Research › Search › Judgment

Kerala High Court · body

2016 DIGILAW 685 (KER)

Ambady v. Prabhakaran

2016-08-08

K.ABRAHAM MATHEW

body2016
JUDGMENT : The original plaintiff was the owner of the plaint schedule-property His sister Choyichi filed the suit as his next friend. On the death of the original plaintiff the next friend was impleaded as the addl. second plaintiff She also died. Her son was impleaded as the addl. third plaintiff and he is the appellant. The sole defendant, who is the respondent in this appeal, claimed title to the property on the basis of a sale deed allegedly executed by the original plaintiff. He is the son of the addl. 2nd plaintiffs daughter Vellachi. The prayer in the suit is to set aside the sale deed as it was allegedly obtained by fraud. The original plaintiff was allegedly illiterate and totally deaf and the respondent was able to dominate his will. The trial court found that the plaintiff failed to discharge the burden to prove that the sale deed was obtained by fraud. It also entered a finding that the suit is time barred. The decree has been confirmed by the learned District Judge. 2. The allegation in the plaint that the original plaintiff, who executed Ext A1 sale deed in 1986 in favour of the defendant was illiterate is not denied in the written statement; but the plaintiffs case that the original plaintiff was totally deaf at the relevant time and the defendant was in a position to dominate the will of the original plaintiff is specifically denied. 3. The original plaintiffs wife deserted him long long ago. They had no issues. The next friend and sister of the original plaintiff who was later impleaded as second plaintiff and who died pending the suit was his sister. On her death, her son was impleaded as the additional third plaintiff and he is the appellant. The defendant who is the respondent in this appeal is the son of the deceased second plaintiffs daughter Vellachi. His parents abandoned him in his childhood. He was brought up by the original plaintiff and the additional second plaintiff, with whom he was residing in the plaint schedule property. 4. The specific allegation in the plaint is that deafness of the original plaintiff was noticed when he was about 20 years old and within a short time he became totally deaf. The additional third plaintiff who is the appellant in this case, was examined as PW1. 4. The specific allegation in the plaint is that deafness of the original plaintiff was noticed when he was about 20 years old and within a short time he became totally deaf. The additional third plaintiff who is the appellant in this case, was examined as PW1. Whether the original plaintiff was totally deaf is only a question of fact. The affidavit filed by PW1 in lieu of his examination in chief is a repetition of the pleadings of the original plaintiff word by word. The cross-examination of PW1 revealed that he knew nothing about the alleged incapacity of the original plaintiff though they are brothers. It came out in his cross examination that the first plaintiff himself instructed the advocate to prepare the plaint and conducted the original petition in the High Court engaging a counsel. The testimony of PW1 that the original plaintiff had been taken to a doctor three or four times for the treatment of deafness and thereafter he used a hearing aid is nothing but false. He could not mention the name of the doctor or when he was taken to the doctor. The evidence of PW4, who is the ENT surgeon allegedly consulted by the original plaintiff is inconsistent with the testimony of PW1. Both the courts below discussed the evidence of PW4 and rightly refused to act upon it. The courts below for reasons which can be justified rejected the evidence of PW3 also who deposed that the original plaintiff was completely deaf for 30 years. 5. The trial court and the appellate court took the view that the burden was on the plaintiffs to prove that Ext.AI sale deed was obtained by fraud. This is wrong. See the discussion of the Supreme Court in Sethani v. Bhana ( AIR 1993 SC 956 ). Though the plaintiffs could not prove that the original plaintiff was deaf, it is not denied that he was illiterate. The plea raised is that of non est factum. (See the decision of this court in Mathu v. Cherchi ( 1990 (1) KLT 416 ) and Biji Pothan.v. Thankamma John & Others (2012 KHC 2776)) So the burden is on the defendant to prove that the sale deed was not executed in vitiating circumstances. In his examination in chief he did not depose to any fact which is sufficient to discharge the burden. In his examination in chief he did not depose to any fact which is sufficient to discharge the burden. But in the cross-examination particulars which are sufficient to discharge the burden were brought out and it was not even suggested to him that his evidence on the point was not true. It means that the appellant accepted his evidence as true. It appears that both parties were of the view that the burden is on the plaintiff to prove that the sale deed was obtained by fraud. The facts brought out in the cross-examination of a witness also are part of his evidence. The court cannot refuse to act upon it on the ground that those facts were brought out in the cross-examination. The evidence of the defendant is sufficient to prove that the first plaintiff executed the document after understanding its contents and the execution was voluntary. 6. Both the courts below found that the suit is barred by the law of limitation. 7. On the basis of the facts disclosed in the evidence of the defendant the courts below held that he has been any possession in the property since the execution of Ext A1 sale deed. It is true that the original plaintiff and the additional second plaintiff were residing in the building in the plaint schedule property after the execution of Ext A1 sale deed. But that is no reason to hold that the defendant did not obtain possession of the property. They were all members of the family. Possession of the property is a question of fact. The trial court and the appellate court concurrently found that the original. plaintiff lost possession of the property after the execution of the sale deed in the suit. There is only a prayer for setting aside the sale deed; there is no prayer for recovery of possession. Unless there is a prayer for recovery of possession, the plaintiff who lost possession of the property cannot be granted a decree for declaration alone. 8. The case of the original plaintiff is that he came to know about the sale deed only in January 2003 when he received a notice from the land tribunal in which the defendant filed an application to correct the survey number of the property in the purchase certificate issued to the original plaintiff. The suit was filed within one year. The case of the original plaintiff is that he came to know about the sale deed only in January 2003 when he received a notice from the land tribunal in which the defendant filed an application to correct the survey number of the property in the purchase certificate issued to the original plaintiff. The suit was filed within one year. PW1 deposed that he did not know anything about the sale deed and he did not verify it. It dropped from him in the cross examination that the original plaintiff told him about the fraud committed by the defendant about 14 years ago. PW3, another witness examined to prove that the plaintiffs case, stated that the original plaintiff told him about the sale deed about 20 years ago. 9. In Ningawwa v. Byrappa Shiddappa Hireknrabar and others ( AIR 1968 SC 956 ) the Supreme Court held that it is well settled that a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party defrauded Until it is avoided, the transaction is valid. In such cases it is Article 59 of the Limitation Act that is applicable, under which the period of limitation is three years from the date of knowledge of the fraud The Supreme Court further observed that the legal position will be different if there is fraudulent misrepresentation not merely as to the contents of the document but as to its character. If the fraudulent representation is as to the character of the document and its contents, the transaction is void and Article 59 of the Limitation Act is not applicable. 10. In cases in which the transaction is void a suit may be filed on the strength of the title of the aggrieved party. If he has not lost possession, he may file a suit for a declaration alone, but if he has lost possession it is necessary for him to pray recovery of possession also In this case, there is no prayer for recovery of possession though the original plaintiff lost its possession in 1986. The provision of the Limitation Act that applies to the facts of the case is Article 58. The suit should have been filed within 3 years from the date on which the right to sue first accrued. The provision of the Limitation Act that applies to the facts of the case is Article 58. The suit should have been filed within 3 years from the date on which the right to sue first accrued. The suit was filed more than 12 years after the original plaintiff came to know about the existence of Ext A1 sale deed even if it is assumed that the case pleaded by him is true. Thus the suit is time barred. 11. That apart, in the absence of a prayer for recovery of possession, the declaration prayed for cannot be granted even if it is taken for granted that the facts alleged in the plaintiff have been proved 12. Since no substantial question of law arises for consideration in this appeal, it cannot be entertained. In the result, this appeal is dismissed.