. Since the Purchase Certificate was issued in continuation of the proceedings in O.A No.5796/1970, the consent of the only legal heir of Ammalu Shekharan is obtained for issuance of the Purchase Certificate in favour of Kallu. Every reference in Ext.A10 was made to O.A.NO. 5796/1970, which would clearly indicate that Kallu obtained Purchase certificate in continuation of the proceedings initiated by Ammalu. The Land Tribunal already found that Ammalu is the Kudikidappukari with respect to the plaint schedule property. The said right is an interest on immovable property and the same could be transferred only by a registered document in view of Section 17 of the Registration Act. Since RSA NOS.937/2011 & 1011/2011 18 2025:KER:12940 Kallu did not obtain such Kudikidappu right by a registered document, Ext.B1 Purchase Certificate obtained by Kallu is to be treated as the Purchase Certificate issued for the Kudikidappu of Ammalu.It would make it amply clear that the Ext.B1 Purchase Certificate was issued in favour of Kallu, respecting the Kudikidappu right of Ammalu. The learned Counsel further contended that since Kallu did not have any saleable interest in the plaint schedule property as on the date of execution of Ext.B2 Sale Deed, Ext.B2 Sale Deed executed by Kallu is null and void and it could be very well ignored by the plaintiffs who are the real title holders of the plaint schedule property. There is no need to seek any declaration with respect to a document which is null and void. The declaration of Ext.B2 as null and void was necessitated when the first defendant attempted to dispossess the plaintiffs by filing a suit in the year 2005. It is the cause of action for O.S.No.220/2006 and hence the said suit is perfectly within limitation. Since Kallu did not have any right over the plaint schedule property, the first RSA NOS.937/2011 & 1011/2011 19 2025:KER:12940 defendant could not derive any right over the plaint schedule property on the strength of Ext.B2 Sale Deed. Learned counsel concluded his argument by submitting that there is no substantial questions of law involved in the Appeals warranting interference under Section 100 CPC.
21. I have considered the rival contentions. QUESTION OF LAW NO.1
22. Ext.B7 application would reveal that it is submitted by Kallu in her personal capacity. There is nothing to show in Ext.B7 that the said Application was submitted for and on behalf of Sekharan who is the only legal heir of Ammalu. There was no impediment for Sekharan to submit an Application for Purchase Certificate. The reason stated by the plaintiff is that Sekharan was in Tamil Nadu during that time, and hence, the Application was submitted in the name of his wife, Kallu. In that case also, Sekharan should have made some authorisation to Kallu for making Application on behalf of him. So, the Ext.B7 Application RSA NOS.937/2011 & 1011/2011 20 2025:KER:12940 could not be treated as an Application submitted for and on behalf of Sekharan
23. On the date of submission of the Ext.B7 Application, going by the case of the plaintiff, the Kudikidappu right was inherited by Sekharan from his mother Ammalu as her sole legal heir. If Sekharan was the sole owner of the plaint schedule property, Kallu could not be a co-owner who obtained Ext.B1 Purchase Certificate. She was not a co-owner of the plaint schedule property either at the time of Ext.B7 Application or on the date of Ext.A10 order or on the date of Ext.B1 Purchase Certificate. Hence, I find that the Ext.B1 Purchase Certificate obtained by Kallu is not on behalf of any co-owner. Since Kallu obtained the Purchase Certificate at a time when she was a total stranger to the plaint schedule property, she could not be treated as a co- owner, and it could not be assumed that Kallu obtained Ext.B1 Purchase Certificate as a co-owner and it will enure to the benefit of the other co-owners. As a matter of fact, there could RSA NOS.937/2011 & 1011/2011 21 2025:KER:12940 not be any co-ownership at that time, going by the case of the plaintiff that Shekharan was having exclusive right over the plaint schedule property on inheritance pursuant to the death of Ammalu as her sole legal heir.
24. As pointed out by the learned Senior Counsel for the respondents, the File number of the Application of Ammalu is referred to in Ext.B7 Application as the back file number. In Ext.A10 all references are made to the O.A No.5796/1970 of Ammalu. Kallu was granted the Purchase Certificate since as per Order in O.A No.5796/1970, the Applicant therein was allowed to purchase 5.714 cents of land towards Kudikidappu. In Ext.B9 Report also, it is reported that there are seven Kudikidappukars in the property of the landlord. The reference to Kudikidappu, which is referred to in Ext.B10, could be only of Ammalu and of Kallu. All this would indicate that the Ext.B7 Purchase Certificate was issued in the name of Kallu on the basis of the Kudikidappu obtained by Ammalu. There is nothing RSA NOS.937/2011 & 1011/2011 22 2025:KER:12940 on record to show that Kallu was a Kudikidappukari of the plaint schedule property. As rightly pointed out by the learned Senior Counsel for the respondents that the Kudikidappu right of Ammalu was not transferred in the name of Kallu by a registered document. If Ext.B1 purchase Certificate was granted to Kallu, treating her as a Kudikidappukari, there was no need for obtaining consent from Shekharan for issuing Purchase Certificate in favour of Kallu. These facts would indicate that Kallu applied for the Purchase Certificate on the basis of the Kudikidappu right of Ammalu.
25. But when the legal effect of Ext.B1 Purchase Certificate is taken into consideration the said Certificate is issued under S.72K of the Kerala Land Reforms Act. Section 72 K of the Kerala Land Reforms Act, specifically provides that Certificate of Purchase issued under Sub Section (1) shall be conclusive proof of assignment to the tenant of the right, title, and interest of the land owner and the intermediaries, if any, over the holding or RSA NOS.937/2011 & 1011/2011 23 2025:KER:12940 portion thereof to which the assignment relates. Ext.B1 Purchase Certificate is issued in the name of Kallu showing her as a tenant. Hence, in view of the conclusive nature of the Ext.B1 Certificate, the only conclusion which is possible is that Kallu derived exclusive right over the plaint schedule property as per Ext.B1 Purchase Certificate.
26. The plaint schedule property was sold by Kallu to the first defendant as per Ext.B2 Sale Deed dated 09.09.1999. By that time Shekharan also died. If the plaint schedule property belonged to Ammalu as claimed by the plaintiffs, the same would have been inherited by Sekharan, and on the death of Sekharan, the plaintiffs and Kallu would have become the co- owners of the plaint schedule property. In such a case, Kallu has only a fractional right over the plaint schedule property. Ext.B2 Sale deed was executed by Kallu in favour of the first defendant as the exclusive owner of the plaint schedule property. It is stated that Kallu derived the property as per Ext.B1 Purchase RSA NOS.937/2011 & 1011/2011 24 2025:KER:12940 Certificate. It is seen from Ext.B2 that it is the plaintiffs 6 and 7 who identified Kallu before the Sub Registry Office. It would indicate that the said sale deed was executed with the knowledge of the plaintiffs. Even then, plaintiffs did not opt to execute the said document along with Kallu claiming co- ownership over the plaint schedule property. They allowed Kallu to sell the plaint schedule property to the first defendant as its exclusive owner. They, by their conduct, allowed the first defendant to believe that Kallu is the exclusive owner of the plaint schedule property on the basis of the Ext.B1 Purchase Certificate. In other words, the plaintiffs accepted and respected Kallu as the exclusive owner of the property on the basis of Ext.B1. In such a situation, the plaintiffs are estopped from contending that they had co-ownership over the plaint schedule property and that Kallu did not have ownership of the plaint schedule property at the time when the Ext.B2 document was executed. Hence, the claim of the plaintiffs that they are the co- owners of the plaint schedule property, and hence the Ext.B2 RSA NOS.937/2011 & 1011/2011 25 2025:KER:12940 document executed by Kallu is null and void and not binding with respect to their share is unsustainable.
27. Though the plaintiffs in O.S.No.220/2006 contended that Ext.B2 was executed only to secure Rs. 20,000/- borrowed from the 2nd defendant, no such contention is seen taken in their Written Statement in O.S.No.349/2005. There is no evidence to prove the alleged borrowal. Ext.B2 will show that the sale consideration is Rs.40,000/- and the stamp paid Rs.4,000/-. If the borrowal was only Rs.20,000/-, there was no need to execute Ext.B2 for Rs.40,000/- paying stamp of Rs.4,000/- and registration charges thereon. Hence, the contention of the Senior Counsel for the respondents that Ext.B2 is executed as security for a loan is unsustainable. They could not plead and prove that the Sale was vitiated by any of the vitiating elements.
28. The contention of the Senior counsel for the respondents that in view of the decision of this Court in Narayani (supra), the Order granting the Purchase Certificate in favour of Ammalu for non RSA NOS.937/2011 & 1011/2011 26 2025:KER:12940 payment of purchase price is void, is unsustainable. The Sub Section (3) of Section 80C of Kerala Land Reforms Act was deleted by Act, 15 of 1976. The said sub-section (3) provided that where a Kudikidappukaran failed to deposit the first installment of purchase price defaulted on or before the due date, the order of the Land Tribunal under Sub section (3) of S.80C shall stand cancelled and the Kudikidappukaran shall continue as Kudikidappukaran. It is not in evidence as to when was the Order granting Purchase Certificate passed in favour of Ammalu and when was the said Order cancelled. Going by the deletion of S.80C (3), the Order issuing Purchase certificate in favour of Ammalu could not be cancelled after Act 15 of 1976. If it was before the date of Act 15 of 1976, it was liable to be cancelled. Going by the number of the Original Application, it is of the year 1970, and it appears that the Order granting Purchase Certificate and the order cancelling the said Order might have been passed before the deletion of S.80C (3) of the Kerala Land Reforms Act. It is clear from the said decision of RSA NOS.937/2011 & 1011/2011 27 2025:KER:12940 this Court that the Application for Purchase Certificate therein was allowed on 16.08.1978 which is much after the deletion of S.80C(3). Hence, the said decision is clearly distinguishable on the facts of the present case. Even assuming that the said decision is applicable, it is only a ground to challenge the cancellation order, and the cancellation order could not be treated as null and void since the same remained unchallenged.
29. The plaintiffs filed O.S.No.220/2006 on 29.05.2006. The declarations sought are that the right, title, and interest of the plaintiffs over the plaint schedule property and that Ext.B2 Sale Deed is null and void and not binding on the plaintiffs. The cause of action which is shown in the suit is that it arose on 25.06.2005, the date on which the 2nd defendant threatened the plaintiffs by claiming untenable right over the plaint schedule property and on 31.07.2005 on which date notice was served on the plaintiffs, in OS 349/2005. Since the prayers are for a declaration that the relevant article under the Limitation Act, is RSA NOS.937/2011 & 1011/2011 28 2025:KER:12940 Article 58 which provides three years for filing the suit. The limitation period starts when the right to sue first accrues. In this case, it is clear that the plaintiffs had knowledge about Ext.B2 Sale Deed on the date of execution of Ext.B2 itself. The contention of the learned Senior Counsel for the respondents is that since plaintiffs 6 and 7 are only witnesses to Ext.B2, the knowledge about the contents of the documents could not be attributed to them. It is true that in normal circumstances, the knowledge about the contents of the documents could not be attributed to the witness. But here is a case where document is executed by Kallu who is the mother of the plaintiffs and the plaintiffs 6 and 7 are the persons who identified Kallu in the Sub Registry Office. It would indicate that plaintiffs 6 and 7 actively participated in the registration of Ext.B2 document. It is quite improbable that they had no knowledge about the nature of the document executed by their mother. The plaintiffs 1 to 5 do not have a case that they had any dispute or difference of opinion with plaintiffs 6 and 7. Hence, the knowledge of plaintiffs 6 and RSA NOS.937/2011 & 1011/2011 29 2025:KER:12940 7 is to be treated as knowledge to all the plaintiffs about the execution and registration of the Ext.B2 Sale deed. Then, the right to sue first accrued on the date of execution of the Ext.B2 document itself, and the suit ought to have been brought within three years from the date of registration of the Ext.B2 Sale deed. Hence, O.S.No.220/2006 is clearly time barred.
30. The first part of the Substantial Question of Law No.1 with respect to limitation is answered in the affirmative. The second part of the Substantial Question of law No.1 is answered in the negative holding that the decree could not have been granted in favour of the plaintiffs in O.S No. 220/2006. The Substantial Question of Law No.2 with respect to limitation is answered in the negative. Both the Substantial Questions of Law are answered in favour of the appellant and against the respondents.
31. This Regular Second Appeal is allowed without costs setting aside the judgment and decrees passed by the First Appellate RSA NOS.937/2011 & 1011/2011 30 2025:KER:12940 Court in both the appeals and restoring the judgments and decrees passed by the Trial Court in both the suits.
Sd/-
M.A.ABDUL HAKHIM JUDGE jma