Dismissed

M.Pushpavathi, v. Thayyil Krishnaja

Kerala HC28 May 2019RSA/649/2003

Case brief

AI extract

What is this about?

The High Court dismissed two appeals against a decree granting a permanent prohibitory injunction. The Court held that the plaintiffs' suit to cancel a registered gift deed was time-barred as execution and registration provided constructive notice, limiting the cause of action to the date of registration, irrespective of alleged fraud.

What did the court decide?

The appeals were dismissed; appellant's suit held time-barred; no costs awarded.

M.Pushpavathi, Vs Thayyil Krishnaja — Succession and Inheritance | 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 28TH DAY OF MAY 2019 / 7TH JYAISHTA, 1941

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RSA.No. 649 of 2003

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AGAINST THE DECREE & JUDGMENT DATED 30-12-2002 IN AS 6/1998 OF ADDITIONAL DISTRICT COURT (ADHOC), KALPETTA

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AGAINST THE DECREE & JUDGMENT DATED 12-06-1998 IN OS 26/1994 OF SUB COURT, SULTHAN BATHERY

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APPELLANTS/SUPPLEMENTAL RESPONDENTS 2 AND 3 – SUPPL. DEFENDANTS 2 & 3:

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1 M.PUSHPAVATHI, W/O.ATTARI RAJENDRAN, JAFFARGHAN COLONY, P.O.CHOORIKUNIVAYAL, KOZHIKODE.

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2 M.PANKAJAKSHI, W/O.SIVANANDAN, MADATHODIYIL, MANHAPPARA, AMBALAVAYAL AMSOM, DESOM, P.O.NARIKKUNDU, S.BATHERY TALUK. BY ADVS. SRI.E.SUBRAMANI SRI.S.EASWARAN

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RESPONDENT/APPELLANT & SUPPL. 4TH RESPONDENT – PLAINTIFF & SUPPL. 4TH DEFENDANT:

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1 THAYYIL KRISHNAJA, D/O.LOHITKHAKSHAN, MANHAPPARA, AMBALAVAYAL AMSOM AND DESOM, S.BATHERY TALUK.

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2 M.PREMARAJAN, S/O.MADHAVI, MADATHODIYIL, MANHAPPARA, P.O.NARIKKUNDU, AMBALAVAYAL AMSOM, DESOM, S.BATHERY TALUK. BY ADVS. SRI.G.G.MANOJ } SRI.JAICE JACOB } R1 SRI.PHILIP MATHEW }

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28.05.2019, ALONG WITH RSA.650/2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA 649/2003 & RSA.650/2003 2

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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 28TH DAY OF MAY 2019 / 7TH JYAISHTA, 1941

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RSA.No. 650 of 2003

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AGAINST THE DECREE & JUDGMENT DATED 30-12-2002 IN AS 7/1998 of ADDITIONAL DISTRICT COURT (ADHOC), KALPETTA

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AGAINST THE DECREE & JUDGMENT DATED 12-06-1998 IN OS 327/1993 of SUB COURT, SULTHAN BATHERY DATED 12-06-1998

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APPELLANT-SUPPL. RESPONDENTS 2 AND 3 – LEGAL HERIS OF PLAINTIFF MADHAVI:

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1 M.PUSHPAVATHI,

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W/O.ATTARI RAJENDRAN, JAFFARGHAN COLONY, P.O.CHOORIKUNIVAYAL, KOZHIKODE.

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2 M.PANKAJAKSHI,

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W/O.SIVANANDAN, MADATHODIYIL, MANHAPPARA, P.O.NARIKKUNDU, AMBALAVAYAL AMSOM, DESOM, S.BATHERY TALUK.

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BY ADV. SRI.E.SUBRAMANI, S.EASWARAN

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RESPONDENTS- APPELLANT & SUPPL. 4TH RESPONDENT – DEFENDANT & LEGAL HEIR OF THE PLAINTIFF:

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1 THAYYIL KRISHNAJA, D/O.MADHAVI, MADATHODIYIL HOUSE, AMBALAVAYAL AMSOM DESOM, S.BATHERY TALUK.

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2 M.PREMARAJAN, S/O.MADHAVI, MADATHODIYIL, MANHAPPARA, AMBALAVAYAL AMSOM DESOM, P.O.NARIKKUNHU, S.BATHERY TALUK.

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BY ADVS.

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SRI.G.G.MANOJ } SRI.JAICE JACOB } R1 SRI.PHILIP MATHEW }

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28.05.2019, ALONG WITH RSA.649/2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA 649/2003 & RSA.650/2003 3

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[ RSA 649/2003 ,RSA.650/2003 ]

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JUDGMENT

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These are the two appeals preferred against

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the common decree and judgment in O.S.No.327/93

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and O.S.No.26/94. The leading case is O.S.No.327/93 and as such, the parties herein below are referred in their status in the leading case. The other case is referred herein below as connected case.

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The leading case in O.S.No.327/93 is a suit for declaration and cancellation of a gift deed alleged to have been executed by the plaintiff herself in favour of her daughter, the defendant in the leading case. Copy of the same is produced

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and marked as Ext.A1. It is dated 5.1.1990. The

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suit was filed on 5.11.1993 based on a cause of

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action stated in the plaint dated 10.1.1991. The connected suit is filed by the daughter for a

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RSA 649/2003 & RSA.650/2003 4

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permanent prohibitory injunction with respect to the property covered by Ext.A1 Will. The leading

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case was decreed by the trial court, but in appeal, it was reversed and the suit was dismissed. Though the connected suit was dismissed by the trial court and it was reversed and decreed

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by the first appellate court, by the common decree and judgment in A.S.Nos.6 and 7 of 1998 of Addl. District Judge (Adhoc), Wayanad. Aggrieved by the said decree and judgment, the defeated plaintiffs in the leading case came up with these two appeals.

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The leading case was filed for declaration and cancellation of Ext.A1 gift deed dated

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15.1.1990 by the executant/plaintiff. The ground raised in the plaint is undue influence exerted by

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the defendant over the plaintiff, her mother by dominating her Will and got executed Ext.A1 gift deed in her favour. It is also alleged that it

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RSA 649/2003 & RSA.650/2003 5

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was obtained without disclosing the content of the document under the guise that she is executing some guarantee document for availing a loan in favour of a bank. The first appellate court found that there is no merits in the contention regarding the fraud and undue influence alleged to have been played by the defendants. Consequently, the suit was dismissed, reversing the finding of the trial court and decreed the connected suit in O.S.No.26/94 filed by the daughter granting permanent prohibitory injunction.

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A substantial question of law pertaining to limitation also came up for consideration in addition to the questions framed at the time of admission of appeal as to whether what is the period of limitation available to set aside or for a cancellation of document executed and registered by the plaintiff admitting its execution, but when pleaded ignorance about the contents on account of

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RSA 649/2003 & RSA.650/2003 6

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undue influence alleged against the defendant.

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The factual scenario involved in the suit

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would show that Ext.A1 registered gift deed was executed and registered on 15.1.1990. There is no dispute with respect to the execution of the said document by the plaintiff, but disputed its validity on two grounds. 1) The undue influence exerted by the defendant in getting the document executed in her favour. 2) The suppression of the contents of the document by playing fraud on the plaintiff without disclosing the real nature of the document. According to her it was obtained under the guise of getting some registered document in favour of a bank so as to avail a loan facility. In both the cases, the period of limitation would start from the date of execution

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as the plaintiff will have the notice of the execution of the registered document. Even according to the plaintiff, she had affixed her

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RSA 649/2003 & RSA.650/2003 7

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signature and thumb impression in the document and had given consent for its registration before the

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concerned authority to get the document registered. The question, whether she was aware of the content of the document, will not extent the

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period of limitation, when the executant has actual notice of execution and its registration. A

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suit must be brought into existence within a period of three years as mandated under Article 59

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of the Limitation Act. Regarding the date of

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notice, when a document was executed and registered it amounts to notice to the person who

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had executed and there cannot be any escape by

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advancing a plea of undue influence or non

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disclosure of the content and nature of the

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document in order to save the period of limitation. On these two grounds, the suit must be brought into existence within a period of three

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years. At this juncture, it is relevant to

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RSA 649/2003 & RSA.650/2003 8

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consider the expression when a person said to have notice as incorporated under Section 3 of the

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Transfer of Property Act which stands for constructive notice as well as direct notice. A

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person is said to have notice of a fact when he actually knows that fact and also by way of

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constructive notice when there is willful latches or default in making an enquiry or search which he ought to have been done or gross negligence thereon. The fact that, she had executed a

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document and signed the document and consented for its registration as early as on 15.1.1990 would bring her within the purview of expression 'when a person is said to have notice' u/s.3 of Transfer of Property Act. So the cause of action pleaded in the plaint that she came to know about the document only on subsequently, i.e 10.1.1990 will not have much relevance.

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The question of limitation neither raised;

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RSA 649/2003 & RSA.650/2003 9

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nor set up either in the trial court or in the

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first appellate court but being a legal question

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cannot be waived by the act of parties and it is

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up to the plaintiff to show and establish that she

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had instituted the suit within the period of limitation available as per the provisions

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contained in the Limitation Act. From the

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discussion it can be safely concluded that the suit was not brought into existence within the

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period of limitation.

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accepted. DW1, the defendant while in the box had admitted that she came to know about the gift deed

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only subsequently after eight months. The said

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admission made by the defendant was brought up and taken up by the learned counsel for the appellant

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so as to advance a case that the gift was not

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accepted at least for a period of eight months from the date of execution and its registration.

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RSA 649/2003 & RSA.650/2003 10

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What is seen admitted by DW2, the defendant is with respect to the actual direct notice regarding the execution of the gift deed. Section 3 of the Transfer of Property Act covers yet another deemed notice when the document is a gift or settlement. It would be notice to all beneficiaries under the document when the document was registered in accordance with the law in force and duly entered in the registers kept by the sub registrar in that behalf. The gift is duly executed and registered and entered in the books kept by the sub registrar

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in that behalf in accordance with the law in force. As such, there is a deemed notice to the defendant from the date of its registration and completion of registration and unless the

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beneficiaries, the defendant has exercised her option to reject the Will, the gift would stand as deemed to have been accepted.

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Another contention was also raised by the

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RSA 649/2003 & RSA.650/2003 11

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learned counsel for the appellant that no

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possession was diverted in continuation of the gift deed and she continued to pay the land tax

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over the property as evident from Ext.A6. She had also produced Exts.A7 and A8 receipts showing that she had taken profit from the property. At this juncture, the relationship existed in between the mother and daughter has to be taken into account. In order to complete a gift of immovable property delivery of possession of property is not at all relevant except in the case of Muslim (Muhammadan Gift). None of the questions raised at the time of

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admission involved in the appeal. Hence, appeal

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lacks merits, deserves only dismissal, but without costs.

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Appeal is dismissed. No costs.

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Sd/-

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P.SOMARAJAN, JUDGE

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pm // TRUE COPY // PA TO JUDGE

M.Pushpavathi, v. Thayyil Krishnaja

Case brief

What is this about?

What did the court decide?

M.Pushpavathi, v. Thayyil Krishnaja

Case brief

What is this about?

What did the court decide?

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