Research › Search › Judgment

Kerala High Court · body

2019 DIGILAW 95 (KER)

Gopakumar v. Kamalakshy Purushothaman

2019-01-29

P.SOMARAJAN

body2019
JUDGMENT : The first and second defendants came up with this appeal challenging the decree and judgment in O.S.No.121/2001 of Sub Court, Alappuzha and in A.S.No.21/2005 of District Court, Alappuzha. A cross objection was also filed by defendant Nos. 3 to 5. 2. The suit is one for a declaration of status of plaintiffs, being the legally wedded wife and children of deceased Purushothaman and for a declaration of title over the immovable property scheduled in the plaint, left out by him and for recovery of possession. The suit was decreed by the Trial Court declaring the status of plaintiffs-the legally wedded wife and children of deceased Purushothaman and their title over the plaint schedule property being the legal heirs. In appeal, the decree of the Trial Court was modified, declaring the status of plaintiffs as the legally wedded wife and children of deceased Purushothaman along with first defendant who is found to be an illegitimate son of deceased Purushothaman and granted a preliminary decree of partition of the property scheduled in the plaint. 3. The claim of plaintiffs is that the first plaintiff is the legally wedded wife of deceased Purushothaman and that their marriage was solemnized on 22/3/1964. Plaintiffs 2 to 4 are the children born in the wedlock with the above said Purushothaman. After getting employment in KSRTC, he began to live with one Syambavi and there is a male issue in that relationship, the first defendant. While he was living with Syambavi, he met with an accident and died due to electrocution on 03/03/1993. Thereon, Syambavi, the mother of 1st defendant executed Ext.A6 settlement deed in favour of first defendant on 05/03/1996 and settled her fractional interest over the property left out by deceased Purushothaman. Subsequently, the first defendant along with her mother Syambavi on 02/4/1998 conveyed 47.888 cents of property out of the large extent of 1 acre 7 cents left out by Purushothaman, in favour of defendants 3 to 5 for valid consideration. Syambavi died on 15/9/1999 and after her death, her son, the 1st defendant had given another portion of property, 25 cents, to the 2nd defendant under Ext.A8 document dated 4/2/2000. Thereby, a total extent of 72.888 cents of property was alienated out of 1 acre 7 cents. 4. Syambavi died on 15/9/1999 and after her death, her son, the 1st defendant had given another portion of property, 25 cents, to the 2nd defendant under Ext.A8 document dated 4/2/2000. Thereby, a total extent of 72.888 cents of property was alienated out of 1 acre 7 cents. 4. The first defendant along with his mother Syambavi applied for getting Succession Certificate before the Prl.Munsiff's Court, Alappuzha in O.P(Succession) 1/1997 for getting the retirement benefit of deceased Purushothaman. The plaintiffs also approached the same court with OP(Succession)No.9/1997 for the very same purpose. On getting knowledge about the OP (Succession) filed by the first defendant along with his mother, they applied for revoking the succession certificate in I.A.No.3829/1997, but it was ended in dismissal. Consequently, the OP (Succession)No. 9/1997 was also dismissed for non-prosecution on 12/6/2001. The present suit was instituted subsequently. 5. The following questions were taken up for consideration in this appeal: (i) Whether the first appellate court is justified in granting a relief of partition in the absence of a relief sought and whether it is a lesser relief attached to the relief of declaration of title and recovery of possession as prayed for ? (ii) What would be the legal impact of an assertion of full right, title and interest over a co-ownership property by one of the co-owner in derogation of other co-owners by executing a document of alienation ? (iii) Is it not amount to notice to other co- owners when strangers inducted into possession of portions of co-ownership property, in furtherance of transfer of right or title over the property and whether it would amount to 'deemed notice' as envisaged under Section 3 of Transfer of Property Act ? (iv) What would be the period of time available to institute a suit for declaration of title, when coupled with other reliefs, such as partition, recovery of possession, injunction, and whether the trial court and the first appellate court are justified in applying Article 58 of the Limitation Act ? (v) Whether a mere suit for declaration of title and recovery of possession would be maintainable, when there is transfer and alienation in derogation of right, title and interest of co-owners by one co- owner to a stranger. (v) Whether a mere suit for declaration of title and recovery of possession would be maintainable, when there is transfer and alienation in derogation of right, title and interest of co-owners by one co- owner to a stranger. Is it necessary to set aside the said document of transfer or a mere suit for declaration of their fractional interest and title over the property would be sufficient ? (vi) Whether it is permissible for one co-owner to recover possession of co-ownership property from the other, without having a partition of the respective shares and what would be legal effect, on failure to seek for partition and possession, if the co-owner is out of possession ? (vii) In a suit for declaration, whether it is mandatory to seek for further relief than a mere declaration invariably in all suits and if not, what is the criteria/test to be applied in ascertaining the mandate under the proviso to Section 34 of the Specific Relief Act ? 6. No satisfactory reason advanced against the concurrent finding rendered by both the trial court as well as the first appellate court regarding the status of the plaintiff being the legally wedded wife and children of deceased Purushothaman. Hence it deserves no interference by this court. 7. Regarding the status of first defendant, there is no dispute that the Purushothaman died while he was residing along with the mother of the first defendant one Syambavi at her residence. It was an accidental death due to electrocution. The status of Syambavi and her son first defendant was recognized by him during his life time. The certificate of birth of first defendant shows that he is the son born to deceased Purushothaman to Syambavi and as such the finding of the first appellate court regarding the status of first defendant as the son of deceased Purushothaman deserves no interference by this court. 8. There is no document to show any legal marriage of deceased Purushothaman with the mother of first defendant Syambavi. The marriage between the first plaintiff and deceased Purushothaman was subsisting when he entered into a marital relationship with the mother of first defendant and hence the first defendant can only be an illegitimate son born to Purushothaman in his relationship with Syambavi and by virtue of Section 16 of Hindu Marriage Act, an illegitimate son is also entitled to succeed the estate of his father. But Syambavi, in the absence of a legal marriage, cannot be considered as a legal heir. Hence the finding of the first appellate court that Syambavi is not entitled to inherit the estate of deceased Purushothaman deserves no interference. 9. Then comes the question regarding the execution of Ext.A6 Settlement Deed by Syambavi in favour of her son, the first defendant. She was not having any right, title or interest over the asset left out by deceased Purushothaman. Hence Ext.A6 document can only be a sham document executed by a person having no right, title or interest over the property and hence it has no legal effect. 10. Ext.A7 is the sale deed dated 2.4.1998 executed by the first defendant along with his mother in respect of 47.888 cents of property out of 1 Acre 7 cents left out by deceased Purushothaman, in favour of defendants 3 to 5. Ext.A8 is another sale deed executed by the first defendant in respect of 25 cents on 4.6.2000 in favour of 2nd defendant. In Ext.A7 sale deed the mother of the first defendant was also joined as a party, but it has no relevance, since she was not having any alienable interest over the property. 11. At the time of execution of Ext.A7 and A8 documents of alienation, the first defendant was having only a fractional interest over the property, which may comes to 1/5th share. The plaintiffs are entitled to 4/5th share over the property left out by deceased Purushothaman. But Ext.A7 and A8 documents were executed by the first defendant asserting that he is the sole legal heir of deceased Purushothaman and has full right, title and interest over the property. Exts.A7 and A8 documents were executed under the above said assertion. It is really in derogation of right, title and interest of the other co- owners, the plaintiffs in the suit. But no suit was filed to set aside the above said document of transfer and no relief sought in the suit in that behalf. Necessarily, a question would raise as to whether it is necessary to seek for a cancellation of a registered document of alienation or for setting aside the same in so far as the fractional interest held by the other co-owners are concerned or a mere suit for declaration of their title ( fractional interest) over the property would be sufficient. Necessarily, a question would raise as to whether it is necessary to seek for a cancellation of a registered document of alienation or for setting aside the same in so far as the fractional interest held by the other co-owners are concerned or a mere suit for declaration of their title ( fractional interest) over the property would be sufficient. The beneficiaries under Exts.A7 and A8 document of alienation, the respective purchasers were made as party to the suit as co-defendants against whom also the plaintiffs sought declaration of their title ( fractional interest) over the property in question and hence when declaration is granted declaring their title (fractional interest) over the property, it would operate against the interest transferred under the the document of alienation under Exts.A7 and A8 and there need not be any requirement for seeking a relief of setting aside the document of alienation or its cancellation. The only requirement is that the purchaser or any person litigating under him should be in the party array of the suit as co-defendant and the title to the property sought to be declared in favour of the plaintiff as against them also. The question of setting aside a document would arise, only when a document was executed either under vitiating circumstance by playing fraud, undue influence, misrepresentation and the like or a document brought into existence in a representative capacity by an incompetent person representing the estate or when the document if allowed to be continued would be a clog on title in future. When a document is executed by a total stranger having no right, title or interest over the property or by a co-owner transferring the interest of other co-owners without any authority, there is no necessity to sue for setting aside the document or its cancellation, but a suit for declaration of title would be sufficient. 12. In the instant case, no relief of partition and possession included in the suit, but the suit was filed for declaration and recovery of possession. Section 34 of the Specific Relief Act extracted below for reference : “34. 12. In the instant case, no relief of partition and possession included in the suit, but the suit was filed for declaration and recovery of possession. Section 34 of the Specific Relief Act extracted below for reference : “34. Discretion of court as to declaration of status or right -Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.” (emphasis supplied) 13. It is by virtue of the proviso attached to Section 34 of the Specific Relief Act, a restriction was imposed in granting a declaration of title when the plaintiff being able to seek a further relief than a mere declaration of title, omits to do so. But the proviso would operate only in respect of “a further relief” which would be necessary to give full effect to the relief of declaration of title and no other relief can be brought under the proviso to Section 34 of the Act. The restriction imposed under proviso to Section 34 of the Act would come into play when there is an omission to sue for further relief/reliefs which would give full effect to the relief of declaration of title and without which the declaration sought to be granted would be incomplete and ineffective to a certain extent. A distinction should be drawn based on the requirement under Section 34 of the Specific Relief Act and the proviso attached to it based on the purpose in which the declaration was sought and when the purpose or the declaration found to be incomplete or ineffective to an extent, due to the non-grant of a relief which ought to have been raised alone can be brought under the purview of proviso to Section 34 of the Act. Otherwise, there is no necessity or need to ask for any further relief than a mere declaration. Otherwise, there is no necessity or need to ask for any further relief than a mere declaration. The expression that 'plaintiff need not in such suit ask for any further relief' in the main body of Section 34 of the Act must be understood as the relief which would not affect the declaration sought or its purpose. In order to find out whether a particular relief would come under the purview of Section 34 or its proviso, the test that can be applied is whether the non-inclusion of such relief would make the declaratory relief or its purpose as ineffective or incomplete to an extent and if the answer is yes, it would fall under the proviso to Section 34 of the Act, otherwise, there need not be any requirement to sue for the said relief so as to get a relief of declaration. 14. In the instant case, defendant Nos. 2 to 5 are the persons who obtained possession of property having an extent of 47.888 cents and 25 cents in furtherance of Ext.A8 and A9 sale deeds. Ext.A7 sale deed relates back to 2.4.1998 and Ext.A8 relates to 4.2.2000. The suit was filed on 14.8.2001. The total extent of property left out by deceased Purushothaman comes to 1 acre 7 cents. Admittedly in furtherance of Exts.A7 and A8, delivery of possession of respective properties covered by those documents effected to the purchaser. Defendants 2 to 5 were total strangers till the purchase of property under Ext.A7 and A8. The induction of strangers into possession of a portion of property left out by deceased Purushothaman in furtherance of Ext.A7 and A8 would give sufficient notice to all persons claiming title by devolution. The principle of constructive notice as incorporated under Section 3 of Transfer of Property Act to the expression “when a person is said to have notice” would come into play and any abstention from making an enquiry which ought to have been done would be sufficient notice especially when the strangers were inducted into possession of portions of property as early as on 2.4.1998 in furtherance of execution of Ext.A7 sale deed by one of the co-owners. In the instant case, a relief of recovery of possession of property also included presumably on the reason that the plaintiffs were not in possession of the plaint schedule property having an extent of 1 Acre 7 cents. In the instant case, a relief of recovery of possession of property also included presumably on the reason that the plaintiffs were not in possession of the plaint schedule property having an extent of 1 Acre 7 cents. A suit for recovery of possession based on title by one of the co- owners or some of the co-owners as against another co-owner will not stand without a relief of partition and separate possession. The suit for declaration of title when the plaintiff found to be out of possession will not stand unless there is a relief sought for recovery of possession. But in so far as a co-owner plaintiff who is out of possession is concerned, in a suit for declaration of title, there should be a relief of partition and separate possession instead of seeking a relief of recovery of possession, otherwise, the relief of declaration of title would stand as incomplete and ineffective to the extent that in whose favour the declaration was granted, would be out of possession of the property sought to be declared and the restriction under the proviso to Section 34 of the Specific Relief Act would come into play. 15. When the property found to be partible and co- ownership property, the possession held by one of the co- owners deemed to be for and on behalf of all co-owners unless the animus to hold the property in derogation of other co-owners explicit from the act of possessor. But when one of the co-owner had already parted with the possession of property to a stranger under a document of alienation, in derogation of right of other co-owners, the purchasers would stepped into the shoes of a co-owner, till he perfects title by adverse possession and limitation as against the share of other co-owners, but the possession held by him cannot be termed as for and on behalf of other co-owners at any point of time either before perfection of title or after it. Necessarily the “principle of deemed possession” for and on behalf of all co-owners by one co owner cannot be applied against a person, who acquired right over a co-ownership property or any portion thereof under a document of transfer executed in derogation of other co-owners and inducted into possession of property by diverting possession by one of the co-owners or some of the co-owners. 16. Necessarily, the defendants Nos. 16. Necessarily, the defendants Nos. 2 to 5 who came into possession of portions of property left out by deceased Purushothaman based on Exts.A7 and A8 sale deeds can only be termed as persons in possession in-derogation of right, title and interest of other co-owners, and hence cannot be termed as for and on behalf of the other co- owners though they would be persons stepped into the shoes of co-owner who had given the property to them, hence, in a suit by other co-owners against the purchasers, a relief seeking partition and separate possession cannot be avoided and in the absence of such relief, no declaration of title as against the purchasers-defendant Nos. 2 to 5 can be granted. Hence the suit for declaration of title by the plaintiffs as against defendants 2 to 5 in the absence of a relief of partition and separate possession cannot be granted by virtue of operation of Section 34 of the Act. Both the trial court and the first appellate court went wrong in applying the legal position in its correct perspective. 17. It is so strange enough that the first appellate court has moulded a relief of partition without such a relief sought in the suit. A relief of partition cannot be termed as a lessor relief attached to the relief of declaration of title and recovery of possession. The test available whether a particular relief would be a lesser relief lies on the question whether it would become unnecessary when the larger relief was granted. A relief of partition would not become unnecessary on the grant of declaration of title and recovery of possession. In fact, the question of grant of recovery of possession in so far as a co-owner is concerned is not permissible except in a case of partition. Hence the moulding and granting of a lessor relief of partition by the first appellate court is not sustainable. 18. In fact, the question of grant of recovery of possession in so far as a co-owner is concerned is not permissible except in a case of partition. Hence the moulding and granting of a lessor relief of partition by the first appellate court is not sustainable. 18. In so far as first defendant is concerned, as discussed earlier, regarding the remaining property out of 1 Acre 7 cents, though he had exercised animus to hold the property in derogation of right, title and interest of other co-owners by executing Exts.A7 and A8 document of alienation, the period which is required for perfecting the title by adverse possession by ouster as against other co- owners was not completed as on the date of the suit 14/8/2001 and hence there cannot be an adverse title against the plaintiff by the first defendant over the property left out by deceased Purushothaman and the suit was brought up within a period of 12 years from the date of exercise of animus to hold the property by the act of execution of Ext.A7 and A8 document of alienation. Till perfection of title by adverse possession and limitation by an act of ouster by a co-owner, though he is in the pursuit of attaining title by adverse possession, a suit for declaration of title by the other co-owners is perfectly maintainable as the possession can only be deemed to be for and on behalf of all co-owners. The inchoate right of possession by a co-owner cannot be used either as a shield or as a sword against the other co-owner till the right of possession ripened into perfection of title by adverse possession and limitation. 19. Yet another question also came up for consideration whether a right to sue would arise from the moment of opening of succession in so far as disputed title or devolution of successive interest are concerned. Article 58 of Limitation Act deals with the period available for a suit relating to declaration other than a declaration of forgery of an instrument or for invalidating an adoption and the time available is three year from the time in which the right to sue accrues. Article 58 of Limitation Act deals with the period available for a suit relating to declaration other than a declaration of forgery of an instrument or for invalidating an adoption and the time available is three year from the time in which the right to sue accrues. Article 58 of the Limitation Act would be applicable in a suit for declaration, but it has no application when the relief sought in the plaint is not for a mere declaration, but coupled with other reliefs like injunction, partition, possession etc. and Article 65 of the Limitation Act would come into play giving 12 year period. In the instant case, the relevant Article which can be applied is not Article 58, but Article 65 as the suit was filed not merely for a relief of declaration, but for declaration of title and for recovery of possession of immovable property. Both the trial court and first appellant court went wrong in applying Article 58 instead of Article 65 of the Limitation Act. Since the suit is within time, there is no necessity to go into the question of application of Section 14 of the Limitation Act. The suit is well within the time. 20. The earlier application for getting succession certificate has no much relevance in the adjudication of respective rights and entitlement of parties either by devolution or by succession by a competent civil court. 21. Yet another contention was also advanced based on the decision rendered by this court in Gopalakrishnan v. Srinivasan ( 2010(2) KLT 216 ) and the decision of the Apex Court in Prem Singh v. Birbal [ 2006 (2) KLT 863 (SC)] that Ext.A7 and A8 documents are fraudulently created by misrepresentation and hence voidable. Both the decisions rendered by the Apex Court as well as this court really standing on a different footing. Neither Ext.A7 nor Ext.A8 document can be considered as document created on a fraudulent assertion. On the other hand the documents were executed by the first defendant asserting that he is the sole legal heir of deceased Purushothaman. It may be on a mistaken impression or under a bonafide belief, or may be the result of fraud played on purchaser. Neither Ext.A7 nor Ext.A8 document can be considered as document created on a fraudulent assertion. On the other hand the documents were executed by the first defendant asserting that he is the sole legal heir of deceased Purushothaman. It may be on a mistaken impression or under a bonafide belief, or may be the result of fraud played on purchaser. In the latter case, the fraud played by the executant on the purchaser may be a ground for challenging the document available to the purchaser, but no benefit can be taken by a stranger based on the abovesaid fraud, if any, played unless it was intended to defeat and delay his creditors. 22. After excluding the property sold under Ext.A7 and A8 out of 1 Acre 7 cents, the balance extent now in the hands of first defendant comes to only 34 cents and 112 sq.links. As discussed earlier, the suit for declaration of title of plaintiff over the plaint schedule property was filed before the perfection of title by adverse possession by the first defendant by ouster and hence the plaintiffs are entitled to declaration of their title over the extent of property in the hands of first defendant as on the date of suit viz., 34 cents and 112 sq.links. As discussed in earlier paragraph with respect to the extent of property not in the hands of first defendant, as on the date of suit, covered by Exts.A7 and A8 are concerned, no relief of declaration of title can be granted against defendant Nos.2 to 5 who obtained portions of the property covered by Exts.A7 and A8. As discussed earlier, no relief of recovery of possession can be granted against a co-owner and as such for the grant of declaration of title, instead of recovery of possession, there should be a relief of partition and separate possession without which no declaration can be granted as against the purchasers, defendants 2 to 5. In the instant case, in so far as the first defendant is concerned, there is no scope for seeking a relief of partition as against him as the right of partition has already been forfeited by his act by transferring a large extent of co-ownership property than what he is entitled to by way of partition, the 1/5th share over the property. More than 2/3rd of the property has already been disposed of and alienated by the first defendant to strangers who are defendant Nos. 2 to 5 herein and the remaining extent held by him will not satisfy the 4/5th share entitled by the plaintiffs herein. An act of a co-owner, who had alienated interest over co-ownership property, than what he is legally entitled, would amount to forfeiture of right of partition over the remaining interest, and cannot sue for partition and claim any right of partition. The right of partition and entitlement of 1/5th share by the first defendant has already exhausted and forfeited by his act under Exts.A7 and A8 by selling large extent of property than what he is entitled to. Since the right of partition forfeited by the first defendant, there cannot be any scope for seeking a relief of partition as against him with respect to the remaining property in his hands, which is not sufficient to satisfy the due share of plaintiffs. The plaintiffs can very well ask for the balance extent which comes to 34 cents and 112 sq.links towards their due share, without seeking a relief of partition. In fact, there is no necessity for seeking a further relief of partition in the instant case against first defendant and hence the bar under the proviso to Section 34 of the Specific Relief Act would not come into play as against the relief sought against the first defendant is concerned. Hence, the plaintiffs are entitled to a decree of declaration of their title and recovery of possession of the balance extent of property having an extent of 34 cents and 112 sq.links excluding the extent of property covered by Exts.A7 and A8 out of 1 Acre 7 cents left out by deceased Purushothaman. They are also entitled to declaration of their status as the legal heirs and successors in interest of deceased Purushothaman along with the first defendant. But the suit is liable to be dismissed in so far as it is against defendant Nos. 2 to 5 are concerned and the judgment and decree of both the trial court and the first appellate court are liable to be modified to that extent. I do so. 23. The appeal and the cross objection are allowed in part. But the suit is liable to be dismissed in so far as it is against defendant Nos. 2 to 5 are concerned and the judgment and decree of both the trial court and the first appellate court are liable to be modified to that extent. I do so. 23. The appeal and the cross objection are allowed in part. The decree and judgment of the trial court and the first appellate court are modified as under : (a) Granted a decree of declaration of plaintiffs status as the legally wedded wife and children of deceased Purushothaman. (b) Granted a decree of declaration of plaintiffs' title over an extent of 34 cents and 112 sq.links of property excluding the extent covered by Exts.A7 and A8 out of 1 Acre 7 cents left out by deceased Purushothaman. (c) Granted a decree of recovery of possession of an extent of 34 cents and 112 sq.links of property excluding the extent covered by Exts.A7 and A8 out of 1 Acre 7 cents left out by deceased Purushothaman from the first defendant. (d) The suit as against defendant Nos. 2 to 5 are hereby dismissed. (e) The parties are directed to suffer their respective costs of appeal and suit including the second appeal.