This is an appeal filed by the 1st defendant in a suit for partition.
2. The plaint schedule property originally belonged to one Kunnummal Dominic who was entrusted with the property by the Jenmi, Mallissery Kovilakam, as per registered document No. 1372/1943 of D.R.O., Malayam. Later, by assignment Deed No. 2580/1946 of S.R.O., Naduvannur the property was assigned to one Vazhavelil Kochukuruya and one Appakkan Paulose. After the marriage of the 2nd defendant, Elikutty @ Elamma, her brothers, the plaintiff and the 1st defendant along with their father, Kazhuthakuda Varkey cultivated the property with tapioca in the year 1947. In the year 1951, the property was purchased by Kazhuthakuda Varkey as per registered Document No. 923/1951 of S.R.O., Naduvannur. The property continued to be in the possession of Varkey and his two sons, the plaintiff and the 1st defendant. It is alleged that in the year 1968, the said Varkey orally partitioned the property among his two sons and consequently the plaintiff and the first defendant got one acre each.
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3. The plaintiff improved the property with Kuzhikoors and also constructed a house for his residence. The basic tax for the said one acre of land was being paid by him. He also received 'Certificate of Purchase' for the property on 07-08-1978. The property in his possession is demarcated from the portion possessed by the defendants by a 'Kollu' extending from East to West of the property. The said boundary was constructed by the 1st defendant in February, 1989 in the absence of the plaintiff. While so, disputes arose among them and resulted in the filing of a suit, O.S. No. 54/1989 before the Munsiff's Court, Perambra. The said suit was filed by the plaintiff against the 1st defendant for a decree of permanent injunction. The suit was dismissed by the Court finding that the parties were co-owners. The Court also observed that the remedy of the plaintiff was to file a suit for partition. A.S. No. 9/1992 filed before the Sub Court, Quilandy against the judgment and decree in O.S. No. 54/1989 was dismissed on 10-8-1995. Thereafter, the plaintiff filed the present suit, O.S. No. 228/1995 before the Sub Court, Quilandy for partition and separate possession of the plaint schedule property.
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4. The first defendant in the suit is the brother and the 2nd defendant is the sister of the plaintiff. The 2nd defendant was made a party to the suit because of the observation in the judgment in O.S. No. 54/1989 that she was also a co-owner in respect of the property. According to the plaintiff, the 2nd defendant had been given 'Sthreedhanam' at the time of her marriage and the marriage was conducted by their father. Thus, she was given all the rights in her parental property at the time of marriage itself. The 2nd defendant is, therefore, alleged to have no subsisting right over the plaint schedule property. The 2nd defendant was living at a distant place Keerampara in Ernakulam District and was not having any possession or co-ownership over the plaint schedule property, it is contended. Therefore, the plaintiff claimed that the property had to be divided equally among himself and the 1st defendant.
5. It is further pointed out that in O.S. No. 54/1989, the property was measured by the Advocate Commissioner. Thereupon, it was found that the extent of the property was only 1.98 acres. Out of the said extent, 10 cents was acquired A.S. 383/1999 4 for the Vattachira Koorachundu road. Thus, the remaining property available for partition is only 1.88 acres. The suit had to be filed because the 1st defendant was not amenable for partition and therefore the plaintiff prayed that the suit may be decreed with costs. The plaintiff prayed for a decree partitioning the plaint schedule property into two and for allotment of one share to him.
6. The 1st defendant filed written statement purporting to be for himself and the 2nd defendant, in his capacity as the power of attorney holder of the 2nd defendant. The averments regarding the derivation of title in favour of their father was admitted. In the suit, O.S. No. 54/1989, the Munsiff's Court, Perambra had held that the plaint schedule property was the original acquisition of the father of the parties and therefore, it had to be partitioned among his legal heirs. The 2nd defendant has assigned her undivided share in the property in favour of the 1st defendant and therefore, the property had to be divided into three equal shares and two shares had to be allotted to him. The averment that the 2nd defendant was not entitled to a share in the property for the reason that she had been married off prior A.S. 383/1999 5 to the death of her father was denied. Since the 1st defendant has obtained the undivided share of the 2nd defendant by assignment, the 1st defendant is entitled to 2/3 share in the plaint schedule property. The plaintiff would be entitled to 1/3 share in the property. Since a portion of the property lying on its southern side is in the possession of the 1st defendant and being cultivated by him, the said portion may be allotted to him. The plaintiff is liable to pay the share of profits for the last three years in respect of the excess property in his possession, according to first defendant.
7. The 2nd defendant died during the pendency of the suit and her legal representatives were impleaded as supplemental defendants 3 to 6. The 3rd defendant is the husband of the 2nd defendant and defendants 4 to 6 are their children. They filed a joint written statement supporting the plaint claim. They admitted that Elikutty @ Elamma has no possession or interest in the plaint schedule property. She also agreed that the same may be partitioned equally among the plaintiff and the 1st defendant. According to her, the property had been orally partitioned and each of the sharers were in possession of one half A.S. 383/1999 6 of the property. The contentions of the first defendant that the 2nd defendant had executed a power of attorney during her lifetime in favour of the 1st defendant authorizing him to conduct the present case, that she had executed another document in favour of his son George and had also executed an assignment deed transferring her undivided interest in the plaint schedule property to the first defendant were denied. The said documents were forged and fabricated, created by the 1st defendant to claim a larger share in the plaint schedule property. According to the defendants 3 to 6, deceased Elamma had not executed any such documents in favour of the 1st defendant or his son. At all times, her intention was that the property be taken by both her brothers equally. Therefore, they prayed for a partition of the plaint schedule property into two shares, equally among the plaintiff and the 1st defendant.
8. The Court below framed six issues on the basis of the pleadings and tried the suit. The evidence on the side of the plaintiff comprises of the oral testimony of PW1 and Exhibits A1 to A5 documents. For the defendants, DWs. 1 to 3 were examined and Exts. B1 and B2 documents were marked. A.S. 383/1999 7 Ext. X(1) has been marked as a witness exhibit.
9. The Court below considered the rival contentions of the parties in the light of the evidence on record and came to the conclusion that the disputed documents B1 and B2 were fabricated documents, incapable of conveying any right over the plaint schedule property to the first defendant. Therefore, the Court found that the plaint schedule property was liable to be partitioned among the plaintiff and the 1st defendant into two equal shares and one share allotted to the plaintiff. The said judgment and decree of the trial Court is under challenge in this appeal.
10. According to the Counsel for the appellant, Exhibits B1 and B2 are registered documents. There is no prayer in the plaint for setting aside the said documents. The documents being registered, they can only be approached with the presumption of due execution for the rebuttal of which, there is no evidence in this case. Since it was contended by defendants 3 to 6 that the said documents were forged and fabricated, the burden to prove the said allegations was squarely on the plaintiff, for the discharge of which there is no evidence. The written statement A.S. 383/1999 8 of defendants 3 to 6 contains only tall claims without any details regarding the said allegations. Since, the provisions of the Code of Civil Procedure mandate that the details of all such allegations be pleaded, no amount of evidence can cure the said deficiency, it is contended. The documents were not sent for examination by an expert and without any jurisdiction, the Court below has entered a finding that the documents were fabricated. Though, it is contended by the plaintiff that the 2nd defendant had not raised any claim over the plaint schedule property, documents A1 to A5 shows that she had earlier issued a notice demanding partition of the property. Subsequently, her undivided share was assigned by her to first defendant. The Court below should have found that the plaintiff was entitled to only 1/3 share in the property.
the arguments on the side of the respondents. I have gone through the pleadings and evidence in the case both oral and documentary.
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12. The point that arises for consideration in the case is;
"Whether the findings of the Court below that the documents B1 and B2 are fabricated is sustainable ?"
13. It is submitted by all parties that the plaint schedule property originally belonged to Kazhuthakuda Varkey, father of plaintiff and defendants 1 and 2. No one has a case that he had executed a Will. Therefore, on his death, all his children, plaintiff as well as defendants 1 and 2 acquired rights over the plaint schedule property. However, it is more or less admitted that the 2nd defendant had been married off and was residing at a distant place at Keerampara in Ernakulam District. Therefore, the property was in the joint possession of the plaintiff and the first defendant. It appears that they were enjoying one half of the property each on the basis of some loose arrangement. It is also alleged that there was some demarcating boundary separating their shares and that when the boundary was destroyed by one of the parties, the first suit O.S. No. 54/1989 was filed before the Munsiff's Court, Perambra, claiming a relief of mandatory injunction. As per Ext. A5 judgment, the Munsiff's Court found that the parties were co-owners in respect of the property and A.S. 383/1999 10 that the 2nd defendant also was a co-owner thereof. The present suit was filed after an appeal filed against the judgment of the Munsiff's Court was also dismissed.
14. In the present suit, though a joint written statement was initially filed by the 1st and 2nd defendants disputing the plaint claim, the legal representatives of the 2nd defendant have taken a totally different stand after her death. It is interesting to note that the earlier joint written statement was filed by the 1st defendant himself in his capacity as the power of attorney holder of the 2nd defendant also. The legal representatives of the 2nd defendant have not staked any claim to plaint schedule property. They have only taken a stand that the share of their predecessor-in-title be shared equally by the plaintiff and the first defendant. According to them, the 2nd defendant was equally attached to both her brothers and that she wanted both the brothers to share the property equally.
15. It is the case of defendants 3 to 6 that Exhibits B1, B2 and X1 are fabricated documents. As noticed earlier, defendants 3 to 6 are persons who do not stake any claim to the plaint schedule property. The documents Exts. B1 and B2 create A.S. 383/1999 11 excess rights over the plaint schedule property in favour of the first defendant. According to them their mother, the 2nd defendant had not executed those documents. They have also pleaded that their mother was suffering from Parkinson's disease and was totally bedridden for a period of 8 months prior to her death on 9.7.1996. Therefore, the first defendant being the person who was claiming the benefit of the documents Exhibits B1 and B2 had a duty of proving the genuineness of the said documents. It is true that the documents are all registered. According to the Counsel for the appellant, registration raises a presumption regarding the due execution of the document. Since no evidence was adduced by the plaintiff to rebut the said presumption, the Court below was not justified in its findings that the said documents were fabricated. There is also no prayer to set aside the documents. Being registered documents, they would be valid until set aside by a Court of law. It is further pointed out that the presumption regarding due execution of a registered document is not displaced by a bald allegation that the said documents are fabricated, in the absence of any supporting evidence. Though the documents could have been subjected to A.S. 383/1999 12 examination by an expert, neither the plaintiff nor defendants 3 to 6 took any action to send the documents for such an examination. It is pointed out that one of the witnesses to Ext. B1 is none other the wife of DW1. Even the said witness has not been examined in the case, it is pointed out.
16. DW1 is the son of late Elamma, the 2nd defendant. He has deposed that his mother was suffering from Parkinson's disease and had been laid up for about 8 months prior to her death. He has deposed that the signatures in the disputed documents are not of his mother. According to him, his mother wanted her share in the plaint schedule property to be taken equally by both her brothers, the plaintiff and the first defendant since she was equally attached to both of them. It is worth noticing that DW1 is a witness who has no axe to grind in the dispute between the plaintiff and the first defendant. Defendants 3 to 6 are persons who have taken an impartial stand in the matter, relinquishing their claims in favour of both the plaintiff and the first defendant. Therefore, though DW1 is a party to the suit, his evidence cannot be dismissed lightly as the interested testimony of a party to the suit. According to DW1, since his A.S. 383/1999 13 mother was suffering from Parkinson's disease, the 2nd defendant was not in a position to put her signature on the disputed documents. He has also deposed that he was residing with his mother in the same house and that none of his sisters and brothers had come to see her during the one year period immediately preceding her death.
17. It is worth noticing that all the three disputed documents are seen to have been executed after 19.12.1995, the date of filing the suit. Ext. X1 is dated 23.9.1996, Ext. B1 is dated 14.5.1996, and Ext. B2 is dated 26.3.1996. The 2nd defendant had died shortly thereafter on 9.7.1996. The execution of the said documents after the date of filing of the present suit, conferring a substantial advantage on the first defendant arouses genuine doubts regarding the due execution thereof. Of course, one cannot find fault with the 2nd defendant for deciding to give her share exclusively to one of her brothers alone. But, it has to be remembered that in the present case the documents are all disputed by the legal heirs of the executant, alleging that they are fabricated documents. Therefore, the first defendant being the person who claims the benefit of the said A.S. 383/1999 14 documents has a duty to prove that the documents were actually executed by the 2nd defendant.
18. In order to prove the above burden, the Sub Registrar, Puthencruz was examined as DW2. According to him, he was the Sub Registrar of Kothamangalam during the year 1995-1997. He had gone to the house of Elamma on 29.3.1996 for registering Ext. X-1 special vakalath. The executant, Elamma was not a person known to him. She was introduced to him by one Parakkal Mary and Ajirikkal Biju. According to the Sub Registrar, he does not know the identifying witnesses also. He has taken the signature of the executant implicitly relying upon the statements of the introducing witnesses.
19. DW2 has further deposed that Ext B1 power of attorney was also executed by late Elamma at her residence on 14.5.1996. He had gone to her house on the said date also. But, late Elikutty had not signed before him in Ext. B1 and he does not know the said Elamma. He registered the documents relying on the statements of Ajayakumar and Gopakumar who had introduced him to late Elamma. He has further deposed that he does not know the introducing witnesses also. It is clear from A.S. 383/1999 15 the above that the Sub Registrar had not exercised the due diligence and care that is expected of a person occupying such office. The Sub Registrar in registering the disputed documents had acted actually in an irresponsible manner. He does not even remember the names/identity of the persons who had actually taken him to the said house. Therefore, his evidence far from proving due execution of the disputed documents, shows that the disputed documents were not properly executed at all.
20. Though the documents Exts. B1, B2 and X1 have been witnessed by various persons including the scribe and witnesses, the said persons have not been examined. Therefore, there is no evidence in this case to show that the documents were duty executed by the deceased 2nd defendant. In all probability, the said documents were executed by some other person, impersonating Elamma, as rightly concluded by the Court below.
21. DW3, the son of the first defendant has deposed that the 2nd defendant was residing with her husband and grown up children at Keerampara, Kothamangalam Taluk. Therefore, it cannot be supposed that she would have executed the documents like X1, B1 and B2 without the knowledge of her husband and A.S. 383/1999 16 grown up children. The evidence of DW1 is to the effect that his mother had not executed the said documents. It is clear from all the above facts that Exts. X1, B1 and B2 are not genuine documents duly executed by the deceased 2nd defendant. Since they are not duly executed by the 2nd defendant, they are incapable of conveying any rights to the first defendant even though they are registered. It cannot be disputed that registration cannot confer validity to an invalid document.
22. The Counsel for the appellant has relied on the decision of a Division Bench of this Court in Kunhamina Umma Vs. Special Tahsildar reported in I.L.R. 1976 (2) Ker. 678 to contend that the burden of proof was on the plaintiff and defendants 3 to 6 to prove that the disputed documents were not genuine. At page 693 of the said judgment, this Court has made the following observations:
"The law presumes prima facie in favour of deeds duly executed. So, ordinarily a person who challenges the validity of a transaction on the ground of fraud, undue influence etc..., and charges his opponent with bad faith has the burden of proof on him".
However as already found above, in the present case, it is the first defendant who is claiming the benefits under the disputed documents viz. two shares out of three shares in the plaint schedule property. He rests his claim on the disputed documents. In the absence of the disputed documents, he would be entitled to only one half share in the property. Therefore, the burden of proving due execution of the documents Exts. B1 and B2 is squarely on the first defendant.
23. It is further submitted by the Counsel for the appellant that the registration of a document is a solemn act which clothes the document with a presumption of due execution, which can be displaced only by cogent evidence to the contrary. In support of the above, the Counsel places reliance on a decision of the Division Bench of this Court in Sarojini & Ors. v. Ponnutty & Ors. [2001 (1) K.L.J 665], where it has been held as follows:
"Here is a case where the plaintiff does not specifically allege impersonation behind creation of Ext. B9; the case is only that it is the result of fraud. Gangamoyi Debi Vs. T.N. Chowdhry (ILR 1906 Vol. 33 Calcutta 537) is authority for the proposition that registration of a document is a solemn act to be performed in the presence of a competent official appointed to act as Registrar whose duty it is to attend the parties during the registration and see that A.S. 383/1999 18 the proper persons are present and are competent to act and are identified to his satisfaction and that all things done before him in his official capacity and verified by his signature will, unless it be shown that a deliberate fraud on him has been successfully committed, be presumed to be done duly and in order".
The above observation shows that the Registrar while registering a document has to perform a solemn act which he is empowered to perform under the provisions of the Registration Act. He has to proceed with all due deligence and care in the discharge of his duties in identifying the executant properly and ensuring that the documents were being executed by the party with the full knowledge of the nature and consequences of the act. The above duties of the Registrar are reiterated in the above observation of the Division Bench quoted above. However, as already found above, the evidence of the Sub Registrar, DW2 shows that he had proceeded to register the disputed documents in the present case with callous disregard to his official duties and oblivious of the solemnity of the act that was being performed.
24. The Counsel for the appellant has also placed reliance on another Division Bench decision of this Court in United India Insurance Co. Ltd. Vs. Andrew Vivera reported in A.S. 383/1999 19 1989 (2) K.L.T. 348 to contend that the allegation of fraud, bereft of any details thereof cannot satisfy the requirements of Order VI, Rule 4 of the Code of Civil Procedure. In the absence of pleadings, it is pointed out that any amount of evidence is of no use. Reliance in particular is made to the following observations of this Court:
"It is trite law that where allegations are made in a vague and sweeping manner the Court cannot act on it for lack of specific pleadings even if the allegations are worded in a very assertive language. As Order 6 Rule 4 makes it incumbent upon a party to highlight all particulars necessary to substantiate the contentions regarding mis-representation, fraud, breach of trust,willful default or undue influence, a party cannot shirk that responsibility and shelve it to be adduced in evidence at a later stage. If the pleadings are vague and not specific, no amount of evidence can salvage the position".
There can be no dispute to the above proposition. However, in the present case, as already noted above, the allegation of fraud has been raised by a totally disinterested party to the dispute viz. the 4th defendant. Apart from the above, in the light of the evidence available in this case, there can be no doubt that the allegations of defendants 3 to 6 are wellfounded. The allegations against the disputed documents are raised in the written A.S. 383/1999 20 statements of defendants 3 to 6. Therefore, the objection regarding lack of pleadings is also not relevant in the present case.
25. The plaintiff and the first defendant are brothers. Their sister has relinquished her share in respect of the plaint schedule property. The Court below has passed a decree partitioning the plaint property into two and allotting half share thereof to the plaintiff. It cannot be said that any injustice has been done in the process. For the said reason also, this appeal fails. No other ground has been urged before me.
26. For foregoing reasons, the judgment and decree of the Sub Court, Quilandy dated 30.11.1998 in O.S. No. 228 of 1995 are confirmed. The above appeal fails and is dismissed without costs.
K. SURENDRA MOHAN JUDGE PKK A.S. 383/1999 21