IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 15TH JULY 2011 / 24TH ASHADHA 1933 RSA.No. 598 of 2011() --------------------- AS.287/2007 of III ADDL. DISTRICT COURT, KOZHIKODE-III OS.394/2004 of III ADDL.SUB COURT, KOZHIKODE .................... APPELLANTS/APPELLANTS/DEFENDANTS ---------------------------------------------------- 1. PADMINI, AGED 63, W/O.PADIPPARAMBAN BALAKRISHNAN, MALERIPARAMBU, VELIPRAM AMSOM, DESOM, RAMANTTUKARA P.O., KOZHIKODE. 2. LEELA, AGED 54, W/O.MULLASSERI BALAKRISHNAN, VELIPARAM AMSOM, DESOM, RAMANATTUKARA P.O., KOZHIKODE. 3. SOUMINI, AGED 50, W/O.LATE MOOCHINGAL KRISHNAN, FEROKE AMSOM, NALOOR DESOM, KOZHIKODE. 4. PRASHITHA, AGED 33, W/O.BABU, PURAKUTTI, VELIPARAM AMSOM, DESOM, RAMANATTUKARA P.O., KOZHIKODE. 5. PRAJISH, S/O.LATE MOONCHINGAL KRISHNAN, FEROKE AMSOM, NALOOR DESOM, KOZHIKODE. 6. KRISHNADAS,S/O.LATE MOONCHINGAL KRISHNAN FEROKE AMSOM, NALOOR DESOM, KOZHIKODE. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.K.B.SIVARAMAKRISHNAN RESPONDENT: RESPONDENT/PLAINTIFF ----------------------------------- MOOCHINGAL DASAN, S/O.CHOYIKUTTY, VELIPARAMBU AMSOM, KARININKALLAI DESOM, KOZHIKODE TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.598 of 2011 ............................................ DATED THIS THE 15th DAY OF JULY, 2011 JUDGMENT Defendants 2 to 7 in O.S.394 of 2004 on the file of Sub Court, Kozhikode are the appellants. They are challenging the modified preliminary decree in A.S.287 of 2007 whereunder the preliminary decree originally passed by the trial court was modified, granting the share due to the mother also to the respondent, plaintiff accepting Ext.A3 release deed executed by her. The plaint schedule property admittedly originally belonged to Choyikutty under Ext.A1 partition deed. Kalyani is his wife. Respondent, deceased first defendant, first appellant and second appellant are their children. On the death of Choyikutty, admittedly his rights devolved on the widow and the four children. The mother is therefore entitled to 1/5 share, respondent, appellants 2 and 3 and deceased first defendant are entitled to one share each. On the death of first defendant, his rights devolved on defendants 4 to 7, the legal heirs. There is no dispute with regard to the ¼ share due to the respondent. The RSA 598/2011 2 only dispute is with regard to the 1/5 share alloted to the respondent based on Ext.A3 release deed. Though the learned Sub Judge did not accept the right claimed by the respondent under Ext.A3, first appellate court upheld Ext.A3 and held that as the mother had released her right in favour of the respondent, he is entitled to get 2/5 shares. It is challenged in the appeal. 2. Learned counsel appearing for appellants was heard. The argument of the learned counsel is that the first appellate court wrongly held that appellants did not challenge execution of Ext.A3 release deed, when in fact in their written statement it was specifically denied. Learned counsel would argue that in the written statement they have contended that Ext.A3 release deed was got executed by exercising undue influence, threat and coercion and also with the aid of the Sub Registrar and therefore first appellate court was not justified in holding that execution was not denied. The learned counsel would then argue that there is ample evidence to prove that deceased Kalyani would not have executed Ext.A3 release deed, out of her free will and volition. The argument is that Ext.B1 to B8 would establish that she was RSA 598/2011 3 under the treatment for cancer and was administered with pain killers and sedatives and in such circumstances, first appellate court should have upheld the finding of the trial court that under Ext.A3, respondent did not obtain the right of the mother and it is available to all the children. 3. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Though the learned counsel vehemently argued that execution of Ext.A3 was denied in the written statement, on going through the copy of the written statement made available by the learned counsel, I cannot agree with the submission. There is no denial of execution of Ext.A3. On the other hand, what was contended was that the respondent exercising undue influence, threat and coercion and without reading over Ext.A3, got it executed by the mother. It is not denial of execution. But, a plea that Ext.A3 though executed it is vitiated by undue influence, threat and coercion and therefore is not valid. 4. When execution is not denied or rather admitted and it is alleged that it is vitiated by undue influence, threat and coercion, RSA 598/2011 4 as rightly found by the first appellate court, the burden is definitely on the appellants to prove that Ext.A3 is vitiated as claimed by them. Apart from the examination of DW1, third defendant, no evidence was adduced to prove that deceased Kalyani was not of sound mind and hence was not in a position to voluntarily execute Ext.A3 on the date of execution of Ext.A3. Though medical records were pressed, as rightly found by the first appellate court they only establish that Kalyani was being treated for cancer and had administered medicines both for palliative care as well as cancer. That does not mean that she was not either of unsound mind or was not in a position to understand the contents of the document being executed or that she was not fit enough to voluntarily execute Ext.A3 release deed. Appellants could have at least examined the doctor, who treated her, to prove that she had no mental capacity to execute Ext.A3 release deed at the relevant time. On the evidence, first appellate court was perfectly justified in holding that appellants did not establish that Ext.A3 is vitiated by undue influence, threat or coercion as canvassed by them. In such circumstances, RSA 598/2011 5 respondent is definitely entitled to get the share of the mother released to him under Ext.A3. On the facts and evidence no substantial question of law is involved in the appeal. Appeal is dismissed. No costs. M.SASIDHARAN NAMBIAR, JUDGE lgk