IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 RSA.No. 1057 of 2011() ---------------------- AS.375/2008 of DISTRICT COURT, THRISSUR OS.125/2004 of PRINCIPAL.SUB COURT,THRISSUR .................... APPELLANT/1ST RESPONDENT/1ST DEFENDANT: --------------------------------------------------------------------------- VASU, AGED 61 YEARS, S/O.AYYAPPAN, RESIDING AT 14/PLOT NO.6, DEVASSY STREET, NJANAMOORTHI NAGAR, AMBATHUR, MADRAS. BY ADV. SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI RESPONDENT(S): APPELLANTS/RESPONDENTS 2 & 3/PLAINTIFFS & DEFENDANTS 2 & 3 ----------------------------------------------------------------------------------------------------------------------------- 1. BHARGAVI, AGED 66 YEARS, D/O.AYYAPPAN, PULIKKATHARA HOUSE, KOORKKENCHERY VILLAGE, DESOM, THRISSUR TALUK-680 007. 2. KAUSALYA, AGED 59 YEARS, D/O.AYYAPPAN, PULIKKATHARA HOUSE, KOORKKENCHERY VILLAGE, DESOM, THRISSUR TALUK-680 007. 3. CHANDRIKA, AGED 57 YEARS, D/O.AYAPPAN, PULIKKATHARA HOUSE, KOORKKENCHERY VILLAGE, DESOM, THRISSUR TALUK-680 007 4. RAVEENDRAN, AGED 53 YEARS, S/O.AYYAPPAN, PULIKKATHARA HOUSE, KOORKKENCHERY VILLAGE, DESOM, THRISSUR TALUK-680 007. 5. SAROJINI, AGED 62 YEARS, D/O.AYYAPPAN, PULITHARA HOUSE, ASHTAMICHIRA, CHALAKUDY-680 731. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 1057 OF 2011 =========================== Dated this the 17th day of November,2011 JUDGMENT First defendant in O.S.125/2004 on the file of Principal Sub Court, Thrissur is the appellant. Respondents 1 to 3 are the plaintiffs and other respondents the other defendants in the suit. Appellants and respondents are the children of late Ayyappan. Lekshmikutty was their mother. Plaint schedule property admittedly originally belonged to Lekshmikutty the mother under Ext.A1 settlement deed. According to respondents 1 to 3 the mother executed Ext.A2 will dated 25.3.1997 whereunder the plaint schedule property was bequeathed to the children equally. Lekshmikutty died on 6.3.2000. Though Lekshmikutty had executed Ext.A15/B2 settlement deed dated 12.5.1988 RSA 1057/2011 2 earlier it was not acted upon and defendants 1 and 2 did not derive any right thereunder. Later Ext.A15/B2 was cancelled by Lekshmikutty by executing Ext.A3 cancellation deed on 30.4.1997. On the death of Lekshmikutty appellant and respondents are entitled to one share each. Separation of the shares of respondents 1 to 3 was sought for. Respondents 1 to 3 also contended that when partition was demanded under notice dated 19.10.2000, appellant sent a reply contending that Lekshmikutty assigned the property in favour of defendants 1 and 2 under Ext.A8/B1 registered sale deed. It was contended that the said document never came into existence and no consideration was paid and Lekshmikutty was not in a position to voluntarily execute the document and it is a forged and fabricated document and no right was derived thereunder. A decree for cancellation of the said document as well as partition was sought for. 2. Appellant along with the second defendant filed a written statement contending that RSA 1057/2011 3 Lakshmimutty executed Ext.A15/B2 settlement deed in their favour and the said document was cancelled by executing document Ext.A3 cancellation deed and thereafter Lakshmikutty assigned the plaint schedule property in their favour under Ext.A8/B1 sale deed and the other respondents are not entitled to claim any share and the plaint schedule property is not available for partition. It was contended that Ext.B1 sale deed executed by Lakshmikutty cannot be challenged by respondents 1 to 3 and hence the suit is to be dismissed. 3. Learned Munsiff on the evidence of Pws. 1 to 5, DW1 Exts.A1 to A15, B1 to B7 and Ext.C1 dismissed the suit holding that the property was settled by Lekshmikutty in favour of defendants 1 and 2 and Ext.A8 sale deed was later executed after executing Ext.A3 cancellation deed and though it was contended that the signature and the thumb impression seen in Ext.A8 varies from the thumb impression in Exts.A2 and A3, learned Munsiff could not find any such variation and therefore upheld RSA 1057/2011 4 Ext.A15/B1 and dismissed the suit. Respondents 1 to 3 challenged the decree before District Court, Thrissur in A.S.375/2008. Learned District Judge on reappreciation of the evidence found that Ext.A1 will was executed by deceased Lekshmikutty on 25.3.1997 Ext.A15/B2 settlement deed was executed earlier on 12.5.1998 in favour of defendants 1 and 2. It was cancelled later under Ext.A3 cancellation deed of 30.4.1997.It was later claimed to be sold to defendants 1 and 2 under Ext.A8 and B1 sale deed for Rs.20,000/-. Learned District Judge found that plaintiffs specifically contended that Ext.B1 is a fabricated document and was not executed by Lekshmikutty and therefore burden is on defendants 1 and 2 to establish that it was executed by Lekshmikutty voluntarily. Learned District Judge found that to prove Ext.B1, only the appellant was examined as DW1 and his evidence establish that Lekshmimutty was aged 84 years. Learned District Judge found that DW1 himself in cross examination admitted that though RSA 1057/2011 5 there are several signatures in Ext.B1, they differ from one another. It was also admitted by DW1 that the thumb impression of Lekshmikutty seen in Ext.A2 and B1 differs and it was also admitted that the thumb impression in Exts.B1 and B2 varies. Learned District Judge found that the evidence of Pws. 2 and 3 establish that they have been residing in the building in the plaint schedule property during 1997 and 1998 and DW1 also admitted execution of Ext.A14 agreement, immediately after the death of the mother agreeing for partition of the property. It is therefore found that Ext.B1 was not proved to be executed by Lekshmikutty and therefore learned Munsiff should not have upheld Ext.A8. Though it was contended by defendants 1 and 2 that Ext.A14 an unregistered agreement was vitiated by coercion, it was found that no evidence was adduced to establish the alleged coercion and therefore Ext.A14 was found a valid agreement executed by defendants 1 and 2 also providing for division of the properties. Learned District Judge also take note RSA 1057/2011 6 of the evidence of DW1 that if there is a will executed by Lekshmikutty providing for division of the properties, he is prepared to agree for division. Learned District Judge in the light of the said findings held that Ext.B1 is liable to be cancelled and plaint schedule property is available for partition. A preliminary decree was passed directing division of the plaint schedule property into six equal shares and allotment of one share each to the plaintiffs and defendants. It is challenged in the second appeal. 4. Learned senior counsel appearing for the appellant was heard. 5. The argument of the learned counsel is that first appellate court did not properly appreciate the evidence. It was argued that Ext.A15/B2 registered settlement deed was executed on 12.5.1988, whereunder plaint schedule property was settled in favour of defendants 1 and 2 and since then defendants 1 and 2 have been in possession of the property and therefore even if Ext.A2 will was RSA 1057/2011 7 executed by Lekshmikutty later as the property was alienated by Lekshmikutty in 1988, itself the property is not available for partition. Learned counsel also argued that in any case when Ext.A8/B1 sale deed was executed by Lekshmikutty after cancelling Ext.A3, defendants 1 and 2 are entitled to the exclusive right of the plaint schedule property and therefore a decree for partition is not sustainable. Learned counsel argued that even if it is to be held that Ext.B1 was not proved to be executed by Lekshmikutty, when there was no prayer to set aside Ext.A15/B2 settlement deed and the property was settled in favour of defendants 1 and 2 as early as 12.5.1988, finding of the first appellate court that properties are available to be divided among the legal heirs of deceased Lekshmikutty is not sustainable. Learned counsel also argued that the first appellate court should not have compared the thumb impression in Ext.B1 without the aid of an expert. 6. On hearing the learned counsel, I do not RSA 1057/2011 8 find any substantial question of law involved in the appeal. 7. Plaint schedule property admittedly originally belonged to Lekshmikutty. It is true that Lekshmikutty executed Ext.A15/B2 registered settlement deed on 12.5.1988 in favour of defendants 1 and 2. If Ext.A15 settlement deed was acted upon and accepted by defendants 1 and 2, Lekshmikutty will not have any right subsequent to 12.5.1988. If Ext.A15 was acted upon , she has no authority to cancel it under Ext.A3. Question is whether Ext.A15 settlement deed was accepted and acted upon. 8. The written statement filed by defendants 1 and 2 establish that they are claiming the right under Ext.B1 sale deed executed in 1999. As seen from Ext.B1, it was executed after cancellation of Ext.A15 settlement deed by Ext.A3 cancellation deed dated 30.4.1997. Ext.B1 shows that defendants 1 and 2 have paid Rs.20,000/- to Lekshmikutty and purchased her right. When defendants 1 and 2 are RSA 1057/2011 9 claiming title based on Ext.B1 on the contention that for valid consideration, the property was purchased under the said document, they are not entitled to contend that under Ext.A15 settlement deed they have already obtained title. If Ext.A15 settlement deed was acted upon and defendants 1 and 2 had accepted the same and were in possession of the property, after 12.5.1988 Lekshmikutty did not have any right whatsoever in the property. If that be so accepting Ext.A3 cancellation deed, defendants 1 and 2 would not have set up a case that they paid Rs.20,000/- to Lekshmikutty and purchased property under Ext.B1. That itself is sufficient to hold that Ext.A15 was not accepted or acted upon. 9. Then the question is whether Ext.B1 sale deed was executed by Lekshmikutty and defendants 1 and 2 obtained title to the property under Ext.B1. As rightly found by the learned District Judge, plaintiffs in the plaint itself consequent to the reply sent by the appellant to the notice demanding RSA 1057/2011 10 partition raised a contention that Lekshmikutty would not have voluntarily executed any sale deed like Ext.B1 and Ext.B1 is a fabricated document. In such circumstances, definitely burden is on the defendants 1 and 2 to establish that Lekshmikuty executed Ext.B1 voluntarily and they derived right under it. Apart from examining DW1 they did not examine any of the attesting witnesses to establish the execution. Learned Munsiff comparing the thumb impression, found that there is no difference in the thumb impression seen in Ext.B1 with the thumb impression seen in Ext.B2 and A2 and hence upheld Ext.A8. Learned District Judge found that when DW1 was examined Ext.B1 B2 and A2 were shown to him and he was cross examined with regard to the difference in the thumb impressions. DW1 unambiguously admitted that thumb impression and signature seen in Ext.B1 varies with the thumb impression and signature seen in Ext.A2 and B2. The burden is definitely on defendants 1 and 2 to establish that Ext.B1 was executed by Lekshmikutty. RSA 1057/2011 11 When the plea of the plaintiffs that it was a fabricated document, it is incumbent upon defendants 1 and 2 to prove that the signature and the thumb impression seen in Ext.B1 is that of Lekshmikutty. They could have sent Ext.B1 to an expert to compare the signature and the thumb impression seen in Ext.B2 and A2 with Ext.B1. They did not make any attempt to get the report of an expert. Added to this, DW1 himself admitted that the signature and the impression differs. Moreover, none of the attesting witness to prove the execution was examined. In such circumstances, first appellate court was perfectly justified in holding that defendants 1 and 2 did not establish that Ext.B1 was executed by Lekshmikutty. 10. Though it was contended in the written statement by defendants 1 and 2 that Ext.A14 agreement executed after the death of Lekshmikutty agreeing for division of the property, was vitiated by coercion, as rightly found by the first appellate court burden is on the defendants 1 and 2 RSA 1057/2011 12 to prove that it is vitiated by coercion. Apart from the interested version of DW1, no evidence was adduced to prove that it was vitiated. If Ext.B2 settlement deed was accepted or under Ext.B1 sale deed defendants 1 and 2 have obtained absolute title to the plaint schedule property they would not have agreed to divide the property under Ext.A14 agreement. When execution of Ext.A14 agreement was admitted and defendants 1 and 2 failed to prove that it was vitiated by coercion, the admission in Ext.A14 that the property is available for partition establish that defendants did not obtain the absolute right under Ext.B2 or B1. In such circumstances, the preliminary decree passed by the first appellate court after cancelling Ext.B1/A8 sale deed is perfectly correct. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006