Dismissed

Balan v. Mathew

Kerala HC1 Dec 2008RSA/745/2008

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a second appeal pending in limine. The appellant challenged a judgment canceling a sale deed, arguing that thumb impression was not mandatory. The court held that findings regarding signature discrepancies and absence of thumb impressions were factual and no substantial question of law arose.

What did the court decide?

Second appeal dismissed in limine; questions of law formulated in memorandum of appeal not entertained.

Balan Vs Mathew — Property and Title | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE V.RAMKUMAR

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MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930

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RSA.No. 745 of 2008()

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--------------------A.S.NO.98/2004 ON THE FILE OF THE SUB COURT, IRINJALAKUDA O.S.NO.465/2001 OF THE MUNSIFF'S COURT, CHALAKUDY

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APPELLANTS/DEFENDANTS:

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BALAN, AGED 62, S/O.MANIKUTTY, CHELUPARAMBIL, ADICHILI DESOM, MELOOR VILLAGE, MUKUNDAPURAM TALUK.

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GIRILAL SINGH, AGED 52 YEARS, S/O.KUTTAPPAN, CHALUPARAMBIL, ADICHILI DESOM, MELOOR VILLAGE, MUKUNDAPURAM TALUK.

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BY ADV. SRI.R.MURALEEDHARAN PILLAI

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RESPONDENT(S): RESPONDENT/PLAINTIFF:

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METHEW, AGED 62 YEARS, S/O. PLAKKIL JOSEPH, PARAMPAZHUKKARA DESOM, PERUMPAYIKAD VILLAGE, KOTTAYAM DISTRICT.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V. RAMKUMAR, J.

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= = = = = = = = = = = = = = Dated this the 1st day of December, 2008

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JUDGMENT

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The defendants in O.S.No.465/2008 on the file of the Munsiff's Court, Chalakudy are the appellants in this second appeal. The said suit filed by the respondent herein was one for cancellation of Ext.A1 sale deed dated 14.1.1997 in respect of 8 ½ cents of property on the allegation that the plaintiff did not execute the said document nor did he go to Sub Registrar's Office and got it registered and that it is a fabricated document. As per Ext.A1 sale deed the plaintiff had purportedly sold 8½ cents of property to the defendant.

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The suit was resisted by the defendants contending inter alia that the original of Ext.A1 sale deed was executed by plaintiffs for valuable consideration and that the case of the plaintiff was false.

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The learned Munsiff, after trial, came to the conclusion that, apart from the fact that the signatures of the

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R.S.A.No.745 of 2008

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plaintiff in the original document summoned from the Sub Registrar Office as Ext.X1 was patently dissimilar, his signatures in Ext.X3 and X4 prior sale deeds of the year 1993 were also palpably dissimilar with the signatures in the original of Ext.A1 sale deed. The trial court also found that when the thumb impression of the plaintiff was obtained by the Sub Registrar at the time of the earlier two assignment deeds namely Ext.X3 and X4, the tumb impression of the plaintiff was not obtained in Ext.X1-Register pertaining to original of Ext.A1 sale deed. Accordingly, it was held that the impugned sale deed was not executed by the plaintiff. The suit was accordingly decreed as prayed for. On appeal preferred by the defendants as A.S.No.98/2004 on the file of the Additional Sub Court, Iringalakuda, the learned Sub Judge, as per judgment and decree dated 29.02.2008 confirmed the judgment and decree passed by the trial court and dismissed the appeal. Hence this second appeal by the plaintiff.

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R.S.A.No.745 of 2008

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Following are the substantial questions of law formulated in the memorandum of appeal:-

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(1) Whether thump impression in document is an essential factor for registration of a document in the circumstances that the Sub-Registrar is empowered to register under Rule 73 of the Registration Act?

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(2) A document without thump impression can be taken as an evidence under S.114(E) of the Evidence Act.

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(3) A document registered by the Sub Registrar can be challenged by either of the parties as fabricated one.

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(4) After the registration of a document either party after pretty long period of silence can challenge the legality of the document under the provisions of Limitation Act.

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(5) Who is the party to prove conclusively, that a document is a fabricated one or any impersonal one and if so what are the necessary evidence and provisions of Law?

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The learned counsel appearing for the appellants made

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the following submissions before me in support of the appeal:-

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Rule 73 of the Kerala Registration Rules 1958 insists on the taking of the thump impression of the executant only if he is not personally known to the Sub Registrar. Therefore, the taking of thumb impression is not inevitable in all cases. That apart,

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R.S.A.No.745 of 2008

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Ext.B1 is an affidavit filed by the plaintiff in another suit filed as O.S.No.393/01 on the file of the Munsiff's Court, Chalakudy in which he had admitted that he was not in possession of 8 ½ cents of land in question. The said affidavit is consistent with Ext.A1 sale deed executed by him. The courts below were not therefore justified in decreeing the suit.

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I am afraid that I cannot agree with the above submissions. Rule 73 of the Kerala Registration Rules insists on taking of the thumb impression of the executant unless he is personally known to the Sub Registrar. First of all Exts.X3 and X4 show that the thump impression of the plaintiff was taken when he assigned properties to the defendants in the year 1993. Exts.B3 and B4 are the photocopies of those assignment deeds executed in the year 1993. If so, it is not known as to why in the year 1997 when the original of Ext.A1 sale deed was executed, the thumb impression of the plaintiff- executant was not obtained. This deepened the suspicion of the courts below that the document was not executed by the plaintiff. The signatures of the plaintiff in Exts.X2 to X4 have absolutely no resemblance

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R.S.A.No.745 of 2008

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to the signature of the plaintiff in Ext.X2 pertaining to the impugned document. All that apart, the original of Ext.A1 sale deed which was allegedly in the possession of the defendants was not produced in the court by them to enable the court below to compare the signatures. That was why the trial court was constrained to call for the registers from the Sub Registrar's Office. The findings recorded by the courts below are pure findings of fact. No question of law, much less any substantial question of law arises for consideration in this second appeal. The questions of law formulated in the memorandum of appeal do not arise for consideration in this second appeal which is accordingly dismissed in limine.

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Dated this the 1st day of December, 2008.

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V. RAMKUMAR, JUDGE

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Balan v. Mathew

Case brief

What is this about?

What did the court decide?

Balan v. Mathew

Case brief

What is this about?

What did the court decide?

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