IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 RSA.No. 889 of 2011() --------------------- AS.228/2008 of III ADDL. DISTRICT COURT, KOLLAM OS.410/2006 of ADDL.MUNSIFF COURT, KOLLAM .................... APPELLANTS/APPELLANTS/ PLAINTIFFS ------------------------------------------------------------- 1. SUNEETHI,D/O.VASUDEVAN,PRABHA NIVAS, PANTHRANDU MURI CHERRY,ERAVIPURAM VILLAGE, THATTAMALA P.O, KOLLAM 691 020. 2. MOHANAN,S/O.PRABHAKARAN,PRIYA NIVAS, PANTHRANDU MURI CHERRY,ERAVIPURAM VILLAGE, THATTAMALA P.O, KOLLAM 691 020. BY ADV. SRI.K.K.JOHN RESPONDENT(S): RESPONDENTS/DEFENDANTS --------------------------------------------------------------------- 1. SALIM KUMAR, S/O.PRABHAKARAN,SREE SAILAM VEEDU, PUTHENCHANDA,CHERUKUNNAM DESOM, VARKALA VILLAGE, CHIRAYINKEEZHU TALUK, 695 141. 2. AJITH GOVIND, GOVINDA BHAVAN,CHIRAYINKIZHU DESOM, KOONTHALLOOR VILLAGE, CHIRAYINKEEZHU TALUK, CHIRAYINKEEZHU P.O, 695 304. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 889 OF 2011 =========================== Dated this the 28th day of September,2011 JUDGMENT Appellants are the plaintiffs in O.S.410/2006 on the file of Additional Munsiff Court, Kollam. Respondents are the defendants. First appellant is the mother. Second appellant and the first respondent are her children. PW2 who was examined on behalf of the appellants before the trial court, is the husband of the first appellant and father of second appellant and the first respondent. Plaint A schedule property having an extent of 11 cents in R.S.No.673/3 of Vadakkevila Village of Kollam Taluk belongs to the second appellant as per document No.1388/2000 of S.R.O., Eravipuram. There is no dispute on this property. Plaint B schedule property having an extent of 9 ½ cents in R.S.No.673/3-1 of RSA 889/2011 2 Vadakkevila Village of Kollam Taluk originally belonged to the first appellant. According to first appellants, first appellant granted a lease in favour of the second appellant on 4.9.2000 for a period of 10 years with a liability to pay a rent of Rs.500/- per month. First appellant admittedly executed Ext.B1/A4 settlement deed 742/2006 by which plaint B schedule property was transferred in favour of the first respondent. Plaint C schedule property is an extent of 2.43 Ares in R.S.No.670/2 and 670/3 of the same Village. It originally belonged to first appellant, first respondent and Manikyalal. Under Ext.A3 release deed 495/2006 Manikyalal admittedly released his right in favour of the first appellant. Subsequently first appellant executed Ext.B2/A5 release deed 743/2006 in favour of the first respondent. First appellant executed Ext.A6 cancellation deed 1267/2006 whereunder, Ext.B1 and B2 were cancelled. First respondent later under Ext.B7 sale deed 1724/2006 RSA 889/2011 3 and Ext.B8 sale deed 1466/2006 respectively transferred the plaint B and C schedule properties in favour of the second respondent. First appellant along with her second appellant son instituted the suit seeking a decree for cancellation of Ext.B1 and B2 and declaration of their right and permanent prohibitory injunction restraining respondents from trespassing into the plaint schedule properties. Appellants contended that Ext.B1 and B2 are vitiated by fraud and undue influence. It was contended that first respondent approached the first appellant and requested to execute a mortgage deed for the plaint B schedule property, for availing a loan for his business. First appellant agreed to the request, as consented by her husband. Appellant and PW2 went to Eravipuram Sub Registrar office on 25.2.2006. She affixed her signature in the document believing that she is executing a mortgage deed. PW2, her husband Prabhakaran also affixed his signature as a RSA 889/2011 4 witness. But only later she came to know that what was executed is not a mortgage deed but a settlement deed. It is vitiated by fraud and undue influence . It was also contended that first respondent approached the first appellant representing that he wanted to avail loan from Vadakkevila Co-operative Bank and give plaint C schedule as security. The request of the first respondent was supported by Prabhakaran his father and believing the words, first appellant along with her husband went to Eravipuram Sub Registrar office and signed a document on the representation that it is a security deed. But later she realised what was got executed is not a security deed but a release deed in favour of the first respondent and it is vitiated by fraud and therefore first appellant cancelled Ext.B1 and B2 by executing Ext.A6 cancellation deed. As Exts.B1 and B2 are vitiated, they are to be set aside. 2. First respondent filed a statement denying RSA 889/2011 5 the allegations raised and contending that Exts.B1 and B2 are not vitiated by fraud or undue influence. They were voluntarily executed by the first appellant with the knowledge and consent of her husband, father of the first respondent who is an attestor to both documents. It was also contended that subsequently first respondent assigned the properties in favour of the second respondent and appellants are not entitled to the decree sought for. Second respondent filed a separate written statement reiterating the contentions raised by the first respondent and also contending that he has purchased the properties for valid consideration and appellants are not entitled to the decree sought for. 3. Learned Munsiff on the evidence of Pws.1 and 2, Dws.1 and 3, Cws. 1 and 2 and Exts.A1 to A19, B1 to B9, C1 to C1(b) and X1 to X5 dismissed the suit holding that appellants did not succeed in establishing that Exts.B1 and B2 were vitiated by RSA 889/2011 6 fraud or undue influence and instead Exts.B1 and B2 are valid and binding on the appellants as well as plaint B and C schedule properties and under Exts.B1 and B2 first respondent obtained absolute right and title to the properties and under Exts.B7 and B8 the properties were purchased by the second respondent and therefore appellants are not entitled to the decree sought for. Appellants challenged the decree and judgment before District Court, Kollam in A.S.228/2008. Learned Additional District Judge on reappreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for the appellants was heard. 5. The argument of the learned counsel is that courts below did not properly appreciate the evidence and omitted to appreciate the real facts. It was argued that the first appellant mother was RSA 889/2011 7 made to execute Exts.B1 and B2, by the first respondent making her believe that she is executing a mortgage deed and security deed, to enable the first respondent to avail loan from the bank and her husband who was examined as PW2 was also made to believe the same and the evidence of Pws 1 and 2 establish that Exts.B1 and B2 are vitiated by fraud and undue influence and therefore courts below should have set aside Exts.B1 and B2 and granted a decree in favour of the appellants. 6. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 7. The fact that first appellant executed Exts.B1 and B2, whereunder plaint B schedule property was settled in favour of the first respondent and her 2/3 share in the plaint C schedule property was released to the first respondent who was even otherwise having 1/3 share, is not disputed. The allegation of the RSA 889/2011 8 appellants is that Exts.B1 and B2 are vitiated by fraud and undue influence. The allegation is that first appellant and her husband who was examined as PW2 were made to believe by the first respondent that first appellant has to execute a mortgage deed and a security deed, to enable the first respondent to obtain loan and for that purpose they were persuaded to reach sub registrar office, Eravipuram and making them believe that what was being executed is a mortgage deed and a security deed, her signature was obtained in Exts.B1 and B2 and PW2 affixed his signature as an attesting witness, without realising that what was being executed is a settlement deed or a release deed and only later it was realised that they were cheated by the first respondent. Learned Munsiff and the learned District Judge on proper appreciation of the evidence found that the case of fraud and undue influence alleged is not proved. As rightly found by the courts below, first appellant admittedly RSA 889/2011 9 executed Ext.A6 later cancelling Exts.B1 and B2. The reason for cancellation was not that Exts.B1 and B2 were vitiated by fraud or undue influence but on the allegation that first respondent is not looking after the first appellant. Even the evidence of PW2 the father is that Ext.A6 was executed as the first respondent was not looking after them as promised. If the case of fraud and undue influence is true, when the first appellant executed Ext.A6 knowing that what was executed earlier was a settlement deed and a release deed, it would have been specifically alleged that they executed Exts.B1 and B2 without knowing the contents of the documents or that what was being executed was a settlement deed and a release deed. Ext.A6 thus disproves the case of fraud or undue influence. Courts below were perfectly correct in appreciating the evidence and holding that Exts.B1 and B2 are not vitiated by fraud or undue influence. In the light of the evidence on record, RSA 889/2011 10 the factual findings of the courts below that Exts. B1 and B2 are not vitiated by fraud and under Exts.B1 and B2 first respondent obtained right and title to the plaint B and C schedule properties which were later transferred in favour of the second respondent under Ext.B7 and B8 is perfectly correct. As no substantial question of law is involved on the facts and evidence on record,the appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006