Kerala High Court
*1. K. Raghuvara Panicker vs Nil
Author: A.V.Ramakrishna Pillai
Bench: A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
FRIDAY, THE 12TH DAYOF JUNE 2015/22ND JYAISHTA, 1937
ESA.No. 4 of 2002 ( )
----------------------
AGAINST THE JUDGMENT DATED 17/12/2001 IN AS. NO.155/2001 OF
SUB COURT, NEYYATTINKARA.
AGAINST THE ORDER DATED 09/10/2001 IN E.A. NO.661/2000 IN E.P. NO.92/2000
IN OS. NO.1053/1996 OF II ADDITIONAL MUNSIFF COURT, NEYYATTINKARA.
......
APPELLANTS/APPELLANTS/CLAIM PETITIONERS:
--------------------------------------------------------------------------
*1. K. RAGHUVARA PANICKER,
SOORAJ, T.C.NO.50/23(3), KALADY,
KARAMANA P.O., MANACADU VILLAGE,
THIRUVANANTHAPURAM. (DIED)
2. S. SREE DEVI, D/O. SUDHARMA,
RESIDING AT SOORAJ, T.C.NO.50/23 (3), KALADY,
KARAMANA P.O., MANACADU VILLAGE,
THIRUVANANTHAPURAM.
* ADDL. APPELLANTS 3 & 4 IMPLEADED
3. SURAJ S.R., RESIDING AT SOORAJ,
T.C. NO.50/23(3), KALADY, KARAMANA P.O.,
MANACADU VILLAGE, THIRUVANANTHAPURAM.
4. ADITHYAN S.R., MINOR AGED 16,
RESIDING OPPOSITE AMSET, NALANCHIRA P.O.,
TRIVANDRUM, REPRESENTED BY HIS
NEXT FRIEND AND GUARDIAN APPLICANT NO.1,
S. SREEDEVI.
* APPELLANT NO.2 RECORDED AND ADDITIONAL APPELLANTS 3 AND 4
ARE IMPLEADED AS LRS OF DECEASED APPELLANT NO.1 AS
PER ORDER DATED 01/02/2008 IN I.A. NO.153/2008.
BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE.
SRI.K.JAYAKUMAR, SENIOR ADVOCATE.
ADVS.SRI.VADAKARA V.V.N.MENON,
SRI.T.N.SUKUMARAN,
SRI.P.B.KRISHNAN,
SMT.GEETHA P.MENON,
SRI.P.B.SUBRAMANYAN.
ESA.No. 4 of 2002
RESPONDENTS/RESPONDENTS/COUNTER PETITIONERS
(DECREE HOLDERS AND JUDGMENT DEBTORS IN O.S. NO.1053/1996):
---------------------------------------------------------------------------------------------------------
1. S. CHRISTAL SANDHYA,
D/O.R. SAROJAM, KULAKKOTTUKONAM MEKKUMKARA, PURAYIDAM,
AANAVOOR VILLAGE, NEYYATTINKARA TALUK,
(1ST DEREE HOLDER IN O.S.NO.1053/96 WHO WAS
DECLARED MAJOR IN THE SUIT).
2. S. CHRISTAL SAJITHA, D/O.R. SAROJAM,
MINOR, AGED 17 YEARS, RESIDING AT
KULAKOTTUKONAM MEKKUMKARA PURAYIDAM,
AANAVOOR VILLAGE, NEYYATINKARA TALUK,
REPRESENTED BY HER GUARDIAN AND NEXT FRIEND
THE 3RD RESPONDENT WHO IS HER MOTHER)
2ND DECREE HOLDER IN O.S. NO.1053/1996).
3. R. SAROJAM, W/O.K. DURYODHANAN,
RESIDING AT KULAKKOTTUKONAM MEKKUMKARA PURAYIDAM,
AANAVOOR VILLAGE, NEYYATTINKARA TALUK.
4. K. SUDHARMA, MOOLAYAM VEEDU,
PARUTHIPALLY, MANNOORKARA VILLAGE,
NEDUMANGADU TALUK.
5. K. DURYODHANAN, KULAKKOTTUKONAM
MEKKUMKARA PURAYIDAM, AANAVOOR VILLAGE,
NEYYATTINKARA TALUK.
R1, R2 & R3 BY ADV. SRI.S.JAMES VINCENT.
R3 BY ADVS. SRI.TERRY V.JAMES,
SRI.R.GOPAN.
THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 03/03/2015, ALONG WITH RSA. NO.333 OF 2004, THE COURT
ON 12/06/2015 DELIVERED THE FOLLOWING:
rs.
ESA.No. 4 of 2002
APPENDIX
PETITIONER'S ANNEXURES:-
ANNEXURE A CERTIFIED COPY OF THE JUDGMENT IN OS. NO.86/2000
DATED 21/06/2002 OF THE I ADDL. MUNSIFF, NEYYATINKARA.
ANNEXURE B CERTIFIED COPY OF THE JUDGMENT IN A.S. NO.51/2000.
DATED 12/03/2004 OF THE SUB JUDGE, NEYYATINKARA.
ANNEXURE C CERTIFIED OP JUDGMENT IN O.P.NO.258/2003
DATED 31/01/2004 OF THE FAMILY COURT,
THIRUVANANTHAPURAM.
ANNEXURE D CERTIFIED COPY OF THE DECREE IN O.P. NO.258/2003
DATED 31/01/2004 OF DO. DO.
ANNEXURE E CERTIFIED COPY OF THE MARRIAGE AGREEMENT
DATED 11/11/1994.
ANNEXURE F CERTIFIED COPY OF THE LATEST VOTERS LIST OF
PARASSALA BEARING E1-16571 04.
ANNEXURE G CERTIFIED COPY OF THE LATEST VOTERS LIST OF
PARASSALA DO.
ANNEXURE G IN I.A. NO.1715/2015: CERTIFIED COPY OF THE SALE
DEED NO.2243 DATED 22/11/2004 OF
KUNNATHUKAL SUB REGISTRY.
ANNEXURE H CERTIFIED COPY OF THE SALE DEED NO.2319
DATED 02/12/2004 OF KUNNATHUKAL SUB REGISTRY.
ANNEXURE I ORIGINAL RECEIPT DATED 04/06/1994 ISSUED TO THE
1ST PETITIONER WHICH WAS PREPARED AND SIGNED
BY THE 5TH RESPONDENT.
RESPONDENT'S ANNEXURES:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
C.R.
A.V.RAMAKRISHNA PILLAI, J.
= = = = = = = = = = = = = = = = =
E.S.A No.4 of 2002,
R.S.A No.333 of 2004
&
C.O No.119 of 2004
= = = = = = = = = = = = = = = = = =
Dated this the 12th day of June, 2015
JUDGMENT
The execution second appeal arises out of the judgment of the Subordinate Judge's Court, Neyyattinkara in A.S No.155 of 2001 which in turn arose out of the order dated 9.10.2001 in E.A No.661 of 2000 in E.P No.92 of 2000 in O.S No.1053 of 1996 on the files of the Munsiff's Court, Neyyattinkara.
2. Respondents 1 to 3 in the execution second appeal filed the aforesaid E.P for executing the decree in O.S No.1058 of 1996 by attachment and sale of the property comprised in Sy. No.290/6B of Anavoor village, Neyyattinkara Taluk having a total extent of 1 acre 72 cents. The appellants filed the claim petition i.e. E.A No.661 of 2000 before the Execution Court stating that at the time of attachment of the E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 2 C.O No.119 of 2004 judgment debtor in E.P had no saleable interest over the property. According to the appellants, the property attached belonged to one Joseph and he sold the same in the name of the fourth respondent who is the judgment debtor in the aforesaid case by Ext.A1 (in E.A.No.661/2000). The appellants further allege that the judgment debtor was the wife of the first appellant and Ext.A1 sale deed was only a benami transaction as the actual owner was the second appellant. According to the appellants, the sale deed was obtained with the funds of the first appellant. It was also alleged that the marital tie between the fourth respondent and the first appellant ceased and thereafter when there was a move of alienating the attached property, the appellants filed O.S No.1180 of 19999 for a declaration of their title and possession which was decreed on 24.6.2000 by Exts.A2 and A3. Therefore, according to them, the appellants rights have been declared by a competent civil court and the judgment debtor had no saleable interest after Exts.A2 and A3. Thus, they E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 3 C.O No.119 of 2004 prayed for raising the attachment in the said E.A.
3. Respondents 1 to 3 in the execution second appeal resisted the claim petition saying that the fourth respondent is the owner of the property. According to them, Ext.A1 was not a benami transaction. They also contended that Exts.A2 and A3 are not binding on them since they were not parties and those documents are created fraudulently and collusively. Therefore, they prayed for a dismissal of the claim petition.
4. The execution court rejected the contentions of the appellants and dismissed the E.A against which, the appellants filed A.S No.155 of 2001 before the Subordinate Judge's Court, Neyyattinkara which refused to entertain the appeal and dismissed the same. It is with this background, the appellants have approached this Court.
5. The first appellant died during the pendency of this appeal and additional appellants 3 and 4 were impleaded subsequently.
E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 4 C.O No.119 of 2004
6. R.S.A No.333 of 2004 arises out of the judgment and decree in A.S No.51 of 2001 on the files of the Sub Court, Neyyattinkara which in turn arose out of the judgment and decree in O.S No.86 of 2000 on the files of the Munsiff's Court, Neyyattinkara. The said appeal was filed by respondents 1 to 3 in the above execution second appeal. The first respondent is the first appellant in the execution second appeal and after his death, additional respondents 5 and 6 were impleaded. The second respondent is the second appellant in the execution second appeal. The third respondent is a person by name Duryodhanan and the fourth respondent is the mother of the second respondent.
7. Respondents 1 and 2 filed the aforesaid suit against the appellants (arrayed as defendants 2 to 4), the third respondent (arrayed as the first defendant) and against the fourth respondent (arrayed as the fifth defendant). The said suit was for a declaration that plaint A schedule property was held by the fifth E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 5 C.O No.119 of 2004 defendant as benamidar for the plaintiffs and the decree in O.S No.1053 of 1996 was secured by the defendants 2 to 4 in collusion with the fifth defendant and, therefore, the same is not binding on the plaintiffs. They also prayed for a recovery of a property which had been settled in favour of defendants 2 and 4 as per the decree in the previous suit.
8. As per the plaint allegations, 25 cents comprised in Sy. No.356/1B-2 of Anavoor village, Neyyattinkara is part of 51 cents along with 33 cents comprised in Sy. No.369/1-A (total 84 cents) which had been settled in favour of defendants 1 and 2 by the father of the first defendant as her Stridhan. This was mortgaged to the Land Mortgage Bank, Neyyattinkara to clear of a loan for Rs.2,713/- taken by the first defendant for her personal needs. Out of this, 28 cents comprised in Sy.No.356/1B-2 was sold by the first defendant to one Sarasamma Leela by Deed No.794/1987 (Ext.A1 in O.S.No.86/2000), making her liable to repay the E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 6 C.O No.119 of 2004 loan due to the bank. As the loan was not repaid by the aforesaid Leela, the afaoresaid 25 cents was arranged by the second defendant to be purchased by the first defendant by sale deed No.550/1988 (Ext.A2) in favour of the two minor children (defendants 3 and
4) by selling their land having an extent of 3 cents having shop room therein. This 3 cents of property was sold by the first defendant to the fifth defendant by Sale deed No.1756/94 (Ext.A6). Alleging that the sale was not for the need of the minors or the family, but for the personal life of the first defendant, the two minors filed O.S No.1053 of 1996 through their mother as guardian. That suit was decreed. In execution, the property was delivered on 27.11.1999. The present suit was filed to annul the decree and execution proceedings in the aforesaid O.S No.1053 of 1996.
9. In the suit, the plaintiffs allege that the sale deed executed in the name of Sarasamma Leela (Ext.A1) had not come into effect and it was only to evade from the liability of the loan availed by the first E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 7 C.O No.119 of 2004 defendant from the Land Mortgage Bank. According to the plaintiffs, the sale consideration for 25 cents of land assigned in favour of defendants 3 and 4 who are the children of defendants 1 and 2 as per sale deed No.550/1988 (Ext.A2) by Sarasamma Leela, in fact, proceeded out of the sale deed no.897/1987 (Ext.A3) executed by the first defendant in respect of two cents and the shop which remained in the name of minor defendants 3 and 4 and, therefore, the same was a benami transaction. It was further alleged that consideration obtained for the sale deed no.547/1988 (Ext.A4) also belonged to the first defendant which was utilised for obtaining sale deed no.550/1988 (Ext.A2) in the name of defendants 3 and 4. The plaintiffs further allege that the aforesaid 25 cents of land was subsequently agreed to be sold to the first plaintiff by the first defendant as per Ext.A5 agreement dated 11.6.1994 and the first plaintiff had paid Rs.5,000/- as advance towards sale consideration. It was further alleged that the rate fixed as per the E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 8 C.O No.119 of 2004 agreement was Rs.1,325/- per cent.
10. As the first plaintiff was a Government Servant, sale deed was executed in favour of the fifth defendant, who is the wife of the first plaintiff, for the benefit of the two children as per sale deed no.1756/1994 (Ext.A6). The document was executed in the name of the fifth defendant as benami only to avoid obtaining sanction from the Government and to avoid income-tax problems. The consideration was paid by the first plaintiff and he is in possession of the property as well as the document. The purchase was not intended for the benefit of the fifth defendant and, therefore, the plaintiffs are in absolute ownership and in possession of the said property. This fact was known to defendants 1 to 4.
11. Though the consideration in the sale deed was shown to be Rs.6,500/- the actual amount paid was Rs.33,125/-. Using the sale consideration, plaint B schedule property was purchased in the name of defendants 3 and 4 as per sale deed nos.1755/1994 E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 9 C.O No.119 of 2004 (Ext.A7) and 1764/1994 (Ext.A8) respectively. The B schedule properties are in the possession of the first defendant. The balance extent of 3 cents out of the aforesaid 28 cents was assigned by Sarasamma Leela in favour of the first defendant as per sale deed no.548/1988 (Ext.A9) which was subsequently assigned by the first defendant as per sale deed no.61/89 (Ext.A10) to one Bhai who assigned it in favour of the second defendant as per sale deed no.2157/91 in which, a house was built up by the first defendant where, they are residing.
12. Subsequently, this building along with the aforesaid 3 cents of land was assigned in favour of the fifth defendant on behalf of the plaintiffs by defendants 1 and 2 as per sale deed no.1900/1994 (Ext.A12) which also was a benami transaction. This property was shown as C schedule property. The plaintiffs asserted that the fifth defendant was never in possession or ownership of A & C schedule properties except being the benamidar of the first E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 10 C.O No.119 of 2004 plaintiff. As the fifth defendant left the company of the first plaintiff, they entered into an agreement dated 30.8.1994 to separate themselves and thereafter, the fifth defendant is not in good terms with the first plaintiff. The first defendant is residing at Thiruvananthapuram and for the last so may years she visits the plaint A & C schedule properties only for looking after the agricultural operations. The first defendant caused the filing of the suit by defendants 2 to 4 to recover possession of plaint A schedule property ignoring the sale deed no.1756/1994 (Ext.A6) against defendants 1 and 5 knowing fully well that the suit would not be contested by the fifth defendant. As the first plaintiff was not a party to the suit, the decree in the previous suit is not binding upon the plaintiff.
13. Defendants 1 and 5 remained ex parte.
14. In the joint written statement filed by defendants 2 to 4 they denied the claim of the plaintiffs over plaint A & C schedule properties. According to them, the plaintiffs have no locus standi E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 11 C.O No.119 of 2004 to file the suit since they do not have title or possession over the properties as averred in the plaint. They asserted that sale deed no.794/1987 (Ext.A1) in favour of Sarasamma Leela executed by the first defendant was not a benami transaction as the loan dues were adjusted towards the sale consideration in that deed. They contended that the consideration of the sale deed no.897/1987 (Ext.A3) in favour of defendants 3 and 4 was paid by the second defendant and not by the first defendant. According to them, that sale is not a benami transaction as averred in the plaint. The second defendant had purchased the property as per sale deed no.550/1988 (Ext.A2) in favour of defendants 3 and 4 who were minors.
15. They further contended that the first defendant never used to look after the affairs of defendants 2 and 4 and he was not leading a wayward life. The first defendant had right to execute the agreement for the sale of 25 cents in favour of the fifth defendant as alleged in the plaint and is not E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 12 C.O No.119 of 2004 binding on defendants 3 and 4. The agreement was executed in collusion between the first defendant and the first plaintiff to cause loss to defendants 2 to 4. As the marriage between the plaintiff and the fifth defendant had been dissolved at the time of execution of the deed No.1756/1994 (Ext.A6) it cannot be said that the plaintiff had purchased the property in the name of the 5th defendant for the benefit of the second plaintiff. There is no property as stated in the sale deed No.1755/1994 (Ext.A7). Sale deed no.1756/1994 is void ab initio. The first defendant had never purchased any property in the name of defendants 3 and 4. 3 cents of land adjacent to A schedule property was given to the fifth defendant for laying a road at the time when the house was demolished. At the time of separation between the fifth defendant and the first plaintiff there was an understanding that both of them would not claim any right over the property over the other. The plaintiffs were not necessary parties to the previous suit. There was no collusion as alleged in the plaint. E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 13 C.O No.119 of 2004
16. During the course of the proceedings, the court appointed a guardian for the fourth defendant who continued to be a minor. The court guardian filed a written statement adopting the contentions in the written statement filed by the second defendant.
17. The trial court after raising proper issues for trial permitted both sides to adduce evidence. At the trial, PWs.1 to 4, Dws.1 and 2 were examined and Exts.A1 to A23, B1 and X1 were marked. The trial court after considering the evidence decreed the suit declaring that plaintiffs 1 and 2 are the real owners and in possession of plaint A & C schedule properties and the decree in O.S No.1053 of 1996 was set aside on the ground that the same was obtained by fraud and collusion. Recovery of possession of plaint schedule properties was also ordered.
18. Though the matter was taken in appeal by the appellants herein, it was without success. It is with this background, the regular second appeal has been filed.
E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 14 C.O No.119 of 2004
19. The respondents who entered appearance have filed a cross objection contending that the lower court has not granted mesne profit to the respondents though recovery was ordered.
20. I have heard Mr. S. James Vincent, the learned counsel for the appellants in R.S.A No.333 of 2004 and the respondents 1 to 3 in E.S.A No.4 of 2002, Mr. S. V. Balakrishna Iyer, the learned Senior Counsel appearing for the respondents in the regular second appeal and the appellants in the E.S.A quite in extenso.
21. For convenience of discussion, parties and documents can be referred to as they are arrayed in O.S.No.86/2000.
22. The subject matter of O.S No.86 of 2000 is 25 cents of land comprised in Sy. No.356/1B/2 of Anavoor village, Neyyattinkara (A schedule), 25 cents in Sy. No.356/1B of Anavoor village, Neyyattinkara, (B schedule Item No.1), 30 cents of land in Sy. No.369/1- A of Anavoor village (B-schedule Item No.2) and 3 E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 15 C.O No.119 of 2004 cents of land with a hut bearing No.KP III/52 in Sy. No.356/1-B/2 of Anavoor village (C-schedule). The 25 cents of property made mention of in A schedule property is covered by Ext.A6 sale deed no.1756/1994 of Kunnathukal Sub Registrar's Office which is the subject matter of the previous decree; i.e. decree in O.S No.1053 of 1996. The 3 cents of land with a hut therein which was described as C schedule was acquired by Sarojam as per sale deed no.2157/1997 (Ext.A1 in ESA No.4 of 2002) which was later sold to the fifth defendant by Ext.A12. Admittedly, this lies opposite to the plaint A schedule property.
23. The case put forward by the first plaintiff who was examined as PW1 in the witness box is that he purchased the property covered by Ext.A6 sale deed on behalf of his minor daughter who is the second plaintiff in the name of the fifth defendant who was his wife. According to him, he paid Rs.50,000/- as price and he secured Exts.A6 and A12 sale deeds in favour of the 5th defendant only as a benamidar. He further E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 16 C.O No.119 of 2004 stated that the marriage tie between himself and the first defendant has been dissolved and the fifth defendant is living with one Babujan a relation created as per Ext.A13 deed. He would further state that the first defendant who sold the property under Ext.A6 as a prudent guardian, has secured other properties of equal value under Exts.A7, A8 and A11 sale deeds with the sale consideration of Ext.A6. According to him, he came to know about the previous suit i.e. O.S No.1053 of 1996 and the delivery only on 5.12.1999. He further state that the decree was secured by fraud and defendants 1 and 2 are residing in the same house and are jointly enjoying the property. He also stated that it was the first defendant who conducted the previous suit. He also stated that the fifth defendant has her share of family properties in her possession, which would yield income.
24. It is crucial to note that PW1 has admitted that he did not purchase any other property as benami for the second plaintiff. Mr. S. V. Balakrishna Iyer, the E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 17 C.O No.119 of 2004 learned Senior Counsel for the appellants in the execution second appeal as well as the respondents in the regular second appeal submitted that defendants 1 to 4 had collusively instituted the previous suit with false allegations and defrauded the court to get a decree in favour of them. It was pointed out that the defendants though alleged that they are Hindus, they are Christians and by this false case, secured the previous decree getting Ext.A6 set aside as if it violated Sections 8 and 11 of the Hindu Minority and Guardianship Act. It was also pointed out that though defendants 1 and 2 were living together as a family at Anavoor, they made the court to believe that they are separated and as a result, the first defendant was residing at Vilavancode in Tamil Nadu and the second defendant was residing at Anavoor village. This, according to the learned Senior Counsel, was on the basis of the false address of the first defendant in Kanyakumari district, Tamil Nadu. Thus they managed to get O.S No.1053 of 1996 decreed collusively and E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 18 C.O No.119 of 2004 fraudulently without serving summons in the original suit; so submitted the learned senior counsel.
25. It was further pointed out that minor defendants 3 and 4 were collusively set up by defendants 1 and 2. It was argued that the minors enjoyed the benefit of sale consideration of Ext.A6 sale deed and by utilising that money, the properties covered by Exts.A7 and A8 were purchased and they are in possession and enjoyment over the property which is described as B schedule in the plaint. It was also argued that the defendants have intentionally suppressed that document and played fraud on the court. It was also argued that the fifth defendant, who colluded with defendants 1 to 4, remained ex parte in the previous suit and facilitated the grant of decree in favour of defendants 3 and 4, instead of contesting the suit on merits by entering appearance. Thus, she permitted the court to pass a decree in favour of defendants 3 and 4 and allowed the court to deliver the property which belongs to the plaintiff in the E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 19 C.O No.119 of 2004 second suit.
26. The stand taken by the plaintiffs through out is that the impugned Ext.A6 sale deed was obtained by the first plaintiff with his own money for the benefit of the second plaintiff, who was a minor at that time and the property was purchased in the name of the fifth defendant in order to ward of the evil effects of violation of conduct rules and possible prosecution, as he is a Government servant. It was argued that the sale consideration of Ext.A6 is more than what is stated in the sale deed and the correct figure is shown in Ext.A5 agreement.
27. It was further argued that there was no building in the A schedule property. However, the building was in the C schedule property. Either in Ext.A6 or in the prior deed, no building is included. The defendants have trespassed into the C schedule building consequent to the illegal delivery proceedings pursuant to the previous decree; it was argued. It was also argued by Mr. Balakrishna Iyer that defendants 1 E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 20 C.O No.119 of 2004 and 2 who are competent to speak about the relevant facts, about the impugned deeds and transactions, have abstained from the witness box and, therefore, an adverse inference has to be drawn against them.
28. Mr. James Vincent, the learned counsel for the appellants in the regular second appeal and the respondents 1 to 3 in the execution second appeal submitted that the factual situation is not as stated by the plaintiffs. According to him, the defendants 1 and 2 are Hindu Nadars and they were husband and wife. Defendants 3 and 4 are their children. The first defendant, who was born to Hindu parents, is still a Hindu and the second defendant, born to Christian parents, was a Christian till the marriage. Both the families are poor and semi-literate. The second defendant married the first defendant in 1981 at her family home at Parassala as per Hindu customs and rituals. Ever since the marriage, she ceased to be a Christian and joined the Hindu-fold and being Hindus, they brought up the children as Hindus. It was also E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 21 C.O No.119 of 2004 argued that in Nadar community, there was no isolation between Hindus and Christians and they follow the same customs and inter-religious marriages are quite common. It was pointed out that defendants 1 and 2 got separated by an informal divorce in 1993 and thereafter they are living separately.
29. The second defendant is in Neyyattinkara and the first defendant is in Kanyakumari for 15 years prior to the suit. According to Mr. James Vincent, this is evidenced by service of notice to the first respondent in the suits, appeals and execution proceedings through Kuzhithura court and by two documents, (Annexures-G and H produced by respondents 1 and 2 along with I.A No.1715 of 2005 in ESA No.4 of 2002 and Annexures A13 to 21 produced by the appellants along with I.A No.511 of 2013 in RSA No.333 of 2004). It was further argued by the learned counsel that at the time of marriage in 1981, defendants 1 and 2 were jointly given 84 cents of land by settlement deed no.145/1981 (Annexure-A11 in I.A No.2247 of 2005) by E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 22 C.O No.119 of 2004 the second defendant's father as Stridhan.
30. It was argued that the first defendant who was a habitual drunkard and a spendthrift was handling the property. He recklessly borrowed money from the Co-operative Land Mortgage bank and creating an equitable mortgage of 51 cents of land out of 84 cents in Sy. No.356/1B-2 by coercing the second defendant. As the first defendant defaulted, the bank brought the property to sale. The second defendant found out a purchaser for one-half of the property, who agreed to clear off the loan. Ext.A1 sale deed dated 13.4.1987 was executed for 28 cents out of 51cents in favour of one Leela. The liability to repay the loan was fixed by Ext.A1 on Leela. However, Leela did not repay the loan. Therefore, the first defendant sold 2 cents of plot with a building therein, belonged to defendants 3 and 4, who are minors (this property has been gifted to them by the father of the second defendant by Ext.A3). The money was utilised for re- purchasing 28 cents from Leela in favour of E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 23 C.O No.119 of 2004 defendants 3 and 4. The liability towards the bank was also wiped off and defendants 3 and 4, who continue to be minors, secured absolute title over the property. According to the learned counsel, the purchase price of Rs.8,000/- for Ext.A2 was paid out of the sale consideration of Rs.6,000/- from Ext.A3 and the balance of Rs.2,000/- was gifted by the father of the second defendant by sale of a shop room.
31. Even though the first defendant was living in Kanyakumari, he often used to visit and harass defendants 2 and 4 by executing documents in respect of the properties owned by defendant 3 and 4 without the knowledge of the second defendant. It was further argued that without the knowledge of the second defendant, the first defendant executed Ext.A6 sale deed for 25 cents (A schedule) on 15.6.1994 in favour of the fifth defendant without any legal necessity. According to the learned counsel, the sale is void ab initio as the first defendant was incompetent to sell it.
E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 24 C.O No.119 of 2004
32. On the date of Ext.A6 i.e. on 15.6.1994 and on the following day, the first defendant purported to effect two fictitious sales in favour of the minor children without the knowledge of the second defendant. He executed Ext.A7 sale deed in favour of the minors, purporting to convey 25 cents of land (B schedule item no.1) to them which had already been sold to others without the knowledge of the second defendant. Again he got some strangers to execute Ext.A8 fictitious sale regarding 30 cents (which had already been sold by him behind their back) in favour of minor defendants 3 & 4 in the name of the second defendant. Therefore, according to the learned counsel, defendants 2 to 4 had never seen or enjoyed these properties. Similarly, the first defendant coerced the second defendant to execute Ext.A12 sale deed (C schedule) without considerations. It is in this context, defendants 2 to 4 filed the previous suit against the fifth defendant and the first defendant for declaration of title and recovery of 25 cents. E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 25 C.O No.119 of 2004
33. It appears from record that on receipt of notice, defendants 1 and 5 remained ex parte in the previous suit and at the trial, the second defendant herein was examined as PW1 and exhibits were marked. A preliminary decree was passed in the previous suit on 21.10.1997 granting recovery of property with mesne profits. In the final decree proceedings, the defendants remained ex parte. The final decree was passed with mesne profits at the rate of Rs.18,000/- per annum with interest. Defendants 2 to 4 filed E.P No.264 of 1999 and notice was issued to the judgment debtors. However, they remained ex parte. The decree holders got delivery of the property through court on 27.11.1999. For mesne profits, they attached 1.80 acres of the fifth defendant. Immediately, the plaintiffs filed the present O.S No.86 of 2000 claiming that they are the real beneficiaries of the property. They wanted to set aside the previous decree as well as Ext.A6 alleging fraud and collusion. It is alleged that they were residing in E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 26 C.O No.119 of 2004 Thiruvananthapuram, and that they got knowledge of the suit only when court delivery was made.
34. It is crucial to note that the address of the first plaintiff who gave evidence has PW1 is the same as that given in Ext.A6 sale deed. When the property was brought to delivery, the plaintiffs herein filed E.A No.66 of 2000 in the previous suit stating that A schedule property was purchased by the first plaintiff with his own funds for the benefit of his minor daughter, the second plaintiff, in the name of the second defendant as the ostensible owner and he is only a benamidar. After taking evidence and examining PW1, the E.A was dismissed. The plaintiffs filed A.S No.155 of 2001 which was also dismissed. It is against that, the execution second appeal was filed.
35. The court below observed that the first appellant, who is the first petitioner in the E.A, was an Attestor to Ext.A1 sale deed produced in that case which would show the receipt of consideration from the fourth respondent, the first judgment debtor, E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 27 C.O No.119 of 2004 passing of title and delivery of possession in favour of her. It was observed by the lower appellate court that there is no material on record to show that the marriage of the first appellant with the fourth respondent, the first judgment debtor, was dissolved in any mode recognised by law. Though Ext.A3 decree in O.S No.1180 of 1999 was pressed into service to prove the same, the court below was not inclined to accept the same. On coming into force of the Family Court's Act, only the Family Court had the jurisdiction to try and decide matters pertaining to the parties to the marriage with respect to the property of the parties or either of them, vide Section 7(c) of the Family Courts Act. Therefore, the Court came to the conclusion that there was sufficient reason to believe that Ext.A3 in that suit was obtained by collusion with the fourth respondent, who is the first judgment debtor, to circumvent the decree in O.S No.1053 of 1996. It was on the said premise, the decision of the execution court to dismiss the execution appeal was E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 28 C.O No.119 of 2004 upheld by the appellant court. I see no legal infirmity in the said proposition. Therefore, the same does not call for interference.
36. Mr.James Vincent, the learned counsel for the appellant in RSA attacked the judgment and decree of the courts below mainly on the following grounds:
i) The remedy of the plaintiff in O.S.No.86/2000 was to approach the execution court with a petition under Order XXI Rule 99 CPC and the same was exercised as E.A.No.661/2001. The claim petition was dismissed concurrently and no arguments have been advanced against the said finding.
ii) The suit is barred by limitation under Sections 6to 8 of the Limitation Act because of the knowledge of the first plaintiff who is the guardian of the minors are attributable to the minors and therefore, the second plaintiff had constructive knowledge and the 5th defendant regarding the divorce deed dated 30.8.1994 between the first plaintiff and the 5th defendant.
E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 29 C.O No.119 of 2004
iii) The suit is barred by estoppal by conduct.
iv) Though the plaintiffs challenged the decree in O.S.No.1053/1996 on the ground of collusion, there are no details and proof.
37. Article 58 of the Limitation Act prescribes three years from the date when the right to sue first accrues. According to Mr.James Vincent, that dates falls on the date of divorce between the first plaintiff and the 5th defendant i.e. 30.8.1994 as evident from the divorce deed produced along with I.A.No.1848/2002 in O.S.No.86/2000. The date of divorce is 30.8.1994. The factum of divorce between first plaintiff and the 5th defendant is admitted by the plaintiff. Therefore, the suit ought to have been filed within three years from the date of the divorce; so submitted Mr.James Vincent. In computing the period of limitation, the date of knowledge of the first plaintiff is crucial, as the guardian's knowledge has to be attributed to the second plaintiff as constructive knowledge. The first plaintiff who gave evidence as E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 30 C.O No.119 of 2004 PW1 had admitted that he had timely knowledge of the litigation in O.S.No.1053/1996. Therefore, the plaintiffs could have taken steps to vacate the decree in O.S.No.1053/1996 in 1996 instead of filing O.S.No.1180 in 1999. Evidently, the plaintiffs acquiesced and raised no claim against the suit property. However, when the steps for execution against the property for mesne profits in the previous suit distressed them, the suit was filed as a counterblast. Once the plaintiffs are attributed with notice from the date of the deed of divorce, i.e. 30.8.1994, the period from that date cannot be condoned or excluded. The first plaintiff's right to sue for declaration expired on 30.8.1997. The second plaintiff has no cause of action in regard to A-schedule property, till she gets a declaration that A-7 was purchased benami for the second plaintiff with the funds utilised by the first plaintiff.
38. Reliance was placed by the respondent on a decision of the Apex Court in (Asharfi Lal v E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 31 C.O No.119 of 2004 Smt.Koili) AIR 1995 SC 1440 for asserting that the suit is within time. But, it is pertinent to note that the suit therein was instituted in the year 1958, i.e. prior to 1977. The present suit was instituted in the year 2007, i.e. subsequent to 1977 amendment. This position is also supported by Bappu @ Moidunny v Mohammed (1993) 2 KLT 969).
39. After the amendment of the Code of Civil Procedure by Act 104 of 1976, the only remedy open to the plaintiffs was to file a claim petition under Section 47 read with Rule 99 of Order XXI CPC and a fresh suit is barred under Rule 101. It is settled law that a suit by a third party impeaching a decree on any ground of illegality or setting up any claim over the decree scheduled property cannot be entertained.
40. The cause of action to challenge the decree allegedly on the ground of benami purchase solely vests with the first plaintiff. That is not available to the second plaintiff because the property is in the name of the 5th defendant. The ground canvassed by E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 32 C.O No.119 of 2004 the second plaintiff is gross negligence on the part of the 5th defendant as her guardian, whereas, in fact, the first plaintiff was her guardian and there is no allegation that the 5th defendant was their guardian. In fact the allegation is that for the education of the children and employment of the first plaintiff, they have been residing in Thiruvananthapuram for the last 25 years and since the execution of the deeds was in the middle of the year 1994, the 5th defendant has been residing with her parents at Paruthipally. This would indicate that the 5th respondent was not the guardian of the second plaintiff since 1994. Even otherwise it can be seen from the divorce deed dated 30.8.1994 referred to above that the plaintiffs and the 5th defendant had settled all their disputes and transactions amicably and nothing remain. It is settled law that the only parties or their privies to a judgment can challenge the same under Section 44 of the Evidence Act. The second plaintiff is neither a party nor a privy to the 5th defendant as her claim is E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 33 C.O No.119 of 2004 not as her heir or legal representative.
41. The allegation relating to negligent conduct of the suit by the guardian, insufficient and perjured evidence or failure to adduce evidence are insufficient to assail a decree. It should be shown that any valuable plea if raised earlier would have produced a contrary result.
42. Here, the divorce deed dated 30.8.1994 stares against the plaintiff. There is absence of plea and proof of active concealment of any fraud by defendants 2 to 4. The ground of fraud alleged is that defendants are Christians and not Hindus and by collusion with the 5th defendant they secured the decree as though they are Hindus.
43. In this context, Mr.James Vincent submitted that notices were duly served on the first defendant in his new abode in Vilavankode Taluk, K.K.District through the Civil Courts in Kuzhithura, K.K.District, in the preliminary and final decree proceedings in O.S.No.1053/1996 and in E.A.No.661/2000 as well as E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 34 C.O No.119 of 2004 in its appeal A.S.No.155/2001. Notices from this Court also in ESA and RSA were also served on him in his Vilavancode Address. Again, all notices to the first defendant though furnished by the plaintiffs in the plaint and the appeal as Kulakottukonam, Mekkumkara Puthen Veedu, Kottackal P.O., Neyyattinkara were served on him in his residential address in Vilavancode. Therefore, it was argued that there was no fraud or irregularity in service of notice to the first respondent. Once the notice is served, the basis of the complaint falls. Therefore, I see valid force in the said submission.
44. The alleged real owner was not a necessary party in O.S.No.1053/1996 as it is evident from the apparent tenor of Ext.A6, that the 5th defendant is the title holder. Revenue records and payment of land revenue were in her name. There had not been any external signification or gesture on the part of the alleged real owner which could have put the plaintiffs in O.S.No.1053/1996 on notice. On the contrary, the E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 35 C.O No.119 of 2004 plaintiffs are estopped from filing the present suit in view of the settlement of all affairs between the first plaintiff and the 5th defendant by divorce deed dated 30.8.1994. The circumstances that signify collusion between defendants 1 to 4 on the one hand and defendants 1 and 5 on the other are absent. In the absence of proof of notice to defendants 2 to 4 or their knowledge regarding the benami nature of Ext.A6 sale deed and proof of knowledge of fraud and collision, the benamidar must be deemed to have represented the alleged real owner. The real owner of the property expressly or impliedly allows another person to act as the owner of the property and a third person purchases it for value from the ostensible owner on the belief that he was the real owner. The real owner is not entitled to recover upon his secret title if he fails to show that the purchaser had direct notice or something amounting to constructive notice of the real title or that there existed circumstances which could put the purchaser on an enquiry which if E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 36 C.O No.119 of 2004 prosecuted properly would have led to a discovery of the real title.
45. Here, the second defendant on behalf of minor defendants 3 and 4 exercised due care, examined the encumbrances as a prudent purchaser and attached the property in O.S.No.1053/1996. The 5th defendant was in possession of the property exercising acts of possession to the notice of the whole world and defendants 2 to 4 bonafide purchased the property from her and therefore, the stand protected by Section 41 of the Transfer of Property Act as held by the Supreme Court in (Kashmir Singh v Panchayata Samithi) AIR 2004 SC 2438.
46. To prove Benami, the plaintiffs relied on the self serving testimony of PW1 and that of PW3 who is none other than his driver. There is no concrete evidence of source and payment of consideration. On the contrary, the presumable interest of the first plaintiff and the circumstances are against Ext.A6 being benami, particularly, in the context of divorce E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 37 C.O No.119 of 2004 deed dated 30.8.1994. There cannot be any doubt against the proposition that the benami transaction is based on trust. The so called trust, if any, between the first plaintiff and the 5th defendant ceased to exit with the divorce dated 30.8.1994. In the written statement, it is pleaded that the 5th defendant had sufficient independent source of income from rubber estates and other properties which is not at all denied by the plaintiffs. The definite stand taken by the plaintiffs is that the first plaintiff purchased the property benami in the name of the 5th defendant. There is no allegation or proof of any fraud on the part of defendants 2 to 4. Therefore, the plaintiffs cannot be given a decree against defendants 3 and 4 who are bona fide purchasers. The claim is opposed to public policy as the basis of the claim is that the impugned transaction was made in favour of the second plaintiff, though the purchase price was allegedly paid by the first plaintiff who is a Government servant, in order to avoid the clutches of certain legal formalities. This is E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 38 C.O No.119 of 2004 not legally permissible. The plaintiffs cannot plead their own fraud to set aside Ext.A6 sale and Exts.A14 and A15 decrees. There is no plea or proof that the Government or the IT Department took action against the first plaintiff and he was punished. That means he succeeded in his attempt to commit fraud.
47. The learned senior counsel for the respondents made a strenuous attempt to make it appear that defendants 3 and 4 are collusively set up by defendants 1 and 2 after they enjoyed the benefit of sale consideration from Ext.A6 sale and by utilising that money for the purchase of Exts.A7 and A8 properties and that they are in enjoyment and possession of the property (B schedule), they have intentionally suppressed those documents and played fraud on court in securing decree in the previous suit.
48. The learned counsel for the appellant, per contra, would submit that everything was engineered by the first plaintiff in collusion with the first defendant. The fact that the service of notice on the E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 39 C.O No.119 of 2004 first defendant at Ambalakala in Vilavankode Taluk cannot be ignored. Though defendants 3 and 4 are projected as the real villains of the drama, though they are the poor victims of the onslaught and recklessness of the first defendant who in fact colluded with the first plaintiff. This can be seen from the receipt dated 4.6.1994 which is annexed to I.A.No.1715/2005 in ESA No.4/2002. It was the first defendant who had supplied the details of all his conveyance regarding B-schedule properties to the plaintiff. Defendants 2 to 4 were not aware of any of the details regarding B-schedule property and they are not in their possession. I have come to this conclusion on the basis of the testimony of DW1. The first defendant was really the enemy of defendants 2 to 4. As rightly submitted by Mr.James Vincent, the collusion was between plaintiffs 1 and 2 and the first defendant on the other.
49. The plaintiffs have not discharged the burden with regard to the re-opening of the benami E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 40 C.O No.119 of 2004 transactions. Mere conjectures, surmises and suspicions are not sufficient. They have not adduced any evidence to prove benami transaction or the required circumstances except the custody of the title deeds and the interested oral testimony regarding the payment of consideration. For displacing the ostensible owner's title on the ground that he is a benamidar, it requires strong proof and the real owner as the plaintiff has to succeed on the strength of his title and evidence, and not on the weakness of the defendant's case. (See Binapani Paul v Pratima Ghosh (2007) 6 SCC 100).
50. It was further argued by the learned counsel for the appellant that Ext.A5 agreement dated 11.6.1994 on the basis of which the suit has been filed itself is anti-dated and forged. What Ext.A5 states is that the property covered by Deed No.794/1987 would be transferred. But what was transferred under Ext.A6 is the property secured by the minors under Ext.A2 sale deed. Stamp papers bearing different dates E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 41 C.O No.119 of 2004 prima facie indicate fraudulent purchase of old stamp paper. Again, the signature alleged to have been put by the first defendant in the agreement differs from the signature in Ext.A6 and Ext.A10. It is also crucial to note that the existence of the agreement is not mentioned in Ext.A6 sale deed. Non mentioning of the existence of such an agreement in E.A.No.661/2000 or in O.S.No.1180/1999 also stares at the case of the plaintiff.
51. For getting a decree annulled on the ground of fraud, the plaintiffs have to plead and prove the following:
i) that the knowledge of the right on which the suit is founded is concealed by the fraud of the defendant or his agent;
ii) that the defendant actively prevented the plaintiff from obtaining knowledge of the right of the suit or of title to the property; and
iii) that the period of limitation has not begun to run until plaintiff discovered the fraud, or could with E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 42 C.O No.119 of 2004 reasonable diligence have discovered it.
52. The courts below ought to have found that the pleadings and proof of fraud and collusion are vague. There are no specific details as to how the plaintiffs were prevented from contesting O.S.No.1053/1996 and how fraud was actively concealed by defendants 2 to 4 and how fraud was found out and when it was found out. If any suppression of fact can be easily found out, it cannot be said that there was fraud. If allegations are vague, evidence cannot be let in, and, if the allegations are specific in regard to one specie of fraud, evidence on another specie cannot be let in. Here, the first plaintiff pleads his own fraud which is not permissible. Violating these norms, the trial court permitted the plaintiff to let in baseless and irrelevant evidence as proof of fraud and collusion.
53. It is true that ordinarily Section 100 CPC is very rigorously interpreted when the findings are concurrent, but if the substantial question of law E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 43 C.O No.119 of 2004 arises for determination, the rigors are reduced. In Union of India v Ibrahim Uddin (2012) 8 SCC 148), the Apex Court has observed as under:
"There is no prohibition to entertain a second appeal even on question of fact provided the court is satisfied that the findings of the courts below were vitiated by non- consideration of relevant evidence or by showing erroneous approach to the matter and findings recorded in the court below are perverse".
54. Non-consideration of important evidence, i.e. the Divorce Deed of 30.8.1994 constitutes a substantial defect of procedure that enables this Court to interfere under Section 100 CPC. However, this Court feels that a remand on that ground for reconsideration would be an exercise in futility because the suit is bound to fail for other reasons also, which were discussed earlier.
55. As the plaintiffs have not adduced solid evidence for displacing the statements in Ext.A6 sale deed and the legal presumptions attached to it, this Court is of the definite view that the courts below went wrong in not addressing the issues and in analysing E.S.A No.4 of 2002, R.S.A No.333 of 2004 & 44 C.O No.119 of 2004 the evidence. The ground of fraud to cut the root of adjudication of the previous suit has not been proved. The decree in O.S.No.1053/1996 had become final and the same cannot be reagitated or reopened. The contentions raised in ESA No.4/2002 as well as in the cross objections cannot be entertained. It is crucial to note that the legal representatives of the first defendant have not been impleaded as legal representatives in ESA No.4/2002. Failure to implead them also makes the ESA incompetent.
In the result, ESA No.4/2002 fails and accordingly, it is dismissed.
RSA No.333/2004 is allowed. The impugned
judgment and decree are set aside and
O.S.No.86/2000 on the file of the Munsiff's Court, Neyyattinkara shall stand dismissed. The Cross Objections (C.O.No.119/2004) filed by the respondent in RSA No.333/2004 is also dismissed.
Sd/-A.V.RAMAKRISHNA PILLAI
JUDGE
krj/css true copy P.S.TO JUDGE