Deed; Kamalakshi Amma Vs. Sangeetha [Kerala High Court, 06-06-2012]

Specific Relief Act, 1963 – Section 31 – When cancellation may be ordered – Could a person who is neither the executant of the deed nor bound under any circumstance by the executant request to deliver up and cancel the deed?  Held, A person who neither has executed the document, nor is bound in any circumstance by the person who executed the document could not seek relief under Sec.31 of the Act as the document is neither void nor voidable against him and as such document even if left outstanding is not capable of causing any injury to him. The remedy of such person, if he thinks that the document may create a cloud on his own title is to seek a declaration of his own title or that the impugned document does not affect his title.

Partition Deed

2012 (3) KLT 264 : 2012 (3) KLJ 30 : ILR 2012 (3) Ker. 45 : AIR 2012 Ker. 180 : 2012 (2) KHC 880

IN THE HIGH COURT OF KERALA AT ERNAKULAM

THOMAS P. JOSEPH, J.

R.S.A. No.1139 of 2010

AS.33/2008 of ADDL.DISTRICT COURT, NORTH PARAVUR OS.14/2006 of MUNSIFF COURT, ALUVA

Dated this the 6th day of June, 2012

For Appellant: K. Ramachandran & S. Sreedev For Respondent: S.V. Balakrishna Iyer (Sr.), P.B. Krishnan, Geetha P.Menon, P.M. Neelakandan & P.B. Subramanyan

J U D G M E N T

Heard. Admit.

2. The following substantial questions of law are framed:

(i) Could a person who is neither the executant of the deed nor bound under any circumstance by the executant request to deliver up and cancel the deed?

(ii) Were the courts below justified in overlooking the fact that even as per the admitted partition deed, appellant is entitled to get more than 9 cents and also 2/3rd of the excess land?

3. Respondents 1 and 2 appear through counsel.

4. Since I have perused a copy of Ext.A1, partition deed No.1122 of 1959 dated 07.04.1959 based on which parties hereto claim right, title, interest and possession, in view of the substantial questions framed for a decision and as agreed by the learned counsel on both sides, it is not necessary to call for entire records of the case.

5. According to the appellant/plaintiff, plaint A schedule belongs to her exclusively as per Ext.A1, partition deed. Plaint B schedule was allotted to her sister, the late Lakshmikutty Amma in the said partition. The 3rd respondent is the sole legal heir of the said Lakshmikutty Amma. The 2nd respondent is the son of appellant. 1st respondent is the wife of 2nd respondent. Appellant claims that she was in possession of plaint A and B schedule items notwithstanding the partition as per Ext.A1. She constructed building in the said property about 42 years back. The building overlaps into plaint B schedule. According to the appellant, the 3rd respondent has no right over the building. While so, the 2nd respondent executed Ext.B1, assignment deed No.6402 of 2005 in favour of the 1st respondent in respect of 7.808 cents and building on the strength of a registered power of attorney (Ext.A5 is its certified copy) executed by the 3rd respondent. According to the appellant, entitlement of the 3rd respondent as legal heir of deceased Lakshmikutty Amma as per Ext.A1 is only 4.500 cents. Appellant apprehended that Ext.B1, assignment deed would affect her right, title and interest in the suit property and hence requested that the said assignment deed be cancelled. She also prayed for a decree for prohibitory injunction.

6. The 3rd respondent, supporting the appellant contended that she is the owner in possession of 4.500 cents. She claimed that the building in the suit property was constructed by the appellant. The 2nd respondent was not authorised to execute assignment deed in respect of anything more than 4.500 cents. She is not aware that the 2nd respondent has executed assignment deed in respect of 7.808 cents in favour of the 1st respondent.

7. Respondents 1 and 2 contended that entitlement of the appellant as per Ext.A1, partition deed is only for 9 cents and that she has no right for any excess land. They denied that the entire property was in the possession and enjoyment of the appellant or that she constructed the building. The building was constructed by the 2nd respondent, his father and the late Lakshmikutty Amma. The 3rd respondent was the owner in possession of 7.808 cents after the death of Lakshmikutty Amma. The said 7.808 cents and building was assigned to the 1st respondent by the 2nd respondent on the strength of Ext.A5, power of attorney. That assignment deed is valid. Appellant is not entitled to get the said deed cancelled or injunction as prayed for.

8. The trial court found against the plea of the appellant that she was in possession of the entire property and constructed the building. It was of the view that Ext.B1, assignment deed executed by the 2nd respondent in favour of the 1st respondent as power of attorney holder of the 3rd respondent cannot be cancelled as that document is neither void nor voidable against the appellant. Trial court dismissed the suit. First appellate court has concurred with the said view and dismissed the appeal. Hence this Second Appeal.

9. The learned counsel for appellant has contended that it is admitted by both sides that there is excess land in Sy.No.405/12 than the 13.500 cents which was partitioned among the appellant and the late Lakshmikutty Amma as per Ext.A1 and hence having regard to the proportionate extent allotted to the appellant and the late Lakshmikutty Amma as per Ext.A1, there must be a proportionate division of the excess land in which case, 2/3rd of the excess land should go to the appellant and the entitlement of the 3rd respondent as legal heir of Lakshmikutty Amma is only the remaining 1/3rd of the excess land. Alternatively, it is argued that at any rate, the excess land is liable to be partitioned among the appellant and the 3rd respondent equally in which case also, 3rd respondent is not entitled to get 7.808 cents. As Ext.B1, assignment deed is for more than what the 3rd respondent is entitled, the said deed is liable to be cancelled as it affected the right, title and interest of the appellant regarding the 11.600 cents.

10. Learned Senior Advocate for respondents 1 and 2 has contended that appellant is not entitled to get Ext.B1, assignment deed cancelled. Under