Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 20th DAY OF FEBRUARY 2023 / 1ST PHALGUNA, 1944 RFA NO. 23 OF 2012 (H) AGAINST THE JUDGMENT & DECREE DATED 03.08.2011 IN OS No.98/2008 OF II ADDITIONAL SUB COURT, KOZHIKODE APPELLANTS (PLAINTIFFS): 1 MIJIN K. GEORGE (MINOR), AGED 15 YEARS, S/o GEORGE, RESIDING AT KUNNUMMEL, 5/731 A ENGAPUZHA VILLAGE, PADOOR DESOM, KOZHIKODE TALUK AND DISTRICT. 2 JOMIN K. GEORGE (MINOR), AGED 13 YEARS, S/o GEORGE, RESIDING AT KUNNUMMEL, KOZHIKODE TALUK AND DISTRICT - 673001.
(MINOR APPELLANTS ARE REPRESENTED BY THEIR MOTHER, NEXT FRIEND, NATURAL GUARDIAN Smt.MINI, AGED 39 YEARS, D/o JACOB, RESIDING AT KUNNUMMEL, 5/731 A ENGAPUZHA VILLAGE, PADOOR DESOM, KOZHIKODE TALUK AND DISTRICT).
BY ADVS. SRI.T.SETHUMADHAVAN SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH RESPONDENT (DEFENDANT): Sri. GEORGE, AGED 41 YEARS, S/o ULAHANNAN, RESIDING AT 5/731, KUNNUMMEL, PUTHUPPADI, ENGAPUZHA VILLAGE, PADOOR DESOM, KOZHIKODE TALUK AND DISTRICT - 673 001 BY ADVS. K.MOHANAKANNAN M.A.ZOHRA A.R.PRAVITHA THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 20.02.2023, ALONG WITH RFA.7/2012 & W.P.(C) 24416/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: and WPC No.24416 of 14 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 20th DAY OF FEBRUARY 2023 / 1ST PHALGUNA, 1944 RFA NO. 7 OF 2012 (H) AGAINST THE JUDGMENT & DECREE DATED 03.08.2011 IN OS No.98/2008 OF II ADDITIONAL SUB COURT, KOZHIKODE APPELLANT/DEFENDANT: GEORGE, AGED 38 YEARS, S/o ULAHANNAN, 5/731, KUNNUMMEL, PUTHUPPADI, ENGAPUZHA VILLAGE, PADOOR DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADVS. K.MOHANAKANNAN A.R.PRAVITHA RASHMI RAVINDRAN M.A.ZOHRA RESPONDENTS/PLAINTIFFS: 1 MIJIN K.GEORGE, AGED 15 YEARS, (MINOR), S/o GEORGE, 5/731, KUNNUMMEL, PUTHUPPADI, ENGAPUZHA VILLAGE, PADOOR DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN -673586. 2 JOMIN, AGED 13 YEARS, (MINOR), S/o GEORGE, 5/731, KUNNUMMEL, PUTHUPPADI, ENGAPUZHA VILLAGE, PADOOR DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN -673586.
(MINOR RESPONDENTS ARE REPRESENTED BY THEIR MOTHER, NEXT FRIEND, NATURAL GUARDIAN SMT. MINI, AGED 36 YEARS, D/o JACOB, W/o GEORGE, 5/731, KUNNUMMEL, PUTHUPPADI, ENGAPUZHA VILLAGE, PADOOR DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT) BY ADVS. SRI.T.SETHUMADHAVAN SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 20.02.2023, ALONG WITH RFA.23/2012 AND W.P.(c) No.24416/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: and WPC No.24416 of 14 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 20th DAY OF FEBRUARY 2023 / 1ST PHALGUNA, 1944 WP(C) NO. 24416 OF 2014 (B) PETITIONERS: 1 MINI, AGED 42 YEARS, D/o JACOB, KARIPURATH HOUSE, PUTHUPADY P.O, KOZHIKODE DISTRICT 2 MIJIN K GEORGE, S/o GEORGE, RESIDING AT KUNNUMMEL, KOZHIKODE TALUK & DISTRICT 3 JOMIN K GEROGE (MINOR), S/o GEORGE, RESIDING AT KUNNUMMEL, 5/731 A, ENGAPUZHA VILLAGE, PADOOR DESOM, KOZHIKODE TALUK & DISTRICT, (MINOR 3rd PETITIONER IS REPRESENTED BY HIS MOTHER, NEXT FRIEND, NATURAL GUARDIAN, SMT. MINI IST PETITIONER)
BY ADVS. SRI.T.SETHUMADHAVAN (SR.) SMT.DEEPA NARAYANAN SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SMT.VANDANA MENON RESPONDENTS: 1 THE DISTRICT COLLECTOR CIVIL STATION, KOZHIKODE - 673020 2 THE TAHSILDAR, THAMARASSERI, KOZHIKODE DISTRICT, PIN - 673 573 3 THE VILLAGE OFFICER ENGAPUZHA VILLAGE, KOZHIKODE 673573 4 Sri. GEORGE, S/o ULAHANNAN, RESIDING AT 5/731, KUNNUMMEL, PUTHUPPADI, ENGAPUZHA VILLAGE, PADOOR DESOM, KOZHIKODE TALUK & DISTRICT, PIN 673573
and WPC No.24416 of 14 4 R1 TO R3 BY GOVERNMENT PLEADER SRI.K. DENNY DEVASSY R4 BY ADVS. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON 20.02.2023, ALONG WITH RFA.23/2012 AND RFA No.7/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: and WPC No.24416 of 14 5
JUDGMENT
The dispute involved in the suit is pertaining to the validity of a revocation deed (cancellation deed), Ext.A4, executed on 29.01.2008 by the father cancelling the earlier settlement deed (gift deed), Ext.A3, dated 14.09.2007 in favour of his children. Admittedly, Ext.A4 revocation deed is a unilateral document executed by the father without the consent of the beneficiary under Ext.A3, that too without showing any sufficient reason for its cancellation. The document, Ext.A3, is brought under challenge on the ground that it is vitiated by fraud and undue influence exerted by his wife, hence stood vitiated. No challenge was raised against the said document before any court of competent jurisdiction till the lapse of a period of three years. In fact, no challenge was raised till today as against Ext.A3 or its validity or for a declaration or its cancellation or to set aside the same on any of the vitiating grounds available. It is now settled that a unilateral revocation/cancellation may not have any legal impact or and WPC No.24416 of 14 6 legal consequence except to the extent that it would admit the due execution of the earlier document covered by the said cancellation. The remedy, if any, available to the plaintiffs' father was not exhausted within the period of limitation or till today. The declaration sought by the plaintiffs is that Ext.A3 is valid and unilateral cancellation of Ext.A4 is ab initio void and not binding on them or their right over the property. Interim injunction was also sought not to use Ext.A4 revocation to create any transfer or encumbrance over the property. But, the learned Sub Judge without knowing the actual dispute involved, without perusing the respective contention raised by the parties and without having a proper understanding with respect to the dispute involved, had gone into the question of existence of the property covered by Ext.A3 and a declaration was granted with respect to item Nos.2 and 3 and found that item No.1 is not available. I am at a loss to understand what actually prompted the learned Sub Judge to go into those questions, unless it was raised in a properly instituted suit. The dispute involved in the present suit is pertaining to the legal validity of a cancellation deed, and WPC No.24416 of 14 7 Ext.A4. Further, in so far as the property included in Ext.A3 document is concerned, when it was not challenged within the period of limitation by the executant on any of the vitiating grounds, it would stand binding on him. Everything attached to the said document and every legal consequences also would stand binding on him. In fact, that question is not available for adjudication in this suit. The trial court has committed a grave error and hence the decree and judgment of the trial court are liable to be set aside. The appeal is hence allowed by declaring that Ext.A4 document is not binding on the plaintiffs or their right under the properties covered by Ext.A3 document and it shall not be used by the defendant for creating any encumbrance/transfer with respect to any interest, title or possession and if any made will not have any legal validity. Permanent injunction is granted accordingly. The suit is hence decreed in toto as above. RFA No.23/2012 is allowed accordingly. No costs.
2. RFA No.7/2012 is filed by the defendant with
respect to the finding rendered by the trial court with respect to item Nos.2 and 3 covered by Ext.A3 document. and WPC No.24416 of 14 8 Necessarily, the appeal will stand dismissed in view of the decree granted in the suit in favour of the plaintiffs which is the subject of RFA No.23/2012. Hence, RFA No.7/2012 will stand dismissed. WPC No.24416/2014 is against the receipt of tax by the Village Officer pertaining to the property covered by Ext.A3 document and not pertaining to any building tax payable to any local authority. It is also submitted that steps were taken to mutate the property and hence the issue is left open for consideration by the Village Officer in accordance with the law in force based on the document of title. Hence, WPC No.24416/2014 will stand disposed of accordingly permitting the parties to mutate the property in accordance with the decision in RFA No.23/2012. WPC will stand disposed of accordingly. Sd/- P.SOMARAJAN JUDGE DMR/- and WPC No.24416 of 14 9 APPENDIX OF WP(C) 24416/2014 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE DOCUMENT NO EXHIBIT P2 TRUE COPY OF THE DOCUMENT NO EXHIBIT P3 TRUE COPY OF THE DOCUMENT NO EXHIBIT P4 TRUE COPY OF THE JUDGMENT OF THE SUB COURT, KOZHIKODE IN O.A NO 98/2008 DATED 03-08-2011 EXHIBIT P5 TRUE COPY OF NTHE ORDER IN I.A NO FILE OF THIS HON'BLE COURT EXHIBIT P6 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 14-02-2014
EXHIBIT P7 TRUE COPY OF THE APPELA FILED BY THE 4TH RESPONDENT BEFORE THE IST RESPONDENT DATED 04-03-2014 (2 PAGES) EXHIBIT P8 TRUE COPY OF THE COMMUNICATION ISSUED BY THE IST RESPONDENT DATED 27-05-2014 TO THE 2ND RESPONDENT EXHIBIT P9 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDNET DATED 28-05-2014 TO THE 4TH RESPONDENT EXHIBIT P10 TRUE COPY OF THE BASIC TAX RECEIPT DATED 05-06-2014 ISSUED BY THE IST RESPONDENT OT THE 4TH RESPONDNET