Kerala High Court
K.I.V.Gopinath vs K.I.V.Vimala on 24 February, 2025
RFA NO.256 OF 2004 1 2025:KER:15982
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 24TH DAY OF FEBRUARY 2025 / 5TH PHALGUNA, 1946
RFA NO. 256 OF 2004
AGAINST THE JUDGMENT DATED 24.09.2003 IN O.S.NO.279 OF
2000 OF SUB COURT, THALASSERY
APPELLANT/PLAINTIFF:
K.I.V.GOPINATH, S/O.LATE APPAKUTTY NAIR,
AROLI VEEDU, PAPPINISSERY AMSOM, AROLI DESOM, P.O.
AROLI, VIA,PAPPINISSERY, DISTRICT KANNUR.
BY ADVS.
SRI.B.RADHAKRISHNA PILLAI
SMT.S.AMBIKA DEVI
SRI.P.U.SHAILAJAN
RESPONDENTS/DEFENDANTS:
1 K.I.V.VIMALA, W/O.KARUNAKARAN NAIR,
KATIHALA HOUSE, PAMBALA, PAPPINISSERY AMSOM, AROLI
DESOM, P.O.AROLI, VIA PAPPINISSERY, DISTRICT
KANNUR.
2 K.I.V.UNNIRKSISHNAN S/O.LATE APPAKUTTY NAIR,
JUNIOR TELECOM OFFICER, CHERUKUNNU, RESIDING AT
NEAR KALLIASSERI WEAVERS INDUSTRIES SOCIETY,
KOLLATH VAYAL, ANJAM PEEDIKA, P.O.KALLIASSERY,
KANNUR DISTRICT.
3 K.I.V.REMAVATHI KRISHNAN W/O.KRISHNAN,
RESIDING AT C.6 19/0:2, SECTOR 6, C.B.D.,
KONKAN BHAVAN, NAVI MUMBAI - 400 615.
4 K.I.V.PRABHAVATHI, W/O.N.PAVITHRAN,
KAITHALA HOUSE, NEAR OLD PANCHAYATH, PAMBALA,
PAPPINISSERI AMSOM, AROLI DESOM, P.O.AROLI, VIA
PAPPINISSERY, DISTRICT KANNUR.
5 K.I.V.GEETHA, W/O.T.V.MADUSUTHANAN,
PARIPPAYI, P.O.SREEKANDAPURAM, KANNUR DISTRICT.
6 K.I.V.RAGHUNATH, S/O.LATE APPAKUTTY NAIR,
KAITHALA HOUSE, NEAR OLD PANCHAYATH, PAMBALA,
PAPPINISSERI AMSOM, AROLI DESOM, KANNUR DISTRICT BY
P.A.HOLDER SUDHA REGHUNATH, KAITHALA HOUSE, NEAR
OLD PANCHAYATH, PAMBALA, PAPPINISSERI AMSOM,AROLI
RFA NO.256 OF 2004 2 2025:KER:15982
DESOM, P.O.AROLI, VIA PAPPINISSERY, DT.KANNUR.
7 K.I.V.RAJAN, S/O.RADHA,
KAITHALA HOUSE, MAYILADATHADAM, AZHIKODE AMSOM
DESOM, P.O.AZHIKODE, KANNUR DISTRICT.
8 K.I.V.SUDHAKARAN, S/O.RADHA,
RESIDING AT KAITHALA HOUSE, MAYILADATHADAM,
AZHIKODE AMSOM DESOM, P.O.AZHIKODE, KANNUR
DISTRICT.
9 K.I.V.SREENIVASAN, S/O.RADHA,
RESIDING AT KAITHALA HOUSE, MAYILADATHADAM,
AZHIKODE AMSOM DESOM, P.O.AZHIKODE, KANNUR
DISTRICT.
10 K.I.V.PRIYA, D/O.RADHA,
RESIDING AT KAITHALA HOUSE, MAYILADATHADAM,
AZHIKODE AMSOM DESOM, P.O.AZHIKODE, KANNUR
DISTRICT.
R4 BY ADVS.
M.V.AMARESAN
V.N.RAMESAN NAMBISAN
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
24.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
RFA NO.256 OF 2004 3 2025:KER:15982
CR
JUDGMENT
Dated this the 24th day of February, 2025 This Regular First Appeal is at the instance of the plaintiff in O.S.No.279/2000 on the files of the Sub Court, Thalassery, challenging decree and judgment dated 24.9.2003 therein. Respondents herein are defendants in the above suit.
2. Heard the learned counsel for the appellant/plaintiff and the learned counsel appearing for the 4th respondent. Though notice served upon the other respondents, they did not appear.
3. The parties in this appeal shall be referred as 'plaintiff' and 'defendants' for brevity and convenience hereafter.
4. Plaintiff brought the suit before the trial court contending that the entire plaint schedule properties are partible among the plaintiff, defendants 1 to 6, who are siblings, and defendants 7 to 10, who are the children of their deceased sister Radha. According to the plaintiff, plaint A schedule property was owned by his father Appakutty Nair @ Krishnan Nair and the RFA NO.256 OF 2004 4 2025:KER:15982 plaint B schedule property belonged to his mother Janaki Amma and both of them died on 30.7.2000 and 31.7.2000, respectively. Plaintiff's case further is that, two gift deeds, in fact, settlement deed Nos.760/1997 and 761/1997 executed by the father Appakutty Nair @ Krishnan Nair in favour of Unnikrishnan, the 2 nd defendant and defendant Nos.4 to 6, Prabhavathi, Geetha and Raghunath, are documents fraudulently created by them for the purpose of obtaining the properties at the time when the executant was not in a physical condition to execute the documents. Accordingly, the said documents sought to be declared as null and void. According to the plaintiff, the entire property is partible and plaintiff and defendants 1 to 6 would get 1/8 th share each and the defendants 7 to 9 jointly would get 1/8th share.
5. The 2nd defendant, who is the beneficiary of settlement deed No.760/1997, on receipt of summons from the trial court, did not appear and he was declared ex parte.
6. The 4th defendant filed written statement opposing the contentions raised by the plaintiff and strongly defending execution of settlement deed Nos.760/1997 and 761/1997, whereby defendant Nos.2 and 4 to 6 obtained title over the extent of properties covered by the same.
RFA NO.256 OF 2004 5 2025:KER:15982
7. However, defendant Nos.5 and 6 filed written statement supporting the plaintiff's case ignoring their rights based on the settlement deeds in their favour.
8. Trial court framed necessary issues. PW1 to PW3 were examined and Exts.A1 to A15 were marked on the side of the plaintiff. DW1 and DW2 were examined and Exts.B1 to B3(a) were marked on the side of the defendants. Finally, the trial court held that settlement deeds executed by the father in favour of the 2 nd defendant and in favour of defendant Nos.4 to 6, are genuine documents and accordingly, the trial court granted decree for partition allowing 1/8th share each as contended by the plaintiff in respect of the properties excluding the properties covered by settlement deed Nos.760/1997 and 761/1997 of Kalliasseri S.R.O.
9. On hearing both sides, the questions pose for consideration are;
1) Whether the trial court is justified in holding that Ext.A5 settlement deed No.760/1997 and Ext.A6 settlement deed No.761/1997, are genuine documents while excluding the said properties from the purview of partition?
2) Is it necessary to examine one among the witnesses in a settlement deed or a gift deed mandatorily to prove RFA NO.256 OF 2004 6 2025:KER:15982 its execution?
3) Whether the decree and judgment of the trial court would require interference?
4) Reliefs and Costs.
10. Point No.2:
The learned counsel for the plaintiff argued that in this case, it is mandatory to examine one among the attesting witnesses to prove the execution of a settlement deed. According to the learned counsel for the plaintiff, in the instant case, one among the attesting witnesses was examined as DW2 and his evidence is absolutely contrary as regards to the place where he had put his signature therein as a witness. Therefore, execution of Ext.A5 and Ext.A6 (original of Ext.A6 is Ext.B1) settlement deeds not proved, as mandated by law. It is true that as per Section 68 of the Indian Evidence Act, 1872, (for short, 'the Evidence Act', hereinafter) if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Proviso to Section 68 would say that, it shall not be necessary to call an attesting witness in proof of the RFA NO.256 OF 2004 7 2025:KER:15982 execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied. Thus, it shall not be necessary to examine an attesting witness in proof of the execution of a gift deed other than a Will which is duly registered under the Indian Registration Act, 1908, unless its execution by the person by whom purports to have been executed is specifically denied. It is true that as per Section 123 of the Transfer of Property Act, 1882 (for short, 'the TP Act' hereinafter), it has been provided that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. In fact, Section 123 would apply in relation to gift deeds. When a document executed as settlement deed having the trappings of a gift deed, though there is slight difference between gift deed and settlement deed, even if these terms are used interchangeably, then also, the same has to be attested by at least two witnesses. Reading Section 68 of the Evidence Act, 1872, in juxtaposition with Section 123 of the TP Act also, there is no legal mandate that one among the attesting witnesses shall be examined RFA NO.256 OF 2004 8 2025:KER:15982 to prove a settlement deed or a gift deed when there is no specific denial of the execution of the same by the person by whom purports to have been executed the same. However, when there is a dispute as to the gift deed or settlement deed without specifically denying the execution, then also, examination of one among the attesting witnesses is not mandatory. However, when there is specific denial inasmuch as the execution of a settlement deed or a gift deed, it shall be necessary to call an attesting witness to examine so as to prove the same and therefore, examination of one among the attesting witnesses in such case is mandatory.
11. In the instant case, Ext.A5 and Ext.A6 settlement deeds are challenged by the plaintiff and the 4 th defendant, beneficiary of the same, examined one among the attesting witnesses as DW2. Therefore, this aspect has no relevance herein. Point No.2 answered thus.
12. Points Nos.1, 3 and 4:
In the instant case, as far as derivation of title of plaint A schedule property by the father and plaint B schedule property by the mother is concerned, there is no dispute. The entire dispute RFA NO.256 OF 2004 9 2025:KER:15982 centers as regards the validity of Ext.A5 and Ext.A6 settlement deeds. The specific contention raised by the plaintiff to declare the said documents as null and void is that his father was not in a position to execute the same on the date of its execution, since he had been laid up and incapacitated. In this connection, the learned counsel for the plaintiff pointed out evidence of DW1 during cross examination. During cross examination, the evidence given by DW1 who is none other than Padmavathi, who got Item No.2 as per Ext.A5 is that even though the father had no illness, he was laid up for 2, 3 years, since he could not go out and he used to urinate at the bed. During further cross examination, when the signatures in Ext.A5 and Ext.A6 were suggested to be not put by the executant, father, the answer given by DW1 is that, she did not know. That apart, during cross examination, her answer to many questions regarding handing over and execution of Ext.A5 and Ext.A6 are evasive and not satisfactory. It is true that DW2, an attestor to Ext.A5 and Ext.A6 got examined and his evidence regarding the execution appears to be contrary. That is to say, he admitted that he used to be a witness to many documents pertain to the particular Sub Registry. According to him, he put signature in Ext.B1 at the office of the scribe, but during cross examination, he RFA NO.256 OF 2004 10 2025:KER:15982 would say that he signed before the Sub Registrar. When he was further cross examined, his version is that, he signed at the residence of the executant. Thus, regarding putting of signature in the settlement deeds, DW2's evidence is absolutely contrary. It is relevant to note that the 2nd defendant is the beneficiary who would get 6 cents of property on the strength of Ext.A5. But on getting summons in the suit with a plea to set aside his title document, he remained ex parte. The beneficiaries in Exts.B1 are defendant Nos.4 to 6, i.e., Prabhavathi, Geetha and Raghunath. Apart from Prabhavathi, nobody defended Ext.A6. Geetha and Raghunath, defendant Nos.5 and 6 supported the contention of the plaintiff and according to them, they are not aware of the execution of Ext.A6. Thus, apart from Prabhavathi, the 4 th defendant, none of the beneficiaries of Ext.A5 and Ext.A6 wanted the benefit of Ext.A5 and Ext.A6. Even though Ext.A5 and Ext.A6 are registered documents and the evidence available with regard to execution of the same by a person, who admittedly laid up without capacity to go out and used to urinate at the bed for 2,3 years, along with attendant circumstances would show that the execution of Ext.A5 and Ext.A6 is not believable. Therefore, those documents are liable to be declared as void documents. The above discussion leads to RFA NO.256 OF 2004 11 2025:KER:15982 the conclusion that the trial court went wrong in holding that Exts.A5 and A6 are valid documents and thereby, the 2 nd defendant and defendant Nos.4 to 6 would get title based upon them even though the 4th defendant alone resisted title on the strength of Ext.A6.
13. Accordingly, the trial court verdict is interfered and it is held that the entire property including the properties covered by Ext.A5 settlement deed No.760/1997 and Ext.A6 settlement deed No.761/1997 also as partible. Accordingly, the preliminary decree passed by the trial court is interfered.
14. In the result, this appeal stands allowed. Accordingly, it is declared that Ext.A5 and Ext.A6 settlement deeds are void documents. Consequently, preliminary decree of partition is passed holding that the plaintiff and defendant Nos.1 to 6 are entitled to 1/8th share each and defendant Nos.7 to 10 together are entitled to the remaining 1/8th share in the entire plaint schedule properties, including the properties covered by Ext.A5 settlement deed No.760/1997 and Ext.A6 settlement deed No.761/1997.
15. Considering the nature of the case, no order as to costs.
The matter adjourned sine die.
RFA NO.256 OF 2004 12 2025:KER:15982 The parties are set at liberty to proceed with final decree in terms of the appellate preliminary decree.
Registry is directed to forward a copy of this judgment to the jurisdictional court, forthwith.
Sd/-
A. BADHARUDEEN JUDGE Bb