KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL:428/2004 JUDGMENT DATED.21..5..2008 (Appeal filed against the order passed by the CDRF, Kottayam in OP:318/03) PRESENT JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT SMT.VALSALA SARANGADHARAN : MEMBER SHRI.M.K. ABDULLA SONA : MEMBER Jacob Vettoor (H), Pattithanam.P.O, (Document writer, Near Government : APPELLANT Girls’ High School, Ettumanoor.P.O.) (By Adv: Sri.S.Reghukumar) V. Joshymon James, Puthenpurackal, Ettumanoor.P.O, Kottayam. : RESPONDENT JUDGMENT JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT The appellant is the opposite party in OP:318/03 in the file of CDRF, Kottayam and under orders to pay a sum of Rs.11,600/- with interest at 9% from 29..10..2003 and also to pay cost of Rs.1000/-. 2. The case of the complainant is that he had purchased 26 cents of land from one Mary in the year 2001. The complainant had authorized his brother-in-law to get the sale deed executed on his behalf. The sale deed was registered on 1..11.2001. As per the antecedent deed/settlement deed No:2392/02 dt: 5..6..2000, there were conditions stipulated by the executant of the settlement deed that one Sibi James his nephew should be made a witness to the sale deed in case the donor subsequently alienate the property. Opposite party is the scribe. It is the allegation that the scribe did not include Sibi James as a witness to the execution of the document. According to the complainant the sale deed when presented at Catholic Syrian Bank, Ettumanur for a loan was rejected by the bank authorities for the lapse of not making Sibi James a witness of the document. Subsequently as per legal advice a rectification deed was executed and for the same the complainant had to spend a sum of Rs.10,600/- including scribe’s fee. Altogether the complainant has sustained a loss of Rs.11,600/-. 3. The opposite parties/appellant has contended that there is nothing illegal about the document and that the same is not hit by Sec.10 of the Transfer of Property Act. The allegation that the document was rejected by the bank is not correct. Mutation has been effected in the name of the petitioner in the village records. As per the sale deed the property has vested absolutely in Mary. 4. The evidence adduced consisted of the affidavits filed by both sides and Exts.A1 to A4. 5. We find that the Forum has found that Sibi James has been made a witness to the document but only as identifying the witness and not as a witness of the document. This was found to be a lapse on the part of the scribe. The counsel for the appellant has also relied on the decision in Ittiyachan V. Tomy 2001 (3) KLT 117 which would show that the absolute condition on alienation is hit by Sec.10 of T.P.Act. Evidently the condition in the instant case is an absolute one. The finding of the Forum to the contrary is incorrect. 6. Further we find that there is no averment that the complainant or his power of attorney holder has instructed the opposite party to make Sibi James a witness to the document. After all the opposite party is only a scribe and he cannot be imposed with liability unless the specific instruction given by the complainant has been flouted by the opposite party. Further the alleged legal opinion as to the invalidity of the document has not been produced. In the circumstances we find that the finding of the Forum below making the opposite party/appellant liable cannot be sustained. The order of the Forum is set aside. The appeal is allowed. JUSTICE K.R. UDAYABHANU : PRESIDENT VALSALA SARANGADHARAN : MEMBER M.K. ABDULLA SONA : MEMBER VL.
......................JUSTICE SHRI.K.R.UDAYABHANU
......................SMT.VALSALA SARNGADHARAN
......................SRI.M.A.ABDULLA SONA | | 
