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2013 Supreme(Ker) 35
HIGH COURT OF KERALA
THOMAS P. JOSEPH, J.
Litty & Another
Versus
Vasu & Others
R.S.A. Nos. 962 of 2012 & 1435 of 2012
Decided On : 21-01-2013
K. Ramakumar, Senior Advocate, S.M. Prasanth, P.N. Ramakrishnan Nair, P. Viswanathan, Smitha George, M. Shaiju Purushothaman, K.S. Rajesh, Advocates.
The main legal point established in the judgment is that a transfer made after the period prescribed by the Act has expired and before the appeal is re-admitted or an appeal is admitted after condoning the delay cannot be considered as pending, and thus, not hit by Sec. 52 of the Transfer of Property Act.
Headnote:
Transfer of Property Act - Transfer of Immovable Property - Sec. 52 of the Transfer of Property Act - Summary of Acts and Sections
Fact of the Case:
The case involved a dispute over three items of properties, with the appellant claiming title and possession of the properties. The deceased defendant contended adverse possession, and the trial court found in favor of the defendant. The appeal was dismissed for default, and the appellant purchased a portion of the property during the pendency of the appeal.
Finding of the Court:
The court found that the transfer made by the appellant during the pendency of the appeal was not hit by Sec. 52 of the Transfer of Property Act. The court also remitted the case to the trial court for fresh decision on the claims made by the parties.
Issues: The main issues were whether the transfer of property during the pendency of the appeal was hit by Sec. 52 of the Transfer of Property Act and whether the appellant's claim based on a will traced after the appeal was dismissed could be considered.
Ratio Decidendi: The court held that a transfer made after the period prescribed by the Act has expired and before the appeal is re-admitted or an appeal is admitted after condoning the delay cannot be considered as pending, and thus, not hit by Sec. 52 of the Act. The court also allowed the appellant to seek amendment of the plaint based on the newly traced will.
Final Decision: The second appeal was allowed, and the judgment and decree of the lower court were set aside. The case was remitted to the trial court for fresh decision on the claims made by the parties.
1. Admit
2. The substantial Question of law framed for a decision in R.S.A. No. 962 of 2012 are:
I. Whether a transfer of immovable property which is directly and specifically in question in the appeal, made after the time prescribed to apply for re-admission of the appeal which was dismissed for default expired, and before the appeal was re-admitted after condoning the delay is hit by Sec. 52 of the Transfer of Property Act( for short, “ the TP Act”)?
II. Whether the appellant, in view of assignment deed dated 23.02.2010 in her favor has acquired title and possession of that portion of item No. 3 covered by the said assignment deed?
3. The following substantial questions of law are framed in R.S.A. No. 1435 of 2012 (filed by the 1st respondent in R.S.A. No. 962 of 2012)
I. Whether second appellate court has power to consider the Will produced and mould relief accordingly to do complete justice to the parties to the proceedings?
II. Whether second appellate court has power to receive the document in the party to a proceedings is prevented from claiming relief on the basis of the said document which was not within his knowledge before disposal of proceeding in the court below and act upon the same on production of such document in the appellate stage especially when the legal effect of such document will come into operation only on death of the executants of such document who is admittedly one of the parties to such litigation before the courts below?
4. These appeals are drawn from the judgment and decree of learned Sub Judge, Irinjalakuda in A.S. No. 318 of 2013. That appeal arose from the judgment and decree of learned Munsiff, Irinjalakuda in O.S.No. 3 of 1996. Parties are referred as appellants and respondents as in R.S.A. Nos.962 of 2012.
5. 1st respondent in R.S.A. No. 962 of 2012 (who is the appellant in R.S.A. No. 1435 of 2012) along with the deceased 1st plaintiff filed O.S. No.3 of 1996 concerning three items of properties. They claimed that item No. 1 of the plaint schedule belonged to the 1st respondent and the deceased 1st plaintiff as per Ext.A2 while item No.2 belonged to the 1st respondent as per Ext.A3. The further claim is that item No. 3 was purchased by the 1st respondent in the name of the deceased 1st plaintiff as per Ext.A1, in the year 1963. 1st respondent claimed that later, he purchased item No.3 from the deceased 1st plaintiff as per Ext.A4, assignment deed dated 12.04.1994. The deceased defendant being brother of the 1st respondent in R.S. A. No. 962 of 2012 was permitted to occupy the building in item No. 1 but, even after permission was withdraw, he did not vacate. Hence 1st respondent and the deceased 1st respondent and the deceased 1st plaintiff prayed for a decree for mandatory injection to direct the deceased defendant vacate the building in item no.1, for a declaration that 1st respondents has title and possession of item Nos. 1 to 3 and for injection to restrain the deceased defended causing obstruction to the 1st respondent and the deseased1st plaintiff exercising their right and possession over item Nos. 1 to 3.
6. The deceased defendant contended that 1st respondent or the deceased 1st plaintiff has no right, title, interest or possession of item Nos. 1 to 3. He claimed that he is in adverse possession of item Nos. 1 to 3 and item No.1 and by such adverse possession for more than 12 years. Has perfected title over it.
7. Trial court found that the deceased defendant is in adverse possession of item Nos. 1 to 3 and consequently refused to grant any relief. The 1st respondent in R.S. A. No. 962 of 2012 and the deceased 1st plaintiff filed A.S. No. 318 of 2003
8. During the pendency of that appeal, 1st plaintiff died and thereon, her legal representatives were imp leaded. The defendant died, bachelor and intestate. No question of impalement of legal representatives arose since the parties on record are his legal representatives.
9. A.S. No. 318 of 2003 was dismissed for defau
