Kerala High Court
Sajeev Raghavan vs Ramachandran Nair on 3 July, 2025
2025:KER:48794
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 3RD DAY OF JULY 2025 / 12TH ASHADHA, 1947
RSA NO. 506 OF 2021
AGAINST THE JUDGMENT AND DECREE DATED 05.11.2020 IN AS
NO.297 OF 2006 OF THE ADDITIONAL DISTRICT COURT,
KOTTAYAM ARISING OUT OF THE JUDGMENT AND DECREE DATED
23.09.2006 IN OS NO.346 OF 2002 OF THE ADDITIONAL SUB
COURT,KOTTAYAM
APPELLANT/APPELLANT NO.3/NOT PARTY:
SAJEEV RAGHAVAN
AGED 47 YEARS, S/O.RAGHAVAN, ANAKKALLUMKAL
HOUSE, KOZHA KARA, KURAVILANGADU, KOTTAYAM
PIN - 686 640 (WRONGLY STATED AS
ANAKKATHARAYIL HOUSE IN THE JUDGMENT AND
DECREE OF THE LOWER APPELLATE COURT)
BY ADVS.
SHRI.P.B.KRISHNAN (SR.)
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
SRI.MANU VYASAN PETER
SMT.B.ANUSREE
RESPONDENTS/RESPONDENTS 2 TO 13 AND APPELLANTS 1 AND
2/DEFENDANTS 3 TO 5, LRS OF PLAINTIFF AND DEFENDANTS 1
AND 2:
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1 RAMACHANDRAN NAIR
AGED 64 YEARS, S/O.KESAVAN NAIR,
POONITHURA HOUSE, PADINJATTUM BHAGOM KARA,
ATHIRAMPUZHA VILLAGE, KOTTAYAM - 686 562
2 SATHY K. NAIR
AGED 59 YEARS, S/O.RAMACHANDRAN NAIR,
POONITHURA HOUSE, PADINJATTUM BHAGOM KARA,
ATHIRAMPUZHA VILLAGE, KOTTAYAM - 686 562
3 RAJAPPAN PILLAI
AGED 59 YEARS, S/O.RAGHAVAN PILLAI,
MARUKKATTIL HOUSE, KIZHAKKUM BHAGOM KARA,
ETTUMANOOR VILLAGE, KOTTAYAM - 686 631
4 SEBASTIAN G. PILLAI
AGED 74 YEARS, S/O.DEVASSIA, VARADAKUZHIYIL
HOUSE, PADINJATTUM BHAGOM KARA, ATHIRAMPUZHA
VILLAGE, KOTTAYAM 686 562, NOW RESIDING AT 201
PLAZA VERDA DR APT, #2206, HOUSTON TX 77038,
USA.
5 V.S.ISSAC
AGED 70 YEARS, S/O.DEVASSIA, VARADAKUZHIYIL
HOUSE, PADINJATTUM BHAGOM KARA, ATHIRAMPUZHA
VILLAGE, KOTTAYAM 686 562, NOW RESIDING AT 201
PLAZA VERDA DR APT, #2206, HOUSTON TX 77038,
USA.
6 V.S.SEBASTIAN
AGED 67 YEARS, S/O.DEVASSIA, VARADAKUZHIYIL
HOUSE, PADINJATTUM BHAGOM KARA, ATHIRAMPUZHA
VILLAGE, KOTTAYAM 686 562, NOW RESIDING AT 201
PLAZA VERDA, DR APT, #2206, HOUSTON TX 77038,
USA.
7 ANNAMMA THOMAS
AGED 69 YEARS, D/O.DEVASSIA, VARADAKUZHIYIL
HOUSE, PADINJATTUM BHAGOM KARA, ATHIRAMPUZHA
VILLAGE, KOTTAYAM - 686 562
8 MARY KUTTY V.S.
AGED 65 YEARS, D/O.DEVASSIA, VARADAKUZHIYIL
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HOUSE, PADINJATTUM BHAGOM KARA, ATHIRAMPUZHA
VILLAGE, KOTTAYAM - 686 562
9 ELSAMMA CHERIAN
AGED 71 YEARS, W/O.V.S.CHERIAN PANICKER,
VARADAKUZHIYIL HOUSE, (THARAPPEL HOUSE),
PADINJATTUM BHAGOM KARA, ATHIRAMPUZHA VILLAGE,
KOTTAYAM - 686 562
10 ANOSH CHERIAN
AGED 42 YEARS, S/O.V.S.CHERIAN PANICKER,
VARADAKUZHIYIL HOUSE, (THARAPPEL HOUSE),
PADINJATTUM BHAGOM KARA, ATHIRAMPUZHA VILLAGE,
KOTTAYAM - 686 562
11 HARNY CHERIAN
AGED 39 YEARS, D/O.V.S.CHERIAN PANICKER,
VARADAKUZHIYIL HOUSE, (THARAPPEL HOUSE),
PADINJATTUM BHAGOM KARA, ATHIRAMPUZHA VILLAGE,
KOTTAYAM - 686 562
12 BABY
AGED 61 YEARS, S/O.THOMMAN, PULAYARUTHOTTATHIL
HOUSE, KALTHOORU KARA, KALATHOORU P.O.,
KURAVILANGADU, MEENACHIL TALUK,
KOTTAYAM - 686 633
13 ROSILY
AGED 61, W/O.BABY, PULAYARUTHOTTATHIL HOUSE,
KALTHOORU KARA, KALATHOORU P.O.,
KURAVILANGADU, MEENACHIL TALUK,
KOTTAYAM - 686 633
14 JINCY
AGE NOT KNOWN TO THE APPELLANT, W/O.JERRAD,
THARAPPEL HOUSE, ATHIRAMPUZHA P.O., ETTUMANOOR
NOW RESIDING AT PAYYAPPALLIIYIL HOUSE,
KORATTI P.O., CHALAKKUDY, THRISSUR - 680 308
BY ADVS.
SHRI.R.S.KALKURA, FOR R4 AND R6
SHRI.P.BABU KUMAR, FOR R12 AND R13
SRI.R.SUNIL KUMAR, FOR R14
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SRI.P.YADHU KUMAR, FOR R12 AND R13
SMT.SWETHA K.S.
SMT.KEERTHI JAYAKUMAR
SMT.A.SALINI LAL, FOR R14
SHRI.M.S.KALESH, FOR R4 AND R6
SRI.HARISH GOPINATH, FOR R4 AND R6
SMT.R.BINDU, FOR R4 AND R6
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY
HEARD ON 03.07.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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EASWARAN S., J
--------------------------------
R.S.A No.506 of 2021
-------------------------------
Dated this the 3rd day of July, 2025
JUDGMENT
The appellant is not a party to the suit, but, however, was impleaded as additional 3rd appellant before the Lower Appellate Court pursuant to the orders passed by this Court in FAO No.319 of 2012 and O.P.(C) No.3176 of 2012 dated 01.07.2019.
2. The brief facts necessary for the disposal of the appeal are as follows:-
The 1st respondent in A.S No.297/2006 on files of the Additional District Court-IV, Kottayam, filed a suit for declaration of title and injunction. According to the 1 st respondent (in A.S No.297/2006)/ plaintiff the plaint schedule property originally belongs to her by virtue of a gift deed No.2177/1979 of her deceased husband. The 2 nd 2025:KER:48794 R.S.A No.506 of 2021 6 defendant is the daughter of the plaintiff and the 1 st defendant is the husband of the 2 nd defendant. The 2nd defendant had misled the plaintiff and in the guise of execution of a mortgaged deed for an amount of Rs.50,000/-, got a sale deed executed in favour of her husband. According to the plaintiff, the sale deed dated 25.11.2000(Ext.A4) is vitiated as she was not made aware of the exact nature of the document. In short, a case of misrepresentation of the character of the document is projected. In support of her claim Exts.A1 to A4 were produced and PW1 and PW2 were examined.
PW1 being the plaintiff herself and PW2 is her son. The defendants 1 and 2 contested the suit and according to the defendants, the present suit for declaration of title and injunction is not maintainable, since, between the plaintiff and her son Jerard were defendants in O.S No.210/2002 filed before the Munsiff Court, Ettumanoor, and by the judgment and decree dated 07.03.2003, both 2025:KER:48794 R.S.A No.506 of 2021 7 the plaintiff and her son were injuncted from obstructing the defendants' possession over the plaint schedule property. DW1 was examined and Exts.B1 to B5 were marked, on behalf of the defendants and Ext.C1, C1(a) and C1(b) were marked as court exhibits. On the basis of the rival pleadings, the trial court framed the following issues:-
1. Whether the sale deed No.4792/00 is liable to be declared as void?
2. Whether the declaration sought for is allowable?
3 Whether the injunction sought for is allowable?
4. Reliefs and costs.
3. On appreciation of the oral and documentary evidence, the trial court came into conclusion that the case projected by the plaintiff as regards the misrepresentation of the character of the document was established. Therefore, the trial court proceeded to decree the suit, declaring the plaintiff's title over the plaint schedule property and restraining the defendants 2025:KER:48794 R.S.A No.506 of 2021 8 from trespassing into the plaint schedule property. The original defendants filed an appeal against the judgment and decree of the trial court as A.S No.297/2006 on the files of the Additional District Court-IV, Kottayam. During the pendency of the appeal, on 18.04.2007, the defendants 1 and 2 / appellants in A.S No.297/2006 before the First Appellate Court, transferred the right title and interest over the plaint schedule property in favour of the appellant herein. On 07.11.2009, the appeal was dismissed for default. The appellant herein filed an application for restoration and impleading as an additional 3rd appellant, which was dismissed by the First Appellate Court. As against the dismissal of the application for impleading, O.P.(C) No.3176/2012 was filed and as against the order refusing to restore the appeal FAO No.319/2012 was filed. This Court by judgment dated 01.07.2019, set aside the orders passed by the First Appellate Court and impleaded the appellant 2025:KER:48794 R.S.A No.506 of 2021 9 rd as the 3 additional appellant in A.S No.297/2006 and directed the District Court to re-admit the appeal and dispose of the same in accordance with law. The parties were directed to appear before the Court on 05.08.2019. In pursuant to the said order, the parties appeared before the Additional District Court-IV and the appeal was considered on merits and by judgment dated 05.11.2020, the appeal was dismissed and hence the present appeal.
4. Heard Shri.P.B.Krishnan, the learned Senior Counsel appearing for the appellant assisted by Shri.P.B.Subramanyan, Shri.R.S.Kalkura, the learned counsel appearing for respondents 4 and 6, Shri.Sunil Kumar, the learned counsel appearing for the 14 th respondent and Shri.P.Babu Kumar, the learned counsel for respondents 12 and 13.
5. The appeal was admitted to file on the following substantial questions of law:-
1. In the teeth of the proviso to Section 34 of the Specific Relief Act, 1963, is the suit for 2025:KER:48794 R.S.A No.506 of 2021 10 declaration and injunction without a prayer for recovery of possession maintainable in law?
2. Will not the decree in O.S No.210/2002 operate as res judicata to the plea of possession made by the plaintiff?
3. Is the court justified in passing a decree for injunction to act as a cross decree to negate the injunction passed by a competent court in another litigation, which has attained finality?
4. Is not the suit hit by the principles of res judicata, constructive res judicata and estoppel by judgment in the light of Ext.B1 judgment?
5. Is the plea of non est factum available to be raised on the facts and in the circumstances of the case?
6. Is the evidence adduced by the plaintiff acceptable or relevant in the teeth of Section 92 of the Evidence Act, 1872?
6. The learned Senior Counsel, Shri.P.B.Krishnan, appearing on behalf of the appellant raised the following submissions:-
(a) Both the Trial Court as well as the First Appellate Court were carried away by the fact that the plaintiff was an aged lady of 85 years old. When a plea regarding the misrepresentation of the character of a document was raised before the Trial Court, it was incumbent upon the 2025:KER:48794 R.S.A No.506 of 2021 11 plaintiff, to have adduced sufficient evidence to prove that she was not made aware of the character of the document.
(b) The plaintiff and her son, examined as PW1 and PW2 were defendants in O.S No.210/2002 on the files of the Munsiff Court, Ettumanoor and had suffered a decree of injunction on 07.03.2003. The courts below failed to consider the effect of judgment and decree in O.S No.210/2002 and could not have granted a decree of injunction which would nullify the effect of the earlier decree.
(c) In the present suit, only a relief of declaration and consequential injunction was sought for. In a case where admittedly the defendants 1 and 2 were found to be in possession of the plaint schedule property, without seeking for a decree for recovery of possession, the plaintiff could not have maintained a suit of declaration of title and that, the said relief is hit by proviso to Section 34 2025:KER:48794 R.S.A No.506 of 2021 12 of the Specific Relief Act, 1963.
(d) Merely because, Exts.B1 and B2 are ex parte judgment and decree will not denude its efficacy in law.
(e) When a plea of Non est factum was raised by the plaintiff, burden is heavily on the plaintiff to disprove the contents of Ext.A4 Sale deed. Ext.A4 being a registered document, presumption regarding the validity had to be inferred by the courts below. In support of his contentions, would rely on the decision in Mathu v.
Cherchi [1990(1) KLT 416].
7. Per contra, Shri.R.S Kalkura, the learned counsel appearing for respondents 4 and 6 pointed out that the 2nd defendant / the daughter was in a fiduciary relationship with the mother. In fact the daughter has misrepresented the fact regarding the character of the document and in the guise of executing a mortgage deed, had got the sale deed executed from the mother. The daughter being in a dominant position exerted undue 2025:KER:48794 R.S.A No.506 of 2021 13 influence over the mother and the mother was an illiterate person as the result of which the fraudulent act was committed by her. It is further pointed out that during the First Appellate Court stage, the additional respondent No.8 Shri.V.S Jerard expired and that the application preferred by the appellant herein to implead the only legal heir of Jerard was disallowed by the First Appellate Court. Since the judgment of the First Appellate Court was rendered with a third person on the party array, the judgment has no efficacy of law and the appeal has to be heard afresh.
8. Shri.R.Sunil Kumar, the learned counsel for the 14th respondent, the wife of deceased Jerard would support the contentions raised by Shri.R.S.Kalkura and would contend that it was because of the fraudulent act of the daughter / 2nd defendant, that the plaintiff happened to execute the Sale Deed. The counsel further pointed out that the concurrent findings of facts and law 2025:KER:48794 R.S.A No.506 of 2021 14 rendered by the Trial Court as well as the First Appellate Court need not be interfered by this Court in exercise of the power under Section 100 of the Code of Civil Procedure and thus prayed for a dismissal of the appeal.
9. I have considered the rival submissions raised across the Bar and perused the records and also the judgments of the courts below.
10. As stated above, one of the prime questions this court must bestow upon is as regards the maintainability of the suit. It is the specific case of the Shri.P.B.Krishnan, the learned Senior Counsel for the appellant, that a suit for declaration of title without seeking for a consequential relief in the form of recovery of possession is not maintainable. Section 34 of the Specific Reliefs Act, 1963 reads as under:-
34. Discretion of Court as to declaration of status or right.-Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make 2025:KER:48794 R.S.A No.506 of 2021 15 therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.-A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.
11. The proviso to Section 34 of the Specific Reliefs Act, 1963, specifically makes it clear that no courts shall make any such declaration where the plaintiff being able to seek a further relief than a mere declaration of title omits to do so.
12. In Union of India v. Ibrahim Uddin and another [2012 KHC 4379] and held as follows:-
43. The Section provides that Courts have discretion as to declaration of status or right, however, it carves out an exception that a Court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so.
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13. In Vinay Krishna Vs Keshav Chandra [1993 Supplement 3 SCC 129], the Supreme Court held that plaintiff's not being in possession of the property in that case ought to have amended the plaint for the relief of recovery of possession in view of the bar included by the proviso.
14. In Vasantha (dead) Thr Lr. V Rajalakshmi @ Rajam(dead) Thr L.R's (2024)5 SCC 282 the Supreme Court after considering the catena of precedents on this point reiterated the position of law as regards the requirement to seek recovery of possession in a suit for declaration of title, if the plaintiff is not in possession of the property at the time of institution of the suit.
15. In the present case, Ext.B1 judgment and Ext.B2 decree would undoubtedly prove that defendants 1 and 2 are in possession of the plaint schedule property. Therefore, the plaintiff was aware that she was divested of the possession at the time when the suit was 2025:KER:48794 R.S.A No.506 of 2021 17 instituted. Therefore, the conscious action of the plaintiff in not seeking for recovery of possession is detrimental to the cause. Accordingly, answering the first question of law , it is held that without seeking for a relief in the form of recovery of possession, the suit filed by the plaintiff was not maintainable.
16. The next question to be considered by this Court is whether the decree in O.S No.210/2002 will operate as res judicata as regards the possession of the plaint schedule property by the plaintiff qua the defendants 1 and 2. Admittedly, plaintiff suffered a decree in OS No 210 of 2002. It is true that the question of title was not raised in the earlier suit. But, the possession of the appellant over the plaint schedule property on the strength of title was found in favour. Unless, the plaintiff questions it in an appropriate proceeding, the present suit cannot be maintained. However, the trial court on a complete mis-appreciation 2025:KER:48794 R.S.A No.506 of 2021 18 of the facts and law came to the conclusion that, as soon as the sale deed is set aside in the present suit, the judgment and decree in O.S No.210/2002 will lose its efficacy. There is no warrant for such observation inasmuch the said finding is totally perverse and not supported by law.
17. In Chandran E.N v. Valsan Matathil [2017 KHC 69], this Court has held that a suit for declaration and consequential permanent prohibitory injunction is not maintainable, when an earlier suit for injunction was decreed. Therefore, irresistibly, it must be held that the suit is barred by principles of res judicata qua possession of plaintiff.
18. It must be noted that decree in O.S No.210/2002 is ex parte. Will that by itself, denude its efficacy. According to the learned Senior Counsel Shir P.B. Krishnan mere fact that a decree is obtained exparte will not by itself denude its efficacy. In support of his 2025:KER:48794 R.S.A No.506 of 2021 19 contention relied on the decision of Supreme Court in Saroja v. Chinnusamy [dead] LR's and another [2007 KHC 3956]. The relevant portion of the judgment of the Hon'ble Supreme Court reads as under:-
"9.....Once an ex parte decree is passed against Kuppusamy, in our view, the same should be taken as a final decision after hearing. It is well settled that an ex parte decree is binding as a decree passed after contest on the person against whom such an ex parte decree has been passed. It is equally well settled that an ex parte decree would be so treated unless the party challenging the ex parte decree satisfies the court that such an ex parte decree has been obtained by fraud. Such being the position, we are unable to hold that Condition No. (iv) was not satisfied and accordingly it cannot be held that the principle of res judicata would not apply in the present case...."
While holding so, the Hon'ble Supreme Court affirmed the view of the Madras High Court in Arukkani Ammal v. Guruswamy,[The law Weekly Vol.100(1987) 707]. Therefore, it is found that, the second question of law raised in the present appeal is liable to be answered in 2025:KER:48794 R.S.A No.506 of 2021 20 favour of the appellant.
19. The next question to be considered is whether the decree for declaration and consequential injunction, would act as a cross decree to negate the injunction passed by the competent court. It is settled that a decree passed by a competent civil court can only be set aside in accordance with the procedure prescribed under Section 96 of the Code of Civil Procedure, depending upon the peculiar jurisdiction of the court, which passes the decree or under Section 100 of the Code of Civil Procedure. In the present case, the decree passed in O.S No.210/2002 was on 07.03.2003. Therefore, when the Additional Sub Court, Kottayam, took up the present suit (O.S No.346/2002), the plaintiff was already injuncted from disturbing the possession of the defendants 1 and 2. The Trial Court should not have got over the rigour of the judgment and decree by merely holding that when the sale deed is set aside, the effect of decree in O.S 2025:KER:48794 R.S.A No.506 of 2021 21 No.210/2002 would cease to have effect. There is no warrant for the said observation nor the court has rendered its findings on the basis of any supporting reasons. Therefore, this Court is of the considered view that the finding rendered by the Trial Court as regards the efficacy of Ext.B1 and B2 decree is incorrect. Consequently, the third question of law framed by this Court is also answered in favour of the appellant.
20. As regards the next question, whether the judgment and decree operate as a res judicata as far as the plaintiff is concerned, in view of the findings rendered by this Court, as regards the questions of law 2 and 3, it follows that the fourth question of law is also liable to be answered in favour of the appellant.
21. A plea of non est factum is raised in the suit by the plaintiff. However, it must be remembered that the plaintiff herself had no consistent case. In the proof affidavit filed in the suit, it is contended by the plaintiff 2025:KER:48794 R.S.A No.506 of 2021 22 that in paragraph 11 and 12 that, the plaintiff went to the office of the document writer on 25.11.2000 and signed the document and later from the office of the document writer she went to the Sub Registrar Office and then affixed the signature in Ext.A4 sale deed. However, during her cross examination, she had a different perspective to the case. The statement in the cross examination of the plaintiff reads as under:
"25/11/00-08. 25/11/00-ൽ Sub Registrar Office ൽവെച്ച് ഏതെങ്കിലും പ്രമാണത്തിൽ ഒപ്പിട്ട് കൊടുത്തോ? ഞാനൊന്നും ഒപ്പിട്ടിട്ടില്ല(A) 25/11/00 ലെ പ്രമാണത്തിൽ Sub Registrar Office-ൽ വെച്ച് ഒപ്പിട്ടിട്ടുള്ളതായി സത്യവാങ്മൂലത്തിൽ പറയുന്നല്ലോ? എന്നെ അവരു കൂട്ടിക്കൊണ്ടുപോയി OP-4 ഒപ്പിടീച്ചു. വായിച്ചു കേൾപ്പിച്ചില്ല. അല്ലാതെ ഞാൻ പ്രമാണത്തിൽ ഒപ്പിട്ടില്ല. 50,000/- രൂപയുടെ പ്രമാണത്തിൽ ഒപ്പിട്ടു കൊടുത്തു. അല്ലാതെ ഒപ്പിട്ടു കൊടുത്തില്ല. അവൾ എന്റെ മകളാണെന്ന് വെച്ച് അവളുടെ കണ്ണീര് കണ്ടു ഞാൻ ഒപ്പിട്ടു കൊടുത്തു."
22. Therefore, in the light of the contradictory statements made by the plaintiff in the chief examination as well as the cross examination would show that, she was not able to establish a consistent case. It is in this 2025:KER:48794 R.S.A No.506 of 2021 23 context that the principle of non est factum must be considered in the present case.
23. The plea of non est factum could be considered only on a narrow compass. The following precedents are required to be discussed in order to find out whether the plea of non est factum can be successfully maintained.
24. In Saunders v. Anglia Building Society [1970(3) ALL ER 961], the availability of non est factum was applied in a more strict sense. The following observations contained in the judgment are useful for the present case.
"Page No.963.....Scrutinising the document before signing it was that he was too busy or too lazy. In general I do not think that he can be heard to say that he signed in reliance on someone he trusted. But, particularly when he was led to believe that the document which he signed was not one which affected his legal rights, there may be cases where this plea can properly be applied in favour of a men of full capacity."
25. In the present case, the exact plea raised by the plaintiff is as regards the character of the document.
2025:KER:48794 R.S.A No.506 of 2021 24 According to her, she believed that it is a mortgaged deed and her daughter had misrepresented her regarding the character of the document and instead got a sale deed executed. Whether, such a plea will attract the principles of non est factum came up for consideration before this Court in Mathu v. Cherchi [1990(1) KLT 416]. After a close exploration of the case law on the points, it was held by this court that, a plea of mistake of fact is peculiar to the law of written contracts due to the existence of common law defence of non-est-factum, which permits one who signed the document which is essentially different from what he intended to sign, to plead that notwithstanding his signature, it is not a deed in the contemplation of law.
26. The view expressed in Mathu (supra) was reiterated in Biji Pothen v. Thankamma John [2012 (3) KLT 658], and in an unreported decision Jose Mathew vs James Avirah in RSA No.850 of 2015 2025:KER:48794 R.S.A No.506 of 2021 25 ( decided on 22-2-2016). Thus, the consistent view of this Court as regards the misrepresentation of the character of the document is that, the burden is heavily on the person who alleges the misrepresentation regarding the character.
27. It must be remembered that, Ext.A4 is a registered sale deed. Section 32 of the Registration Act, 1908 deals with the registration of the document. Section 32 reads as under:-
32. Persons to present documents for registration.- Except in the cases mentioned in [Sections 31, 88 and 89], every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office,-
(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or
(b) by the representative or assign of such a person, or
(c) by the agent of such a person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.
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28. When a document is presented for registration, it is incumbent upon the person who executes the document to be present in person before the Sub Registrar and affix his signature. There is a general presumption regarding the validity of a registered document. If as a matter of fact, the plaintiff had a case that the contents of the document were not read over to her at the time of registration, she could have very well summoned the concerned Sub Registrar to examine the said fact. The failure of the plaintiff to examine the Sub Registrar is fatal to the case of the plaintiff.
29. In Prem Singh v. Birbal [(2006) 5 SCC 353], the Supreme Court held that, there is a presumption attached to the registered document as it is one validly executed. Therefore, prima facie the registered document would be valid in law and that, the onus of proof would be on the person who gives the evidence to rebut the presumption. In the present case, the quality of evidence 2025:KER:48794 R.S.A No.506 of 2021 27 adduced by the plaintiff is insufficient to hold that the registered sale deed executed in favour of the 2 nd defendant was vitiated under any circumstance. On the contrary, the Trial Court only went by the oral testimony of PW1 to decree the suit. Apart from the oral testimony of PW1 there is no other evidence to sustain the plea against the execution of the sale deed. Therefore, this court finds that the finding rendered by the Trial Court as well as by the First Appellate Court is completely perverse warranting interference under Section 100 of the Code of Civil Procedure.
30. Last question framed by this Court is whether the evidence adduced by the plaintiff was acceptable in terms of Section 92 of the Evidence Act. Section 92 of the Evidence Act reads as under:-
92. Exclusion of evidence of oral agreement When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or 2025:KER:48794 R.S.A No.506 of 2021 28 statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to or subtracting from, its terms:
Proviso (1): Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure] of consideration, or mistake in fact or law. Proviso (2): The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the court shall have regard to the degree of formality of the document. Proviso (3): The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4): The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. Proviso (5): Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that 2025:KER:48794 R.S.A No.506 of 2021 29 description may be proved:
PROVIDED that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract. Proviso (6): Any fact may be proved which shows in what manner the language of a document is related to existing facts.
31. Going by the aforesaid provision, when terms of a contract is reduced in writing no evidence of oral or a statement shall be admitted between the parties as regards the contents of the documents. Although that, by itself will not deter the plaintiff from adducing sufficient evidence to prove the misrepresentation and fraud, this Court has already concluded that the evidence in this case is not sufficient to hold that the plaintiff has been misled as regards the character of the document, it becomes clear that the evidence of PW1 could not have been relied on by the trial court since it is against the provision of Section 92 of the Indian Evidence Act. Consequently, the above question of law is answered in favour of the appellant.
2025:KER:48794 R.S.A No.506 of 2021 30 As an upshot of the above discussion, this Court holds that courts below erred in holding in favour of the plaintiff. Resultantly, the appellant is entitled to succeed and the judgment and decree passed by the courts below are required to be interfered. Accordingly the appeal is allowed reversing the judgment and decree in A.S No.297/2006 on the files of the Additional District Court- IV, Kottayam and O.S No.346/2002 on the files of the Additional Sub Court, Kottayam and the suit stands dismissed. No cost.
Sd/-
EASWARAN S. JUDGE AMR