Kerala High Court
Ramachandran Nair @Ramachandran ... vs Damodaran Nair on 14 January, 2016
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 14TH DAY OF JANUARY 2016/24TH POUSHA, 1937
RSA.No. 790 of 2013 (B)
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AS 118/2010 of DISTRICT COURT, PATHANAMTHITTA
OS 261/2007 of MUNSIFF COURT, PATHANAMTHITTA
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APPELLANTS/APPELLANTS IN A.S./DEFENDANTS IN O.S. :
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1. RAMACHANDRAN NAIR @RAMACHANDRAN PILLAI, AGED 77 YEARS
S/O. KESAVAN NAIR, THARAILETHU VEEDU, MEPPURAM MURI,
KALLISSERI P.O., CHENGANNUR VILLAGE,
PATHANAMTHITTA DISTRICT, PIN-689124.
2. THANKAMMA, AGED 80 YEARS,
W/O.RAGHAVAN NAIR, VADAKKEPPURATHUKIZHAKKETHIL,
VENMONY VILLAGE, VENMONY P.O., ALAPPUZHA DISTRICT
PIN-689504.
3. RAMAKRISHNA PILLAI, AGED 70 YEARS,
S/O. RAMAN PILLAI, MUNDANJILIMOOTTIL HOUSE, KOTTA MURI,
KIDANGANNOOR VILLAGE, KOZHENCHERRY TALUK, PIN-689504
PATHANAMTHITTA DISTRICT.
4. CHANDRAN NAIR, AGED 64 YEARS,
ANJALI VEEDU, KOTTAMURI, KIDANGANNOOR VILLAGE,
KOZHENCHERRY TALUK, PIN-689504
PATHANAMTHITTA DISTRICT.
5. SASIDHARAN NAIR, AGED 60 YEARS,S/O. RAMAN PILLAI
SREE BHAVAN, KOTTAMURI, KIDANGANNOOR VILLAGE,
KOZHENCHERRY TALUK, PIN-689504
PATHANAMTHITTA DISTRICT.
6. ARUNDHATHIAMMA, AGED 74 YEARS
W/O.LATE GOPINATHAN NAIR, MUNDANJILIMOOTTIL VEEDU
KOTTA MURI, PIN-689504, KIDANGANNUR VILLAGE
KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.
7. G. SAJITH KUMAR, AGED 48 YEARS
S/O..LATE GOPINATHAN NAIR, MUNDANJILIMOOTTIL VEEDU
KOTTA MURI, PIN-689504, KIDANGANNUR VILLAGE
KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.
RSA.No. 790 of 2013 ()
8. G.SUJATHA, AGED 45 YEARS,
D/O..LATE GOPINATHAN NAIR, MUNDANJILIMOOTTIL VEEDU
KOTTA MURI, KIDANGANNUR VILLAGE, KOZHENCHERRY TALUK
PIN-689504, PATHANAMTHITTA DISTRICT.
9. G. SANTHOSH KUMAR, AGED 43 YEARS,
S/O.LATE GOPINATHAN NAIR, MUNDANJILIMOOTTIL VEEDU,
KOTTA MURI, KIDANGANNUR VILLAGE, KOZHENCHERRY TALUK
PIN-689504, PATHANAMTHITTA DISTRICT.
BY ADVS.SRI.B.KRISHNAN
SRI.R.PARTHASARATHY
SRI.RAJESH V.NAIR
SMT.SEEMA
RESPONDENT/RESPONDENT IN A.S. PLAINTIFF IN O.S.:
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DAMODARAN NAIR,, AGED 69 YEARS
S/O.RAMAN PILLAI, MUNDANJILIMOOTTIL VEEDU, KOTTA MURI
KIDANGANNUR VILLAGE, P.O.KOTTA, PIN-689 504
PATHANAMTHITTA DISTRICT.
BY ADV. SRI.T.KRISHNANUNNI SENIOR ADVOCATE
BY ADVS. SRI.JACOB P.ALEX
SRI.JOSEPH P.ALEX
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 14-01-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
bp
P.B.SURESH KUMAR, J.
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R.S.A.No.790 of 2013
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Dated this the 14th day of January, 2016
JUDGMENT
The legal representatives of the additional fourth defendant in a suit for declaration have come up in this appeal challenging the decision in the suit as confirmed in appeal.
2. The suit property belonged to one Gopala Pillai and his wife. They had no issues. Gopala Pillai died on 2.2.2005. On the death of Gopala Pillai, the suit property devolved on his wife, the original defendant. On 21.2.2005, the original defendant executed Ext.A1 gift deed in respect of the suit property in favour of the plaintiff who is none other than her brother. According to the plaintiff, he has R.S.A.No.790 of 2013 2 accepted Ext.A1 gift and took possession of the suit property and thus he became the absolute owner of the suit property. On 3.12.2005, the original defendant revoked Ext.A1 gift by Ext.A4 cancellation deed. The case of the plaintiff is that in so far as Ext.A1 gift has already been accepted by the plaintiff, the cancellation of the same by the original defendant is void ab initio and not binding on him and the suit property. He, therefore, sought a declaration of his title over the suit property and a declaration that Ext.A4 is not binding on him and the suit property. The defendant contested the suit, contending inter alia, that Ext.A1 gift was executed on an assurance made by the plaintiff that he will look after her and that since the plaintiff has not looked after her, she cancelled the gift made to the plaintiff. According to the original defendant, the cancellation of the gift, in the facts and circumstances is valid. It was also contended by the original defendant that Ext.A1 gift is vitiated by undue influence and misrepresentation. Pending suit, the original defendant died. On her death, the plaintiff impleaded a niece and a nephew of the husband of the original defendant R.S.A.No.790 of 2013 3 as her legal representatives. The said persons were impleaded as additional defendants 2 and 3 in the suit. The said defendants however, contended that they are not the legal representatives of the deceased original defendant and that the mother of the original defendant is the sole legal representative of the deceased original defendant. Thereupon, the plaintiff impleaded the mother of the original defendant also as additional fourth defendant in the suit. The additional fourth defendant filed a written statement raising more or less the same contentions raised by the original defendant. The trial court, on an elaborate consideration of the evidence on record, found that Ext.A1 gift has been accepted by the plaintiff and therefore, its cancellation is invalid. Consequently, the suit was decreed declaring the title of the plaintiff over the suit property as also declaring that Ext.A4 is invalid. The additional fourth defendant took up the matter in appeal. During the pendency of the appeal, she died and consequently her children other than the plaintiff got themselves impleaded as additional appellants in the appeal and pursued the R.S.A.No.790 of 2013 4 matter. The appellate court, on a re-appraisal of the evidence on record, confirmed the decision of the trial court and hence this second appeal.
3. Heard the learned counsel for the appellants as also the learned Senior Counsel for the respondent /plaintiff.
4. The learned counsel for the appellants contended that the signature of the original defendant in Ext.A1 has not been attested by two witnesses as provided for in Section 122 of the Transfer of Property Act and therefore the impugned judgment rendered solely based on Ext.A1 gift is liable to be set aside. The learned counsel for the appellants also contended that the original defendant has specifically raised a contention in the written statement filed by her that Ext.A1 is vitiated on account of undue influence and misrepresentation and the courts below have not considered the said contention raised by the original defendant. The learned counsel for the appellants further contended that even though the additional fourth defendant was impleaded as the legal representative of the original defendant, the suit was disposed of without affording her an R.S.A.No.790 of 2013 5 opportunity to adduce evidence in support of the contentions raised by her. It was further contended by the learned counsel for the appellants that the original defendant had executed a Will in respect of the suit property in favour of the wife of the fifth appellant and that in so far as she is not made a party to the suit, the plaintiff is not entitled to the declaration sought in the suit. Lastly, it was contended by the learned counsel for the appellants that though it was admitted by the plaintiff that the suit property is in the possession of the fifth appellant and his wife, the plaintiff did not seek recovery of possession of the same from them and therefore the suit is barred by the proviso to Section 34 of the Specific Relief Act.
5. Ext.A1 indicates that the signature of the executant therein has been attested by two witnesses. Witness No.1 is one S.Anil Kumar and witness No.2 is one Unni Rajan. The argument of the learned counsel for the appellants is that the second witness, Unni Rajan is the licensed document writer who prepared Ext.A1 gift and that his attestation is mandatory under Rule 30 of the Rules R.S.A.No.790 of 2013 6 made under the Registration Act for the purpose of registering the document and therefore, he cannot be construed as an attesting witness to Ext.A1 gift. In other words, according to the learned counsel for the appellants, there is only one attestor in Ext.A1 gift. The learned counsel, however, conceded that a document writer can also be an attestor to a document provided there is evidence to show that he had the intention to attest the document. He relied on the decision of the Apex Court in M.L.Abdul Jabbar Sahib vs. H.Venkata Sastri and Sons and others [1969 SC 1147] in support of the said contention. Paragraph 8 of the judgment in M.L.Abdul Jabbar Sahib vs. H.Venkata Sastri and Sons and others (supra) reads thus:
"8. Section 3 of the Transfer of Property Act gives the definition of the word "attested" and is in these words;
Attested, in relation to an instrument, means and shall be deemed to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, R.S.A.No.790 of 2013 7 and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time and no particular form of attestation shall be necessary'. It is to be noticed that the word 'attested' the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put the essential conditions of a valid attestation under Section 3 are (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement of his signature. If a person puts his signature on the document for some other purpose eg. to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.
It is evident from the aforesaid decision of the Apex Court that what is essential for a valid attestation is that the witness should have put his signature with the intention of attesting the signature of the executant and that the attestor has seen the executant signed or has received from him a personal acknowledgement of his signature in the document. In other words, if a person puts his signature on a R.S.A.No.790 of 2013 8 document for some other purpose, he cannot be accepted as an attestor to the document. The document writer who is the second witness to Ext.A1 namely Unni Rajan was examined in the suit as PW2. In his chief examination, he has categorically stated that he knows the original defendant and Ext.A1 has been prepared as directed by her. He also stated that he has seen the original defendant subscribing her signature in Ext.A1 document. He further stated that the original defendant had subscribed her signature in Ext.A1 in his presence. He reiterated that he is the attestor to the document and that he has put his signature in the document as an attestor. It is thus evident that the document writer has seen the executant putting her signature in the document and he has put his signature as a witness to such execution. As such, it cannot be contended that PW2 had no animo attestandi. The learned counsel for the appellants contended that in cross examination PW2 has stated that he has put his signature in the document as a person who prepared the document and therefore, he cannot be treated as an attesting witness. True, in the cross examination, PW2 R.S.A.No.790 of 2013 9 has stated that he has put his signature in Ext.A1 as the person who prepared the document also. In this context, it is relevant to point out that there is no requirement in law that a person who prepared a document cannot be an attestor to the document. As such, merely for the reason that the attestor happened to be the person who prepared the document and the document contains only one signature, it cannot be said that the attestation is not valid. The view that I am taking in this matter is in tune with the view taken by the Apex Court in Mathew Oommen vs. Suseela Mathew [(2006) 1 SCC 519]. Paragraph 8 of the said judgment reads thus:
"8. Another circumstance mentioned by the learned counsel for the respondent for challenging the Will is that the beneficiary never applied for probate or for mutation of the property in his name soon after the death of the father. This again is no reason to dislodge the Will. The learned counsel for the respondent also argued that the Will had not been attested by the two attesting witnesses as required under the law. In support of this argument it was submitted that one of the alleged attesting witnesses is only scribe of the Will and is not an attesting witness. Regarding this objection we may note that there is no requirement in law that a scribe cannot be an attesting witness. The person concerned has appeared in the R.S.A.No.790 of 2013 10 witness box as PW1 and has clearly stated that he is a scribe of the Will as well as he is an attesting witness of the Will. For attestation what is required is an intention to attest which is clear from the statement of PW1. He categorically stated that he has signed as an attestor and scribe. In our view, the requirement of attestation of the Will by two witnesses is fully met in the present case. After the execution was complete, the testator kept the Will in the drawer of his table. PW1 also mentioned the fact that the Will was executed because the case was pending in this Court challenging the Travancore Christian Succession Act, 1917. The testator who has himself a lawyer knew this fact. A perusal of the statements of PW1, PW2 and PW3 further shows that they have not been cross-examined on the points now sought to be urged before this Court. It was never suggested to the witnesses that the Will was scribed on a blank letterhead containing signatures of the testator. It was never suggested that the Will had been fabricated."
There is, therefore, no merit in the contention that Ext.A1 does not conform to the requirement of Section 122 of the Transfer of Property Act.
6. As regards the contention raised by the original defendant that Ext.A1 is vitiated on account of undue influence and misrepresentation, it is conceded that no evidence was let in by the defendants in support of the said contention. To get over the said situation, as pointed out above, the learned counsel for the appellants contended R.S.A.No.790 of 2013 11 that the additional fourth defendant was not given an opportunity to adduce evidence in support of the contentions raised by her by the trial court. I have perused the order sheet in the suit. It is seen that the additional fourth defendant was impleaded on 9.6.2010 and that she filed an additional written statement on 20.6.2010. Thereafter, the suit was posted to 29.6.2010 for additional issues. Since the plaintiff has not suggested any additional issues, the plaintiff was asked to lead evidence in the suit and accordingly he gave evidence as PW1 on 16.7.2010. Later, at the instance of the plaintiff, Pws.2 and 3 were summoned and examined in the proceedings. It is seen that thereafter the case stood posted for defence evidence and it is at that stage that the second defendant gave evidence on behalf of defendants as DW1. After the evidence of DW1, the defence evidence was closed on 28.7.2010. Thereafter, the matter was posted for hearing. It is thus evident that the additional fourth defendant was given sufficient and more opportunity to adduce evidence and she chose not to adduce evidence. As such, there is no merit in the R.S.A.No.790 of 2013 12 contention that the additional fourth defendant was not afforded opportunity to adduce evidence by the trial court.
7. As regards the contention raised by the learned counsel for the appellants that the original defendant had executed a Will by which the suit property was bequeathed to the wife of the fifth appellant, according to me, the same is not a contention available to the appellants. The dispute that is resolved in the present suit is the dispute between the plaintiff on one hand and the legal representatives of the additional fourth defendant on the other hand in respect of the suit property. As such, even if there exists a Will as contended by the learned counsel, the decision in the present suit will not bind the delegatee under the Will. In the said view of the matter, it cannot be said that the suit in so far as the delegatee under the aforesaid Will is not impleaded, is not maintainable.
8. True, the plaintiff while giving evidence as PW1 has admitted that the fifth appellant and his wife are residing in the building in the suit property. The specific case of the plaintiff in the plaint is that he is in possession of R.S.A.No.790 of 2013 13 the suit property on the date of the plaint. Merly for the reason that he has admitted that his brother and his wife are residing in the building in the suit property, it cannot be said that the plaintiff has admitted that they are in possession of the suit property. In the circumstances, there is no merit in the contention that the suit is barred by the proviso to Section 34 of the Specific Relief Act.
In the circumstances, I do not find any merit in the second appeal and the same is accordingly dismissed.
P.B.SURESH KUMAR, JUDGE.
smm