IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 3RD OCTOBER 2011 / 11TH ASWINA 1933 AS.No. 81 of 2002(E) ------------------------------ OS.290/1996 OF PRINCIPAL SUB COURT, KOTTAYAM .................... APPELLANT/PLAINTIFF ---------------------------------- P.T. CHELLAPPAN, S/O. THEVAN, PATHINETTILTHARA HOUSE, PAIPADU/MURI, PAIPPAD VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER P.V.CHACKO, S/O. VARGHESE PUTHENPEEDIKAYIL HOUSE, PAZHATHOTTAM KARA, VATTAVADA VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.M.NARENDRA KUMAR, SRI.SALISH ARAVINDAKSHAN. RESPONDENTS/DEFENDANTS --------------------------------------------- 1. ASHOK BABU ALIAS SUKUMARAN, S/O. ULAKAN, PATHINETTILTHARA HOUSE, PAIPPADU MURI, PAIPPADU VILLAGE. 2. BHARATHIKUTTY, W/O. GOPI,THAKADIYEL HOUSE, PAIPPADU MURI, PAIPPADU VILLAGE. 3. P.T. KUTTIAPPAN, PATHINETTITHARA HOUSE, PAIPPADU MURI, PAIPPADU VILLAGE. *ADDL.R4 IMPLEADED ADDL.R4: CHACKO ANTONY, KINGANAMCHIRA HOUSE, PALLIKACHIRA P.O., PAIPPAD, CHANGANACHERRY. *ADDL. 4TH RESPONDENT IS IMPLEADED, VIDE ORDER DATED 01/06/2010 ON C.M.P.2823/2002. R1 & ADDL.R4 BY ADV. SRI.C.S.MANU. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 03/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs AS.No. 81 of 2002(E) APPENDIX PETITIONER'S ANNEXURES:- ANNEXURE A1: COPY OF THE PHOTOGRAPH OF THE SCHEDULE PROPERTY. ANNEXURE A2: COPY OF THE LETTER ISSUED BY THE COUNSEL. RESPONDENT'S ANNEXURES:- NIL. //TRUE COPY// P.A. TO JUDGE rs M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 81 OF 2002 = = = = = = = = = = = = = = = Dated this the 18th day of June, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Kottayam in O.S.290/96. The suit is one for cancellation of the document executed by one Azhakan in favour of the first defendant in the suit. The trial court dismissed the suit and it is against that decision the plaintiff has come up in appeal. 2. Heard the counsel for both the sides. The brief facts necessary for the disposal of the appeal are stated as follows. Azhakan executed a document in favour of the first defendant as Ext.A4. Azhakan had a brother A.S. 81 OF 2002 -2- namely Devan and a sister namely Kochupennu. Plaintiff and D3 are the children of Devan and defendants 1 and 2 are the children of Kochupennu. Ext.A4 was executed on 18.1.95 and Azhakan died on 16.7.95. It is the case of the plaintiff that Ext.A4 is vitiated by undue influence and coercion and therefore it is liable to be set aside. 3. On the other hand, the defendant would contend that Ext.A4 is a valid document and therefore the plaintiff is not entitled to any relief. The learned counsel for the appellant would contend before me that the Court below has cast the burden of proof wrongly on the plaintiff and that has mis-directed itself in arriving at a decision. It is true that the burden of proof may shift when there is certain materials available as contemplated under S.16 of the Indian Contract Act is satisfied. A.S. 81 OF 2002 -3- 4. Undue influence is defined under S.16 of the Contract Act. A contract is set to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and use that position to obtain an unfair advantage over the other. Learned counsel would draw my attention to S.16 (2) and (3) of the Act wherein the enactment deals with the position of deemed domination of the executant. The ingredients are, “Where he makes a contract with the person whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress, this deemed domination of the person making the Will, will arise. When it is so it is fundamental that the transaction is unconscionable and then the burden of proof would shift to the person who is said to be in a A.S. 81 OF 2002 -4- position to dominate the will of the other. These are the principles of law. 5. Now the learned counsel for the appellant had also relied upon two decisions of the Apex Court reported in Subhas Chandra Mushib v. Ganga Prosad Das Mushib (1967 KHC 591)(SC). In that case the Hon'ble Supreme Court had explained and laid down the principles to be followed. Quoting a Privy Council decision the Apex Court held that, “In the first place the relations between the parties to each other must be such that one is in a position to dominate the will of the other. Once that position is substantiated the 2nd stage has been reached namely the issue whether a contract has been induced by undue influence. Upon the determination of this issue a third point emerges, which is that of the onus probandi. If the transaction appears to be A.S. 81 OF 2002 -5- unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. Error is almost sure to arise if the order of these propositions be changed. The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of these parties. Were they such as to put one in a position to dominate the will of the other?” 6. Elaborating these principles learned counsel had again relied upon the decision of the Kerala High Court reported in Karunakara Kurup v. Vaniyarambath Lakshmikutty Amma (1984 KHC 205) where the Hon'ble Judge of this Court had discussed in extenso about these propositions. With these principles in mind let me analyze the facts of the case. A.S. 81 OF 2002 -6- 7. Mere close relations or the fact that they are staying together will not lead us to an automatic conclusion that one is depending on the other and thereby able to dominate the will of the other. It has also been held in many decisions that when a person stays with the other or when there is lot of love and affection one will be able to tell the other to do a particular thing. But what is to be gathered in order to arrive at a decision on undue influence is that such a position has been used erroneously and unfair advantage is obtained. Otherwise in all cases where children live with parents and document is executed it can always be held that father is dominated by children. So each case has to be decided upon the facts and circumstances of that case. In the decision referred to in 1984 KHC 205 it can be seen that the mother who was aged 90 years of age had A.S. 81 OF 2002 -7- discarded her other children with whom she did not have any enmity and further she did not have any special affinity towards the person in whose favour a document was alleged to be executed. There it was a case where her difficulty to move out was established by the fact that the document was registered from the residential house and totally a stranger was introduced as an attesting witness to the document. So taking into consideration the whole probabilities of the case this Court interfered with the decision and remitted the case back to the trial court. Now it is very interesting to note neither the plaintiff nor the first defendant has mounted the box to give any evidence. So far as the evidence on the side of the plaintiff is concerned a power of attorney is executed in favour of one Chacko who is permanently residing at Devikulam and he has attempted to tender the A.S. 81 OF 2002 -8- evidence before Court regarding all these facts. His evidence lacks credibility and it has also come out in evidence even from PW2 that the plaintiff was also having the very same ailment as he is having. When there is people with the same ailment are there and one is able to come to the Court and the other is not able to come to the Court it has to be viewed with suspicion. Therefore non-examination of the plaintiff cannot be simply brushed aside. 8. Then PW2 is the next person. PW2 is claimed to be a neighbour. This witness had deposed that the said Azhakan was aged about 88 years at the time of the execution of the document. He was having instability of mind. PW2 would go to the extent of saying that Azhakan had fallen and suffered on many occasions. But it has to be stated that not even a scrap of paper in the form of medical A.S. 81 OF 2002 -9- record is available before Court to show regarding the incapacity of the man to have proper thinking or mobility. The mere interested version of a witness cannot be a substitute for such a proof. As stated by me the first defendant also did not go to the box. It has also to be deprecated. 9. DW1 is none other then the 2nd defendant. She is the sister of the first defendant. They are residing within a short distance. Here husband's house is hardly 2½ kms. away from the plaint schedule property. She had given evidence that she is a teacher by profession. It is also stated by her that she used to visit the house where Azhakan used to reside, namely first defendant's house. She also speaks about the fact that on the date of execution of Ext.A4 she had taken leave from the school and had come to the place and she is aware about the A.S. 81 OF 2002 -10- execution of the document. She had also spoken about the mental capacity and other conditions of Mr.Azhakan. She is not a stranger. She is a party who is close to the family and therefore one cannot brush aside her evidence light heartedly whereas the evidence tendered by the plaintiff is totally of strangers, one belonging to Devikulam and the other, a neighbour, who is not even a family member. So regarding the health conditions etc. the evidence tendered by the members of the family will have to be given preference. 10. It is also submitted that the said Azhakan was infirm and was incapacitated. The brother of the plaintiff namely 3rd defendant in this case did institute a suit against this Azhakan in 1994 and the vakalath and the written statement filed by Mr.Azhakan had been exhibited before the trial Court. Both these documents A.S. 81 OF 2002 -11- would reveal that Azhakan had gone all the way to Changanassery, executed vakalath and it has been attested by a counsel from Changanassery. The vakalath is executed in the year June 1994 and the written statement is signed in November, 1994. The alleged document Ext.A4 is executed on 18.1.95 which is not far away from the filing of the written statement. So there was fight between the children of Devan and Azhakan is established in this case. We do not have materials about the relationship between the plaintiff and Azhakan. But whatever it may be, it has to be seen that Azhakan was staying with the sister's children rather than staying with the brother's children. It has to be stated one always opts to stay with a person on whom there will be more faith, love and affection. Here is a case where Azhakan died issue-less and he has nobody-else to look after him. So a person who A.S. 81 OF 2002 -12- looks after him better will be always blessed with a better gift by Azhakan rather than the other persons. So it cannot be stated that there is any unnatural disposition of property by Mr.Azhakan. The document is a registered one. Azhakan had gone all the way to the Registrar's office and it is seen from the endorsement in the document that the Registrar had read over the contents of the document and executant has admitted the same and thereafter had affixed his signature. The Registrar was discharging his official function and he has followed the procedural formalities to be complied with and it also gives raise to a presumption u/s 114 of the Evidence Act. Therefore it also lends support to the case of the defendants 1 and 2 in this case. 11. Now from these discussions I find that the evidence is lacking to show that the A.S. 81 OF 2002 -13- defendants 1 and 2 were in a position to dominate the will of Azhakan so as to gain an unfair advantage. Because the properties had not been given to the plaintiff one cannot say that there is any unconscionable act done by Mr.Azhakan. So from these discussions though for different reasons I concur with the finding of the trial court and the appeal lacks merits and the same is dismissed. The Registry is directed to post the petition for violation of injunction, C.M.P.1700/02 for further hearing. M.N. KRISHNAN, JUDGE. ul/- A.S. 81 OF 2002 -14- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 81 OF 2002 = = = = = = = = = = = J U D G M E N T 18th June, 2010.