IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 AS.No. 1 of 1996() ------------------ OS.37/1994 of PRL. SUB COURT, THALASSERY .................... APPELLANT/1ST RESPONDENT: -------------- MADATHILLATH KUNHIRAMAN, S/O.CHIRUTHAI, AGED 40, RESIDING AT PATHIRIYADANKANDY HOUSE, PAZHASSI AMSOM, NELLUNNI DESOM, TELLICHERRY TALUK.\ BY ADV. SRI.CIBI THOMAS SRI.K.M.SATHYANATHA MENON RESPONDENTS/PLAINTIFFS & DEFENDANTS 2 AND 3 --------------------- 1. P.K.JANU, W/O.GOPINATH, DEVARKATTIL HOUSE, PERINCHERI, URUVACHAL, MATTANNUR VIA, PAZHASSI AMSOM, PERUNCHERI DESOM, THALASSERY. 2. P.V.LAKSHMUI, W/O.KRISHAN, PUTHENVEETTIL HOUSE. IRRITTY P.O. PERUNPARAMBA AMSOM DESOM, THALASSERY. 3. D.K. MADHAVI,DEVARKATTIL HOUSE, PERINCHERI, ORUVACHAL P.O., THALASSERY. 4. D.K. NARAYANI, W/O.BALAKRISHNAN, RESIDING AT -DO- 5. MADATHILLATH KUTTI PARU, D/O.CHIRUTHAI, PATHIRIYADANKANDY HOUSE, PAZHASSI AMSOM, NELLUNNIDESOM, TELLICHERRY. 6. MADATHILLATH PADMAVATHI, RESIDING AT -DO- ADV. SMT.VIDHYA. A.C FOR R1TO4 SRI.S.NARAYANAN POTI 0 SRI.C.P.KUNJHIKANNAN THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 29/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------ A.S.NO.1 OF 1996 --------------------------- DATED THIS THE 29TH DAY OF SEPTEMBER, 2009 JUDGMENT The lst defendant in O.S.No.37/1994 on the file of the Principal Sub Court, Thalassery is the appellant. The suit was filed by the plaintiffs to set aside Ext.B1 gift deed. A copy of the gift deed is marked as Ext.A4. The court below decreed the suit and set aside Ext.B1 gift deed. Aggrieved by the said judgment and decree, the lst defendant has preferred this appeal. The parties to this appeal are arrayed as plaintiffs and defendants. 2. The plaintiff four in number and defendants 1 and 2 are the children of Madathil Chiruthai. The 3rd defendant is the grand daughter of Chiruthai and the daughter of the lst plaintiff. Plaint A schedule property having an extent of 4 acres originally belonged to Chiruthai, the mother of plaintiffs and defendants 1 and 2. Plaint B schedule property is 2 acres covered by Ext.B1 gift deed. It is not disputed by the parties that 4 acres of plaint A -2- schedule property originally belonged to Chiruthai. Chiruthai had executed Ext.A1 Will dated 5/6/1989. It has also come out in evidence that before execution of Ext.A1 Will there was a mediation talk among the plaintiffs and defendants and their mother in the presence of 10 mediators. By the agreement the whole property excluding 52 cents was measured and set apart to the 6 children of Chiruthai. Ext.A2 is the agreement and Ext.A3 is the plan. The trial court examined Ext.A2 agreement in detail and found that the mediators as well as six children had put their signatures and thumb impressions in Ext.A2. The agreement is dated 24/4/1988. The property was divided into six plots. The agreement and plan show that plot No.1 having an extent of 52 cents and a house was set apart to Chiruthai. The balance extent of property was divided more or less equally between her six children including her only son, who is the lst defendant in the suit. Based on Ext.A2 agreement, Ext.A1 Will was later executed by Chiruthai on 5/6/1989. 3. Before the trial court PWs.1 to 4 were examined -3- and Exts. A1 to A7 were marked on the side of the plaintiffs and DWs.1 to 5 were examined and Exts.B1 to B6 were marked on the side of the defendants. 4. In view of the contentions raised by the respective parties, the court below framed 3 important issues. The lst issue is whether Ext.B1 gift deed dated 10/4/1991 in favour of first defendant is binding on the plaintiffs, the 2nd issue is whether the plaintiffs are entitled to set aside Ext.B1 gift deed dated 10/4/1991 and the 3rd issue is whether Exts.A1 and B6 Wills are valid and binding on the parties. 5. The prayer in the suit is to set aside Ext.B1 gift deed. According to the plaintiffs, after the execution of Ext.A1 Will, the parties are enjoying their respective shares and as against the compromise and against the registered Will it is seen that the gift deed was executed in favour of the lst defendant, which includes portions of property bequeathed to different shareholders. The extent of land covered by the gift deed is two acres including 52 cents of land allotted to Chiruthai, 46 cents -4- allotted to the lst defendant and the balance extent allotted to other sharers in Ext.A1 Will. According to the plaintiffs, the gift deed is nothing but a fraud played by the lst defendant on his mother just to defeat the right of the plaintiffs. It is further pleaded that that their mother will never be a party to such a document, if the real facts were brought to her notice. It is further stated that the plaintiffs believed that Chiruthai was taken to the Registrar's Office on some pretext and document was got executed by the lst defendant in his favour. It is also averred in the plaint that the third defendant is impleaded in the suit, since she claims a portion of the property as her exclusive property by virtue of Ext.B6 Will alleged to have been executed on 11/5/1992. Plaintiffs sued for setting aside Ext.B1 gift deed. According to them, the document is not binding on them and that can only be a fraudulent document. The lst defendant and contended that Ext.B1 deed was voluntarily executed by Chiruthai on her own free will and was fully conscious of what she was doing, that the lst defendant is her only son and the gift -5- deed was executed out of love and affection towards him, that he accepted the gift immediately after registration of the gift deed during the life time of Chiruthai and continued in exclusive possession of the plaint B schedule property as absolute owner thereafter. The allegation that the gift deed was executed fraudulently at the instance of the lst defendant is denied. The lst defendant also denied the execution of Ext.A1 Will by his mother and contended that no agreement was executed by the parties nor the Will was executed by his mother pursuant to the agreement followed. 6. The 3rd defendant is the grand daughter of late Chiruthai. She is the daughter of the lst plaintiff. Ext.B6 is the Will executed in her favour by late Chiruthai, which is also under challenge, which according to the plaintiffs, is also a document which come into existence as a result of the practice of fraud, misrepresentation and undue influence and therefore not binding on them. She and the 2nd defendant also filed a joint written statement. According to them, Ext.A1 Will is either a forgery or -6- fraudulently cooked up one by plaintiffs and their supporters. They also contended that two acres of land excluding B schedule property devolved upon the 3rd defendant as per Ext.B6 Will executed by Chiruthai on 11/5/1992 and registered by her voluntarily of her own free will. According to them, on the death of Chiruthai on 24/7/1993 the entire A schedule property excluding B schedule property devolved on the 3rd defendant. 7. The circumstances leading to the execution of Ext.A2 agreement and A1 Will were discussed elaborately by the trial court. It is an undisputed fact that Chiruthai owned 4 acres of land and that she has six children, who are plaintiffs 1 to 4 and defendants 1 and 2. It has also come out in evidence that there were some disputes regarding the manner of partition and enjoyment of the share of 4 acres of land by Chiruthai and her children. The involvement of 10 mediators, in whose presence Ext.A2 agreement was executed was also spoken to by the witnesses. Ext.A3 is the plan drawn pursuant to Ext.A2 agreement. It is seen that the mother and six children agreed to -7- divide the property into 7 shares. An extent of 52 cents of land and a house was allotted to the mother. More or less similar extents were allotted to all the six children. The lst defendant son got 45 cents and other children have got 42 cents, 45 cents and 46 cents etc. The mediators as well as six children had put their signatures and thumb impressions in Ext.A2. Later it is seen that Ext.A1 Will was executed on 5/6/1989. PW-4 is one of the mediators, who had taken part in the mediation talk. PW-3 is another witness, who deposed before the court below that at the time of execution of Ext.A2 and the mediation talk Chiruthai was staying with her daughter-Madhavi and that the mediation talk was taken place in the house of Chiruthai in the presence of 10 members of the locality. Chiruthai died at the age of 84. At the time of execution of Ext.A1 Will her age was shown as 80. In Ext.B1 her age was shown as 70. Ext.B6 is the Will dated 11/5/1992 in favour of the 3rd defendant, who is the grand daughter of Chiruthai. The property alleged to have bequeathed as per Ext.B6 is 2 acres out of 4 acres. The lst defendant -8- supported the 3rd defendant and he deposed that his mother has given 2 acres of land to the 3rd defendant as per Ext.B6 Will. The lst defendant also denied his signature in Ext.A2 agreement. The trial court relied on the oral evidence of PWs.1 to 4. In their testimonies, PWs.1 to 4 have stated that defendants 1 and 2 had put their signatures in Ext.A2 agreement. From the fact that Ext.A2 agreement was entered into between the parties, after a prolonged discussion and mediation born out from the evidence on record, the possibility of all the sharers signing Ext.A2 cannot be ruled out. Moreover, the lst defendant has not taken any steps to identify the signatures as seen in Ext.A2 agreement. 8. Regarding the execution of Ext.B1 gift deed, the facts and other attendant circumstances were appreciated by the court below at length. At the time of execution of Ext.B1 gift deed late Chiruthai was staying with the lst defendant. The lst defendant deposed before the court below that he does not know who has written Ext.B1 and who has given direction to write the contents. He also deposed that he had not seen anybody signing -9- Ext.B1. He also testified that he had no knowledge about the execution of Ext.B1 by his mother. He has not seen the signing of Ext.B1 by his mother. He also testified that he has not purchased stamp papers in his name. But it is seen that the stamp papers purchased stand in his name. The lst defendant also admitted that his mother was 84 years of age at the time of her death; but in Ext.B1, her age was shown as 70. The trial court also appreciated the evidence regarding the prior institution of the suit filed by the lst defendant against his mother and sisters. Ext.A5 is the plaint, Ext.A6 is the written statement filed by plaintiffs 3 and 4 and Ext.A7 is the written statement filed by the mother. The suit was filed by defendants 1 and 2 stating that the plaintiffs apprehend that the mother is going to execute documents in favour of defendants in that suit, who are the sisters. According to the plaintiffs in that suit, the property shall be divided equally to her children; but the mother proposed to execute documents in favour of her four daughters who are the plaintiffs in the suit. Immediately after filing the suit within one -10- week Ext.A1 will was executed by Chiruthai in favour of her six children. This will show that the apprehension that the mother will execute documents of title only in favour of her four daughters is baseless and unfounded. Even before getting notice in the suit within a period of seven days the mother executed Ext.A1 in favour of her children. It is evident from the facts and circumstances that mother executed Ext.A1 Will in terms of Ext.A2 agreement arrived at in the presence of 10 mediators. So the suit was compromised. The suit was not proceeded on merits. At the same time it was settled in view of execution of Ext.A1 Will. 9. DW-2 is the attesting witness to Ext.B1 gift deed and DW-5 is the Scribe. Taking into consideration the settlement arrived at by the parties to the suit in the year 1989 and the depositions of PWs.1 to 4 and DWs. 1 to 5, there is no difficulty in concluding that Ext.A1 Will was written in accordance with Ext.A2 agreement. The very fact that there is allotment of property more or less equal to all the sharers is also a fact that -11- leads to the execution of Ext.A1 Will. Filing of the suit O.S.No.149/89 and the averments contained therein also would go to show that mother acted in terms of the agreement entered into between the parties and thus she executed Ext.A1 Will. The testimonies of DWs. 2 and 5 and the interested testimony of DW- 1 are not sufficient to dispel the materials brought out before the court below to prove the genuineness of Ext.A1 Will. The contents of Ext.B6 will go to show that the children of Chiruthai were disinherited. That is a circumstance which will create suspicion of the execution of Ext.B6 Will. The execution of Ext.B1 gift deed is also at a time when the mother was staying with defendants 1 and 2. The trial court also noted that the 3rd defendant who is the propounder of Ext.B6 Will, did not turn up before the court to give evidence. Onus is on the propounder to explain the suspicion surrounding th execution of Will to the satisfaction of the court, before the court accepts a Will as genuine. The non-examination of the propounder of Ext.B6 Will will go to show that she has no confidence to adduce evidence -12- before the court in support of the execution of Ext.B6 Will. It is a fact that by the execution of Ext.B6 Will all the six children are disinherited. Defendants 1 and 3 are supporting each other and contended that the plaintiffs are not entitled to any portion of plaint A schedule property. 10. There is suspicion in the manner in which Ext.B1 and B6 are executed. As I said earlier, by the said two documents all the children of late Chiruthai except the lst defendant have been disinherited. Late Chiruthai is admittedly an illiterate woman, aged about 80 years. Her age was noted as 70 in Ext.B1. In Ext.A1 Will, which was executed in the year 1989, her age was noted as 80 years. In the subsequent document namely, Ext.B1 her age was shown as 70. That is an indication which will go to show that the age was wrongly stated to the Scribe by somebody associated with the execution of gift deed and Will. This creates some doubts regarding the execution of the gift deed and Ext.B6 Will. It cannot also be denied that Ext.B6 Will was registered after one month of writing the same -13- by DW-5. Delayed registration of the Will is another factor, which creates some doubts regarding the execution of Ext.B6 Will. 11. In the suit (O.S.No.149/89) filed by the lst defendant against his mother and others it is alleged that mother is mentally incapable of executing any document, that all the sharers are entitled to divide the property equally, that mother is attempting to execute the documents in favour of his four daughters and therefore mother is to be restrained by a permanent prohibitory injunction from executing any document. At a time he apprehends that the property will be allotted to the 4 daughters, the lst defendant urged in the plaint that mother is mentally incapable of executing a document and therefore she may be restrained from executing any document. The trial court scrutinized the signature of Chiruthai in Ext.B1 gift deed. The trial court is of the view that the signatures in the documents are seen in varying nature. I have also examined the signature of late Chiruthai in Ext.B1, B6 and Ext.A1. I also find that the signature -14- in the documents differs. Though Chiruthai was living with defendants 1 and 2 and she has four other daughters and relatives, it is seen that none of them were present at the time of execution of Ext.B1 gift deed. DW-2, the attesting witness to Ext.B1 gift deed, stated that Chiruthai was accompanied by her daughter, who is the 2nd defendant in the suit. If the 2nd defendant was present at the time of execution of Ext.B1 gift deed, she would have been the best witness to prove the execution of Ext.B1 gift deed. There is no justification for the 2nd defendant not to enter the box. I have also stated that the 3rd defendant, who is the beneficiary of Ext.B6 Will, also did not turn up to give evidence. The witness to Ext.B6 are strangers. It is not known whether these two persons are familiar with family members of late Chiruthai. It has come out in evidence that they are residing away from the lst defendant. It is not known why those people were taken to the Registrar's Office and made them as witnesses. Morover, the stand taken by the lst defendant assumes significance. He said that he came to know about the execution -15- of Ext.B1 Will only two months' later. Admittedly, the mother is residing along with the lst defendant. It is difficult to believe the case of the lst defendant that he had no information regarding the execution of the gift deed and that he came to know about it only two months' later. If the aged mother is living under the care and protection of her son, there is no reason why the document was executed behind his back. His testimony that he never had any information for two months about the execution of the documents does not inspire confidence. The circumstances will go to show that in fact the lst defendant-son was instrumental in the execution of Ext.B1 gift deed and that he was trying to hide the circumstances that led to the execution of Ext.B1 gift deed. It is not known whether the executant is Chiruthai or anybody. -16- 12. In the facts discussed above, I find that the trial court is justified in decreeing the suit by setting aside Ext.B1 gift deed. The trial court examined and appreciated the oral and documentary evidence in the right perspective and I find no reason to interfere with the findings entered into by the trial court. In the result, the appeal fails and accordingly it is dismissed. No order as to costs. HARUN-UL-RASHID, Judge. kcv. -17- HARUN-UL-RASHID,J. -------------------------- A.S.NO.1 OF 1996 -------------------------- JUDGMENT 29th September, 2009