Dismissed

G.Raghava Ganakan v. K.P.Sarasamma

Kerala HC21 Oct 2016RSA/896/2005

Case brief

AI extract

What is this about?

In this second appeal, the High Court dismissed the challenge to concurrent findings where trial and appellate courts decreed a suit for declaration of title in favor of a plaintiff who executed a sale deed reserving a life interest for himself, while the appellant's father had gifted a power of attorney allowing another son to collect usufructs, which was held invalid.

What did the court decide?

The Regular Second Appeal stands dismissed. The plaintiff retains title and possession.

G.Raghava Ganakan Vs K.P.Sarasamma — Succession and Inheritance | 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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FRIDAY, THE 21ST DAY OF OCTOBER 2016/29TH ASWINA, 1938

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RSA.No. 896 of 2005 (F )

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AGAINST THE JUDGMENT & DECREE DATED 22-06-2004 IN AS 24/1996 of ADDITIONAL DISTRICT & SESSIONS COURT (AD HOC), FAST TRACK-I, PATHANAMTHITTA

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AGAINST THE JUDGMENT & DECREE DATED 30-09-1995 IN OS 352/1992 of MUNSIFF COURT, PATHANAMTHITTA

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APPELLANT/2ND APPELLANT/2ND DEFENDANT:

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G.RAGHAVA GANAKAN, AGED 76 YEARS, S/O.LATE GOVINDAN, VATTAPPARA PUTHEN VEEDU, VETTOOR MURI, PRAMADAM VILLAGE. (DIED)

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ADDL. APPELLANTS:

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THANKAMMA, AGED 70 YEARS, W/O.LATE G.RAGHAVA GANAKAN, VATTAPPARA PUTHEN VEEDU, VETTOOR MURI, PRAMADOM VILLAGE, ELAKOLLOOR P.O., (VIA) KONNI, PATHANAMTHITTA DT-689703.

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AMBIKA, W/O.LATE SUKUMARAN, VATTAPPARA PUTHEN VEEDU, VETTOOR MURI, PRAMADOM VILLAGE, ELAKOLLOOR P.O., (VIA) KONNI, PATHANAMTHITTA DT-689703

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INDIRA W/O. SREEDHARAN, KAIPPALARIKATHU, ANTHAMON, P.O. KALAIPURAM, KOLLAM DISTRICT.

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SOMAN V.R., S/O. LATE G.RAGHAVA GANAKAN, VATTAPPARA PUTHEN VEEDU, VETTOOR MURI, PRAMADOM VILLAGE, ELAKOLLOOR P.O., (VIA) KONNI, PATHANAMTHITTA DT-689703.(WORKING AS TEACHER IN KASARAGOD DIST.)

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RADHAKRISHNAN V.R., S/O.LATE G.RAGHAVA GANAKAN, 'SOUPARNIKA', THENGUKAVU P.O., POOMKAVU, PATHANAMTHITTA.

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KALLIANAKRISHNAN V.R., S/O. LATE G.RAGHAVA GANAKAN, VATTAPPARA PUTHEN VEEDU, VETTOOR MURI, PRAMADOM VILLAGE, ELAKOLLOOR P.O., (VIA) KONNI, PATHANAMTHITTA DT-689703.

(...2)

RSA.896 OF 2005 (F)

UNNIKRISHNAN V.R., S/O.LATE G.RAGHAVA GANAKAN, VATTAPPARA PUTHEN VEEDU, VETTOOR MURI, PRAMADOM VILLAGE, ELAKOLLOOR P.O., (VIA) KONNI, PATHANAMTHITTA DT-689703.

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JAYAN V.R., S/O.LATE G.RAGHAVA GANAKAN, VATTAPPARA PUTHEN VEEDU, VETTOOR MURI, PRAMADOM VILLAGE, ELAKOLLOOR P.O., (VIA) KONNI, PATHANAMTHITTA DT-689703.

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VIJAYAN V.R., S/O.LATE G.RAGHAVA GANAKAN, VATTAPPARA PUTHEN VEEDU, VETTOOR MURI, PRAMADOM VILLAGE, ELAKOLLOOR P.O., (VIA) KONNI, PATHANAMTHITTA DT-689703.

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KRISHNAKUMAR V.R., S/O.LATE G.RAGHAVA GANAKAN, VATTAPPARA PUTHEN VEEDU, VETTOOR MURI, PRAMADOM VILLAGE, ELAKOLLOOR P.O., (VIA) KONNI, PATHANAMTHITTA DT-689703.

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(ADDL.A2 TO A11 ARE IMPLEADED BEING THE LEGAL HEIRS OF THE DECEASED SOLE APPELLANT VIDE ORDER DATED 8/2/11 IN IA 2997/11)

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ADDL. A2-A11 BY ADV. SRI.V.PHILIP MATHEW

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RESPONDENT(S)/ADDL.RESPONDENTS/ADDL.R2TO5 IN THE APPEAL:

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K.P.SARASAMMA, W/O.MADHAVAN, PALAVILA SANTHI MANGALAM, PIRAPPANCODE, MANIKA VILLAGE,, NEDUMANGADU TALUK.

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M.MANUMOHAN, S/O.MADHAVAN, PALAVILA SANTHI MANGALAM, PIRAPPANCODE, MANIKA VILLAGE, NEDUMANGADU TALUK.

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M.PRAMOD, S/O.MADHAVAN, PALAVILA SANTHI MANGALAM, PIRAPPANCODE, MANIKA VILLAGE, NEDUMANGADU TALUK.

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M.PRASANTH, S/O.MADHAVAN, PALAVILA SANTHI MANGALAM, PIRAPPANCODE, MANIKA VILLAGE, NEDUMANGADU TALUK.

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R1 TO R4 BY ADVS. SRI.M.NARENDRA KUMAR

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SRI.P.B.PRADEEP

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 2110-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OKB

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K.HARILAL, J.

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R.S.A. No.896 of 2005

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Dated this the 21^st day of October, 2016

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JUDGMENT

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The appellant is the second appellant in A.S.No.24/1996 on the files of the Additional District

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and Sessions Judge (Ad hoc), Fast Track Court-I, Pathanamthitta as well as the second defendant in O.S.No.352/1992 on the files of the Munsiff's Court, Pathanamthitta. He could not succeed either before

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the trial court or the appellate court. Thus the findings whereby the suit decreed and appeal dismissed are concurrent and they are challenged in this Appeal. The original suit is filed by one of the sons against the father and the other son. It is the case of the plaintiff that the plaint schedule property belongs to him by virtue of Ext.A1 sale deed executed

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by his father, the first defendant herein and he is in possession and enjoyment of the said property. While

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RSA.896/05-F :2:

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he was in possession and enjoyment of the property the father executed Ext.B1 power of attorney in favour of the second defendant, another son, authorising him to collect usufructs from the property for and on behalf of the father. Thus, armed with power of attorney, the second defendant made preparations to trespass into the property and to cut and remove trees and commit waste in the plaint schedule property. The defendants have neither right nor possession over the property. The first defendant

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was residing along with him in the house. On the above apprehension the plaintiff filed the suit to get a decree declaring his title and possession over the property and restraining the second defendant alone from trespassing into the plaint schedule property and cutting and removing trees therefrom and to commit waste therein.

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The defendants admitted execution of Ext.A1

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sale deed in favour of the plaintiff and the relationship between the parties; but raised a

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RSA.896/05-F :3:

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contention that the plaintiff's right has been lost by adverse possession and limitation. According to them, the plaintiff was a permanent resident of Nedumangadu for the last 15 years and he has never got possession over the property and the property continued to be in possession of the first defendant and now it is in the possession of the second defendant by Ext.B1. So, the claim regarding possession is false. No part of the income being given to the plaintiff. As the first defendant has been in possession of the property to the exclusion of the plaintiff, even if the plaintiff had any right over it, that has been lost by adverse possession and limitation. Thus the plaintiff has no title over the property at present. The allegation that they are trying to trespass into the property is also false as they are in possession and enjoyment of the property. After considering the rival pleas, the trial court decreed the suit on a finding that the plaintiff is the absolute owner in possession over the property and

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RSA.896/05-F :4:

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the defendants have no legally enforceable right over the said property and the plaintiff is entitled to get a

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decree as prayed for. Though the defendants had preferred an appeal, the appellate court also confirmed the appeal and dismissed the same. The legality and propriety of the concurrent findings of the courts below are assailed in this appeal.

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Going by the trial court judgment, it could be seen that during the course of argument the defendants had submitted that they have no objection in granting a decree declaring title to the plaintiff and they have not pressed the contention of adverse possession and limitation. The learned counsel for the defendants now submits that in fact the defendants had not authorised his counsel to make such a submission. But going by the appellate court judgment, no such submission was made before the appellate court. However, this Court is of the opinion that the submissions made by a counsel in a case before the court shall be deemed to be the

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RSA.896/05-F :5:

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submissions of the client. Besides, no document had been produced either before the appellate court or this Court to show that they have moved against the counsel before the competent authorities under law alleging misconduct. In the above view, I find that the submission that the defendants have not authorised his counsel to make such a submission, cannot be taken at its face value, in this appeal.

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As regards the legal validity of Ext.A1 sale deed, going by the judgments under challenge it could be seen that there are sufficient evidence to show that the first defendant who executed the sale deed himself admitted that it was a sale deed evidencing transfer of ownership in exchange for a price paid as contemplated under Section 54 of the Transfer of Property Act. In Ext.A2 gift deed executed by the first defendant, it is stated that the gifted property is on the eastern side of the plaint schedule property which he had sold to the plaintiff. Similarly, in Ext.A5 copy of the petition filed in M.C.No.58/1992 the

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RSA.896/05-F :6:

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first defendant himself admitted that he had already sold away his entire property to the plaintiff.

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It is true that a life interest was reserved in favour of the first defendant in Ext.A1 sale deed. Taking advantage of that reservation he has further executed Ext.B1 power of attorney in favour of the second defendant to take usufructs from the plaint schedule property. This Court is of the opinion that a life interest reserved in a sale deed is not a transferable right and thereby Ext.B1 itself is not valid in the eye of law. That apart, the right to take usufructs from the property cannot be interpreted to mean that the possession of the property was transferred to him. No doubt the person to whom such

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a right was reserved can enjoy the right. But he cannot transfer that right to another person. The plaintiff has no case that Ext.A1 is a sham document or the said document has come into force so far.

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To sum up, the second defendant has no legal right to cause any obstruction to possession and

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RSA.896/05-F :7:

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enjoyment of the property by the plaintiff. All the concurrent findings whereby the courts below rejected the contentions raised by the defendants are legally sustainable and there is no question of law to be considered in this appeal.

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This Regular Second Appeal stands dismissed.

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Sd/K.HARILAL, Judge.

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okb

G.Raghava Ganakan v. K.P.Sarasamma

Case brief

What is this about?

What did the court decide?

G.Raghava Ganakan v. K.P.Sarasamma

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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