Dismissed
Ayalath Chirutha and Others v. Thuvakkatte Padmini
Kerala HCRSA/1175/2008
Case brief
AI extract
What is this about?
确立了该定期二审裁定驳回，法院认为现有证据不足以证明交易被欺诈，被告关于知情并支付对价的主张得到文件登记官证言及付款凭证支持。
What the court decided
AI extract
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
TUESDAY, THE 1ST DAY OF NOVEMBER 2016/10TH KARTHIKA, 1938
R.S.A.NO. 1175 OF 2008 (F)
AGAINST THE JUDGMENT AND DECREE DATED 30-11-2007 IN A.S. NO.203/2002 OF THE I ADDL.SUB COURT, KOZHIKODE
AGAINST THE JUDGMENT AND DECREE DATED 13-08-2001 IN O.S. NO.61/1997 OF THE ADDL. MUNSIFF COURT, KOZHIKODE- II
APPELLANTS/APPELLANTS/DEFENDANTS::
1. AYLALATH CHIRUTHA, AGED 66 YEARS, D/O.POYILI KELU, VELIPRAM AMSOM, KARINKALLAYI DESOM, KOZHIKODE TALUK & DISTRICT.
2. AYLALATH BALAKRISHNAN, AGED 41 YEARS, S/O.ARUMUGHAN, VELIPRAM AMSOM, KARINKALLAYI DESOM, KOZHIKODE TALUK & DISTRICT.
3. AYLALATH HARIDASAN, AGED 33 YEARS, S/O.ARUMUGHAN, VELIPRAM AMSOM, KARINKALLAYI DESOM, KOZHIKODE TALUK & DISTRICT.
BY ADVS.SRI.PHILIP ANTONY CHACKO SRI.M.R.MOUNEESH
RESPONDENT/RESPONDENT/PLAINTIFF:
THUVAKKATTE PADMINI, AGED 48 YEARS, ERNAD TALUK, AZHINHILAM AMSOM DESOM, D/O.PAYYERI DAMODARAN.
BY ADVS. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01-11-2016, ALONG WITH R.S.A. NO.1176 OF 2008 (F) THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DST
K. HARILAL, J.
= = = = = = = = = = = = = = = = = = = = = R.S.A. Nos. 1175 & 1176 of 2008
- - - - - - -- - - - - - - - - - - - - - - - - - - - Dated this the 1st day of November, 2016
J U D G M E N T
The appellant herein is the plaintiff in O.S.
No.1008 of 1996 on the files of the Munsiff's Court-II, Kozhikode as well as the appellant in A.S. No.200 of 2002 before the Sub Court, Kozhikode. Similarly, she was the defendant in O.S. No.61 of 1997 of the same court as well as the appellant in A.S. No.203 of 2002 of the same appellate court. The trial court dismissed O.S. No.1008 of 1996 and decreed O.S. No.61 of 1997.
R.S.A. Nos. 1175 & 1176 of 2008
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in O.S. No.1008 of 1996 and O.S. No.61 of 1997,
respectively. These appeals are filed, challenging the judgment and decree passed in A.S. No.203 of 2002 and 200 of 2002, respectively. Since the parties are common and the matters in issue are one and the same, both the appeals are heard together and disposed of accordingly. Here, the parties are referred to as arrayed in O.S. No.1008 of 1996.
cancellation of sale deed No.1345 of 1982, executed by the plaintiff in favour of the defendant, on the ground that the said sale deed is vitiated by fraud and misrepresentation. The plaint schedule property belongs to the plaintiff. According to her, she borrowed an amount of `10,000/- from the defendant to meet the marriage expenses of her daughter and at the time of the said borrowal, she was constrained
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to put her signature in the stamp paper brought up
by the defendant. She was made to believe that the contents of the document is that of a mortgage deed
and the same was executed as a security for the amount of `10,000/- borrowed from him. Nobody has read over the contents of the documents to the plaintiff. Considering the relationship of the parties, the plaintiff has not insisted for reading the contents to her. Though, the said document was executed, possession of the property was not handed over to the defendant and the plaintiff was in possession of the property together with other properties. Recently, she came to know that the defendant is attempting to sell the plaint
schedule property and on getting the said information, she made enquiries with the SRO and she came to know that the document executed by her was
R.S.A. Nos. 1175 & 1176 of 2008
not a mortgage deed; but a sale deed. The said
document was registered as a sale deed No.1345 of 1982 of SRO, Feroke and the same was executed by exertion of fraud and misrepresentation by the defendant. Plaintiff averred that the property would fetch a price of more than 20,000/-. But the consideration shown in the sale was only 8,000/-. The defendant has not obtained any right over the property under the sale deed. With these averments, the appellant has sought for a decree, cancelling sale deed No.1345 of 1982.
No.61 of 1997, seeking a decree for prohibitory injunction, against the plaintiff and two others, restraining them from trespassing into the plaint schedule property. In the written statement filed in O.S. No.1008 of 1996 and in the plaint in O.S. No.61
R.S.A. Nos. 1175 & 1176 of 2008
of 1997, the defendant denied the allegation that
sale deed No.1345 of 1982 was executed by the plaintiff as security for the loan amount of 10,000/- borrowed by the plaintiff from her and the plaintiff executed the document believing the words of the defendant that the same is a mortgage deed and she executed the same by exerting fraud and misrepresentation on the plaintiff. According to the defendant, Ext.B1 is an absolute sale deed, the plaintiff had sold the plaint schedule property to the defendant, after fixing the price of the property as 8,000/- on negotiation and the sale deed was executed with the knowledge that the said document is a sale deed. It is contended that at the time of execution of that document, the contents of the document was read over to the plaintiff at the SRO, Feroke and the son of the plaintiff is one of
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the attesting witnesses of that document. Pursuant
to the sale deed, mutation was effected and the defendant has been paying basic tax for the said property from the date of execution of Ext.B1 onwards. Thus, the defendant has absolute possession and enjoyment over the plaint schedule property. On the aforesaid rival pleadings, the trial court framed the following issues.
1.Whether the execution of Ext.B1 document is vitiated by fraud and misrepresentation as alleged by the plaintiff?
2.Whether sale deed No.1345 of 1982 of SRO,
Feroke is liable to be set aside or
cancelled?
4.Is there any cause of action for the suit?
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5.Is the plaintiff entitled to get a decree
for prohibitory injunction as prayed for?
aforesaid issues. The evidence, both oral and documentary, are in abundance. After considering the evidence on record, the trial court dismissed O.S. No.1008 of 1996 on a finding that Ext.B1 is a sale deed executed by the plaintiff after knowing fully well the contents of the said document and the plaintiff's case is a false story. So also, decreed O.S. No.61 of 1997 on a finding that the defendant is in absolute possession and enjoyment of the plaint schedule property, pursuant to Ext.B1 sale deed. In appeal, the appellate court also, after reappreciating the evidence on record, confirmed the aforesaid finding and dismissed both the appeals.
The legality and propriety of the concurrent
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findings, whereby the courts below rejected the case advanced by the plaintiffs, are assailed in this Regular Second Appeal.
Memorandum of Regular Second Appeal, the question to be considered is whether the courts below are justified in finding that Ext.B1 is a sale deed executed by the plaintiff with full knowledge about the contents of the document after receiving the consideration for the same. In other words, the question is whether Ext.B1 is vitiated by fraud and misrepresentation as alleged by the plaintiff?
R.S.A. Nos. 1175 & 1176 of 2008
the defendant. She came to know that the document
was a sale deed when she had taken a copy of the said document from the SRO, when the defendant has taken steps to sell the property to third parties. The plaintiff has not come forward to adduce oral evidence and her son was examined as PW1. His version is that Ext.B1 was happened to be executed by his mother due to fraud and misrepresentation exerted by the husband of the defendant. As rightly noted by the appellate court, on a perusal of the averments in the plaint, it could be seen that the plaintiff has no case that she was constrained to execute the document due to fraud and misrepresentation exerted by the husband of the
defendant. There is no allegation against the husband of the defendant with respect to Ext.B1. He further admitted that he was not present, along with
R.S.A. Nos. 1175 & 1176 of 2008
his mother, at the time of execution of Ext.B1
document. Thus, regarding the execution of Ext.B1 document by his mother, the evidence of PW1 is a hearsay evidence only. It is interesting to note that in a case where the plaintiff alleged that she was unaware of the contents of the document, her own another son, by name 'Haridasan', is the first attesting witness. As rightly observed by the courts below he was the best witness to speak about the execution of the document. But, he was not examined. As regards the execution of the document, there is no evidence other than oral evidence of PW1 from the part of the plaintiff. On the other hand, the evidence of DW1 and DW2 are significant and relevant as regards the execution of Ext.B1 sale deed. DW1 is the husband of the defendant and DW2 is the Document Writer, who prepared Ext.B1 document. When DW1 was
R.S.A. Nos. 1175 & 1176 of 2008
examined, he categorically deposed that Ext.B1 document was executed as a sale deed and the plaintiff has executed that document after knowing fully well the contents of the document. After analysing the evidence of DW1, the courts below concurrently arrived at a finding that though, DW1 was cross-examined nothing was brought out to discredit his testimony regarding the execution of Ext.B1 sale deed by the plaintiff. The evidence of DW2 was that he had prepared Ext.B1 document at the direction of the defendant and he has read over the contents of the document to the plaintiff prior to the execution of the same and the plaintiff executed that document after knowing its contents. Here also, the courts below appreciated his evidence well and arrived at a concurrent finding that the evidence of DW2 stands unchallenged in cross-examination. Thus,
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as regards the execution of the document, the
plaintiff miserably failed to substantiate the pleadings of fraud and misrepresentation in evidence whereas the defendant succeed in disproving the allegations against the execution of the document, by examining DW1 and DW2.
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made an attempt to repay the said amount and to get
the mortgage redeemed. But, she has not made any
attempt to redeem the alleged mortgage.
even though the plaintiff had claimed that she is in possession of the property, no document had been produced to prove her possession as alleged by her and Exts.X1 to X3 series documents will not render any help to substantiate the alleged possession in her favour. Even though the plaintiff has produced Ext.A2 series of tax receipts, the courts below meticulously examined the tax receipts and arrived at a finding that it does not contain the extent or description of the property and the same cannot be relied on. I have meticulously examined the aforesaid tax receipts and I also confirm the findings of the courts below in this respect. On
R.S.A. Nos. 1175 & 1176 of 2008
the other hand, Exts.B1 to B6 series of tax receipts clearly show the description of the plaint schedule property with accuracy and the courts below are justified in relying on Exts.B1 to B6 to arrive at a finding that the plaint schedule property was mutated in the name of the defendant after Ext.B1 sale deed. Further, Exts.B1 to B6 are supported by Exts.B7 & B8. Ext.B7 is the report of the Revenue Inspector and Ext.B8 is the possession certificate issued by the Village Officer. Therefore, it can be concluded unerringly that the property was mutated in favour of the plaintiff after Ext.B1 sale deed. Therefore, in the above analysis of the evidence adduced by both parties, it can be safely concluded that the courts below can be justified in arriving at a findings that Ext.B1 sale deed was executed with the full knowledge about the contents of the
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documents after receiving consideration and the
allegations of fraud and misrepresentation are false stories. It is the case of the plaintiff in both the appeals that the appellant was not given sufficient opportunity to cross-examine DWs.2 to 5.
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learned counsel for the plaintiff willfully
neglected to cross-examine the witnesses. On a reading of the observation made by the trial court in this respect, this Court also finds that after obtaining an opportunity from this Court the plaintiff has willfully stayed away from availing that opportunity. Therefore, I do not find fault with the courts below and the plaintiff has to suffer for the act done by her and her counsel.
plaintiff has mutated the property and she was in possession of the property at the time of filing the suit. The suit was filed after 15 years from the date of execution of Ext.B1 sale deed. Therefore, the courts below are justified in arriving at a finding that Ext.B1 is an absolute sale deed
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executed by the plaintiff with knowledge about the contents of the documents, after receiving the consideration and the defendant is in possession and enjoyment of the property after execution of sale deed. There is no perversity in the appreciation of evidence or illegality or impropriety in any of the findings of the impugned judgments under challenge. No question of law arises for consideration in these appeals.
These Regular Second Appeals R.S.A. No.1175 of 2008 and R.S.A. No.1176 of 2008 will stand dismissed.
Sd/- K. HARILAL,
DST/OKB
//True copy//
P.A. To Judge
2 issues framed by the court
Whether the execution of the sale deed is vitiated by fraud and misrepresentation as alleged by the plaintiff?
Whether the courts below were justified in finding that the plaintiff executed the document with full knowledge of its contents?
Colour shows how this judgement treated each authority
C.R.P.No.2413/2000Referred¶93
AYLALATH CHIRUTHA
AYLALATH BALAKRISHNAN
THUVAKKATTE PADMINI
HARILAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court