IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 31ST MARCH 2010 / 10TH CHAITHRA 1932 RSA.No. 309 of 2009() --------------------- AS.209/2004 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.1040/1999 of II ADDL.MUNSIFF COURT,TRIVANDRUM .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- V.MOHANAKUMAR, AGED 54 YEARS, S/O.VELAYUDHAN PILLAI, T.C.8/1109 (1), THUNDUVILA VEEDU, THIRUMALA, THIRUVANANTHAPURAM. BY ADV. SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE SRI.R.SUDHIR RESPONDENTS/ RESPONDENTS/DEFENDANTS ------------------------------------- 1. KOMALAVALLY AMMA, AGED 63 YEARS, D/O.BHAGEERATHI AMMA, PADMAVILASAM VEEDU, THIRUMALA, THIRUVANANTHAPURAM. 2. GIREESH KUMAR, AGED 40 YEARS, S/O.VELAPPAN NAIR, PADMAVILASAM VEEDU, THIRUMALA, THIRUVANANTHAPURAM. ADV. SRI.N.DHARMADAN, SENIOR ADVOCATE FOR R2 SRI.THIRUMALA P.K.MANI FOR R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.309 of 2009 --------------------------------------- Dated this 31st day of March, 2010 JUDGMENT The late Velayudhan Pillai retired as a High School Assistant and breathed his last on 02-05-1997. He executed Ext.A9, registered Will No.54/89 dated 15-06-1989 as per which his properties were divided into four schedules and bequeathed to his sons, appellant, Sasidharan Nair and Rajendran Nair and daughter, respondent No.1. The D schedule in Ext.A9 which was allotted to the appellant is described in the plaint as A and B schedules. It is the case of appellant that since the father was old and incapable of managing the properties, he was put in possession of plaint A and B schedules on execution of the Will and he was managing the same. While so, his mother died. The father started residing with respondent No.1 and family. In the year 1992, the father became senile and bedridden. While in that state, respondent Nos.1 and 2 (respondent No.2 is the son of respondent No.1) got executed Exts.A1 and A2, assignment deeds in their favour concerning plaint A and B schedules. Certain other documents also were got executed by the father all of which according to the appellant are vitiated by fraud, undue influence and coercion. The father who R.S.A.No.309 OF 2009 : 2 : was bedridden was not in sound disposing state of mind due to senility and there was no consideration for the said assignments. Respondent No.1 on the strength of the assignment deed in her favour executed Ext.B2, assignment deed in favour of respondent No.2 on 22-01-1992 concerning plaint A schedule. Appellant would say that on account of the vitiating circumstances stated above, assignment deeds got executed by the father in favour of respondent No.1 and consequently, the assignment deed executed by respondent No.1 in favour of her son, respondent No.2 are void and have not taken effect. Appellant continued to be the absolute owner in possession of plaint A and B schedule properties on the strength of Ext.A9, Will, prayed for a declaration to that effect, cancellation of Exts.A1, A2 and B2 assignment deeds and consequential reliefs. Respondent Nos.1 and 2 resisted the suit contending that allegations concerning vitiating circumstances are all incorrect and that the father was hale and healthy in body and mind at the time impugned assignment deeds were executed. Execution of those assignment deeds amounted to revocation of Ext.A9, Will concerning plaint A and B schedules. Appellant has no title or possession of the said properties. They claimed to have acquired title and possession of suit properties as per the impugned assignment deeds. They also contended that the father had executed other assignment/settlement deeds in respect of his R.S.A.No.309 OF 2009 : 3 : remaining properties. In the course of the trial alleging that respondents trespassed into the suit properties appellant got the plaint amended to incorporate a prayer for recovery of possession. Respondent No.2 filed O.S.No.1367 of 2002 against the appellant seeking decree for prohibitory injunction to protect what he claimed, his possession of plaint A schedule. That suit was resisted by the appellant on the very same grounds pleaded in O.S.No.1040 of 1999. Learned Munsiff tried the suits jointly, decided issue regarding validity of the impugned assignment deeds in favour of the respondents, held that it amounted to revocation of Ext.A9, Will concerning suit properties and dismissed O.S.No.1040 of 1999 filed by the appellant. A decree for prohibitory injunction was granted in O.S.No.1367 of 2002. Appellant challenged the common judgment and decree in A.S.Nos.198 of 2004 and 209 of 2004 but, without success. Appellant challenged judgment and decree in A.S.No.198 of 2004 in R.S.A.No.308 of 2009 while judgment and decree in A.S.No.209 of 2004 are under challenge in R.S.A.No.309 of 2009. When R.S.A.No.308 of 2009 came up for hearing on admission, this court as per judgment dated 31-03-2009 dismissed that appeal in limine observing that contentions raised by appellant in that appeal could be raised in the present appeal and that dismissal of R.S.A.No.308 of 2009 will not operate as resjudicata in this appeal. The following substantial questions of law are framed R.S.A.No.309 OF 2009 : 4 : in the present appeal: (i) Having regard to the provisions contained in Section 16 of the Indian Contract Act, are not the facts and circumstances available on record sufficient to cast the burden of proof on the defendants to show absence of undue influence and if so, have they discharged that burden? (ii)Is the finding of the courts below that execution of documents subsequent to the Will by itself constitute revocation of the Will sustainable in view of Section 70 of the Indian Succession Act? (iii)Is the finding of the courts below that the sale deeds Exts.A1 and A2 are not vitiated by undue influence and that they conveyed absolute title to the vendees sustainable? 2. Learned Senior Advocate appearing for respondent raised objection regarding the substantial questions of law framed in the case on the ground that it is on a premise that transactions in favour of respondent Nos.1 and 2 were unconscionable and that executant was in such a state that respondents could dominate his will that substantial questions of law are framed. Respondents have filed an affidavit in that line. Having regard to the contentions raised by the appellant I do not find reason to redraft the substantial questions of law framed though, question whether respondents were able to dominate the will of the late Velayudhan Pillai and the transactions are unconscionable as contended by the R.S.A.No.309 OF 2009 : 5 : appellant has to decided on the evidence on record before deciding upon the question of burden of proof. 3. Ext.A9 is the registered Will dated 15-06-1989 which, I stated bequeathed the properties belonging to the late Velayudhan Pillai in favour of his children including appellant and respondent No.1. It is not disputed that D schedule therein allotted to the appellant is referred to in the plaint A and B schedules. The A schedule in Ext.A9 was bequeathed to respondent No.1 while, B schedule in Ext.A9 was bequeathed to Sasidharan Nair, son. C schedule in Ext.A9 was bequeathed to another son, Rajendran Nair. The turn of events thereafter, is as under. Velayudhan Pillai executed Ext.B1, assignment deed dated 15-07-1992 in favour of one Sulochana and Jaya in respect of 15 cents and covered by A schedule item No.1 in Ext.A9 which was allotted to respondent No.1 as per the said Will. Then came Ext.B6, settlement deed dated 08-03-1993 executed by the said Velayudhan Pillai in favour of Vijayakumaran Nair, another son regarding B schedule in Ext.A9, Will. Velayudhan Pillai then executed Ext.A1, assignment deed dated 22-06-1994 in favour of respondent No.1 regarding plaint A schedule – 16 cents. He executed Ext.A2, assignment deed dated 13-02-1995 in favour of respondent No.2 regarding plaint B schedule. Respondent No.1 who claimed title and possession of plaint A schedule as per Ext.A1 executed Ext.B2, assignment deed R.S.A.No.309 OF 2009 : 6 : dated 22-01-1999 in favour of respondent No.2. On 18-09-1995 Velayudhan Pillai executed Ext.B7, assignment deed in favour of Sreekala, daughter of respondent No.1 regarding another 5 cents. It is not disputed that properties dealt with as per Exts.A1, A2, B1, B6 and B7 are covered by Ext.A9, Will. 4. Now challenge is to Exts.A1, A2 and B2, assignment deeds. In paragraphs 5 to 7 of the plaint it is stated that Velayudhan Pillai was sick and old and became senile in the year 1992 itself and since then he was bedridden in the house of respondent No.1. Paragraph 6 of the plaint refers to the impugned assignment deeds and in paragraph 7 it is stated that the said sale deeds were got executed by respondent Nos.1 and 2 by exerting undue influence and coercion and playing fraud on the said Velayudhan Pillai who was aged and who had lost his senses completely and was bedridden with various illness. It is also averred that the said deeds were got executed without any consideration. Learned Senior Advocate appearing for appellant contends that in all the assignment deeds the same set of attesting witnesses figure and all the assignment deeds referred to the sale consideration being received by the late Velayudhan Pillai either for discharging his liabilities or to meet his livelihood. Learned Senior Advocate contends that there is no evidence to show that the late Velayudhan Pillai was indebted in such a way that he had R.S.A.No.309 OF 2009 : 7 : to sell the properties and discharge the liability. Velayudhan Pillai was a retired HSA and must have been drawing monthly pension and hence it was not necessary for him to have sold away his properties already bequeathed in favour of his children as per Ext.A9 and raise money for livelihood. So far as Ext.B1, assignment deed dated 15-07-1992 in favour of Sulochana and Jaya (who are strangers to the late Velayudhan Pillai) is concerned circumstances show that the said assignment was taken for the benefit of respondent No.1 herself in that, respondent No.1 figured as an attesting witness in Ext.B1. Learned Senior Advocate has drawn my attention to the decisions in Lakshmi Amma and Another Vs. Talengala Narayana Bhatta and Another (AIR 1970 SC 1367), M.Kunka Kurup and Another Vs. Lakshmikutty Amma and Ors. (1984 KLJ 786) and Gomathi Amma and Ors. Vs. C.V.Krishnan Nair and Another (1985(1) ILR 478). 5. Per contra it is contended by learned Senior Advocate appearing for respondents that there is neither sufficient plea nor evidence of any fraud or undue influence, not to say about alleged coercion in the matter of execution of impugned assignment deeds. Learned Senior Advocate points out that when a party relies on fraud, undue influence , coercion etc, Order 6 Rule 4 of the Code of Civil Procedure (for short, “the Code”) mandates him to state R.S.A.No.309 OF 2009 : 8 : particulars of such fraud, undue influence, coercion etc which is absent in this case. What is stated in paragraph 5 and 7 of the plaint is only that the late Velayudhan Pillai was senile since 1992 onwards and that assignment deeds were executed without consideration. Learned Senior Advocate points out that evidence on record shows that late Velayudhan Pillai was in sound disposing state of mind at the time of execution of the impugned documents which were registered at the office of the Sub Registrar concerned. It is also contended by learned Senior Advocate that trial and appellate courts have referred to the evidence at depth and come to the conclusion that on facts, evidence and circumstances plea of fraud, undue influence and coercion cannot be sustained. Hence no substantial question of law is involved in that regard. Reliance is placed on the decision in Satgur Prasad Vs. Har Narain (AIR 1932 PC 89). It is further contended that the decision in Lakshmi Amma and Another Vs. Talengala Narayana Bhatta and Another (supra) has no application to the facts of this case where none of the circumstance as in the reported case is proved to exist. Learned Senior Advocate has placed reliance on the decisions in Subhas Chandra Das Mushib Vs. Ganga Prosad Das Mushib and Ors. (AIR 1967 SC 878). 6. Two grounds upon which Exts.A1 and A2 are challenged are fraud and undue influence. Sir. Frederick Pollock in R.S.A.No.309 OF 2009 : 9 : “The Law of Fraud, Misrepresentation and Mistake in British India” states at page 17. “Fraud may be described, for most usual purposes, as the procuring of advantage to oneself, or furthering some purpose of one's own, by causing a person with whom one deals to act upon a false belief”. Pollock would say that the above is not a definition and that there may be 'fraud' without any seeking of personal advantage. According to Fawcett, J (Raneegunge Coal Association Vs. Tata Iron and Steel Co. Ltd – AIR 1929 Bombay 119) a necessary element in ordinary fraud is deception or deceit and getting somebody to believe something that is not really correct. In Tomlin's Law Dictionary, 'fraud' is defined as deceit in grants and conveyances of lands, and bargaining and sales of goods, etc., to the damage of another person which may be either by suppression of the truth, or suggestion of a falsehood. “Fraud” means and includes any of the following acts committed by a party to a contract, or within his connivance, or by his agent, with intent to deceit another party thereto or his agent, or to induce him to enter into the contract: (i) the suggestion, as to a fact, of that which is not true by one who does not believe it to be true; (ii)the active concealment of a fact by one having R.S.A.No.309 OF 2009 : 10 : knowledge or belief of the fact; (iii)a promise made without any intention of performing it; (iv)any such act or omission as the law specifically declares to be fraudulent. (See P. Ramanatha Iyer, The Law Lexicon, Second Edition, Page 757) 7. Coming back to the facts of this case, I do not find, apart that there is no particulars of the alleged fraud pleaded in the plaint, any evidence of fraud in respondent Nos.1 and 2 getting Exts.A1 and A2 executed by the late Velayudhan Pillai. On the other hand evidence on record would show that the said documents were executed by him and presented for registration before the Sub Registrar. It is not the case of appellant that said Velayudhan Pillai was illiterate or was blind at the time the documents were executed. On the other hand, he is a retired HSA. In such a situation one could not raise a plea of non est factum. Courts below on evidence has found against the plea of fraud and that involves no substantial question of law. 8. Then the question is whether finding of the courts below regarding undue influence is legally correct. The court of appeal in Bank of Credit and Commerce International SA Vs. Aboody (1992 (4) All.E.R.955) classifies the different modes of R.S.A.No.309 OF 2009 : 11 : undue influence. Class 1 is actual undue influence. In these cases it is necessary for the claimant to prove affirmatively that the wrongdoer exerted undue influence on the complainant to enter into the particular transaction which is impugned. Class 2 relates to presumed undue influence where the complainant need only to show, in the first instance, that was a relationship of trust and confidence between the complainant and the wrongdoer of such a nature that it is fair to presume that the wrongdoer abused that relationship in procuring the complainant to enter into the impugned transaction. Class 2A deals with certain relationships (for example, solicitor and client, medical advisor and patient) which as a matter of law raise the presumption that undue influence has been exercised. Class 2B relates to cases where there is no relationship in as in Class 2A but the complainant proves the de factor existence of a relationship under which the complainant generally reposed trust and confidence in the wrongdoer. In this case, there is no relationship as in Class 2A so that any presumption of undue influence could be raised. Here is a case where respondent No.1, daughter is said to have exerted undue influence on the father in getting Exts.A1 and A2 executed. It is for the appellant to prove that respondent No.1 was able to and did actually dominate the will of her father. Section 16(1) of the Indian Contract Act (for short, “the Act”) states that a contract R.S.A.No.309 OF 2009 : 12 : is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in a relation to dominate the will of the other and uses that position to obtain an unfair advantage over the other. Subsection (3) says that when a person who is in a position to dominate the will of another enters into a contract with him and the transaction appears on the face of it or on the evidence adduced, to be unconscionable then the burden of proving that such contract was not induced by undue influence shall lie upon the person who is in a position to dominate the will of another. To be precise, for subsection (3) of section 16 of the Act to apply certain circumstances are to be proved by the person alleging undue influence viz; the person who derived the benefit was in a position to dominate the will of the executant, who entered into contract with the person who thus dominated the will and, on the face of the record or, from the evidence it appeared that the transaction was unconscionable. That is what the Supreme Court has dealt in Subhas Chandra Das Mushib Vs. Ganga Prosad Das Mushib and Ors. (supra). There, in paragraph 4 the requirements to raise the initial presumption of subsection (3) of section 16 of the Act is stated. If the transaction appeared to be unconscionable then the burden of proving that the contract was not induced by undue influence was on the person who was in a position to dominate the will of another. In R.S.A.No.309 OF 2009 : 13 : paragraph 10, it is stated that before the court is called upon to examine whether undue influence was exercised or not, it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as required under Order 6 Rule 4 of the Code. In paragraph 25, it is stated that the mere fact that executant of the document was old or sick by itself is not sufficient to draw any initial inference throwing the onus to the person in whose favour the transaction is entered into to prove that the transaction is not unconscionable. In Lakshmi Amma and Another Vs. Talengala Narayana Bhatta and Another(supra) the person who entered into transaction was in a state of senility suffering from diabetics and other ailments and the circumstances unclingingly revealed that the transaction was unconscionable in that not even a life interest was provided for the wife of the executant. It also came out that the executant was in such a position that he was not able to move out from the nursing home where he was undergoing treatment at the relevant time so that the Sub Registrar has been summoned to that place and the document got executed. There was a definite finding that mental faculty of the executant was affected. No draft was prepared with the approval or under the directions of executant nor had he given any instructions for preparing the document. On those facts and evidence subsection 3 of section 16 of the Act was applied. That R.S.A.No.309 OF 2009 : 14 : decision can only be taken as one on the factual situation emerging in that case. Now, I shall refer to the evidence on record to appreciate the argument that the finding of the courts below regarding undue influence is unsustainable. Ext.B7 which is the last documents executed by the late Velayudhan Pillai would show that he was aged 89 years at the time that document was executed on 18-09-1995. Ext.A1 is executed on 22-06-1994 while Ext.A2 is executed on 13-02-1995. In Exts.A1 and A2 it is specifically stated by the executant (the late Velayudhan Pillai) that he has received sale consideration stated therein, according to him for the discharge of his liabilities or, to make up for his livelihood. There is no evidence to show that consideration has not passed notwithstanding the recital in Exts.A1 and A2. On the face of recitals in Exts.A1 and A2 burden was heavy on the appellant to show that no such consideration has passed. No reliable evidence is produced. So far as Exts.B1, B6 and B7 are concerned, it is seen that Ext.B6 is executed in favour of Vijayakumaran Nair, son of the late Velayudhan Pillai and Ext.B7 is in favour of Sreekala, daughter of respondent No.1 and as the evidence goes, that document was executed on the eve of her marriage with DW3. Ext.B1 is in favour of two strangers. Though, appellant has a contention that Ext.B1 transaction was intended to benefit respondent No.1 there is absolutely no evidence in that line. Merely because respondent R.S.A.No.309 OF 2009 : 15 : No.1 is an attestor in Ext.B1, no such inference is possible. Ext.B1 and B7 also say that sale consideration has passed in favour of the executant, the late Velayudhan Pillai. Nor can undue influence be inferred from the fact that attesting witnesses in the other documents are the same. No finding against validitly of Exts.B1, B6 and B7 is also possible as the beneficiaries under those documents are not parties in the case. Appellant could not succeed in proving that the late Velayudhan Pillai was not having sound disposing mind at the time of Exts.A1 and A2. Appellant relies on Exts.A5 to A8. These documents only revealed that the late Velayudhan Pillai was hospitalised on four occasions during 1991- 92 either for diabetic ulcer or for diabetic cellular. It is not shown that the said illness affected his mental faculty in any manner whatsoever. There is no evidence to show that after 1992 Velayudhan Pillai had undergone any such treatment or that there was anything bad with his disposing state of mind. There is the evidence of DW2, brother of respondent No.1 in whose favour Ext.B6, settlement deed was executed. He stood by Ext.B6 (though, he is also is a legatee under Ext.A9, Will) and stated that the father (Velayudhan Pillai) was hale and healthy at the time of Ext.B6 dated 08-03-1993. DW3, husband of Sreekala (assignee under Ext.B7) and son-in-law of respondent No.1 stated that the late Velayudhan Pillai had attended his marriage. This is further R.S.A.No.309 OF 2009 : 16 : proved by DW4, a photographer who claimed to have taken photographs on the occasion. DW5 is the postman of Thirumala post office and stated that he used to deliver pension to the late Velayudhan Pillai until his death and on some occasions the late Velayudhan Pillai even came to the post office and collected pension. Thus evidence on record is in favour of the sound disposing state of mind of the late Velayudhan Pillai during the time the impugned documents (Exts.A1 and A2) were executed and registered. It is relevant to note that the legatees of the property (as per Ext.A9, Will) covered by Exts.B1 and B7 have not challenged those documents. It is in these circumstances that courts below came to the conclusion that allegation of undue influence is also not established. There is no evidence to show, except that the Velayudhan Pillai was aged about 89 years at the time of Exts.A1 and A2 and was staying with his daughter, respondent No.1 that the latter was in a position to dominate the will of the former. Nor do circumstance reveal that Exts.A1 and A2 are unconscionable in nature so that onus of proving absence of undue influence shifted to the respondents. The burden lay with the appellant and he was not successful in discharging that burden. Hence the question of application of Section 16(3)