BHARGAVI AMMA Vs. PARUKUTTY AMMA

JUDGEMENT

(1.) The plaintiff lost her suit in both the Courts below. Therefore, this Second Appeal. She claimed recovery of possession of plaint schedule property extending about 3 cents which forms part of a larger extent of 7.625 cents, based on Ext. A1 sale deed dated 22.3.62. Defendant No. 1 is her own sister. She owned the said larger extent of the property in terms of Ext B15 document. Out of that, according to the plaintiff defendant No. 1 sold three cents as per Ext. A1. They were living together until 10.10.90 when the plaintiff shifted to another residence. She seeks recovery of the said three cents, said to be purchased by her as per Ext. A1.

(2.) The suit was contested by the defendant No. 1 who is no more now. Defendants No. 2 and 3 are her legal representatives. Defendant No. 2 was already on record at the initial stage of the suit. The suit was contested on the ground that Ext A1 was only a sham document and it was never intended to be acted upon. No possession of the property passed on to the plaintiff, at any time. The defendant at all point of time was in possession of the property. It was executed only to help the plaintiff to obtain a non refundable advance from her provident fund account. Even after Ext A1 deed the defendant No. 1 had obtained licence for reconstruction of the building, latrine, cow shed etc., from the Corporation of Cochin and such constructions were made in the property covered by Ext. A1. Therefore, the plaintiff was not entitled to get the relief in the suit. It was also contended that Ext. A1 was bad in terms of S.8(2) of the Hindu Minority and Guardianship Act as no sanction from the Court had been obtained. The property, as per Ext. B15 was in the joint ownership of defendant No. 1 as well as defendant No. 2 and 3 who were at the relevant time minors. Therefore on that count also nothing flowed out of Ext. A1 to the plaintiff, being a void document.

(3.) These two contentions were found in favour of defendant No. 1 to dismiss the suit. In the appeal by the plaintiff, the decree of the Trial Court was confirmed. It is in the above circumstances this second appeal mainly raising two substantial questions of law. First one is centered around S.92 of the Evidence Act to the effect that no evidence regarding any oral agreement could be adduced with reference to a document in writing between the parties. In other words when Ext. A1 document had been executed by the defendant No. 1 in favour of plaintiff, the defendant No. 1 in the light of the said provision, could not contend that it was not supported by consideration nor was it intended to be acted upon. The second one is with reference to S.8(3) of the Hindu Minority and Guardianship Act 1955 to the effect that the document concerning the property of any minor shall only be avoidable at the instance of the minor and within the prescribed period. Therefore, the finding of the both the Courts below are illegal and liable to be interfered.