IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 SA.No. 121 of 1999(F) ------------------------------- AS.65/1996 of SUB COURT, KASARAGOD OS.584/1990 of ADDL.MUNSIFF, KASARAGOD .................... APPELLANT(S): ------------------------ K.KRISHNA BHAT, SON OF LATE KARUVANJE GANAPATHI BHAT, RESIDING AT BAYAR VILLAGE, P.O.DHARMATHADKA. *ADDL.APPELLANTS 2 AND 3 IMPLEADED 2. VISHALAKSHI, W/O.LATE K.KRISHNA BHAT, RESIDING AT BAYAR VILLAGE, P.O.DHARMATHADKA. 3. GANARAJ, S/O.DO., MINOR AGED 17, IN DO. DO., REPRESENTED BY ITS GUARDIAN MOTHER, APPLICANT NO.1 * ADDL. APPELLANTS 2 AND 3 ARE IMPLEADED AS THE THE LEGAL REPRESENTATIVE OF THE DECEASED APPELLANT VIDE ORDER DATED 16/02/2011 BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE BY ADVS. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN RESPONDENT(S): -------------------------- 1. DROWPATHI AMMA, W/O.LATE KARUVANJE GANAPATHI BHAT, RESIDING AT KARUVANJE, BAYAR VILLAGE,P.O.DHARMATHADKA. 2. UMA GOWRI, D/O. DO. IN DO. DO. 3. PARVATHI, LATE A MINOR, NOW A MAJOR D/O. DO. IN DO. DO. 4. K.VENKATRAMANA BHAT, S/O. DO. RESIDING AT DHARMATHADKA, BADOOR VILLAGE. 5. K.VISHNU BHAT, S/O. DO. IN DO. DO. 6. K.SHANKARANARAYANA BHAT, S/O. LATE KARUVANJE GANAPATHI BHAT, RESIDING BAYAR VILLAGE, P.O. DHARMATHADKA. R1 TO R3 BY ADV. SRI.V.SIVASWAMY SRI.V.V.ASOKAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 121 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of February, 2011. JUDGMENT The disappointed second plaintiff in O.S.584 of 1990 before the Munsiff's Court, Kasaragod is the appellant. 2. The suit was one for partition. The plaintiffs and defendants 4 and 5 are the children of one Ganapathi Bhat through his first wife. The first defendant is the second wife of late Ganapathi Bhat and defendants 2 and 3 are his children. Ganapathi Bhat has another son Subraya Bhat, who predeceased Ganapathi Bhat. In the partition deed executed by Ganapathi Bhat and his children evidenced by Ext.A1 dated 8.6.1984, A schedule was set apart to Ganapathi Bhat and his minor son Suraya Bhat. B schedule was set apart to plaintiffs and defendants 4 and 5. The short case put forward by the plaintiffs was that consequent on the death of S.A.121/1999. 2 Ganapathi Bhat, his share devolved on all his heirs and consequently the plaintiffs are entitled to 2/7 shares. 3. The suit was resisted by defendants 1 to 3 by contending that out of the share obtained by Ganapathi Bhat and Subraya Bhat as per Ext.A1 partition deed, the share of Ganapathi Bhat was released in favour of his minor son represented by his mother as per Ext.B1 document. Therefore as on the date of death of Ganapathi Bhat he had no right over the suit property and therefore the plaintiffs are not entitled to any share. 4. On the above pleadings, the trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A4 from the side of the plaintiffs. The defendants had D.Ws.1 and 2 examined and marked Exts.B1 to B3(f). The trial court found that there is no substance in the contention that there is a restriction on Ganapathy Bhat releasing his rights over the property in favour of his minor son and so also Ext.B1 is not a genuine document. On the basis of S.A.121/1999. 3 these findings, the trial court dismissed the suit. The plaintiffs carried the matter in appeal as A.S.65 of 1996 before the Sub Court, Kasaragod. The lower appellate court re-appreciated the evidence in the case and came to identical conclusions as that of the trial court and dismissed the appeal. That brings the second plaintiff before this court. 5. Notice is seen issued on the following questions of law: “(A) Whether on the facts and in the circumstances of the case the lower appellate court was correct in law in holding that Ext.B1 was duly executed for valuable consideration? (B) Has not the lower appellate court erred in law in its interpretation of the terms of Ext.A1? © Is not the decision of the lower appellate court vitiated for the non-consideration of the case in the light of the law of succession applicable to the parties and having regard to the nature and character of the suit properties? S.A.121/1999. 4 (D) Will not properties allotted in a family partition retain the character of ancestral joint family properties in the hands of the allottee? (E) Is the judgment and decree of the lower appellate court sustainable in law?” 6. Learned counsel appearing for the appellant contended that the courts below were not justified in dismissing the suit. Ext.B1 is not a genuine document. Attention was drawn to the fact that Ext.B1 does not contain the signature of Ganapathi Bhat and that would show that he was incapacitated at the time of execution of Ext.B1. It is also pointed out that there is no independent evidence to show that the document was infact executed by Ganapathi Bhat. 7. Per contra, learned counsel appearing for the respondents contended that both the courts below have considered the evidence in considerable detail and found that the contentions now raised by the learned counsel for the appellant are untenable both on facts and in law. The case of the plaintiffs that Ganapathi Bhat was incapacitated S.A.121/1999. 5 is not established and at best what could be said is that he was physically handicapped but his mental faculties were agile and alert. Both the courts below have accepted Ext.B1 as a genuine document and there is no reason why this court should take a different view. Learned counsel for the respondent also submitted that no substantial question of law arises for consideration in this appeal and the appeal is only to be dismissed. 8. The fate of the plaintiffs depends upon the genuineness or otherwise of Ext.B1. It is an admitted case that both the parties as per Ext.A1 document dated 8.6.1984 got ancestral properties. A schedule was admittedly set apart to Ganapathy Bhat and his minor son Subraya Bhat and B schedule was set apart to the plaintiffs and defendants 4 and 5. It is seen that on 24.7.1984, that is, within a month after the execution of Ext.A1 Ganapathy Bhat had executed Ext.B1 document whereby he released his share in A schedule obtained by him under Ext.A1 in favour S.A.121/1999. 6 of his minor son Subraya Bhat represented by his mother, the first defendant. 9. The contention raised is that at the time of execution of Ext.B1 Ganapathy Bhat did not have the mental capacity to understand the contents of the document and he was incapacitated at the time of alleged execution of Ext.B1 document. The plaintiffs for this purpose relied on the evidence of P.W.1. There is absolutely no independent evidence to show that the claim made by the plaintiffs is true. On the other hand, we have the evidence of D.Ws.1 and 2. D.W.1 is the first defendant and D.W.2 is the attesting witness to Ext.B1. Both of them have deposed that even though Ganapathy Bhat could not sign the document, he had the necessary mental capacity to execute the document and understand the nature of disposition made under the document, namely, Ext.B1. One has to remember that Ganapathy Bhat died five years after the execution of Ext.B1. Except for the ipsi dixit of the plaintiffs, there is absolutely no evidence to establish the claim made by the S.A.121/1999. 7 plaintiffs that Ganapathy Bhat was incapacitated from executing Ext.B1. 10. The other contention that Ganapathy Bhat was not legally entitled to release his share in favour of Subraya Bhat is only mentioned to be rejected. By virtue of Ext.A1 document A schedule property was set apart exclusively in favour of Ganapathy Bhat and his minor son Subraya Bhat. Therefore, the property exclusively belonged to them. True, there is a recital in the said document that in case Ganapathy Bhat dies intestate, then the property shall devolve on his legal heirs. That does not mean that during the lifetime of Ganapathy Bhat, he was incapable of executing release deed or any other document in favour of a person of his choice. If Ganapathy Bhat dies intestate, the property will devolve on his legal heirs according to the law of succession, 11. The courts below were therefore perfectly justified in rejecting the contentions raised by the plaintiffs S.A.121/1999. 8 against Ext.B1 and about the incapacity of Ganapathy Bhat to execute Ext.B1 document. The findings are essentially based on an appreciation of the evidence and do not call for interference under Section 100 of the Code of Civil Procedure. This appeal is without merits and it is liable to be dismissed. I do so. However, there will be no order as to costs. P. BHAVADASAN, JUDGE sb.