IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 SA.No. 276 of 1996(G) -------------------------------- AS.107/1992 of PRL.SUB COURT,KOTTAYAM OS.322/1986 of MUNSIF COURT, KANJIRAPPALLY .................... APPELLANT(S): APPELLANT/PLAINTIFF -------------------------------------------------------- MADHAVI AMMA RAJAMMA, PRASANNA SADANAM, VADAKKUMBHAGOM MURI, CHIRAKKADAVU VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM. BY SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE BY ADV. SRI. P.GOPAL RESPONDENT(S): RESPONDENTS/ DEFENDANTS ------------------------------------------------------------------------ 1. VASUDEVA PANICKER, S/O. GOPALAN NAIR, MADATHANIL HOUSE, VAZHOOR KARA, VAZHOOR VILLAGE, CHANGANACHERRY, KOTTAYAM DISTRICT. 2. K.R.SIVAKUMARI, W/O. VASUDEVA PANICKER, RESIDING AT DO. DO. BY ADVS. SRI.V.G.ARUN, SRI.T.R.HARIKUMAR, SRI.M.NARENDRA KUMAR. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/07/2010, ALONG WITH SA NO. 302 OF 1996 THE COURT ON 26/07/2010 THE SAME DAY DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 276 & 302 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of July, 2010. JUDGMENT Defendants in O.S. 51 of 1989 before the Munsiff's Court, Kanjirappally is the appellant in both these appeals. First defendant in O.S.51 of 1989 is the plaintiff in O.S. 322 of 1986. S.A. 302 of 1996 arises from the judgment and decree in O.S. 51 of 1989 as confirmed in A.S. 106 of 1992. S.A. 276 of 1996 arises from the judgment and decree in O.S. 322 of 1986 as confirmed in A.S. 107 of 1992. 2. Two suits, namely, O.S. 51 of 1989 and O.S. 322 of 1986, were tried together as common issues arise for consideration. O.S. 51 of 1989 was considered as the leading case. Hence the parties and facts are referred to as they are available in the said suit. 3. O.S. 51 of 1989 was a suit for declaration of title and possession of the plaintiff, cancellation of Will S.A.276 & 302/1996. 2 No.9/85 and sale deed No.580/85 if Pampady Sub Registry and in the alternative for specific performance of the agreement dated 14.8.1986. Second defendant is the son of defendants 1 and 3. The first defendant is the daughter of the sister of the mother of the plaintiff. Plaintiff is the only son of his mother and she is no more. It is averred in the plaint that since the plaintiff had no sisters, the first defendant was treated very affectionately by his mother and the latter was in a position to dominate the will of his mother. Mother of the plaintiff had repose considerable confidence and trust in the third defendant and used to abide by his advise. 4. The suit properties belonged to the plaintiff and his mother, which they obtained as per a partition in their family. The plaintiff was employed in military service and his wife was staying with his mother. According to the plaintiff, while he was at his place of employment, the third defendant used to sent letters informing about the infidel conduct of his wife Sivakumary. When the accusations S.A.276 & 302/1996. 3 became very strong, the plaintiff left military service and returned home. While the couple were residing together, their relationship became bitter and his wife left him. That made the plaintiff and his mother believe that Sivakumary may initiate proceedings seeking maintenance and return of money and gold ornaments, which he had been given at the time of marriage. Taking advantage of the situation, it is stated that the third defendant advised the plaintiff and his mother to partition the property between them and to create documents so as to screen the property from being proceeded against by Sivakumary, the wife of the plaintiff. A partition deed Ext.A2 dated 20.2.1985 was therefore entered into between the plaintiff and his mother, wherein 1.57 acres with a building therein was set apart to the share of the mother and one acre was given to the share of the plaintiff. As per the advise given by the third defendant on the very same day itself, Devaki Amma, the mother of the plaintiff, executed Ext.A3 Will bequeathing the entire property she got as per Ext.A2 partition deed to the first S.A.276 & 302/1996. 4 defendant. The plaintiff would say that the third defendant advised him to execute a sale deed in favour of the second defendant, who is none other than the son of defendants 1 and 3 so as to screen the property from being proceeded against. Bonafide believing the advise of the third defendant, the plaintiff executed Ext.A4 sale deed dated 22.2.1985 in favour of the second defendant. The understanding was that after the disputes were settled between the plaintiff and his wife, the property would be reconveyed. The plaintiff would say that it was with reluctance and suspicion that the two documents were executed by the mother and himself. But they had complete faith in the defendants. The documents were in the possession of the plaintiff and his mother so also the property. The plaintiff was able to patch up differences with his wife and they began to reside together. When they began to enjoy the properties, the defendants showed the true colour and began to assert right over the same. Before Sivakumary began her cohabitation with the plaintiff, S.A.276 & 302/1996. 5 the mother of the plaintiff had died. So taking advantage of the Will, the first defendant began to assert rights over the property. According to the plaintiff, they trespassed into the property and there was a bitter feud between the two groups finally ending in criminal proceedings as C.C. 59 of 1986. At that point of time, some mediators intervened in the matter and Ext.A11 document was executed. The plaintiff honestly believed that the defendants would abide by the terms of the agreement. But to the surprise of the plaintiff, the defendants refused to heed even though the plaintiff was willing to honour the terms of the agreement. It was therefore became necessary to have the Will and sale deed set aside as they were the result of undue influence, misrepresentation, coercion etc. On the basis of these averments, the suit was laid. 4. The third defendant remained ex-parte. First and second defendants contested the suit. According to them, the suit is an experimental one and there is no bonafides in the suit at all. They denied that either the first S.A.276 & 302/1996. 6 defendant or the third defendant was in a dominating position over the plaintiff and his mother. According to them, the plaintiff led a wavered life and he took little care of his mother. His misdeeds and his way of life forced his wife Sivakumary to leave him. They disputed the allegation that it was as per the advise of the third defendant that Ext.A2 partition deed was executed, thereafter Ext.A3 Will and Ext.A4 sale deed were executed. Those documents were executed voluntarily by the executors and there was no influence much less undue influence from the side of third defendant or anybody. They denied that they had played any fraud or misrepresentation either on the plaintiff or his mother. The documents are good and valid in law. Even though there was criminal proceedings against the defendants, they were acquitted by High Court finally. These defendants would say that the mediators made the defendants to sign blank papers which were later used to draw up the terms of the agreement. The terms of the agreement are not binding on the defendants and they had S.A.276 & 302/1996. 7 not agreed to the same at all. Pointing out that the plaintiff is not entitled to any relief, they prayed for a dismissal of the suit. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 to 4 and the documents marked as Exs.A1 to A11 from the side of the plaintiff. The defendants had Exts. B1 to B6 marked. They however chose to adduce no oral evidence. The trial court on an appreciation of the evidence came to the conclusion that the documents, namely Ext.A3 Will and Ext.A4 sale deed, had been executed under the circumstances mentioned by the plaintiff and they had no binding effect at all. Accordingly, a decree was granted in favour of the plaintiff. The suit filed by the first defendant in O.S. 51 of 1989 as O.S.322 of 1986 was dismissed. The matter was carried in appeal as A.S.106 of 1992 and A.S. 107 of 1992. The appellate court on an independent evaluation of the evidence concurred with the trial court and dismissed the appeals confirming the judgment and decree S.A.276 & 302/1996. 8 of the trial court. The appeals are directed against the said judgments and decrees. 6. Learned counsel appearing for the appellants pointed out that the courts below have grievously erred in law and on facts in decreeing the suit against the defendants in O.S.51 of 1989. It was pointed out that the execution of Ext.A3 will is admitted. The claim of the plaintiff was that it was vitiated due to fraud, misrepresentation and undue influence. If that be so, the burden was on the plaintiff to establish those vitiating elements. In the case on hand, there is no evidence at all to show that the documents were vitiated by fraud, misrepresentation or undue influence. The stories put forward by the plaintiff for the execution of Ext.A2 partition deed, Ext.A3 Will and Ext.A4 sale deed are unbelievable and highly improbable. According to learned counsel, the third defendant in O.S. 51 of 1989 was a rustic person and it is too difficult to believe that he would be in a position to advise the plaintiff, who was in the military service for a long time S.A.276 & 302/1996. 9 and also that the plaintiff would accept the advise of the third defendant. According to learned counsel, none of the grounds alleged to assail the sale deed and the Will had been established and in fact the plaintiff had in his evidence admitted that it was the first defendant in O.S.51 of 1989, who was looking after his mother. Learned counsel went on to point out that being a Marumakkathayee family, it is natural that the plaintiff's mother would have had affection towards the first defendant. Taking note of the fact that she was looking after her in her old days, it is only natural that the bequeath was made in her favour. Learned counsel also reminded this court that the wife of the plaintiff had left him and considering the nature of the life led by the plaintiff if his mother thought that her only hope was the first defendant, there is nothing wrong about it. As regards Ext.A11, it was contended that the parties did not act as per Ext.A11 document and therefore it had little value. Learned counsel also highlighted the fact that in fact the plaintiff has sought for reconveyance of the property, which showed that S.A.276 & 302/1996. 10 there has been assignment of the property as contended by the defendants in the suit. Learned counsel went on to point out that the courts below have omitted to note these vital aspect and that has resulted in miscarriage of justice. 7. Per contra, learned counsel for the respondents pointed out that the facts and circumstances are not as stated by the learned counsel for the appellants. Both the courts below have appreciated the evidence in the proper perspective and have came to the conclusion that the execution of Ext.A3 Will and Ext.A4 sale deed is under suspicious circumstances and the version given by the plaintiff is more probable taking note of the various facts and circumstances brought out in evidence by the plaintiff. Learned counsel drew the attention of this court to the fact that the Will namely Ext.A3 was executed on the same day as the partition deed and the sale deed Ext.A4 was executed within two days of the partition deed. The undue haste in which these two documents were executed and the extremely low consideration shown in Ext.A4 sale deed S.A.276 & 302/1996. 11 speak volumes about the transaction. It cannot be said, according to learned counsel, that at the time when these documents came into existence the relationship between the plaintiff and his wife was cordial and there was a threat of proceedings by the wife against the plaintiff. Learned counsel drew the attention of this court that the trial court had noticed that there is evidence to show that the third defendant was showing undue interest in the proceedings played a major role and in fact in the maintenance proceedings between the plaintiff and his wife, the third defendant was showing keen interest. Learned counsel also pointed out that when certain suspicious circumstances and vitiating elements were established by the plaintiff through his evidence, the burden shifted to the defendants to clear those suspicious circumstances and to satisfy the conscience of the courts regarding the genuineness of the Will and the circumstances under which the sale deed had been executed. For reasons best known to the defendants, they chose to keep away from the box and that calls for S.A.276 & 302/1996. 12 drawing adverse inferences against them. According to learned counsel, even assuming that the execution of the Will was admitted, its genuineness was put in dispute, under such circumstances, the propounder had the bounden duty to satisfy the court that the Will is free from any suspicious circumstance and was genuine. The courts below, according to learned counsel, have rightly addressed themselves to the question involved in the suit, have properly appreciated the evidence in the case and have came to a just and reasonable conclusion. No interference is therefore called for. 8. At the outset itself one may notice that the appellants are confronted with the concurrent findings on fact against them regarding the circumstances under which the Will as well as the sale deed had come into existence. Strictly speaking, interference of this court under Section 100 of the Code of Civil Procedure is considerably limited. However, since elaborate arguments were addressed on S.A.276 & 302/1996. 13 either side, it is thought proper, fit and just to consider the matter in some detail. 9. Execution of Ext.A2 partition deed, Ext.A3 Will and Ext.A4 sale deed is admitted by the plaintiff. But he offers an explanation for the same. According to him, he had to leave military service due to the communications sent by the third defendant regarding the immoral life led by his wife. He returned home and then it was as per the advise of the third defendant to screen the property against the property being proceeded against that the documents were entered into. The plaintiff would say that even though the Will and the sale deed were executed, the property remained to be in the possession of the plaintiff and his mother and they were in enjoyment of the same. He would also say that the Will and the sale deed were not intended to take effect and it was only intended to protect the properties from the proceedings that may be initiated by his wife. 10. In paragraph 19 of the trial court judgment, the court has considered the issue regarding the Will. The S.A.276 & 302/1996. 14 court below came to the conclusion that there are strong circumstances which casts suspicion on the genuineness of Ext.A3 document. The trial court had referred to the law on the point in paragraph 18 of its judgment. The appellate court too has considered these aspects in its judgment. It too had concurred with the trial court regarding the circumstances under which the will had come into existence. 11. One may recall that execution of the Will can be said to have been admitted. But the plaintiff has offered an explanation regarding the circumstances under which it happened to be executed. It is true that the plaintiff has no case that the Will does not contain the signature of his mother nor did he have a case that his mother did not have a sound disposing state of mind at the time. There is no case that the Will is either forged or concocted. But the plea made is that it was executed as a result of fraud, misrepresentation and undue influence or in other words, he pleaded vitiating elements affecting the documents. It is also true that once the execution of the document is S.A.276 & 302/1996. 15 admitted, the burden shifts to the other side to prove the vitiating elements. But one must notice here that the plaintiff has disputed the genuineness of the document. 12. It will be useful to refer to the plaint and to ascertain the averments made by the plaintiff regarding the Will as well as the sale deed. The averments are contained in paragraphs 4, 6, 7, 8 and 9, the details of which have already been referred to in the statement of facts. Of course defendants 1 and 2 had refuted those allegations. 13. Even though defendants 1 and 2 have a contention that the plaintiff had taken to heavy drinking and he was leading a wavered life, there is no evidence regarding that accusation. It is not in dispute that the plaintiff had voluntarily retired from service and had returned home. It is true that as pointed out by the learned counsel for the appellants even though the plaintiff has a case that the third defendant had sent several letters to him alleging infidelity on the part of his wife, the plaintiff has not produced any of those letters and that according to learned S.A.276 & 302/1996. 16 counsel shows that the allegations are false. Merely because none of the letters is not produced by itself is not vital in such matters. If as a matter of fact what the plaintiff says is true, those are not matters to be cherished. However, the fact remains that there was strained relationship between the plaintiff and his wife and the wife of the plaintiff had left his company. It is also not in dispute that the wife had initiated maintenance proceedings. It is in this context one has to view the allegations regarding the circumstances under which Exts.A2, A3 and A4 came into existence. 14. One must remember that the plaintiff is the only son of his mother. In Ext.A2 partition deed while 1.57 acres of land and the house is set apart to the share of the mother, the plaintiff is given only one acre. One may now have a look at Ext.A3. That is the Will said to have been executed by Devaki Amma in favour of the first defendant. All that it says is that the property which was obtained as per Ext.A2 partition deed will devolve on the first defendant S.A.276 & 302/1996. 17 after her life time. It is significant to notice that no reason whatsoever is given in the document as to why the first defendant is being preferred as the legatee of her estate. That looks quite unusual. Normally, when a person seeks to disinherit the legal heir, there will be some reason for the same. One has also to remember that at the relevant time, Devaki Amma had two grand children. Probably one could assume that due to the fact that Sivakumary had left the company of her husband, Devaki Amma had a dislike for her. But to believe that without assigning any reason whatsoever, she would bequeath the estate to the first defendant is something which is difficult to comprehend. Of course, P.W.1 has stated that the first defendant had looked after his mother. If as a matter of fact the claim of the defendants are true regarding the circumstances under which the Will came to be executed, and choosing the first defendant as the legatee, normally reasons would have reflected in the Will itself. S.A.276 & 302/1996. 18 15. Both the courts below referred in detail Ext.A11, which is an agreement executed between the plaintiff, his wife Sivakumary on the one hand and the defendants on the other hand. It will not be out of place to refer that document at this juncture. Ext.A11 says about the execution of the Will and the sale deed. It also mentions about the criminal case between the parties. It finally concludes by saying that the parties have agreed whereby that the defendants have agreed to re-convey the properties in return of the plaintiff giving them one acre five cents. 16. Of course, learned counsel for the appellants would contend for the position that the terms of Ext.A11 is sufficient to show that there have been conveyance of the property. True, it is so. But more than that it discloses the circumstances under which the documents came into existence. On may now refer to the evidence of P.Ws. 1 to 4 in this regard. P.W.1 is the plaintiff himself. His evidence, as rightly noticed by the trial court, is shabby and open to serious doubt. The trial court chose not to place much S.A.276 & 302/1996. 19 reliance on his evidence and has observed that he has little regard for truth. P.W.2 is one of the mediators made mention of in the plaint. He speaks about the mediation talks. He speaks about the police case between the parties. It may be noticed that there was a case against the defendants in the suit for having thrown acid on the face of the plaintiff and his wife and causing injuries to them. P.W.2 says that as a result of the mediation Ext.A11 was drawn up. He admits that in the mediation talks the plaintiff and defendants 2 and 3 alone had participated. But defendants 2 and 3 had assured that whatever decision taken in the mediation talks, the first defendant would abide by them. He speaks about drawing up of Ext.A11 and the signing of the document by the parties. Even though he was cross-examined at length, his evidence stands unimpeached. 17. P.W.3 is Sivakumary, the wife of the plaintiff. P.W.4 is yet another person, who participated in the mediation talks. He speaks about the discord between the parties, the criminal case etc. He would say that on the S.A.276 & 302/1996. 20 previous date of execution of the relevant documents, the third defendant and plaintiff had come to his house. He says that he was informed about the necessity to screen the properties from being proceeded against by the wife of the plaintiff and they sought his advise. He would say that he told them that since the properties belong to the plaintiff and his mother, nothing could be done by the wife of the plaintiff. That annoyed the plaintiff and he asked for a way out. This witness would say that he suggested that a partition be effected. He would go on to say that he along with the plaintiff and the third defendant went to a scribe and had Ext.A2 written. He would assert that even though Exts. A2, A3 and A4 were executed, the properties continued to remain in the possession of the plaintiff and his mother and the defendants had never been in possession of the property nor had they taken income therefrom. 18. It could thus be seen that even though the evidence of P.W.1 is not wholly trustworthy, he gets support from the evidence of P.Ws. 2 and 4 on certain aspects and S.A.276 & 302/1996. 21 the evidence of P.Ws. 2 and 4 would show that there is some substance in what the plaintiff says. Ext.A11 read along with the evidence of P.Ws. 2 and 4, the circumstances under which Exts.A3 and A4 came into existence become suspicious. At any rate, these items of evidence would show that Exts. A3 and A4 did