Dismissed

Nelson v. Thankaswami

Kerala HC1 Jun 2012RSA/1024/2011

Case brief

AI extract

What is this about?

This second appeal challenged a partition judgment. The High Court held that the presumption under Section 90 of the Evidence Act did not apply to the certified copy of the disputed gift deed produced by appellants. Consequently, the execution of the gift deed was not established, the second appeal was dismissed without admitting any substantial question of law.

What did the court decide?

The second appeal was dismissed.

Nelson Vs Thankaswami — Partition | Kerala HC (2012)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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FRIDAY, THE 1ST DAY OF JUNE 2012/11TH JYAISHTA 1934

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RSA.No. 1024 of 2011 (E) -----------------------AS.185/2009 of SUB COURT,NEYYATTINKARA OS.649/2008 of PRL.MUNSIFF COURT,NEYYATTINKARA

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APPELLANTS/APPELLANTS/DEFENDANTS 6, 7 AND 9:

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NELSON, AGED 56 YEARS OADALVILA VEEDU,KEZHAKKEKARA ANAPPARA VELLARADA DESOM,VELLARADA VILLAGE

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THIRUVANANTHAPURAM,PIN 695 505.

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VIMALA, AGED 50 YEARS,D/O.AMMU, OADALVILA VEEDU,KEZHAKKEKARA ANAPPARA VELLARADA DESOM,VELLARADA VILLAGE

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THIRUVANANTHAPURAM,PIN 695 505.

¶11

AMBILI,AGED 42 YEARS,W/O.YOYE, VADAKKUMKARA,PUTHEN VEEDU,POMKODE

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CHERIYAKOLLA DESOM,KUNNATHUKAL VILLAGE

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THIRUVANANTHAPURAM , PIN 695 504.

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BY ADV. SRI.BLAZE K.JOSE

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RESPONDENTS/RESPONDENTS/PLAINTIFF/DEFENDANTS 1 TO 5 & ADDL.8TH:

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THANKASWAMI, AGED 64 YEARS, S/O.KOCHAPPI,KALLIDANTHIVILA VEEDU, THATHIYOOR DESOM PERUMKADAVILA VILLAGE, THIRUVANANTHAPURAM PIN 695 124.

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SNAHAPPU,AGED 80 YEARS,D/O.JOIES, ROADARIKATHU VEEDU,ARUVIYODU,KUNNATHUKAL DESOM

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KUNNATHUKAL VILLAGE,THIRUVANANTHAPURAM ,PIN 695504

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THANKAMMA,AGED 70 YEARS,D/O.SNAHAPPU,

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KIZHAKKUMKARA VEEDU,ADIKALAM,KOVILLOOR DESOM

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VELLARADA VILLAGE,THIRUVANANTHAPURAM,PIN 685615.

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RAJEMMA,AGED 65 YEARS,D/O.SNAHAPPU, KALLIDANTHIVILA VEEDU,THATHIYOOR DESOM

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PERUMKADAVILA VILLAGE,THIRUVANANTHAPURAM PIN 695 124.

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AMBIKA,AGED 40 YEARS,D/O.EALI, KALLIDANTHIVILA VEEDU,THATHIYOOR DESOM PERUMKADAVILA VILLAGE,THIRUVANANTHAPURAM PIN 695 124.

¶25

RSA.No. 1024 of 2011

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RAJAMMA,AGED 55 YEARS,W/O.THANKACHAL, KADAYIVILA VEEDU,MUNDAMALA,KULATHAMAL DESOM NEYYATTINKARA VILLAGE,THIRUVANANTHAPURAM

¶27

PIN 689543.

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JOYE,AGED 45 YEARS,S/O.JONI VADAKKUMKARA,PUTHEN VEEDU,POMKODE

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CHERIYAKOLLA DESOM,KUNNATHUKAL VILLAGE

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THIRUVANANTHAPURAM, PIN 695 504.

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BY ADV. SRI.C.N.SAMEER FOR R1

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BY ADV. SRI.B.SAINU FOR R6

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BY ADV. SMT.RESMI NANDANAN FOR R4

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P. JOSEPH, J.

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R.S.A.No.1024 of 2011

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Dated this 01^st day of June, 2012

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JUDGMENT

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Defendants 6, 7 and 9 challenge the judgment and preliminary decree for partition passed by the learned Principal Munsiff, Neyyattinkara in O.S.No.649 of 2008 as confirmed by the learned Sub Judge, Neyyattinkara in A.S.No.185 of 2009.

¶40

According to the first respondent/plaintiff, plaint A schedule (which is sought to be partitioned) belonged to Chadachi Snehappoo @ Kunji as per partition deed No.5336 of 1121 ME(Ext.A1). She died in the year, 1969 leaving four daughters and three sons. Two of the sons died bachelor. One of the daughters by name, Eli died on 25.05.2007. 4^th defendant is the legal heir of the said Eli. Plaintiff alleged that himself and defendants 1 to 4 are in joint possession and enjoyment of the suit property. Defendants 5 to 7 were impleaded as persons claiming under the third defendant (daughter of Snehappoo @ Kunji).

¶41

Defendants 6 and 7 contended that Snehappoo had no alias name as 'Kunji' and that plaintiff and defendants 1 to 4 have no right in the property. Snehappoo had executed Gift deed

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R.S.A.No.1024 of 2011

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-: 2 :-

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No.5664 of 1967 (certified copy of which is Ext.B1) regarding 28 cents in favour of the 3^rd defendant, her daughter and her husband, John Brose. The whereabouts of the 3^rd defendant are not known for the last so many years. The said 28 cents devolved on her husband, John Brose and Ambili (9^th defendant). The said John Brose transferred his right to the 9^th defendant as per gift deed No.2825 of 1988 (Ext.B2). 9^th defendant and her husband sold 16½ cents to defendants 6 and 7 as per Ext.B3, document No.2721 of 1992 while the 9^th defendant purchased 11½ cents.

¶45

9^th defendant also raised similar contentions and contended that the property is in the possession of herself and defendants 6 and 7. Plaintiff filed a replication stating that Snehappoo has not executed any gift deed in favour of third defendant and hence defendants 6 and 7 have no right in the property.

¶46

Trial court considered the question whether Snehappoo had executed gift deed No.5664 of 1967 and concluded that due execution of that document is not proved. It followed that plaintiff being a legal heir of Snehappoo was entitled to partition of the property and accordingly judgment and preliminary decree were passed. That judgment and decree

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R.S.A.No.1024 of 2011

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-: 3 :-

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were confirmed by the first appellate court. Hence the second appeal.

¶50

Learned counsel for appellant/defendants 6, 7 and 9 contend that due execution of gift deed No.5664 of 1967 is proved and that at any rate, Sec.90 of the Evidence Act (for short, "the Act”) should apply to Ext.B1 which is the certified copy produced from proper custody. It is also argued that finding of the courts below that Snehappoo had died even before Ext.B1 is not correct. Learned counsel argued that Ext.A2, certificate does not relate to Snehappoo as it has given an entirely different address than what is stated in the plaint. It is contended that Exts.A4 and A5 do not relate to the suit property.

¶51

Though, contesting defendants have a case that Snehappoo had no alias name as Kunji, Exts.A4 and A5 referred to Snehappoo is having the said alias name. Exts.A4 and A5 are the tax assessment register and extract of the field register of the property to show standing in the account of Kunji.

¶52

So far as due execution of Ext.B1 is concerned, evidence is that of DW2. Trial court observed that evidence of that witness is not convincing and that she is a tutored witness who had no idea of Ext.B1. That finding was upheld by the first

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R.S.A.No.1024 of 2011

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-: 4 :-

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appellate court as well. That is a finding of fact which does not involve any substantial question of law.

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The contesting defendants were not able to produce original of Ext.B1. They claimed that the original was lost from the custody of the 3^rd defendant whose whereabouts are allegedly not known for several years. The 9^th defendant in her evidence as DW1 stated that the third defendant is alive and that DW2, her aunt had seen the third defendant after the suit. It is pointed out that the third defendant has appeared in this appeal through counsel.

¶57

Assuming that the original of Ext.B1 is not available, contesting defendants who place reliance on that document ought to have summoned the filing copy of the said document to prove the signature and thumb impression of the executant. That was not done. Instead, they relied on Sec.90 of the Act to say that genuineness of the document has to be presumed. In Sri Lakhi Baruah and Ors. Vs. Sri Padma Kanta Kalita and Ors.

¶58

(AIR 1996 SC 1253), what is held is that presumption under Sec.90 of the Act does not apply to a copy or a certified copy even though 30 years old but, if a foundation is laid for admission of secondary evidence under Sec.63 of the Act by proof or loss of

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R.S.A.No.1024 of 2011

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-: 5 :-

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destruction of the original and the copy which is thirty years old is produced from proper custody, then only the signature authenticating the copy may under Sec.90 be presumed to be genuine.

¶62

In this case Ext.B1 is a certified copy which does not contain the signature of the executant. Moreover, Ext.B1 is not thirty years old. Hence the presumption under Sec.90 cannot be attached to Ext.B1.

¶63

As regards the death of Snehappoo even prior to Ext.B1 is concerned, Ext.B1 is of the year 1967 while in the plaint what is averred is that Snehappoo died in the year 1969. Ext.A2 and evidence of PW6 is pressed into service to show that Snehappoo died on 11.12.1966. Learned counsel has given me a copy of Ext.A2 which shows that the address given is different from what is stated in the plaint.

¶64

Assuming that Ext.A2 cannot be looked into, trial and first appellate courts found that due execution of the gift deed by Snehappoo is not established. Ext.B1 cannot therefore be acted upon. If that be so, Exts.B2 and B3 cannot have any weight.

¶65

The contention that there must be prayer for recovery of possession also cannot stand since entire suit property is not in

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R.S.A.No.1024 of 2011

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-: 6 :-

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the possession of defendants 6 and 7. The question of adverse possession also does not arise.

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Lastly, it is argued that defendants 6 and 7 who are bonafide purchasers are entitled to a reservation in the property. That is not a question required to be decided in this proceeding. If otherwise entitled, it is open to them to raise that plea in appropriate proceeding as provided under law.

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Having heard learned counsel and gone through the judgments I do not find any substantial question of law involved in this appeal requiring its admission.

¶71

The second appeal is dismissed.

¶72

(THOMAS P. JOSEPH, JUDGE)

¶73

Sbna/-

Nelson v. Thankaswami

Case brief

What is this about?

What did the court decide?

Nelson v. Thankaswami

Case brief

What is this about?

What did the court decide?

What the court decided

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