Koumari Amma v. Parukutty Amma — 1965 DIGILAW 177 (KER)

JUDGMENT S. Vellu Pillai, J. 1. The property of 62 cents, of which the suit property of 37 cents is a part, belonged to Narayana Panicker. He gave Ex. P-l, a deed of assignment for the property in the year 1076, in favour of his wife Janaki Amma. He died leaving him surviving Janaki Amma and two daughters, the plaintiff and Lakshmi Amma. Janaki Amma married again and Karthiyayani Amma is her daughter by that marriage. Lakshmi Amma died issueless in the year 1093. Defendants 1 to 4 are the children of the plaintiff and defendants 6 to 8 are the children of the second defendant. In the year 1115 by a partition deed Ex. P-2 the property was divided into two shares treating it as the tar wad property of Janaki Amma, the suit property being allotted to the tavazhy of the plaintiff and the remainder of the property being allotted to the group which was constituted by Janaki Amma, Karthiyayani Amma and her two children. Ever since, they have been in separate possession and enjoyment accordingly. The present suit was instituted in the year 1957 alleging, that by Ex. P-l, the property became vested in Janaki Amma, the plaintiff, and Lakshmi Amma, that the recital in Ex. P-2 that it belonged to the tarwad is a mistake, and that the plaintiff realised the mistake only in March 1957, and praying for a declaration that the recital in Ex. P-2 is a mistake and that the suit property belongs to her exclusively. The suit was contested by defendants 2 and 6 to 8. The Munsiff held that though the property became vested in Janaki Amma, the plaintiff, and Lakshmi Amma, Koumari Amma by Ex. P-2 it was treated and partitioned as tarwad property and that the suit is barred by limitation and adverse possession and is not maintainable. In appeal, the Subordinate Judge came to the conclusion, that the suit, as grounded on a mistake of fact, is maintainable, and is not barred, and granted the prayer in the plaint for an 1 /3 share of the suit property. 2. In this second appeal by defendants 2 and 6 to 8, it 'was contended on their behalf, that the plaintiff had not alleged or proved a mistake of fact as to the nature of the property, common to all the parties to Ex. 2. In this second appeal by defendants 2 and 6 to 8, it 'was contended on their behalf, that the plaintiff had not alleged or proved a mistake of fact as to the nature of the property, common to all the parties to Ex. P-2, that the suit is barred by limitation under articles 96 and 144 of the Indian Limitation Act, that there being no prayer to set aside or cancel Ex. P-2, the suit is not maintainable' and that in any event under Ex. P-1 the property did not vest in Janaki Amma, the plaintiff and Lakshmi Amma, as alleged. The plea of mistake has to be tested by sections 20 and 22 of the Indian Contract Act. Siction 20 has enacted, that " where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void" and section 22 has enacted that " a contract is not voidable merely because it was caused by one of the parties to it being under a mistake as to a matter of fact. " 3. The finding of the Subordinate Judge was, that the plaintiff was under a mistake of fact, that the property belonged to the tarwad. In the plaint the relevant averment is, that the recital in Ex. P-2 that the property belonged to the tarwad, is a mistake. This is hardly sufficient as an allegation, that the plaintiff was under a mistake of fact as to the true character of the property, for it may well be, that all the three parties to Ex. P-2, i.e., Janaki Amma, Lakshmi Amma and the plaintiff, the others being minors at the time, agreed to treat the property as that of the tarwad. Apart from the above, there is no allegation of a common mistake of fact. There is an averment that the plaintiff realised the mistake only in March, 1957, and at best it is an averment of a unilateral mistake. There is no evidence of a common mistake either ; Janaki Amma is no more and Karthiyayani Amma is not a party to the suit and was not examined. Oral evidence of the plaintiff and her witnesses, that the statement in Ex. P-2 is a mistake, is for the reason stated earlier, no proof, that the parties laboured under a common mistake of fact. Oral evidence of the plaintiff and her witnesses, that the statement in Ex. P-2 is a mistake, is for the reason stated earlier, no proof, that the parties laboured under a common mistake of fact. The suit as grounded on mistake under section 20 of the Contract Act is bound to fail. 4. The averment that the plaintiff realised the mistake in March, 1957 was denied in the written statement and the burden lay on the plaintiff to prove the truth of it. The plaintiff set out to prove this by establishing, that neither she nor P.W. 2, a mediator at the partition, had ever the opportunity of looking into the document of title for the property, the original of Ex. P-l; according to her that document had been destroyed. She deposed as P.W. 1, that she realised the mistake when Ex. P-I was perused in March, 1957. P.W. 2 said, that he did not look into the document of title at the time , of the mediation concerning Ex. P-2 and that all the parties then agreed to treat the property as that of the tarwad ;he knew that the property had been mortgaged to a Sabha, of which he was a member on the executive committee, and that the mortgage was executed by all the members of the tarwad. P.W. 3 the husband of the plaintiff deposed, that he learned from a Parameswara Panicker deceased, that the property was covered by this document and so applied for "a copy and obtained it; Ex. P-l is the copy. He however admitted, that the property was mortgaged to the Sabha by all the members of the tarwad, including the plaintiff. The plaintiff who had passed the school final class is a school mistress and her husband is a school teacher. It is impossible to believe, that she had never perused the document of title before March, 1957. The Circumstances show that the document was perused by her At least at the time the mortgage was executed in favour of this Sabha. It is not proper to hold on the interested testi mony of the plaintiff and of her husband alone, that the plaintiff realised the mistake, if any, only in March, 1957, as alleged. If so, she has failed to prove, that the suit was within time, under article 96 of the Indian Limitation Act. 5. It is not proper to hold on the interested testi mony of the plaintiff and of her husband alone, that the plaintiff realised the mistake, if any, only in March, 1957, as alleged. If so, she has failed to prove, that the suit was within time, under article 96 of the Indian Limitation Act. 5. There is another aspect to this question of limitation. At least from the date of Ex. P-2, the suit property was held by the tavazhy of the plaintiff as tavazhy property. Certainly, such possession was adverse to any person claiming or having title in himself. If the plaintiff had independent title as alleged, which entitled her to possession against the tavazhy, the possession of the tavazhy was necessarily adverse to her and at the expiry of the statutory period was sufficient to extinguish such title. This reasoning derives very great support from the decision of the Privy Council in Vasudeva Padhi Khadanga Garu v. Maguni Davan Bakshi Mahapatrulu Garu I.L.R. 24 Mad. 387 at p. 395 where, in the case of a Hindu family under somewhat similar circumstances, it was held, that ''the possession of the joint family was at any rate adverse to his separate estate from the same date'. Learned counsel for the plaintiff distinguished the case cited by contending that if Janaki Amma, Lakshmi Amma and the plaintiff took as tenants:-in-common under Ex. P-l, Lakshmi Amma's one-third share vested in the tarwad on her death, that at the date of Ex. P-2, the plaintiff was a co-sharer, with Janaki Amma and the tarwad, and that therefore the possession of the tavazhy subsequent to Ex. P-2, did not fulfil the quality of adverse possession necessary to extinguish the title of co-sharers. The argument is fallacious for more reasons than one. In the first place, the plaintiff had never a case that the tarwad, of Janaki Amma had any interest in the property and there are several averments in the plaint which have emphasised this. Her prayer in the suit, was itself for a declaration of her title to the entire suit property and not to a share in it, though the Subordinate Judge restricted her claim to an one-third share, Secondly, the possession of the tavazhy of the plaintiff and of the other group pursuant to Ex. P-2, is not the possession of the tarwad. P-2, is not the possession of the tarwad. More fundamental than these, is the fact, that by Ex. P-2, to which they were parties, all of them including the plaintiff, agreed to hold the property not as the property of the co-sharers, but as the separate property of the respective sharers. This was by mutual agreement amongst all and was more than ouster to the knowledge of the co-sharers. In this view, the reasoning of the Privy Council fully applies and the finding of the Munsiff, though based on other grounds that the plaintiff's separate rights, if any, had been lost by adverse possession, is correct and must be maintained. 6. The next point to consider is whether the suit is maintainable without a prayer to set aside Ex- P-2 to any extent. The prayer is not for setting aside Ex. P-2, either wholly or to the extent of the plaintiff's share. The plaintiff as a party to Ex. P-2, is bound by it and she must extricate herself from it by a decree setting aside or cancelling Ex. P-2, so far as her interests are concerned. It has been ruled in Karunakara Menon v. Subrahmanya Ayyar17 Cochin Law Reports 4 (F.B.) that where the suit is by a party to a document, the appropriate relief is the relief of cancellation of the document. SukhLal v. Devi Lal A.I.R. 1954 Rajasthan 170 is another case in point- In Rehman Mir v Rehman Mir A.I.R. 1965 Jammu and Kashmir 33. the different classes of cases which may arise, have been stated thus :- (a) a suit to avoid a document executed by a party praying that the document is a sham transaction ; (b) a suit to avoid a sale deed, executed by a person, on the ground that it was void as it was executed during his minority ; (c) a suit to avoid a sale deed, executed by a person, on the ground that he was induced to execute the deed on account of fraud, undue influence, coercion, mistake, etc., and (d) a suit by a person who is not a party to a deed to the effect that the deed is not binding on his interests. " 7. As observed in that judgment, all the courts are agreed in holding, that in the case of the third category mentioned. " 7. As observed in that judgment, all the courts are agreed in holding, that in the case of the third category mentioned. above, the suit has to be for the cancellation of the instrument. The reason appears to be fairly simple, that in the first category of suits, there is really no document at all being a sham document, in the second, having been executed during minority, it is as good as no document, and in the fourth, ex-hypothesi he is not a party to the document. In the present instance, the plaintiff was bound to seek to cancel Ex. P-2, to the extent of her alleged interest in the property. This argument was advanced before the trial court itself, but it dealt with it as arising under section 42 of the Specific ReIief Act and decided the issue as to maintainability against the plaintiff. Though it was not considered by the Judge, it is a point of law and may be-raised here. I hold that the suit is not maintainable. In the above view, it is unnecessary to consider whether Ex. P-l can be treated as a gift or as a sale or as a deed of settlement under which the plaintiff is entitled to a one-third share. The appeal has to succeed. The decree of the lower court allowing the plaintiff's suit is hereby set aside and the decree of the first court is restored with costs here and in the lower appellate court.