Dismissed

Sabeena v. K.N.Rajagopal

Kerala HC12 Mar 2019RSA/310/2004

Case brief

AI extract

What is this about?

This regular second appeal challenged an order declaring title and possession of plaintiffs and voiding a unilateral cancellation deed. The court held that registration of the original 1983 settlement deed provided constructive notice to beneficiaries, the gift could not be unilaterally revoked, and the subsequent cancellation was time-barred and void.

What did the court decide?

Second appeal dismissed without cost; original decree granting title, injunction and declaration was upheld.

Sabeena Vs K.N.Rajagopal — Specific Performance | Kerala HC (2019)

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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 P.SOMARAJAN

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TUESDAY ,THE 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940

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RSA.No. 310 of 2004

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AGAINST THE ORDER/JUDGMENT IN AS 8/1991 of SUB COURT,KOTTARAKKARA DATED 13-01-2002

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AGAINST THE ORDER/JUDGMENT IN OS 380/1987 of MUNSIFF COURT, KOTTARAKKARA DATED 31-07-1990

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APPELLANTS/ADDL. RESPONDENTS NOS.8,9 & 10/RESPONDENTS:

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1 SUBEENA

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WIDOW OF LATE SANTHOSH KUMAR, BHASI VILASAM VEEDU, KUDIKKODU MURI,, KAREEPRA VILLAGE.

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2 AKHIL (MINOR) S/O. LATE SANTHOSH KUMAR AGED 11 YEARS, BHASI VILASAM VEEDU, KUDIKKODU MURI, KAREEPRA VILLAGE.

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3 AMAR (MINOR), S/O. LATE SANTHOSH KUMAR BHASI VILASAM VEEDU, KUDIKKODU MURI,, KAREEPRA VILLAGE (APPELLANTS WERE NOT PARTIES, BEFORE THE MUNSIFF COURT).

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BY ADV. SRI.ARUN BABU

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RESPONDENTS/1ST APPELLANT, ADDL. APPELLANTS 2 TO 5 & RESPONDENTS 1 TO 7 IN A.S/ PLAINTIFFS & DEFENDANTS 1 & 2 IN

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O.S:

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1 K.N.RAJAGOPAL(DIED) BHASIVILASATHU VEEDU, KUDIKKODU, VAKKANADU MURI,, KAREEPRA VILLAGE, KOTTARAKKARA.

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2 K.SUMATHI W/O. K.N.RAJAGOPALAN R.S.BHAVAN, VAMANAPURAM VILLAGE, NEDUMANGADU TALUK

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RSA.No. 310 of 2004

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3 R.MOHANACHANDRAN R.S.BHAVAN, VAMANAPURAM VILLAGE, NEDUMANGADU TALUK

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4 S.JAYAKUMARI ANANDABHAVANAM VEMBAYAM, KANYAKULANGARA, NEDUMANGADU TALUK.

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5 R.ANILKUMAR R.S.BHAVAN VAMANAPURAM MURI, VAMANAPURAM VILLAGE.

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6 NANU BHASKARAN DIED BHASIVILASATHU VEEDU, KUDIKKODU,, VAKKANADU MURI, KAREEPRA VILLAGE.

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7 SATHYAVATHI DIED DO. KOCHURAJAN BHASIVILASATHU VEEDU, KUDIKKODU, VAKKANADU MURI,, KAREEPRA VILLAGE.

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8 VASUDEVAN RADHA RAMAN CHENCHERIYIL VEEDU, MAYYANDU WARD, KOLLAM.

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9 VASUDEVAN MURALEEDHARAN CHENCHERIYIL VEEDU, MAYYANADU WARD, KOLLAM.

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10 VASUDEVAN SANALKUMAR CHENCHERIYIL VEEDU, MAYYANADU WARD, KOLLAM.

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11 VASUDEVAN SANTHOSH KUMAR DIED CHENCHERIYIL VEEDU, MAYYANADU WARD, KOLLAM.

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12 VASUDEVAN SAJITH KUMAR CHENCHERIYIL VEEDU, MAYYANADU WARD, KOLLAM. *(RESPONDENTS 9 TO 10 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED R8 AS PER THE ORDER DATED 18.02.2015 IN I.A NO.376 OF 2015 BY ADV. SRI.S.RAMESH BABU (SR.)

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No. 310 of 2004

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JUDGMENT

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The legal representatives of the 2^nd defendant

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came up with the this appeal as against the

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decree granted by the 1^st Appellate Court

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declaring the title and possession of plaintiff over the plaint schedule property, granting a perpetual injunction against trespass, and a declaration that the cancellation deed

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unilaterally executed by the 2^nd defendant is null and void.

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The suit was filed by the plaintiff for

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a declaration of title and possession, for grant

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of injunction, and for declaring that the cancellation deed Ext.A3 is null and void.

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Originally, the property was belonged to the 2^nd defendant. She along with her husband the 1^st

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RSA.No. 310 of 2004

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defendant had executed Ext.A1 settlement deed

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dated 03.09.1983, in favour of the plaintiff in

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respect of the plaint schedule property. Later on the 2^nd defendant, after a lapse of more than 4 years executed a cancellation deed Ext A3 on 16.11.1987. On getting information regarding the execution of Ext.A3 cancellation deed the plaintiff came up with the suit. The suit was dismissed by the Trail Court but it was reversed in appeal by the 1^st Appellate Court.

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Admittedly, Ext.A1 settlement deed was executed by the 2^nd defendant along with her husband 1^st defendant on 03.09.1983. The subsequent execution of the cancellation deed Ext.A3 after the lapse of 4 years would be sufficient evidence to show the due execution of Ext.A1 settlement deed as early as on 03.09.1983.

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In so far as the 2^nd defendant and her husband the 1^st defendant are concerned a suit for setting

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RSA.No. 310 of 2004

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aside the document on any of the vitiating grounds should be instituted within a period of three years from the date of notice of its execution and in so far as executants are concerned, it will start from the moment of execution of the document and its registration. No suit was filed for setting aside Ext.A1 settlement deed. Now the remedy to set aside Ext.A1 settlement stood as hopelessly barred by limitation.

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The main contention raised by the 2^nd defendant is that, execution and registration of Ext.A1 settlement deed was kept in secrecy and it

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was not disclosed to the plaintiff at any point of time till it was cancelled under Ext.A3. It is too difficult to accept the said contention,

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simply because of the reason that, a deemed constructive notice would operate under Section 3 of Transfer of Property Act. When there is

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registration of a document of transfer and when the registration is completed as mandated under the provision by entering its registration in the register kept by the registration officer, it would be deemed notice to all beneficiary under the document. Settlement deed is defined under Section 2(b) of Specific Relief Act and also under Section 4 of Indian Stamp Act, but the definition given under that Indian Stamp Act is for the purpose of computation of stamp fee and certain documents brought together under the caption settlement. It is as per Section 2(b) of Specific Relief Act, the settlement is defined as an instrument by which the destination or devolution of successive interests over movable or immovable property is disposed of or is agreed to be disposed of. The definition given under Section 2(b) of the Specific Relief Act would certainly show that the settlement deed is also a

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RSA.No. 310 of 2004

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gift but given to one or some of the legal heirs. If that be so, all beneficiary under the document would get deemed notice when it was registered by due process of law as mandated and entered in the registers kept by the registering authority. It amounts to acceptance of the gift and as such there should be a deemed notice and acceptance of

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the gift as on 03.09.1983, the date of registration and after acceptance of gift cannot be revoked unilaterally by the donor.

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Exhibit A3 is self explanatory as it is a

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cancellation deed executed by the 2^nd defendant, that too after the lapse of time available for setting aside the document on any vitiating grounds available. It has no legal validity and ab-initio void from its very inception and liable

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to be declared as null and void. That is what

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actually done by the 1^st Appellate Court. The plaintiff is entitled to the grant of declaration

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RSA.No. 310 of 2004

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of title possession and injunction.

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The learned counsel at the fag end of

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the argument, canvassed the attention of this

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Court to a decision drawn by this Court in leela

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and others Vs. Vasu and others [2018 (1) KHC 876] in support of his argument that when the document of gift or settlement which are required by law to be attested, when disputed by a person, purported to have been executed same, the mandate summoning one of the attesting witness cannot be be avoided

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and that has not done by the plaintiff in the present case. But it is the case wherein the defendants No.2 had cancelled the earlier settlement deed by another registered document

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Ext.A3, which amounts to the admission of

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execution of earlier one. So no further proof is required. Further the denial of due execution by

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the person who purport to have executed the same stands for denial by that person within the time

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available. There is no such case advanced by the 2^nd defendant denying the execution of Ext.A1 document, but admitted that the Ext.A1 document was executed under vitiating circumstances and that is why later on it was cancelled. There is no merits in the argument advanced by the learned counsel for the appellant. The 2^nd appeal is a really misuse of process of this Court raising false and untenable grounds and as such liable to be dismissed, I do so.

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The appeal is dismissed without cost.

SD/-

P.SOMARAJAN

JUDGE

Sabeena v. K.N.Rajagopal

Case brief

What is this about?

What did the court decide?

Sabeena v. K.N.Rajagopal

Case brief

What is this about?

What did the court decide?

What the court decided

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