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2022 Supreme(Online)(KER) 42566
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 28TH DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944 RSA NO.532 OF 2009 AGAINST THE JUDGMENT IN AS 177/2005 OF DISTRICT COURT,THIRUVANANTHAPURAM OS 1678/2000 OF I ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM -----
APPELLANTS/APPELLANTS/LRs of D5:
1 BABU.Y., S/O YESUDASAN, RESIDING AT VEENA COTTAGE, ELAVATTOM, PACHA P.O., NEDUMANGAD, THIRUVANANTHAPURAM.
2 SAJIKUMAR.Y., S/O.YESUDASAN, RESIDING AT DEVAKI MANDIRAM, PATHIRIPALLY, KUDAPPANAKUNNU P.O., THIRUVANANTHAPURAM.
3 AJIKUMAR, S/O.YESUDASAN, RESIDING AT KALABHAVAN, PLANTHAIVILA, KODANKARA, CHENKAL P.O., NEYYATTINKARA, THIRUVANANTHAPURAM.
BY ADVS.
MARTIN JOSE P P.PRIJITH THOMAS P.KURUVILLA R.GITHESH AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT ANNA LINDA V.J HARIKRISHNAN S.
S.SREEKUMAR (SR.)
RESPONDENTS/RESPONDENTS/PLAINTIFFS 1 & 2/D2, 4, 6 & 7, LRs of 3RD PLAINTIFF, LRs of D1 & D3
1 SIVANANDAN, S/O SIVARAMAN NADAR, RESIDING AT PATHIRIPALLY HOUSE, PATHIRIPALLY, KUDAPPANAKUNNU P.O., THIRUVANANTHAPURAM.
2 LEKSHMANAN, (DIED; LHRS IMPLEADED)
S/O.SIVARAMAN NADAR,RESIDING AT SUNITHA BHAVAN, PATHIRIPALLY, KUDAPPANAKUNNU P.O., THIRUVANANTHAPURAM.
RSA NO. 532 OF 2009 -2-
3 RAJAMMA, D/O.CHELLAMMA, RESIDING AT PUTHUVAL PUTHEN VEEDU, GANDHIPURAM, SREEKARYAM P.O., THIRUVANANTHAPURAM.
4 DEVAKI, D/O.CHELLAMMA, RESIDING AT DEVAKI MANDIRAM, PATHIRIPALLY, KUDAPPANAKUNNU P.O.
5 LEKHA, D/O.DEVAKI, RESIDING AT REMA MANDIRAM, KODUNGANOOR, VATTIYOORKAVU, THIRUVANANTHAPURAM.
6 SUNIL KUMAR, S/O.THANKAPPAN NADAR, RESIDING AT REMA MANDIRAM, KODUNGANOOR, VATTIYOORKAVU, THIRUVANANTHAPURAM.
7 SHANTHA, W/O.RAMACHANDRAN.
*1 8 SANDHYA, D/O.SHANTHA. (DIED; LHRS IMPLEADED)
*1 [IT IS RECORDED THAT THE RESPONDENTS 7 AND 9 ARE THE LEGAL HEIRS OF DECEASED RESPONDENT 8, AS PER ORDER DATED 02.08.2022 IN IA
4/2020]
9 SUMA, D/O.SHANTHA, RESPONDENTS 7 TO 9 ARE RESIDING AT SUMI BHAVAN, ERAPPUKUZHY, KUDAPPANAKUNNU P.O., THIRUVANANTHAPURAM-43.
10 D.SASEENDRAN, RESIDING AT AISWARYA BHAVAN, PATHIRIPALLY, KUDAPPANAKUNNU P.O., THIRUVANANTHAPURAM.
11 D.RAVEENDRAN.
12 D.BALACHANDRAN.
13 D.JAYAKUMAR. 14 D.SATHEESAN.
15 B.SUJATHA RESPONDENTS 11 TO 15 ARE RESIDING AT, ROSE HOUSE, PATHIRIPALLY, KUDAPPANAKUNNU P.O., THIRUVANANTHAPURAM.
RSA NO. 532 OF 2009 -3-
16 B.PUSHPAKUMARI, RESIDING AT AISWARYA BHAVAN, PATHIRIPALLY, KUDAPPANAKUNNU P.O., THIRUVANANTHAPURAM.
*2 ADDL. RESPONDENTS 17 TO 19 ADDL. R17 SULOCHANA, WIDOW OF LEKSHMANAN, ADDL. R18 ANITHA, D/O.LATE LEKSHMANAN, ADDL. R19 SUNIL KUMAR, S/O.LATE LEKSHMANAN ADDITIONAL RESPONDENTS 17 TO 19 ARE RESIDING AT SUNITHA BHAVAN,PATHIRIPALLY,KUDAPPANAKUNNU P.O., THIRUVANANTHAPURAM-
695 013.
*2 (LEGAL HEIRS OF THE DECEASED R2 ARE IMPLEADED AS ADDL.R17 TO R19 AS PER ORDER DATED 18.07.2022 IN IA.1/2020.)
BY ADVS.
SRI.G.S.REGHUNATH SRI.SREEKANTH S.NAIR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28.11.2022, ALONG WITH RSA.818/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 28TH DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944 RSA NO. 818 OF 2009 AGAINST THE JUDGMENT IN AS 74/2004 OF DISTRICT COURT, TRIVANDRUM OS 1678/2000 OF I ADDITIONAL MUNSIFF COURT, TRIVANDRUM -----
APPELLANTS/APPELLANTS/DEFENDANT:
1 DEVAKI, D/O CHELLAMMA, DEVAKI MANDIRAM,PATHIRIPALLY, KUDAPPANAKUNNU P.O.,THIRUVANANTHAPURAM. 2 LEKHA, D/O.DEVAKI, REMA MANDIRAM,KODUNGANOOR, VATTIYOORKAVU,THIRUVANANTHAPURAM.
3 SUNILKUMAR, S/O.THANKAPPAN NADAR, RAMA MANDIRAM,KODUNGANOOR, VATTIYOORKAVU,THIRUVANANTHAPURAM.
BY ADV SRI.D.SAJEEV RESPONDENTS/RESPONDENTS/PLAINTIFFS:
1 SIVANANDAN 7 OTHERS PATHIRIPALLY HOUSE,PATHIRIPALLY,, KUDAPPANAKUNNU P.O.,THIRUVANANTHAPURAM.
*3 2 LEKSHMANAN,S/O.SIVARAMAN NADAR, (DIED; LHRS IMPLEADED)
RESIDING AT SUNITHA BHAVAN,PATHIRIPALLY, KUDAPPANAKUNNU P.O.,THIRUVANANTHAPURAM.
*1 3 BHARGAVI,D/O.CHELLAMMA, (DIED; LHRS RECORDED)
ROSE HOUSE,PATHIRIPALLY, KUDAPPANAKUNNU P.O.,THIRUVANANTHAPURAM.
SAKTHI SADANAM,MUNDELA P.O.,NEDUMANGAD.
RSA NO. 818 OF 2009 -2-
5 RAJAMMA, D/O.CHELLAPPA PUTHUVAL PUTHEN VEEDU,GANDHIPURAM,SREEKARIYAM P.O.
*2 6 RAMACHANDRAN,S/O.SIVARAMAN NADAR, (DIED; LHRS RECORDED)
PATHIRIPALLY HOUSE,PATHIRIPALLY, KUDAPPANAKUNNU P.O.,THIRUVANANTHAPURAM.
*2 [RESPONDENTS 7 TO 9 ARE RECORDED AS THE LEGAL HEIRS OF DECEASED RESPONDENT 6, AS PER ORDER DATED 12.08.2022 IN IA 1/2020]
7 SANTHA,W/O.RAMACHANDRAN, SRUTHY NIVAS,ERAPUKUZHY,KUDAPPANAKUNNU, PEROORKADA,THIRUVANANTHAPURAM.
*4(b) 8 SANDHYA S.R., (DIED; DELETED)
SRUTHY NIVAS,ERAPUKUZHY,KUDAPPANAKUNNU, PEROORKADA,THIRUVANANTHAPURAM.
9 SUMA S.R.,D/O.RAMACHANDRAN, SRUTHY NIVAS,ERAPUKUZHY,KUDAPPANAKUNNU, PEROORKADA,THIRUVANANTHAPURAM.
10 SASEENDRAN, LEKSHMI NIVAS,POOVANAMVILA,, KUDAPPANAKUNNU,THIRUVANANTHAPURAM.
11 RAVEENDRAN,S/O.DAMODHARAN NADAR, AGED 55 YEARS,ASWATHY BHAVAN,POOVANAMVILA, KUDAPPANAKUNNU,THIRUVANANTHAPURAM.
12 BALACHANDRAN POOVANAMVILA,KUDAPPANAKUNNU,THIRUVANANTHAPURAM.
13 JAYAKUMAR POOVANAMVILA,KUDAPPANAKUNNU,THIRUVANANTHAPURAM.
14 SATHEESAN, POOVANAMVILA,KUDAPPANAKUNNU,THIRUVANANTHAPURAM.
15 SUJATHA, POOVANAMVILA,KUDAPPANAKUNNU,THIRUVANANTHAPURAM.
16 PUSHPAKUMARY POOVANAMVILA,KUDAPPANAKUNNU,THIRUVANANTHAPURAM.
RSA NO. 818 OF 2009 -3-
*3 ADDL. RESPONDENTS 17 TO 19 ADDL. R17 SULOCHANA, W/O LAKSHMANAN, SUNITHA BHAVAN, PATHIRIPALLI, KUDAPPANAKUNNU PO., THIRUVANANTHAPURAM-695043.
ADDL. R18 ANITHA, D/O LAKSHMANAN, SUNITHA BHAVAN, PATHIRIPALLI, KUDAPPANAIKUNNU PO, THIRUVANANTHAPURAM-695043.
ADDL. R19 SUNILKUMAR L.S., S/O LAKSHMANAN, SUNITHA BHAVAN, PATHIRIPALLI, KUDAPPANAKUNNU PO., THIRUVANANTHAPURAM-695043.
*3 [LEGAL HEIRS OF DECEASED R2 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 17 TO
19, AS PER ORDER DATED 12.08.2022 IN IA NO.1/2019]
*4(a & b) [RESPONDENTS 4 AND 8 ARE DELETED FROM THE PARTY ARRAY, AS PER ORDER DATED 12.08.2022 IN IA 2/2020]
BY ADVS.
SRI.V.ANS SMT.MINI VIJAYA SRI.G.S.REGHUNATH SRI.SREEKANTH S.NAIR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28.11.2022, ALONG WITH RSA.532/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
Dated this the 28th day of November, 2022
J U D G M E N T
The suit for declaration that Ext.A3 Sale Deed and Ext.A4 Settlement Deed are null and void, and for partition, was decreed concurrently by the Courts. These appeals are by the contesting defendants; RSA No.532 of 2009 by the legal heirs of the deceased 5th defendant, and RSA 818/2009 by the defendants 4, 6, and 7.
2. The plaintiffs and defendants 1 to 4 are siblings. They are the children of late Chellamma. 4th defendant is one of the daughters of Chellamma. The 5th defendant is the husband of the 4th defendant. The 6th defendant is their daughter. The 7th defendant is the husband of the 6th defendant.
3. The plaint schedule property has an extent of 40 cents. It belonged to Chellamma as per Ext.A1 Sale Deed. Chellamma died on 16.06.1999. Upon her death, when the plaintiff demanded partition, the defendants contended that Chellamma had conveyed the property to defendants 4 and 5 (daughter and son-in-law) under Ext.A3 Sale Deed of the year 1980, and that subsequently, as per Ext.A4 Settlement Deed of the year 1997 defendants 4 and 5 settled an extent of 9.50 cents of property therefrom in favour of their daughter and son-in-law, defendants 6 and 7. Ext.A3 document was created by impersonation; the house name of Chellamma, their predecessor is “Pulimoodu Vilakathu Veedu”, however, in Ext.A3 the house name of Chellamma is shown as “Poovanamvila Veedu”. Ext.A3 is not one executed by Chellamma, the predecessor-in- interest of the parties. On the said allegations the suit has been filed for a declaration that the documents Exts.A3 and A4 are void and for partition of the property.
4. The defendants contended that Ext.A3 was duly executed by their predecessor Chellamma and that the documents Exts.A3 and A4 are genuine and valid. It was also contended that pursuant to Ext.A3, they have started construction of a cinema theater in the property.
5. The trial court found that it has come out in evidence that there are two persons by name Chellamma viz. the predecessor of the parties namely, “Chellamma of Pulimoodu Vilakathu Veedu” and “Chellamma of Poovanamvila Veedu”. Ext.A3 shows that it was executed by “Chellamma of Poovanamvila Veedu” which is not the predecessor of the plaintiff; the defendants have not proved that it is one and the same person namely, the predecessor of parties. Accordingly, the suit was decreed. The defendants were unsuccessful before the first appellate court.
6. Heard learned Senior Counsel Sri.S.Sreekumar on behalf of the appellants and Sri.G.S.Raghunath, the learned counsel for the respondents on the following substantial questions of law:
“(i) Were the Courts right in holding that the burden of proof is on the defendants to establish the identity of the executant of Ext.A3 Sale Deed?
(ii) Have the Courts taken into consideration the entire materials available on record while holding that the defendants have failed to establish that Ext.A3 was executed by Chellamma, the predecessor of the parties?”
7. It is not in dispute that the predecessor in interest of the parties is, Chellamma of Pulimoodu Vilakathu Veedu. Ext.A3 narrates the details of the executant as, “Chellamma of Poovanamvila Veedu”. Ext.A5 is the voter's list. It shows that there exists “Chellamma of Pulimoodu Vilakathu Veedu” and “Chellamma of Poovanamvila Veedu”. The initial burden of the plaintiff to prove that there exists two persons under the same name but under different house names, have been discharged by them through Ext.A5 voter's list which is an undisputed document.
8. Apparently, Ext.A3 Sale Deed is executed by “Chellamma of Poovanamvila Veedu” which is not the predecessor-in-interest of the parties. So it was for the defendants to substantiate by evidence that the executant of Ext.A3, though described as “Chellamma of Poovanamvila Veedu”, is really their predecessor “Chellamma of Pulimoodu Vilakathu Veedu”. Substantial question of law (i) is answered accordingly.
9. Though the burden was on the defendants to prove the identity
