IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 RSA.No. 722 of 2011() --------------------- AS.3/2000 of SUB COURT, PAYYANNUR OS.271/1997 of MUNSIFF COURT, PAYYANNUR .................... APPELLANT/PLAINTIFF --------------------------------------- MATHEERA KALLIANI, AGED 78 YEARS, D/O.AMBU, RESIDING AT PARAVANTHATTA, KOROME AMSOM DESOM, P.O.KOROME, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.A.ARUNKUMAR RESPONDENT(S): DEFENDANTS ------------------------- 1. MATHEERA MADHAVI, AGED 81 YEARS, D/O.AMBU, RESIDING AT PARAVANTHATTA, KOROME AMSOM DESOM, P.O.KOROME, KANNUR DISTRICT, PIN-670307. 2. MATHEENA NARAYANI, AGED 76 YEARS, D/O.AMBU, RESIDING AT PARAVANTHATTA, KOROME AMSOM DESOM, P.O.KOROME, KANNUR DISTRICT, PIN-670307. 3. MATHEERA KRISHNAN, AGED 70 YEARS, S/O.AMBU, RESIDING AT PARAVANTHATTA, KOROME AMSOM DESOM, P.O.KOROME, KANNUR DISTRICT, PIN-670307. 4. MATHEERA KUNHIRAMAN, AGED 59 YEARS, S/O.AMBU, RESIDING AT PARAVANTHATTA, KOROME AMSOM DESOM, P.O.KOROME, KANNUR DISTRICT, PIN-670307. 5. ILLATH VALAPPIL SAVITHRI, AGED 59 YEARS, W/O.LATE DAMODARAN, RSA 722/2011 KUNNINU KIZHAKKU, CHERATTU, KUNHIMANGALAM VILLAGE, EDANAD DESOM, VIA. PAYYANNUR. 6. ILLATH VALAPPIL AMITA, AGED 39 YEARS, D/O.LATE DAMODARAN, KUNNINU KIZHAKKU, CHERATTU, KUNHIMANGALAM VILLAGE, EDANAD DESOM, P.O.EDAT, VIA. PAYYANNUR-670327. 7. ILLATH VALAPPIL AJITHA, AGED 37 YEARS, D/O.LATE DAMODARAN, KUNNINU KIZHAKKU, CHERATTU, KUNHIMANGALAM VILLAGE, EDANAD DESOM, P.O.EDAT, VIA. PAYYANNUR-670327. 8. ILLATH VALAPPIL SAJITHA, AGED 35 YEARS, D/O.LATE DAMODARAN, KUNNINU KIZHAKKU, CHERATTU, KUNHIMANGALAM VILLAGE, EDANAD DESOM, P.O.EDAT, VIA. PAYYANNUR-670327. 9. ILLATH VALAPPIL REETHA, ADED 33 YEARS, D/O.LATE DAMODARAN, KUNNINU KIZHAKKU, CHERATTU, KUNHIMANGALAM VILLAGE, EDANAD DESOM, P.O.EDAT, VIA. PAYYANNUR-670327. 10. MAYI SAVITHRI, AGED 49 YEARS, W/O.LATE GOVINDAN, D/O.UNNI PRAVEN KUNHAPPA, PATTERICHAL, PORACHERI, CHERUTHAZHAM VILLAGE, P.O.EZHILODE, PIN-670309. 11. MAYI SOUMYA, AGED 25 YEARS, D/O.LATE GOVINDAN, PATTERICHAL, PORACHERI, CHERUTHAZHAM VILLAGE, P.O.EZHILODE, PIN-670309. 12. MAYI GREESHMA, AGED 21 YEARS, D/O.LATE GOVINDAN, PATTERICHAL, PORACHERI, CHERUTHAZHAM VILLAGE, P.O.EZHILODE, PIN-670309. 13. MAYI SMITHA, AGED 18 YEARS, D/O.LATE GOVINDAN, PATTERICHAL, PORACHERI, CHERUTHAZHAM VILLAGE, P.O.EZHILODE, PIN-670309. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.722 of 2011 ............................................ DATED THIS THE 12th DAY OF AUGUST, 2011 JUDGMENT Plaintiff in O.S.No.271 of 1997 on the file of Munsiff Court, Payyannur is the appellant. Defendants are the respondents. The suit was filed for partition and separation of 1/7 share due to the appellant as the legal heir of deceased Thekke Kovil Ambu. The plaint schedule properties are five items of properties. The properties admittedly originally belonged to Thekke Kovil Ambu. Appellant, respondents 1 to 4, deceased Damodaran and deceased Govindan are admittedly the children of Ambu. Respondents 5 to 9 are the legal heirs of deceased Damodaran and respondents 10 to 13, the legal heirs of Govindan. According to the appellant, on the death of father Ambu, the properties devolved equally on the appellant and respondents and appellant is entitled to one share, respondents 1 to 4 to one share each, respondents 5 to 9 together and respondents 10 to 13 together are entitled to 1 share each. Appellant contended that when appellant demanded partition, respondents claimed RSA 722/2011 2 that deceased Ambu had executed a gift deed and it was pleaded that the gift is vitiated by fraud, undue influence and coercion and Ambu was under treatment for kidney illness and under the gift deed, male children alone are not entitled to claim share. Respondents jointly filed a written statement contending that Ambu was not laid up as claimed by the appellant and he had no illness till his death and he was a man of sound disposition of mind and before his death, Ambu had executed Ext.B3 registered gift deed, whereunder he gifted the properties in favour of his four sons, viz respondents 3, 4, deceased Damodaran and Govindan and the gift was accepted by the donees and they were in separate possession and enjoyment of the properties since then and the gift is not vitiated as claimed and after the death of the mother of the appellant and respondents 1 to 4, her right devolved on them as per Ext.B1 partition deed and the right of the appellant was released to respondents thereafter and ¼ share due to deceased Damodaran devolved on respondents 5 to 11 so also ¼ share due to deceased Govindan devolved on RSA 722/2011 3 respondents 10 to 13 and plaint schedule properties are therefore not available for partition. 2. Learned Munsiff, on the evidence found that under Ext.B3 gift deed, Ambu gifted the property to his four sons and Ext.B3 gift deed is not vitiated by fraud, undue influence or coercion and it was accepted and acted upon and therefore appellant is not entitled to claim any share. The suit was dismissed. Appellant challenged the judgment before Sub Court, Payyannur in A.S.3 of 2000. Learned Sub Judge on re-appreciation of the evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant was heard. The argument of the learned counsel is that courts below did not properly appreciate the evidence and omitted to take note of the fact that deceased Ambu was aged and was not in a position to exercise his will as he was laid up due to kidney decease and in such circumstances, it should have been found that Ext.B3 gift deed was not executed voluntarily and instead was vitiated by RSA 722/2011 4 fraud and undue influence. Learned counsel also argued that there is no evidence to prove that gift was accepted by the donees and the tax for the property was paid only subsequent to the death of Ambu and in such circumstances, on the evidence courts below should have found that, on the death of Ambu, his rights devolved on all his children and the children of the deceased sons and therefore appellant is entitled to share. It was also contended that as item No.4 of Ext.B3 gift deed could not have been included and it is included, it is clear that the gift deed is vitiated. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. The fact that Ext.B3 gift deed was executed by deceased Ambu was not disputed. The evidence of appellant as PW1 establishes that within a week of execution of the gift deed she was aware that father had executed a gift deed. Even though an attempt was made in the reexamination to clarify that she came to know about the gift deed only after the death of the mother, it is clear RSA 722/2011 5 that she is not disputing the execution of the gift deed but only contending that it is vitiated by fraud, undue influence and coercion. As rightly found by the courts below, burden is definitely on the appellant to establish the fraud, undue influence and coercion. Though it was contended that Ambu was a kidney patient and was laid up and was not in a position to move about or to understand his own acts, apart from the interested evidence of appellant as PW1, no other evidence was adduced. It is not only the case of one of medical evidence but not even an independent evidence was adduced to prove that deceased Ambu was laid up. In such circumstances, on the evidence courts below were justified in holding that appellant did not establish that deceased Ambu was laid up and was not in a position to voluntarily execute Ext.B3 gift deed with the knowledge that he is executing a gift deed. 5. On a proper appreciation of evidence, trial court and first appellate court found that Ext.B3 gift deed was executed by Ambu and it was not vitiated by fraud, undue influence or RSA 722/2011 6 coercion. The factual finding arrived at by the trial court as confirmed by the first appellate court cannot be interfered as the findings are based on the evidence on record. Though learned counsel argued that as item No.4 of Ext.B3 gift deed was included, Ext.B3 is to be rejected, learned Munsiff as well as learned Sub Judge rightly considered the question and found that that is also not a ground vitiating Ext.B3. In such circumstances, appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk