Kerala High Court · 2012

RFA.No. 535 of 2007 (F)::2::7.GEETHA, D/O.VANIYAN CHELLAKKUTTY CHETTIAR,GANAPATHI AGRAHARAM, PUNKUNNAM,THRISSUR VILLAGE AND TALUK, THRISSUR DISTRICT.8.BABU, S/O.VANIYAN CHELLAKKUTTY CHETTIAR,GANAPATHI AGRAHARAM, PUNKUNNAM,THRISSUR VILLAGE AND TALUK, THRISSUR DISTRICT.9.UNNI, S/O.VANIYAN CHELLAKKUTTY CHETTIAR,GANAPATHI AGRAHARAM, PUNKUNNAM,THRISSUR VILLAGE AND TALUK, THRISSUR DISTRICT. BY ADV. SRI.N.P.SAMUEL FOR R3 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11.6.2012 AND THE COURT ON 2.7.2012 DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J.------------------------R.F.A.No.535 Of 2007----------------------Dated this the 2nd day of July, 2012.J U D G M E N TPlaintiff is the appellant. The appeal is directed against thejudgment and decree in O.S.No.110/1993 on the file of the SubCourt, Thrissur. Suit was filed for a declaration that documentNo.568/66 of Thrissur S.R.O is not binding on the plaintiff, forcancelling the same so far as the plaintiff is concerned, forpartition of the properties into two equal shares by metes andbounds and for allotment of one such share to the plaintiff. Thetrial court held that document No.568/66 of Thrissur S.R.O. is notliable to be cancelled, therefore, the plaintiff is not entitled to anyreliefs in the suit and hence the suit stands dismissed. Partieshereinafter are referred to as the plaintiff and defendants asarrayed in the suit. 2.The plaint schedule property consists of 6 cents of landand a house therein. The property originally belonged to themother of the plaintiff. Mother of the plaintiff died when theplaintiff was only two years old. It is alleged in the plaint thateversince the mother's death, the plaintiff is looked after by her ::2::R.F.A.No.535 Of 207maternal grandfather and uncles. It is alleged that after thedeath of the plaintiff's mother, her father, who is the 1stdefendant, was making attempts to sell away the plaint scheduleproperty to others. Though the grandfather of the plaintiff issuedlawyer notice dated 5.6.1965, 21.6.1965 and advertisementpublished on 9.6.1965 in newspaper stating that the 1stdefendant had no right to dispose of the property, the 1stdefendant as per the impugned sale deed marked as Ext.A2dated 25.2.1966 sold away the suit property. Suit was filedstating that the same was not binding on the plaintiff. 3.The 1st defendant father died pending suit. Defendants2, 3 and 4 are the purchasers. Suit was contested byrespondents 2 & 4. It was contended inter alia that the propertywas purchased under an agreement for sale between the motherof the plaintiff and the 2nd defendant and that the suit was notmaintainable since the plaintiff had already filed another suitbefore the Munsiff court for identical relief. 4.Plaintiff was examined as PW1. Exts.A1 to A4 weremarked on her side. Exts.D1 to D7 were marked on the side ofthe defendants. ::3::R.F.A.No.535 Of 2075.Plaintiff is the daughter of the 1st defendant born in hisfirst wife. Additional 5th defendant is the second wife of thedeceased 1st defendant and defendants 6-10 are the children ofthe 1st defendant born in his second marriage. Parties are Hindusgoverned by the Hindu Succession Act. The plaintiff and thedeceased 1st defendant are the legal heirs of the deceased motherof the plaintiff. According to the plaintiff, on the death of hermother, the property devolved on her and her father in equalshares. 6.Suit was originally filed as P.O.P.No.96/1983 on22.10.1983 and subsequently converted as original suit andnumbered as O.S.No.110/1993. It is the plaintiff's case thatdocument No.568/66 was created by her father against herinterest and that the assignment of plaint schedule property infavour of the 2nd defendant is invalid and the plaintiff is entitledto declaration and partition. It is contended that the assignmentby the 1st defendant in favour of the 2nd defendant is not for thebenefit of the plaintiff, therefore it is not binding on her or affecther share and hence she is entitled to the relief of cancellation ofthe document. Plaintiff's father assigned the property in favour ::4::R.F.A.No.535 Of 207of the 2nd defendant. The 2nd defendant later sold the propertyto the 3rd defendant and he in turn sold it in favour of the 4thdefendant. The contention of the plaintiff that documentNo.568/66 was executed not for the benefit of the minor andagainst her interest was examined by the court below in detail.The 2nd defendant contended that there is no bonafides in filingthe present suit and it is barred by limitation. The 4th defendant,who is the transferee in possession, contended that the plaintschedule property was not purchased by the grandfather of theplaintiff and that the suit was filed by the plaintiff as a result ofthe collusion between her and her father. It is pointed out by the4th defendant that the money obtained by the sale of the propertyin favour of the 2nd defendant by the plaintiff's father was utilisedfor purchasing another property in the name of the plaintiff andthat the said fact was suppressed in the plaint. According to the4th defendant, the contention raised by the plaintiff that the salewas not for the benefit of the minor is baseless.7.PW1 was examined. She testified before the court intune with the plaint averments. Ext.A1 marked through theplaintiff is the document by which the grandfather purchased the ::5::R.F.A.No.535 Of 207property in the name of her mother. Ext.A2 sale deed is theimpugned assignment deed by which the property was sold bythe 1st defendant in favour of the 2nd defendant. Ext.A2 sale deedwas executed for and on behalf of the minor plaintiff as well.The plaintiff has got one half share over the property sold. It isrecited in Ext.A2 sale deed that the sale deed was executedpursuant to an agreement for sale executed between theplaintiff's mother and the 2nd defendant. The said agreement forsale is dated 13.6.1964. Plaintiff's mother died during march,1965. It is also recited in Ext.A2 that after the death of themother, a fresh agreement for sale was executed by her father infavour of the same purchaser. The said agreement was acontinuation of the earlier agreement for sale dated 13.6.1964.The total sale consideration shown in Ext.A2 sale deed isRs.7,500/-. The recitals would show that the mother herselfreceived an amount of Rs.3,500/- towards sale considerationbefore her death. Rs.3,000/- was received by the mother toredeem the mortgage outstanding and that the property wasredeemed by paying the said amount during her lifetime in 1965.Ext.B5 is the registered mortgage deed dated 28.1.1964. The ::6::R.F.A.No.535 Of 207recitals also would show that while the agreement was in force,the mother died and after her death, her husband, who is thefather of the plaintiff, executed the registered agreementagreeing to execute the sale deed as agreed by the deceasedmother. Ext.A2 further recites that plaintiff's father receivedRs.250/- towards registration expenses in connection with thesale deed No.352/66 marked as Ext.B2 and received Rs.1,650/-for the purpose of attending the repair work of the buildingsituated in the property purchased vide Ext.B2 sale deed.8.The recitals in Ext.A2 sale deed of the year 1966reveals the following facts: The plaint schedule property wassold for a consideration of Rs.7,500/-. The sale deed wasexecuted by the 1st defendant father for himself and on behalf ofthe minor plaintiff. The mother of the plaintiff died during March,1965. While, the mother was alive, on 13.6.1964, the motherexecuted an agreement for sale agreeing to convey the plaintschedule property to the purchaser, who is the 2nd defendant.The original date fixed for execution of the agreement wasextended during mother's lifetime. On 1.1.1965, the motherherself received Rs.3,000/- from the 2nd defendant to redeem the ::7::R.F.A.No.535 Of 207mortgage dated 28.1.1964 in respect of the plaint scheduleproperty. The mother also received Rs.500/- as advance at thetime of execution of the agreement. The recitals in Ext.A2 alsoreveals the fact that the mother got release of the mortgage by aregistered release deed. No circumstances are made out by theplaintiff to disbelieve the recitals in Ext.A2 sale deed which wasexecuted long years back i.e., in the year 1966. The plaintiff wasaged two years at the time of execution of Ext.A2 sale deed. Sheis not in a position to prove and convince the court that therecitals in Ext.A2 with regard to the agreement for sale areincorrect. The mother died while the agreement for sale was inforce. Subsequently, plaintiff's father, in continuation of theearlier agreement, executed a registered agreement as documentNo.1088/65. Before the execution of Et.A2 sale deed, the 1stdefendant received Rs.2,500/- for the purpose of purchase ofExt.B2 property in the name of the plaintiff having an extent of 8cents and a residential building. Ext.B2 property was purchasedon 5.2.66 i.e., a few days before the execution of Ext.A2 saledeed. A reading of Ext.A2 would show that the entire saleconsideration of Rs.7,500/- was utilised for meeting different ::8::R.F.A.No.535 Of 207purposes in the family. On 1.1.1965, Rs.3,000/- was utilisedfor the purpose of releasing the mortgage outstanding andRs.2,500/- for the purchase of the property in the name of theminor plaintiff. Both these transactions were born out bydocuments which I have referred above. The balance amountwas allegedly spent for the purpose of maintenance and repair ofthe building in the newly purchased property. Thus, the entiresale consideration was utilised for the purpose of meeting theexpenses of the family which includes the purchase of Ext.B2property in the name of the minor plaintiff. The recitals in thedocument would also show that the sale deed was executed infurtherance of agreement for sale executed between the motherof the plaintiff and the 2nd defendant. At the time of the deathof the mother almost one half of the sale consideration wasalready received by the mother herself. In these circumstances,the sale deed executed by the father for himself and for and onbehalf of his minor child, who is the plaintiff, cannot be said to beillegal. In fact, the father had not spent or taken the saleconsideration received by him for meeting his personal needs. ::9::R.F.A.No.535 Of 2079.The evidence on record show that the fatherpurchased 8 cents of land with a residential building with thebalance sale consideration received by him by the sale of Ext.A2property. 8 cents and house was purchased in the name of theminor plaintiff vide Ext.B2 dated 5.2.1966. Subsequently, on16.8.1967, father sold Ext.B2 property to a stranger. On thesame day, father purchased another property in the name of theminor plaintiff utilising the sale consideration of Ext.B2 property.The said property was sold later by sale deed dated 22.8.1968.It is brought to the notice of this Court that the plaintiff filedO.S.No.1320/1990 (P.O.P.No.139/1983) before the II AdditionalMunsiff Court, Thrissur, for cancelling the two sale deeds referredabove dated 16.8.1987 and 22.8.1968, marked as Exts.A2 andA4 in the said suit. During the pendency of the said suit, the 4thdefendant therein, who is the purchaser of Ext.A2 sale deed,expired and the property covered by Ext.A2 sale deed in the saidsuit devolved on the legal heirs. But the plaintiff did not impleadthe legal heirs of the 4th defendant. As they have not beenimpleaded the learned Munsiff held that the court will not be ableto give an effective decree for recovery of Ext.A2 property from ::10::R.F.A.No.535 Of 207the legal heirs of the 4th defendant and therefore held that theplaintiff is not entitled to any relief in respect of Ext.A2 property.The learned Munsiff granted a decree in respect of Ext.A4property (sale deed executed by the father of the plaintiff infavour of the 2nd defendant therein) declaring that Ext.A4 saledeed is void and cancelled the sale deed in favour of thepurchaser. The certified copy of the judgment inO.S.No.1320/1990 was produced before this Court as additionalevidence and is marked as Ext.A5. Thus, on an evaluation ofevidence on record, it is seen that Ext.A2 sale deed was executedby the father pursuant to the agreement for sale executedbetween the original owner, namely, mother of the plaintiff andthe 2nd defendant purchaser. Moreover, the property purchasedby using the sale consideration of Ext.A2 property was cencelledby the learned Munsiff in O.S.No.1320/1990. After obtaining adecree cancelling the sale deed executed by the father in relationto the property purchased after the sale of Ext.A2 property, thepresent suit filed seeking cancellation of the original sale deed isnot maintainable for the reason that the plaintiff is seekingdouble benefit. The plaintiff is also not entitled to the relief of ::11::R.F.A.No.535 Of 207cancellation of Ext.A2 document for the reason that Ext.A2 saledeed was executed in furtherance of carrying out the agreementfor sale executed between the plaintiff's mother and purchaser.For the said reason also the plaintiff cannot maintain the presentsuit of like nature containing allegation that the sale deed wasexecuted by the father against the interest of the minor. Thefather sold the property to the 2nd defendant by Ext.A2 sale deed.The 2nd defendant later sold the property to the 3rd defendant andlater it was purchased by the 4th defendant and he is inpossession of the plaint schedule property. The trial court alsonoticed the recitals in Ext.A2 deed and the purchase of certainproperties in favour of the plaintiff vide Ext.B2 sale deed utilisingthe sale consideration received by her father. The recitals inExt.A2 sale deed would show that Ext.B2 property was purchasedin February, 1966 itself. The trial court also found that there isno evidence in this case to substantiate the case of the plaintiffthat Ext.B2 property was purchased utilising the amount receivedby the father by the sale of 14 sovereigns of gold belonging toher mother and that the ornaments were in the custody of thefather. The trial court also held that by the purchase of Ext.B2 ::12::R.F.A.No.535 Of 207property in the name of the plaintiff alone after selling Ext.A2property owned by the father and plaintiff, the 1st defendant didnot act against the welfare of the minor. For the aforesaidreasons Ext.A2 sale deed is not liable to be set aside. I agreewith the findings recorded by the trial court. The suit is devoid ofany merit and is liable to be dismissed.In the result, appeal fails and accordingly, dismissed withcosts. HARUN-UL-RASHID, Judge.bkn/-