Allowed

Mathew Sebastian v. Saji

Kerala HC14 Jul 2016OP(C)/1397/2016

Case brief

AI extract

What is this about?

The Court allowed a petition challenging the trial court's rejection of an application for a forensic report on signatures. The Court held that proving a re-conveyance agreement is relevant to the petitioner's title claim since the respondents denied its existence, and directed the trial court to send the documents for expert opinion.

What did the court decide?

Point No.1 in the rejected order set aside; I.A. No.305/2016 allowed to the extent of directing the trial court to send the disputed documents with admitted signatures to the Forensic Science Laborato

Mathew Sebastian Vs Saji — Property and Title | Kerala HC (2016)

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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 K.HARILAL

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THURSDAY, THE 14TH DAY OF JULY 2016/23RD ASHADHA, 1938

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OP(C).No. 1397 of 2016 (O)

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OS.NO. 247/2014 OF MUNSIFF COURT, ERATTUPETTA

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PETITIONER:

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MATHEW SEBASTIAN, AGED 50 YEARS, S/O. DEVASIA, KALAPPURACKAL HOUSE, CHENNADU P.O.

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BY ADVS.SRI.SAIGI JACOB PALATTY SMT.ANU S. NAIR

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RESPONDENT(S):

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1. SAJI, S/O. GEORGE, CHOMKARA HOUSE, THIDANADU P.O., KONDOOR VILLAGE, MEENACHIL TALUK, PIN-686 123.

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2. K.V.PAUL, S/O. VARKEY, KODAKKANAL HOUSE, KUNNONNI P.O., POONJAR THEKKEKKARA VILLAGE, MEENACHIL TALUK-686 581.

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3. SUNNY CHACKO, S/O. CHACKO, CHOMKARA HOUSE, KUNNOM P.O., POONJAR THEKKEKARA, MEENACHIL-686 582.

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4. SHAJI, S/O. K.V.PAUL, KODAKKANAL, KUNNONI P.O., POONJAR, THEKKEKARA, MEENACHIL TALUK-686 581.

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5. MATHEW,

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S/O. DEVASIA, PLATHOTTIL HOUSE, ERATTUPETTA VILLAGE, MEENACHIL, PIN-686 121.

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R1 TO R4 BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 14-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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OP(C).No. 1397 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 COPY OF THE PLAINT IN OS.NO. 247/2014 BEFORE THE MUNSIFF COURT, ERATTUPETTA.

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P2 COPY OF THE WRITTEN STATEMENT IN THE SUIT.

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P3 COPY OF THE APPLICATION TO SEND THE SIGNATURES FOR FORENSIC REPORT.

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P4 COPY OF THE ORDER REJECTING THE EXT.P3 APPLICATION.

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RESPONDENT(S)' EXHIBITS:

NIL

/TRUE COPY/

P.S.TO JUDGE

sts

K. HARILAL, J.

O.P. (C) No. 1397 of 2016-O

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-----------------------------------------------------Dated this the 14^th day of July, 2016

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JUDGMENT

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The petitioner herein is the plaintiff in O.S. No.247/2014 before the Munsiff's Court, Erattupetta. The suit is one for declaration of title, injunction and also for a direction to the respondents to re-convey the property of the petitioner, which is given, as security, for the financial transaction between the plaintiff and the respondents. According to the petitioner, respondents 3 and 4 are financiers and the petitioner has availed a loan from them. On receipt of the said amount, as security, the petitioner has executed sale deed Nos.1645 and 1676/2012 and the said sale deeds were executed on the basis of another agreement to re-convey the property covered by the

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O.P. (C) No. 1397 of 2016 -: 2 :-

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aforesaid sale deeds to the petitioner on repayment of the loan amount. Thus, according to the petitioner,

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the property was not actually conveyed in execution of the sale deed Nos.1645 and 1676/2012 and they are still in the possession and enjoyment of the petitioner.

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The respondents entered appearance and filed a written statement denying the entire plaint averments and contended that the sale deed Nos.1645 and 1676/2012 were executed in execution of the actual sale and not as a security. So also, they have denied the contention that they have executed another agreement agreeing to re-convey the property, on repayment of the entire loan amount, with interest. In the above context, the petitioner preferred I.A. No.305/2016 seeking an order to send the signatures of the 3^rd and 4^th respondents, to the Forensic Science Laboratory, Thiruvananthapuram, for expert's opinion, so as to prove the signatures in the re-conveyance agreement.

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O.P. (C) No. 1397 of 2016 -: 3 :-

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The respondents filed an objection contending that the said petition is intended to drag the matter and to prolong the decree that may be passed against them. After considering the rival pleas, the court below dismissed the application, by Ext.P4 order. The legality and correctness of the findings in Ext.P4, are under challenge in this Original Petition (Civil).

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Going by Ext.P1, a copy of the plaint, it could be seen that the specific case of the petitioner is that the sale deed Nos.1645 and 1676/2012 were executed in favour of 3^rd and 4^th respondents, as a security, for a loan transaction and no property was conveyed by the execution of the said sale deeds. According to them, even now they are in possession and enjoyment of the property covered by the sale said deeds. It is also specifically contended that since the sale deed Nos.1645 and 1676/2012 are only securities, both parties entered into an another agreement, whereby the respondents 2 and 3 agreed to re-convey the property covered by the sale deed Nos.1645 and

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O.P. (C) No. 1397 of 2016 -: 4 :-

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1676/2012, on repayment of the entire loan amount, with interest. This is the foundation in which the plaintiff has set up the entire case. But going by the written statement, it could be seen that the respondents have denied the execution of the agreement to re-convey the property on full payment of loan amount.

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In the above view of the matter, this Court is of the opinion that the execution of the agreement to re-convey the property is also a relevant fact which would prove the case set up by the petitioner in the plaint. Since the respondents have denied the execution of such a document to re-convey the property, the genuineness of the said document requires to be considered for adjudication of the question, in controversy, involved in the Original Suit. Therefore, this Court finds that the court below went

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wrong by rejecting the application, without considering the rival pleadings, in its correct perspective.

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O.P. (C) No. 1397 of 2016 -: 5 :-

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In the above view of the matter, Point No.1, in Ext.P4 order, will stand set aside. Needless to say, I.A. No.305/2016 will stand allowed to that extent and the trial court is directed to take necessary steps to send the disputed document along with admitted signatures of the 2^nd and 3^rd respondents, to the Forensic Science Laboratory, Thiruvananthapuram, for expert opinion, at the earliest.

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This Original Petition (Civil) is disposed of accordingly.

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Sd/-

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(K. HARILAL, JUDGE)

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Nan/

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//true copy//

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P.S. to Judge

Mathew Sebastian v. Saji

Case brief

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Mathew Sebastian v. Saji

Case brief

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