IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 RSA.No. 405 of 2010() --------------------- AS.12/2004 of SUB COURT, PAYYANNUR OS.69/2002 of MUNSIFF COURT, PAYYANNUR .................... APPELLANTS/APPELLANTS/DEFENDANTS: ----------------------------- 1. KURUVATTEPURAYIL AZEEZ, AGED 53 YEARS, PILATHARA, NEAR TELEPHONE EXCHANGE, KANNUR DISTRICT. 2. P.P. NAFEESSA, AGED 45 YEARS, W/O. AZEEZ, PILATHARA, NEAR TELEPHONE EXCHANGE, KANNUR DISTRICT. 3. P.P. SHAMSUDHEEN, AGED 25 YEARS, S/O. AZEEZ, PILATHARA, NEAR TELEPHONE EXCHANGE, KANNUR DISTRICT. BY ADV. SRI.M.V.AMARESAN RESPONDENT(S): RESPONDENT/PLAINTIFF: ------------------------- KURUVATTEPURAYIL NAZIR, AGED 38 YEARS, S/O. AMSU, CHERUTHAZHAM DESOM, PILATHARA, KANNUR DISTRICT. ADV. SHRI ABRAHM GEORGE JACOB THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.405 of 2010 --------------------------------------- Dated this 08th day of April, 2010 JUDGMENT The second appeal arises from judgment and decree of learned Sub Judge, Payyannur in A.S.No.12 of 2004 confirming judgment and decree for recovery of possession granted in favour of respondent/plaintiff in O.S.No.69 of 2002 of the court of learned Munsiff, Payyannur. Appellant No.1 and respondent are the sons of late Amsa. Appellant Nos.2 and 3 are the wife and son of appellant No.1. Late Amsa had landed properties which he assigned or settled in favour of his three sons at a time when he was indebted to the local Co-operative Bank to the sum of around Rs.1,00,000/-. He executed Ext.A1 in favour of the respondent as per which his right, title, interest and possession in the suit property was gifted to the respondent with a direction to discharge the said liability of the bank. Respondent claimed to have discharged that liability and at a time when he apprehended trespass into the suit property by his brother, appellant No.1 and others he filed the suit for a decree for prohibitory injunction. Later, alleging that during pendency of the suit appellants trespassed into the suit property he amended the plaint and sought recovery of possession on the strength of title. R.S.A. No.405 of 2010 -: 2 :- Appellants resisted the suit contending that Ext.A1, gift deed relied on by respondent is not valid in so far as it is got executed by undue influence at a time when the father was not having sound disposing state of mind and hence Ext.A1 would not affect the right of appellant No.1 in the suit property consequent to the death of the father (Amsa) in the year 2001. Appellants also denied that they trespassed into the suit property and claimed that even prior to Ext.A1, gift deed they have residing in the house in the suit property. Learned Munsiff found against the contentions raised by appellants and granted decree for recovery of possession. That finding was confirmed by the first appellate court. Hence the second appeal urging by way of substantial question of law whether finding of the courts below that Ext.A1 is not procured by undue influence is legally sustainable in the light of evidence on record. It is contended by learned counsel for appellant relying on the decision in Tharasia Vs. Mathai (1950 KLT SN 22) that in deciding whether a document is obtained by undue influence, court has to consider whether it is a thing which a right-minded person might be expected to do in the circumstance of the case, whether the transaction was improvident, whether it was a matter which required legal advice and whether the intention of R.S.A. No.405 of 2010 -: 3 :- executing the document originated with the executant and executee. Learned counsel would contend that though it is the case of respondent as PW1 that he had nothing to do with execution of Ext.A1 and learnt about the same only in the year 1999 when the father handed over the same to him, evidence of PWs.2 and 3 would show that respondent was also involved in the execution of Ext.A1. The further contention is that costly property has been settled in favour of the respondent alone while, nothing was given to the other children by the executant. Learned counsel for respondent would support the finding of the courts below. 2. Execution of Ext.A1 is not very much in dispute the contention of appellants being that it is got executed by undue influence. When the document is challenged on the ground of undue influence necessarily the burden lay on the person challenging the document setting up such a plea. Order 6 Rule 4 of the Code of Civil Procedure required that a party relying on undue influence, fraud etc., should give particulars of such undue influence and fraud. On going through the averments on the written statement what is seen is a statement that the document was obtained by undue influence. Particulars of the alleged undue influence are not given. R.S.A. No.405 of 2010 -: 4 :- 3. Now, I shall refer to the evidence on record as discussed by the courts below to decide whether any substantial question of law is involved. Exhibit A1 shows that right, title, interest and possession of the donor in the suit property has been conveyed to the respondent. It also states that the donee is to discharge liability of the donor with the Cheruthazam Service Co-operative Bank. Respondent has produced Exts.A6 to A8 to show that he has discharged liability of the donor as desired by the donor in Ext.A1. He has also produced documents to show that he has been paying revenue for the suit property since Ext.A1. Exhibits A11 and A12 are produced to show that during 1996 (i.e., prior to Ext.A1), appellants had no residence in the house in the suit property. Respondent has produced various other documents to show that he has been paying the electricity charges though, in the name of his father, Amsa after Ext.A1 of the year 1999. PWs.2 to 5 are witnesses examined by the respondent to prove due execution and attestation of Ext.A1. All of them gave evidence regarding the same which the courts below found is believable. 4. Now challenge is to the validity of Ext.A1. It is true that when examined as PW1, respondent stated that he got information R.S.A. No.405 of 2010 -: 5 :- about Ext.A1, gift deed only when the father handed over the same to him in the year 1999 but, PWs.2 and 3 stated that at the time of execution of Ext.A1 respondent also was present and they attested the document as requested by the respondent. It is contended that hence the version of respondent that he was unaware of execution of Ext.A1 at the relevant time is not correct, he has played a leading role in the execution of Ext.A1 and that indicated undue influence. But that alone is not sufficient to hold in favour of undue influence. It is not disputed that the father had provided for the other sons including appellant No.1 by assigning or settling his property to them. It has come in evidence that respondent was working abroad during the relevant time. The father desired that liability of the bank be discharged by the respondent and casting that obligation on the respondent the father executed the gift deed in favour of respondent. 5. Though it is the version of appellants that even prior to Ext.A1 they have been residing in the house in the suit property, no reliable evidence was adduced. Though certain documents for payment of electricity charges were produced by the appellants courts below were not impressed by the same and held that it is not proved to be with respect to the house in the suit property. R.S.A. No.405 of 2010 -: 6 :- Moreover, Exts.A11 and A12 which are prior to Ext.A1 would show that even prior to Ext.A1 appellants were not residing in the house in the suit property. Courts below on the evidence on record answered the issues in favour of the respondent. Having regard to the facts and circumstances and the evidence which placed before court and going through the judgments under challenge and hearing learned counsel on both sides I am satisfied that no substantial question of law is involved concerning validity of Ext.A1. 6. It is then submitted by learned counsel for appellants that since appellants have no other house to reside, they may be granted one year's time for vacating the building in the suit property. The request to grant time is not opposed by learned counsel for respondent though, he is not agreeable to that much of time as requested by the appellants. Having regard to the facts and circumstances and taking into account the fact that appellant No.1 and respondent are direct brothers and appellant No.1 is reported to be a handicapped person I am inclined to grant six months' time to the appellants to vacate from the suit property. Resultantly the second appeal is dismissed in limine. Appellants are granted six (6) months' time from this day to vacate the suit R.S.A. No.405 of 2010 -: 7 :- property on condition that appellants shall before 20-05-2010 file affidavit in the executing court undertaking to vacate from the suit property on the expiry of the said period of six months without putting forth any claim or objection. Interlocutory Application Nos.988 and 989 of 2010 shall stand dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-