GOPALAKRISHNAN Vs. SRINIVASAN

JUDGEMENT

(1.) The suit property originally belonged to the late Appanna, father of respondent/ plaintiff as per order in O.A. No. 5670 of 1975. That property is situate in Muliyar Village within the local limits of the Sub Registrar, Kasargod. Respondent claimed that on the death of his parents the said property devolved on him and he has been possessing it. Appellant No. l is brother of the late Appanna. In the year 1988 appellant No. 1 and others on the strength of a sale deed allegedly executed by the late Appanna trespassed into the suit property. On enquiry respondent learnt that appellant No. 1 had got executed Ext.B2, assignment deed No. 1014 of 1978 dated 13.10.1978 by the late Appanna in respect of the suit property by undue influence and fraud. Respondent filed O.S. No. 352 of 1990 in the court of learned Munsiff seeking cancellation of Ext.B2, assignment deed and recovery of possession of the suit property. Respondent alleged that the late Appanna was suffering from old age infirmities since six years prior to his death (on 27.11.1983) and for about ten years he was under the control and undue influence of appellant No. 1. The late Appanna died under suspicious circumstances at the house of appellant No. 1. The suit property though situate within the local limits of the Sub Registrar (for short, "the SRO"), Kasargod and hence the document could have been registered only in that SRO, it was actually registered at SRO, Badiadka which had no jurisdiction to receive or register the said document. To facilitate registration of the document at SRO, Badiadka an item of property not belonging to the late Appanna and situate within the local limits of that SRO was included in the assignment deed. The said document is brought about by the scribe, attesters, witnesses, the Sub Registrar and Ramachandra, brother of appellant No. 1 without the knowledge of the late Appanna. Appanna had no information about the assignment deed as his possession of the suit property was not disturbed. Respondent claimed that he leamt about fraud and undue influence only on 06.09.1988. Appellant No. I/defendant No. 1 contended that the late Appanna sold the suit property (situated within the local limits of SRO, Kasargod) and another item of land (situated within the local limits of SRO, Badiadka) to him for consideration as per Ext.B2, assignment deed and since then he was in possession and enjoyment of the said properties. He denied the allegation of fraud and undue influence in the execution and registration of the assignment deed. It is not correct to say that the late Appanna was suffering from old age infirmities during the relevant time. It is also not correct to say that item No. 1 of Ext.B2, assignment deed did not belong to the late Appanna. Appellant No. 1 assigned the suit property to appellant Nos. 2 and 3/additional defendant Nos. 2 and 3 as per Exts.B3 and B4, assignment deeds dated 17.06.1980 and 06.08.1981, respectively and since then they are in possession of the suit property. Respondent was aware of Ext.B2, assignment deed from the date of that document itself. Hence the suit is based by limitation. Appellant Nos. 2 and 3, impleaded on the contention raised by appellant No. l, raised similar contentions. Learned Munsiff dismissed the suit holding that respondent did not plead particulars or prove the alleged undue influence and fraud in the execution and registration of Ext.B2, assignment deed. Respondent could not prove that item No. l of Ext.B2, assignment deed (situate within the local limits of SRO, Badiadka) did not belong to the late Appanna so that it could be said that the document could not have been registered at that SRO. Affirming Ext.B2, assignment deed learned Munsiff held that the suit filed in the year 1990 is barred by limitation as evidence revealed that respondent had knowledge about execution and registration of that assignment deed at least by 10.11.1980. In appeal at the instance of the respondent learned Sub Judge held that though the allegation of fraud and undue influence (in the matter of execution of Ext.B2, assignment deed) is not proved, fraud was played on the law of registration by getting the document registered at SRO, Badiadka which had no jurisdiction to receive or register the document and hence the assignment deed is invalid. So far as limitation is concerned learned Sub Judge took the view that though the suit is not brought within three years of the day respondent got knowledge about the assignment deed as the suit is brought within 12 years of the impugned assignment deed, it is within time. Respondent was given a decree as prayed for. Hence this Second Appeal at the instance of appellants (defendant Nos. l to 3).

(2.) The following substantial questions of law are framed for a decision.

(3.) Ext. B2 is the assignment deed No. 1014 of 1978 dated 13.10.1978 which is called in question in this proceeding. It is not disputed that the said assignment deed is executed by the late Appanna in respect of the suit property and another item of property (item No. 1 in that document). It is also not disputed that the suit property is situate within the local limits of SRO, Kasargod while item No. 1 in the said assignment deed is situate within the local limits of SRO, Badiadka. Admittedly Ext.B2 has been registered at SRO, Badiadka. Case is that to facilitate registration of Ext.B2, assignment deed at SRO, Badiadka item No. 1 (in that document) situated within the local limits of that SRO though did not belong to the late Appanna was fraudulently included in the document and it was got registered at SRO, Badiadka by playing fraud in the law of registration.