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2017 DIGILAW 597 (KER)

NALINI v. RAMAKRISHNAN NAIR

2017-03-28

B.KEMAL PASHA

body2017
JUDGMENT : B. KEMAL PASHA, J. 1. Challenging the concurrent findings entered by the Principal Munsiff's Court-II, Kozhikode in O.S. No. 865/2008 followed by those of the Additional District Judge-II, Kozhikode in A.S. No. 51/2012, the plaintiff has come up in second appeal. 2. The suit is one for partition. The original plaintiff is presently no more. His legal representatives are the present appellants, who are additional plaintiffs 2 to 4. The first defendant is the elder brother of the 2nd defendant and the plaintiff. The plaintiff is younger to the 2nd defendant. 3. The plaint schedule property is having an extent of 22.75 cents of land in Re. Sy. No. 23-17-622 of the Panniyankara Amsom in Kozhikode Taluk. The said property was a part of the larger extent of properties originally belonged to the Thavazhy of the parties. Their occurred a partition in the Thavazhy through Ext.A1 in the year 1978 whereby the plaint schedule properties were allotted to the share of the first defendant, 2nd defendant and the plaintiff jointly.Ext.A1 was executed on 27.11.1978 and got it registered on 03.12.1978 only. It was a house registration, since some of the parties to the partition deed were too old, which made them impossible to attend the Sub-Registry Office. 4. According to the plaintiff, the first defendant being the elder brother, was looking after the affairs of the plaint schedule properties for and on behalf of the plaintiff and the 2nd defendant also. It is the case of the plaintiff that they continued as tenants in common in respect of the plaint schedule properties. Thereafter, in the year 2008, the plaintiff forwarded a demand for partition and separate possession of his share from the plaint schedule properties. When the first defendant did not heed to the request, Ext.A2 notice dated 22.08.2008 was caused to be issued to the first defendant by the plaintiff thereby demanding partition and separate possession. Thereafter, in the year 2008, the plaintiff forwarded a demand for partition and separate possession of his share from the plaint schedule properties. When the first defendant did not heed to the request, Ext.A2 notice dated 22.08.2008 was caused to be issued to the first defendant by the plaintiff thereby demanding partition and separate possession. Ext.A2 invited a response from the first defendant in the form of Ext.B4 reply notice in the month of October, 2008 whereby the first defendant has resorted to a contention that, after the execution of Ext.A1, the plaintiff and the 2nd defendant had executed release deed No. 4784 of 1978 of the Chalappuram Sub Registry in favour of the first defendant, on accepting consideration and released the rights and title of the plaintiff and the 2nd defendant over the plaint schedule properties to the first defendant. On getting Ext.B4 reply notice, the plaintiff filed the suit on 26.11.2008. 5. According to the plaintiff, the plaintiff and the 2nd defendant had not jointly or separately executed any release deed on any date on or after the date of execution and registration of the partition deed. The allegations in the reply notice that the share of the plaintiff and the 2nd defendant over the plaint schedule properties was released in favour of the first defendant was specifically denied. According to the plaintiff, the said document styled as release deed is void in law on the reason of fraudulent misrepresentation with respect to the nature and character of the document. It is also pleaded that the said release deed could have been the result of a fraudulent misrepresentation by styling it as portions of the partition deed or it could have been the result of impersonation. 6. The first defendant contended that the plaintiff and the 2nd defendant were not interested in retaining their share in the property on the execution of Ext.A1 partition deed and they wanted to release their rights over the property to the first defendant for consideration and that the first defendant purchased their shares by paying valid consideration, through the aforesaid release deed. The release deed was registered on the date on which the partition deed was registered. Thereafter, in the year 1991, the first defendant had availed an amount of Rs. 25,000/- from the Kozhikode Co-operative Urban Bank by mortgaging the plaint schedule properties. The release deed was registered on the date on which the partition deed was registered. Thereafter, in the year 1991, the first defendant had availed an amount of Rs. 25,000/- from the Kozhikode Co-operative Urban Bank by mortgaging the plaint schedule properties. Further, in the year 1998, the first defendant had sold 5.15 cents of property from the plaint schedule properties to one Kuttiyil Parambu Usman, S/o Aboobacker through Sale Deed No. 2728/1998 of the Meenchanda SRO. Usman constructed a residential building also in the property. Thereafter, Usman sold the said property to one Abdulla S/o Abdul Khader through Sale Deed No. 2991/2001. Further, 0.50 cents and 1.18 cents of land were again sold in the year 2008 by the first defendant for widening the access to the plots. According to the first defendant, the plaintiff and the 2nd defendant were aware of all the aforesaid transactions. Further, according to the first defendant, he was shocked to receive Ext.A2 notice and in order to reply for the same, he had searched for all the relevant documents, and then he could notice that the original of the release deed was misplaced and missing. He contended that the original of the document was produced during the execution and registration of the properties sold in respect of Usman and later it got misplaced somewhere. 7. The 2nd defendant filed a separate written statement almost by adopting the pleadings resorted to by the plaintiff. He also has contended that he along with the plaintiff had never executed any such release deed. 8. Subsequently, the plaint was amended and the matters relating to the documents executed by the first defendant were incorporated. The first defendant filed an additional written statement contending that the original of the release deed was handed over to his brother-in-law named Mohandas for showing it to the prospective purchasers of the property and thereafter Mohandas has not returned the said document. 9. On the side of the plaintiffs PW-1, who is the wife of the plaintiff, was examined and Exts.A1 to A3 were marked. On the side of the first defendant, he was examined as DW1 and the scribe of Ext.A1 partition deed and the release deed was examined as DW2. Exts.B1 to B8 series were marked. 10. The trial court decreed the suit and passed a preliminary decree for partition and separate possession in terms of the plaint. On the side of the first defendant, he was examined as DW1 and the scribe of Ext.A1 partition deed and the release deed was examined as DW2. Exts.B1 to B8 series were marked. 10. The trial court decreed the suit and passed a preliminary decree for partition and separate possession in terms of the plaint. Aggrieved by the said preliminary judgment and decree, the first defendant preferred A.S. No. 51/12 before the District Court, Kozhikode. The learned Additional District Judge-II, Kozhikode allowed the appeal by setting aside the judgment and decree passed by the trial court, and dismissed the suit. 11. This second appeal has been admitted by this Court on the following substantial question of law: "Was the lower appellate court justified in reversing the decree of the trial court especially when the trial court for cogent and convincing reasons found that Ext.B1 settlement deed has not been proved in accordance with law?" 12. Heard the learned Senior Counsel for the appellants Sri. T. Sethumadhavan, the learned Senior Counsel Sri. T. Krishnan Unni for the first respondent and the learned counsel Sri. Rajan Nambrath and Sri. B. Muralidharan for the 2nd respondent. 13. The learned Senior Counsel for the appellants has argued that the lower appellate court has gone wrong in proceeding with the appeal as if the claim of the plaintiff was that there was lack of free consent in the execution of the release deed. It has been further argued that when its execution as such has been denied, the first defendant ought to have produced and proved the original of the release deed; whereas, the certified copy of the release deed alone was pressed into service as Ext.B1. The argument is that the original of the release deed was deliberately suppressed with a view to denying an opportunity to the plaintiff to identify the signature in the document and challenge the signature. It has also been argued that different versions, which are contradictory to one another, are given by the first defendant regarding the non production of the original of Ext.B1. It has been further argued that when both the partition deed and the release deed were registered on 03.12.1978 itself, in normal course the parties would not have executed two documents; whereas they could have incorporated the release in Ext.A1 partition deed itself. 14. It has been further argued that when both the partition deed and the release deed were registered on 03.12.1978 itself, in normal course the parties would not have executed two documents; whereas they could have incorporated the release in Ext.A1 partition deed itself. 14. Per contra, the learned Senior Counsel for the first respondent has argued that Ext.A1 is a complicated partition deed in which, altogether 17 parties are there and larger extent of properties are involved. In case the release is also incorporated in such a partition deed, the other parties to the partition deed would object the execution of such terms, because of the fact that it would definitely invite a higher amount of stamp duty as well as registration fee. Further, Ext.A1 partition deed was executed on 27.11.1978 and thereafter, the release deed was executed on 30.11.1978. Even though both the documents were registered on 03.12.1978 only, it would relate back to the dates of its execution and therefore, there is no suspicious circumstances in the execution of the release deed on 30.11.1978. The release deed was executed, based on the allotment of the property through Ext.A1. It has been further argued that there cannot be any suspicion in the non production of Ext.B1 as such in this case, especially when the signatures of the parties have not been denied. What has been challenged is the execution of the document through fraudulent misrepresentation, it has been argued. 15. The pleadings in the plaint relating to the execution and registration of the release deeds are contained mainly in paragraphs 3 and 4 of the plaint. In paragraph 3, execution and registration of the release deed has been clearly denied. In paragraph 4 of the plaint also the execution and registration of release deed has been denied. At the same time, a further plea has been incorporated to the effect that the first defendant might have got executed the release deed through fraudulent misrepresentation or impersonation. At the same time, as rightly pointed out by the learned Senior Counsel for the first respondent, nowhere in the plaint it has been pleaded that either the plaintiff or the 2nd defendant had never affixed their signatures or thumb impressions in the release deed. Apart from the denial of execution, either the signatures or the thumb impressions were not denied. 16. Apart from the denial of execution, either the signatures or the thumb impressions were not denied. 16. It is true that the first defendant had different versions with regard to the non production of the original of Ext.B1. In Ext.B4 reply notice it has not been mentioned that the said document was not available. In his evidence in cross-examination as DW1, he has admitted that the originals of the documents were shown to his learned counsel for replying to Ext.A2 notice. In the original written statement it was contended that the original of the said document was found misplaced and missing. Thereafter, altogether a different story has been given by the first defendant in the additional written statement. He has contended that the original document along with the original of the partition deed were handed over to his brother-in-law named Mohandas and subsequently, he could trace out that Mohandas had not returned the original of Ext.B1. 17. Even though the learned Senior Counsel for the appellants has highlighted the non production of the original of Ext.B1, the learned Senior Counsel for the first respondent has contended that no purpose would have been served, had the original of Ext.B1 itself been produced, when the signatures and thumb impressions in the document were not challenged or disputed. 18. There is considerable force in the said argument forwarded by the learned senior counsel for the 1st respondent. In the absence of denial of signatures or thumb impressions, the non production of the original of the document does not assume any importance at all. In such circumstances, the non-production of the original of the document can not be considered as a suspicious circumstance in the execution and registration of the said document. 19. Apart from the above, DW2, who was the Scribe of the documents, has clearly deposed that he was the Scribe of the original of Ext.A1 and the original of Ext.B1. He has clearly narrated the circumstances in which those documents were executed. According to him, the executants of the release deed had affixed their signatures in his presence and he could see it. It is true that his versions are not complete to prove the attestation within the meaning of Section 68 of the Indian Evidence Act. He has clearly narrated the circumstances in which those documents were executed. According to him, the executants of the release deed had affixed their signatures in his presence and he could see it. It is true that his versions are not complete to prove the attestation within the meaning of Section 68 of the Indian Evidence Act. At the same time, it has to be noted that the release deed in question is not a document coming within the purview of the Section 68 of the Indian Evidence Act. Therefore, the standard of proof regarding the attestation of a document required by law to be attested, cannot be extended to a document like a release deed or sale deed. The factum of execution and attestation has been proved through the examination of DW2. 20. DW1 has also stated regarding the execution and attestation of the original of the release deed. The learned senior counsel for the 1st respondent has pointed out that DW2 was the Scribe as well as an attesting witness in the original of Ext.A1. He had identified the executants of Ext.A1 at the time of registration. In Ext.A1, one Radhakrishnan Nair was shown as the Karanavar of the entire old Thavazhi. The said Radhakrishnan Nair is one of the identifying witnesses in the original of Ext.B1 at the time of its registration, as is evident from Ext.B1. DW2 is one of the attesting as well as the identifying witnesses in the original of Ext.B1. When the Karanavar of the Thavazhi had identified the executants before the Sub Registrar for the registration of the original of Ext.B1, the execution and the registration of the same cannot be doubted. 21. The learned senior counsel for the appellant has invited the attention of this Court to the decision in Prem Singh vs. Birbal, 2006 (2) KLT 863 (SC), wherein, it was held that: "The fraudulent misrepresentation as regards the character of a document renders it void; whereas, the fraudulent misrepresentation as regards the contents of the document renders it voidable." 22. The decision in Prem Singh (supra) is based on the decision in Ningawwa vs. Byrappa Shiddappa Hireknrabnar and Others, AIR 1968 SC 956 , wherein it was held: "The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The decision in Prem Singh (supra) is based on the decision in Ningawwa vs. Byrappa Shiddappa Hireknrabnar and Others, AIR 1968 SC 956 , wherein it was held: "The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable." 23. The learned counsel for the 2nd respondent has invited the attention of this Court to the decision in Hare Krishna Panigrahi vs. Jogneswar Panda, AIR 1939 Calcutta 688, wherein the word execution used in the Proviso to Section 68 of the Indian Evidence Act was considered. It was held therein that: "The term execution means and includes not only the signature of the executant, but the whole series of acts or formalities which are necessary to give the document validity as a mortgage deed. This includes attestation also." 24. In this particular case, in fact, the signature in the release deed has not been denied either by the plaintiff or by the 2nd defendant. Their case is that without making them aware of the contents of the document, through fraudulent misrepresentation, the 1st defendant got executed the release deed by placing it among the papers of the partition deed. In such case, it has to be considered whether the said plea taken up and the stand taken by the plaintiff during the evidence in the trial court is one of a challenge relating to the character of the document or whether it relates to the contents of the document. There is no case that the executants were not present for the registration of the partition deed. There is no case that they have not executed the partition deed. They were fully aware of the contents of Ext.A1. As rightly pointed out by the learned Senior Counsel for the 1st respondent, a valid release deed could be executed in this case only after the execution of the partition deed. It was based on the partition deed, the release deed was executed. They were fully aware of the contents of Ext.A1. As rightly pointed out by the learned Senior Counsel for the 1st respondent, a valid release deed could be executed in this case only after the execution of the partition deed. It was based on the partition deed, the release deed was executed. When the act of registration relates back to the date of execution, it is evident that the registration of the release deed related back to 30.11.1978, and the registration of the partition deed related back to 27.11.1978. The explanation offered by the learned Senior Counsel for the 1st respondent regarding the non-inclusion of the release in the partition deed is believable and acceptable. 25. Considering the stand taken by the plaintiff all along the stage of evidence in the suit and also in the pleadings in the plaint, the challenge is one of fraudulent misrepresentation with regard to the contents of the document and not with regard to the character of the document. The case of the plaintiff and the 2nd defendant is that they were not made known about the contents of the release deed and in case where they were made known about it, they would not have executed such a document. Therefore, the contention in short is one of lack of free consent within the meaning of Section 14 of the Indian Contract Act. According to them, the consent is hit by fraud as well as misrepresentation. In such case, necessarily the document, if lacking any free consent, renders it as voidable at the option of the executants. When a document is only voidable, the plaintiff ought to have sought for better reliefs in the plaint and a mere suit for partition alone will not lie. Here either the cancellation of the document or a relief to get the document set aside has not been sought for. A declaration has also not been sought for. Matters being so, a suit for partition simplicitor will not lie in this case, since the plaintiff cannot get the document ignored. If it was void, the plaintiff could have pleaded for getting the document ignored. 26. A declaration has also not been sought for. Matters being so, a suit for partition simplicitor will not lie in this case, since the plaintiff cannot get the document ignored. If it was void, the plaintiff could have pleaded for getting the document ignored. 26. When the document under challenge is not one falling under the category of the documents covered by Section 68 of the Indian Evidence Act, and especially when the voidability of such a document is in question, the burden on the plaintiff is too heavy. Of course, it is a fact that the original plaintiff died by the time when the suit came up for trial. The wife of the plaintiff was examined as PW1. Her evidence relating to the execution etc. cannot be relied on. Even though she has stated that her husband had not affixed his signature in the release deed, it is a fact that she could not identify the signature of her husband. When the Vakalathnama executed by the plaintiff was shown to her, she denied the signature in it as the one affixed by her husband. When a notarised photocopy of the original of Ext.B1 was shown to her, she could not identify the signature. Strangely enough, the 2nd defendant, who was all along present with the plaintiff has not chosen to mount the Box. The 2nd defendant could have mounted the Box and denied his signature and that of the plaintiff, in the release deed. It is a fact that the original of the release deed is not available. At the same time, they could have denied their signatures through the pleadings as well as through evidence. 27. The learned senior counsel for the 1st respondent has pointed out another curious aspect relating to the consideration shown in Ext.B1. In Ext.B1, the consideration is shown as Rs. 3,709/-. It has been pointed out that the total value of the property after making the payment covered by Exhibit-A1 relating to the plaint schedule property was Rs. 5,562.50. On a division, the two-third of it to which the plaintiff and the 2nd defendant are entitled out of it, will come to Rs. 3,709/-. 28. From the discussions made above, it can be safely concluded that there is absolutely nothing to interfere with the impugned judgment and decree passed by the lower appellate court. 5,562.50. On a division, the two-third of it to which the plaintiff and the 2nd defendant are entitled out of it, will come to Rs. 3,709/-. 28. From the discussions made above, it can be safely concluded that there is absolutely nothing to interfere with the impugned judgment and decree passed by the lower appellate court. This second appeal is devoid of merits and is only to be dismissed and I do so. In the result, this second appeal is dismissed. In the nature of this appeal, parties shall bear their respective costs. All interlocutory applications in this appeal are closed.