Sreedhara Pai v. Damodara Naiken Srva Naiken — 1979 DIGILAW 151 (KER)

JUDGMENT V. Khalid, J. 1. These Civil Miscellaneous Appeals arise from two suits, O.S. Nos. 1096 of 1971 and 363 of 1972 on the file of the Additional Munsiff of Shertallay. The facts of the case in O.S. No. 363 of 1972, which is the main suit, are as follows: The suit relates to 64 cents of property in Survey Number 236/54 B.C. of Shertallai North village. Item 2 is a building situated in item 1. The suit is for declaration of the plaintiffs' title and for recovery. The property originally belonged to one Saraswathy Bai. She was the grandmother of the plaintiffs through her daughter, Saradha Bai. Saraswathi Bai died on 16th July 1971. The first defendant is the son of the sister of Saraswathi Bai. Defendants 2 to 4 and 7 are the children of deceased son of Saraswathi Bai. According to the plaintiffs the share of defendants 2 to 4 and 7 in the assets of Saraswathi Bai were given to them during her life time and hence they have no right in the suit property. The plaintiffs came to know that the first defendant was attempting to meddle with the suit property on the strength of a settlement deed alleged to have been executed by Saraswathi Bai in his favour on 21st May 1966. The plaintiffs' case is that Saraswathi Bai has not signed the said document, that she was partially blind and mentally incapacitated due to old age and that she could not have gone to the Sub Registrar's Office for execution of the said document. Apprehending that the first defendant would alienate the property, publications were taken out in some dailies alerting the public that the first defendant had no right over the property. Since the first defendant persisted on his right on the strength of the aforesaid document, the suit had to be filed for a declaration for the plaintiffs' right and for recovery. 2. The first defendant's case is that the document is validly executed, that he had been looking after Saraswathi Bai after her retirement, that she had gone to the Sub Registrar's Office for registering the document, that Saraswathi Bai had to file O.S. No. 631 of 1965 against the trespass by defendants 2 to 4, which ultimately was compromised, and that the suit was not maintainable. Defendants 2 to 4 and 7 filed a written statement disputing the averments in the plaint that they had no right over the property and asserting their right also in the property as the grandchildren of Saraswathi Bai through her son and putting forward the case supporting the plaintiff regarding the invalidity of the document. 3. O.S. No. 1096 of 1971 is filed by defendants 2 to 4, 6 and 7 in O.S. No. 363 of 1972.The first defendant is the same. The suit relates to the same property and the relief claimed also is the same as in the other suit. 4. Both the suits were tried jointly, and a decree was passed in both the suits declaring the plaintiffs' right in the property in both the suits and also decreeing recovery of possession The settlement deed put forward by the first defendant was declared to be invalid and not binding on the plaint property. 5. The first defendant filed two appeals A.S. Nos. 45 amd 46 of 1973 in the Sub Court, Alleppey, originally numbered as A.S. Nos. 88 and 89 of 1973 of the District Court, Alleppey. In A.S. No. 45 of 1973 the respondents were the plaintiffs in O.S. No. 363 of 1972 Defendants 2 to 4and 6 and 7 in the said suit, whose rights in the property were denied by the plaintiffs but in whose favour alson a decree was passed, were not impleaded in the appeal. In A.S. No. 46 of 1973 respondents were the plaintiffs in O.S. No. 1096 of 1971. The Appellate Court in a common judgment found that Ext. B1 was not a gift deed but was a Will and remanded the case to the Trial Court after setting aside the decree and judgment of the Trial Court, to allow the appellant to adduce fresh evidence to prove the document as a Will which opportunity was denied to him since the suit proceeded on the basis that the document was a gift. The appellant had filed an application, I. A. No. 2638 of 1973, to get the disputed signature and the thumb impression in Ext. 6-1 compared with the admitted signature of Saraswathi Bai by an expert. This was allowed. C.M.As. 125 and 135 of 1978 are filed by the plaintiffs in O.S. No. 363 of 1972 and O.S. No. 1096 of 1971 respectively, while C.M.A. Nos. 6-1 compared with the admitted signature of Saraswathi Bai by an expert. This was allowed. C.M.As. 125 and 135 of 1978 are filed by the plaintiffs in O.S. No. 363 of 1972 and O.S. No. 1096 of 1971 respectively, while C.M.A. Nos. 142 and 143 of 1978 are filed by the first defendant in the two suits. The earlier two C.M.As. are against the order of remand and the latter C.M.As. by the first defendant against the finding by the Appellate Court that Ext. B1 is not a gift. All these appeals were heard together and since these appeals raise a common questions of law, I am disposing of these appeals by a common judgment. 6. The counsel for the appellants in C.M.A. Nos. 125 and 135 of 1978 raised a preliminary objection about the maintainability of the appeals; A.S. No. 45 of 1973 in the Court below and C.M. As. 142 and 143 of 1978 here. I shall first consider this question before proceeding to discuss the other questions raised in the appeal. 7. The objection raised is thus: Though the plaintiffs in O.S. No. 363 of 1972 denied the right of defendants 2 to 4, 6 and 7 in the property, the Trial Court ultimately found that they had also right in the property. Thus, the decree declared the rights of the plaintiffs in both the suits. In O.S. No. 363 of 1972 the decree declared the rights, title and interest in the property of the plaintiffs therein and directed recovery of possession of the same from the first defendant. In O.S. No. 1096 of 1971, the decree is in the following terms: The plaintiffs' right, title and interest along with the other legal heirs of Saraswathi Bai are hereby declared. The plaintiffs will be entitled to get recovery of possession of the plaint property and the building along with the plaintiffs in O.S. No. 363 of 1972 from the first defendant with means profits as decreed in O.S. No. 363 of 1972. It is therefore clear that in the decrees passed by the Trial Court the rights of the plaintiffs as well as defendants 2 to 4, 6 and 7 in O.S. No. 363 of 1972 were declared. 8. In A.S. No. 45 of 1973 defendants 2 to 4, 6 and 7 were not made parties. It is therefore clear that in the decrees passed by the Trial Court the rights of the plaintiffs as well as defendants 2 to 4, 6 and 7 in O.S. No. 363 of 1972 were declared. 8. In A.S. No. 45 of 1973 defendants 2 to 4, 6 and 7 were not made parties. The appellant in A.S. No. 45 of 1973 was opposing the claim of defendants 2 to 4, 6 and 7. In their absence the Appellate Court cannot pass a decree varying the original decree, for it would result in conflict of decisions. If the Appellate Court were to disturb the decree of the Trial Court in the appeal filed against the plaintiffs alone, that would be deciding the question without proper parties on record in whose favour also the decree in O.S. No. 363 of 1972 operated. It was, therefore, contended that the Appellate Court could not have heard the appeal, A.S. No. 45 of 1973 in the absence of defendants 2 to 4, 6 and 7 on the party array, and hence A.S. No. 45 of 1973 is not maintainable. If that appeal is not maintainable the decree in O.S. No. 363 of 1972 passed in favour of the plaintiffs becomes final and operates as res judicata on the other suit and hence A.S. No. 46 of 1973 also cannot be proceeded with. 9. The first defendant's counsel forcefully contended that this was a new objection now put forward which had not been urged before the Appellate Court and therefore could not be urged before this Court. According to him. there are two cases and two Appeals here. Though defendants 2 to 4, 6 and 7 in O.S. No. 363 of 1972 were not impleaded in A.S. No. 45 of 1973, there was an appeal filed by these persons against the other decree which was jointly heard by the Appellate Court. Since the appeals were jointly heard with all the parties before the Appellate Court, the contention that the appeal without defendants 2 to 4, 6 and 7 cannot be heard loses its significance. Moreover, there is no detriment to any of the party in this case because all of them were heard and it was hearing all the parties that the judgment in question was rendered. Mr. Moreover, there is no detriment to any of the party in this case because all of them were heard and it was hearing all the parties that the judgment in question was rendered. Mr. P. K. Balasubramaniam countered this argument with the plea that the maintainability of an appeal cannot be got over with the submission that there was another appeal raising the same issue which was jointly heard. Since two decisions were given together and the appeal from the one is rendered faulty because of a legal defect going to the root of the matter, one judgment operates as res judicata on the other. 10. Now, I shall consider the contentions raised by the rival parties in the light of the provisions of O.41, R.4 of the Code of Civil Procedure and the decisions bearing on the question. First, I overrule the objection raised before me by the counsel for the first defendant that the plaintiffs cannot be permitted to raise the question of maintainability of the appeal for the first time here. O.41, R.4 of the Code of Civil Procedure which alone is relevant for the purpose of this question reads: "4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.- Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceed on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be." The general rule is that an Appellate Court can reverse or vary a decree of the Trial Court only in favour of the party who has appealed from the Trial Court's decree. When there are several plaintiffs and defendants and only one of them files an appeal, normally, the Appellate Court will interfere with the decree under appeal only in favour of the party who has preferred the appeal. O.41, R.4 is an exception to the general Rule, Under this Rule, the Appellate Court is given powers to vary a decree of the Trial Court against several persons, one of whom alone appeals, if the decree proceeds on any ground common to all of them. O.41, R.4 is an exception to the general Rule, Under this Rule, the Appellate Court is given powers to vary a decree of the Trial Court against several persons, one of whom alone appeals, if the decree proceeds on any ground common to all of them. This is important. The enabling provision contained in O.41 R.4 can be made use of by the Appellate Court only when the decree proceeds on a ground common to all, that is, the party who has preferred the appeal and the parties who are not before the Appellate Court. Therefore, where an appeal is preferred by one of the parties alone, without impleading all the parties to the suit, and where the appellant does not have a ground common with those who have not been impleaded, the Appellate Court cannot vary, modify or reverse a decree in favour of the party who has appealed. 11. Counsel for the plaintiff relied upon the decisions of this Court reported in Gouri Amma v. Gopalakrishna Panicker ( 1966 KLT 715 ) and Gopala Pillai v. Chellappan Pillai ( 1966 KLT 1154 ). The earlier one is by a learned single Judge and the latter by a Division Bench. In 1966 KLT 715 , the second appeal arose from a suit for partition. The plaintiff and the first defendant were daughters of one P. Defendants 2 to 6 were the children of the first defendant. The Trial Court held that one-half of the property in question belonged to 'P' exclusively which on her death devolved on the plaintiff and the first defendant in equal shares. The Appellate Court reversed the decree and held that the plaintiff got no share in the plaint property. Defendants 3 to 6 were not parties before the Appellate Court. However, the Appellate Court granted a decree in their favour also since the appellant before it had a ground common to her and the non party defendants. In the second appeal also, defendants 3 to 6 were not impleaded. The second appeal was filed by the plaintiff, who had a rival claim against defendants 3 to 6. It was contended that the second appeal was not maintainable. In the second appeal also, defendants 3 to 6 were not impleaded. The second appeal was filed by the plaintiff, who had a rival claim against defendants 3 to 6. It was contended that the second appeal was not maintainable. The learned Judge who heard the second appeal held that the second appeal was not maintainable since it was not permissible for the Court to vary the decree to the detriment of defendants 3 to 6 in an appeal to which they were not parties. The same question was agitated before the Division Bench in 1966 KLT 1154 , and the Division Bench approved the principle laid down in 1956 KLT 715. I am in respectful agreement with the principle laid down in the above decision. 12.The situation obtaining in the first appeal in the instant case is similar to the one that obtained in the second appeal which gave rise to the decision in 1966 KLT 715 . Here, the first defendant was the appellant before the Appellate Court. The respondents were the plaintiffs in O.S. No. 363 of 1972. Obviously the appellant did not have a ground common with defendants 2 to 4, 6 and 7. The first Appellate Court could have interfered with the decree of the Trial Court in favour of the appellant, that is, the first defendant only to the detriment of defendants 2 to 4 and 6 and 7 who were not parties before him. On the principle laid down in 1966 KLT 715 , which was upheld in 1966 KLT 1154 , it has therefore to be held that the first appeal itself was not maintainable and for that reason the C.M.As. 142 and 143 are also not maintainable. That being so, the decree in O.S. No. 363 of 1972 has become final which operates as res judicata on the strength of the decision reported in Janardhanan Pillai v. Kochunarayani Amma (1976 KLT 279 (FB)) which held that when two suits between the same parties with substantially the same question was decided by a common Judgment and there is an appeal only from one of the decisions, the decision from which no appeal is filed becomes final and operates as res judicata. Thus the first appeal against O.S. No. 1096 of 1971 is also rendered ineffective and not maintainable. 13. The above finding is sufficient for the disposal of these appeals. Thus the first appeal against O.S. No. 1096 of 1971 is also rendered ineffective and not maintainable. 13. The above finding is sufficient for the disposal of these appeals. However, in view of the fact that other questions on merit were agitated before me in detail, I think it only proper that I consider them and enter my own findings on them for the additional reason that I propose to dispose of the entire matter here. 14. The first question to be decided is whether Ext. P-1 is a gift deed or not. The first defendant's case is that it is a gift deed. The Courts below have concurrently found that it is not a gift deed. The Trial Court found that deceased Saraswathi Bai did not subscribe her signature to it. It was the first defendant who purchased the stamp paper and it was he who presented it for registration. He took back the document from the registry office. It will not be wrong to infer from these circumstances that the first defendant brought about the gift deed without the knowledge of the donor for his own benefit taking advantage of her position. 15. There are various other circumstances which would demolish the case of the first defendant and which would render the document invalid in law. The defendant filed an application before the Appellate Court for permitting him to send the admitted signature with the signature in the document for comparison by an expert.Form a bare look at the gift deed and the signature with the signature in the document to an expert for examination. The signature of the lady, who had retired as a school teacher and who is therefore expected to be literate, in the body of the document and on the reverse showing the signature before the Registrar- the two signatures have been affixed within an interval of two hours - are patently dissimilar. By a mere look with the naked eve, the finding of the trial Court that the lady had not signed the document appears to be correct. The trial Court has also found on a comparison of the thumb impression in the document with the admitted thumb impression that they are also dissimilar. I have no hesitation to confirm the finding that the lady had not signed the document. 16. The trial Court has also found on a comparison of the thumb impression in the document with the admitted thumb impression that they are also dissimilar. I have no hesitation to confirm the finding that the lady had not signed the document. 16. In addition to this, there are certain other vital defects in the document. Under S.123 of the Transfer of Property Act, a gift of immovable property has to be made by a registered instrument signed by or on behalf of the donor, and attested by two witnesses. In this document, there is only one attestor. At the place where the witnesses are to sign, the word is written, which means 'witness'. If there are more than one witnesses, the word is usually used. The scribe of the document is P.W.I, who is not an attestor. The attestor is one Parameswaran Nair. He has not been examined. The identifying witnesses have also not been examined. Under S.68 of the Evidence Act, a gift can be used as evidence only when one attesting witnesses at least has been called for proving its execution, except where the execution of the document is not denied. Thus, the document has not been proved in the manner laid down by law. Since the execution of the gift deed is specifically denied here, the first defendant cannot get the protection of the proviso to S.68 of the Evidence Act. Therefore, in addition to the fact that the gift deed is not attested by two witnesses, no attesting witness has been examined to prove it. The document also fails for the legal infirmities due to the non compliance with S.123 of the Transfer of Property Act so far as execution is concerned and with S.68 of the Evidence Act so far as its proof is concerned. 17. I may in passing refer to another submission made by the plaintiffs' counsel that the gift deed is unnatural. The document does not give any reason why the donor should have excluded all his heirs in preference of the donee for the conferment of this benefit to him. In the absence of any acceptable reasons, the document has to fail for the reason that it is unnatural. In support of this plaintiffs' counsel relied upon the decision of the Supreme Court in Lakshmi Amma v. T. Narayana ( AIR 1970 SC 1367 ). In the absence of any acceptable reasons, the document has to fail for the reason that it is unnatural. In support of this plaintiffs' counsel relied upon the decision of the Supreme Court in Lakshmi Amma v. T. Narayana ( AIR 1970 SC 1367 ). There the Supreme Court was considering a deed of Settlement by which the entire property was settled in favour of one of the grandsons to the exclusion of his own issues and other grandchildren and making a very negligible provision for his third wife the other two wives having predeceased him. The Supreme Court held that: "The dispositions which were made by Ext. B3, as already pointed out before, were altogether unnatural and no valid reason or explanation has been given why Narasimha Bhatta should have given everything to respondent 1 and even deprived himself of the right to deal with the property as an owner during his life time. Ali these facts and circumstances raised a grave "suspicion as to the genuineness of the execution of the document Ext. B3 and it was for respondent 1 to dispel the same." Here, the unnaturalness is more. All the grandsons who are heirs have been excluded. The donee is the sister's son who is not an heir. There is no explanation nor any valid reason given why the legal heirs have been excluded. This circumstance, fortifies the conclusion that the donor would not have executed the document. 18.The first defendant's counsel vehemently contended that this objection was not raised at the trial stage and that the first defendant had no opportunity therefore to meet the same. It was submitted that the plaintiffs should not be allowed to raise this question now. At least he should be given an opportunity to adduce evidence to meet this new case. 19.The validity of the gift, for the reason that it does not conform to S.123 of the T.P. Act, and that it has not been proved in confirmity with S.68 of the Evidence Act, is a matter which goes to the root of the question. Such a question can be allowed to be raised at any stage. Hence I allowed the matter to be raised. 20.The only other question that remains for consideration is whether the first defendant should be given an opportunity to adduce evidence to prove Ext. Such a question can be allowed to be raised at any stage. Hence I allowed the matter to be raised. 20.The only other question that remains for consideration is whether the first defendant should be given an opportunity to adduce evidence to prove Ext. B1 as a Will and to prove that there were two attestors to the document. On the strength of the findings of the two Courts that the document is not a gift deed and on the finding of the Trial Court that the suit document was not executed by Saraswathi Bai, it would be a fruitless exercise to permit further evidence in proof of the execution of the document. On the materials available before me, I have no hesitation to hold that the document was brought about under circumstances highly suspicious and that the Saraswathi Bai has not subscribed her signature to the document. The finding that the document has not been executed by Saraswathi Bai applies not only if it is a gift deed but also if it is a Will. To permit the first defendant to adduce further evidence under these circumstances does not appear to be necessary or proper since, according to me, interests of justice do not warrant it. I therefore decline this request and set aside the order of remand passed by the appellate Court to permit the first defendant to adduce fresh evidence. 21. Now the question is whether the case should be sent back to the Appellate Court for fresh disposal or whether I should myself dispose of the suits. This Court's jurisdiction to dispose of suits in appeals against remand orders cannot be doubted although it is very sparingly that this jurisdiction is exercised by this Court. But in the peculiar circumstances of this case where the evidence is clear that the lady has not put her signature to the document, that the signatures in the document ex facie betray fraud on the part of the person who is responsible for its existence and in the light of the observations by the Trial Court, according to me rightly made, that the admitted signatures and the thumb impressions vary significantly from the signature and thumb impression in the document, I do not think it necessary to send the case back to the Appellate Court. It will not be worth the while also to allow the signatures to be reexamined by an expert. The first defendant has been successful in denying the properties to the rightful owners all these years. To remit the case back to the Appellate Court will be to delay it further. 22. On the findings entered by me in confirmation of the findings of the Trial Court that the gift deed is not executed by Saraswathi Bai, that the document is not executed a gift deed, that the legal requirements have not been complied with for its execution and that it has not been properly proved, it will be unnecessary to permit further examination of witnesses and an examination of the document by an expert. According to me, the Appellate Court was not right in allowing I. A. No. 2638 of 1973. The said application is hereby dismissed. For the foregoing reasons, I dismiss C. M. A. Nos. 142 and 143 of 1978 and allow C.M.A. Nos. 126 and 135 of 1978. I confirm the decree of the Trial Court in O. S. No. 363 of 1972 and O. S. No. 1096 of 1971. The parties are directed to bear their costs in this Court.