The Court remanded the partition suit, allowing the appeal in part, due to the defendant's refusal to produce the original sale deed which casts doubt on its execution in light of the father's declared unavailability.
Appeal allowed in part; matter remanded to the trial court for fresh disposal.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 31ST DAY OF MAY 2022 / 10TH JYAISHTA, 1944
RFA NO. 205 OF 2019
AGAINST THE JUDGMENT AND DECREE DATED 19-11-2018 IN OS 34/2016 OF I ADDITIONAL SUB COURT, ERNAKULAM.
APPELLANTSPLAINTIFFS :
BY ADVS.P.M.JOSHI & SMT.SIJI K.PAUL
RESPONDENT/DEFENDANT:
MR.JOSEPH MARTIN @ JOY, THUNDATHIL HOUSE, KADAVANTHARA P.O., KADAVANTHARA, ERNAKULAM DISTRICT, PIN-682 020.
BY ADVS.SRI.S.RANJIT (KOTTAYAM), SRI.ABHILASH BHASKAR,SRI.BINU JOHN, SRI.GOKUL DAS V.V.H. & SRI.J.ARUN
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
31.05.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
RFA No.205 of 2019 2
P.SOMARAJAN, J.
-----------------------------------------------RFA No.205 of 2019
----------------------------------------------------
Dated this the 31st day of May, 2022.
J U D G M E N T
A suit for partition between the siblings was
dismissed by the trial court. The dispute is centering around two registered documents, one is Ext.A1 settlement deed dated 5/1/2006 and a subsequent document, Ext.B1 of the same year. The settlement deed, Ext.A1 was executed by the mother of the plaintiffs declaring that the whereabouts of her husband, the father of the plaintiffs were not known for
the last 42 years and as such, assuming that he is not alive, Ext.A1 settlement deed was executed releasing her 1/3rd fractional right over the property being one of the legal heirs of her deceased husband. But subsequently, Ext.B1 sale deed was executed by the father in favour of the defendant. It was brought under
RFA No.205 of 2019 3
challenge on the reason that it is not the deed executed by the father as he was not alive during the relevant time and his whereabouts were not known. The trial court found that the property is not partible and dismissed the suit, against which the plaintiffs came up in appeal.
put under darkness by the non-production of original of
RFA No.205 of 2019 4
the document and thereby the primary evidence has been withheld. It is submitted that it is a device played by the defendant so as to put the due execution of the document in darkness and thereby conceal the alleged fraud played by him in fabricating a deed as that of his father. No attempt was made to summon the thumb impression register or other register kept by the Sub-Registrar in that behalf. This would show that there is failure on the part of the defendant to prove the due execution of alleged sale deed, Ext.B1, especially in view of the declaration made by the mother earlier under a registered document regarding non-availability of whereabouts of her husband for a long period of 42 years . The period of 42 years as stated in the document may not be correct in view of the document of acquisition of the year 1965, 1981 and 1989 in favour of her husband. As such, the dispute involved cannot be resolved with the available
RFA No.205 of 2019 5
evidence on record and the non-production of the original of the sale deed, Ext.B1. Hence, the adjudication made by the trial court is liable to be set aside. I do so. The matter is remanded back to the trial court for fresh disposal. The parties may be permitted to amend their plaint for incorporating substantial prayers, if any with the right of defendant to submit any additional written statement or pleading thereof. The parties shall appear before the trial court on 15/06/2022.
The appeal is allowed in part accordingly.
No costs.
amk
2 issues framed by the court
Whether the trial court erred in dismissing the suit for partition given the non-production of the original sale deed by the defendant.
Whether a certified copy of the sale deed can substitute the original when the due execution is denied and doubted.
Mrs. Mercy Simon and others
Mr. Joseph Martin
P. Somarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
