IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 AS.No. 624 of 1996(A) ------------------------------- [OS.NO.11/1992 OF SUB COURT, KASARAGOD] .................... APPELLANTS IN A.S/DEFENDANTS 1 & 2 IN SUIT: ----------------------------------------------------------------------- *1. A.C. SREENIVASA RAO, S/O. A.C. NARAYANAYYA, RESIDING AT VOLLEKOCHI HOUSE, ADOOR VILLAGE, P.O. URDUR, VIA. MULLERIA, KASARAGOD. (*DIED) 2. A.C. PRABHAKARA RAO, S/O. DO. RESIDING AT KANA HOUSE, ADOOR VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O. URDOOR. *ADDL. APPELLANTS 3 TO 7 IMPLEADED: *3. A.C. MAHALAXMI, AGED 62, W/O. LATE A.C. SRINIVASA RAO, RESIDING AT VELLEKOCHI HOUSE, ADOOR VILLAGE, P.O. URDOOR, VIA. MULLERIA, KASARAGOD. *4. PRASANNAKUMAR.A.C, AGED 34, S/O. DO. DO. DO. *5. D. USHA.N.RAO, AGED 43, W/O. D. NARAYANA RAO, SRIMUKHA HOUSE, P.O. KONYANA, (VIA) VITTAL, BANTNAL TALUK, KARNATAKA, D.K. DISTRICT. *6. B. VEENA, AGED 41, W/O. BALAKRISHNA, NEAR MAHAGANGAPATHI MAHALINGESWARA TEMPLE, PADUBIDRI P.O. AND VILLAGE, UDUPPI DISTRICT, KARNATAKA STATE. A.S. NO. 624/1996-A: *7. JYOTYI.T., W/O. T. RAMANARAYANA RAO, AGED 36, LAXMI SADANA, NEAR G.J. COLLEGE, SULIA, D.K. DISTRICT, KARNATAKA. *THE LEGAL HEIRS OF THE DECEASED 1ST APPELLANT ARE IMPLEADED AS SUPPLEMENTAL APPELLANTS 3 TO 7 VIDE ORDER DTD. 31/01/06 IN I.A. 379/06. BY ADVS. SRI.S.V.BALAKRISHNA IYER, SRI.P.B.KRISHNAN. RESPONDENT NO.1. IN A.S/PLAINTIFF IN THE SUIT/RESPONDENTS 2 TO 9 IN A.S/ DEFENDANTS 3 TO 10 IN SUIT: --------------------------------------------------------------------------------------------------------------------- 1. K. LEELAVATHI, DAUGHTER OF LATE A.C. NARAYANAYYA AND WIFE OF K. SHANKARANARAYANA RAO, RESIDING AT ALIYANADKA HOUSE, ADOOR VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O. URDOOR. 2. A.C. ANANDA RAO, S/O. A.C. NARAYANAYYA TEACHER, FISHERIES HIGH SCHOOL,UDYAVAR VILLAGE OF UDIPI TALUK, D.K. DISTRICT, KARNATAKA STATE, P.O. PITHRODI, VIA. UDIPI. 3. DR. A.C. RATNAKAR RAO, S/O. DO. MEDICAL PRACTITIONER, RESIDING AT KUVEMPU NAGAR, HOUSE NO.612, P & T BLOCK, MYSORE, P.O. MYSORE, KARNATAKA STATE. 4. A.C. JAYARAMA RAO, S/O. DO., RESIDING IN GANGA BUILDING, DHARMASTHALA VILLAGE, BELTHANGADY TALUK, D.K. DISTRICT, KARNATAKA STATE, P.O. DHARMASTHALA. 5. SHARADA, W/O. LATE A.C. GOPALAKRISHNA RAO, RESIDING AT VOLLEKOCHI HOUSE, ADOOR VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O. URDOOR. 6. A.C. LAXMINARAYANA RAO, S/O. DO. RESIDING IN DO. DO. DO. 7. A.C. RAJASEKHARA RAO, S/O. DO., MANAGER, KUMBLA SRI GOPALAKRISHNA TEMPLE, KOIPADY VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O. KUMBLA. A.S. NO. 624/1996-A: 8. A.C. JAGADEESHA RAO, S/O. DO. RESIDING AT VOLLEKOCHI HOUSE, ADOOR VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O. URDOOR. 9. A.C. RAVIKUMAR RAO, S/O. DO. IN DO. SRI. M.C. SEN, SENIOR ADVOCATE, R1 BY ADVS. SRI. U.P.KUNIKULLAYA, SRI.M.P.SREEKRISHNAN, SMT.SHAHNA KARTHIKEYAN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 15/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S. NO. 624/1996-A: ORDER ON C.M.P. NO.3799/1996 IN A.S. NO.624/1996 DISMISSED 15/11/2010. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 624 OF 1996 = = = = = = = = = = = = = = = Dated this the 15th day of November , 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Kasaragod in O.S.11/92. The suit is one for a declaration and partition. The plaintiff and defendants 1 to 5 are the children of one A.C.Narayanayya. He had another son namely Gopalakrishna Rao. He died and his legal representatives are defendants 6 to 10. It is the case of the plaintiff that the property described in the plaint schedule property was set apart to the share of this Narayanayya by a partition in the year 1975. Narayanayya was looking after the property for some time and thereafter he became ill. Taking advantage of the same, by exercising undue influence, A.S. 624 OF 1996 -2- coercion etc. defendants 1 and 2 made him execute the documents which are really not legal, valid and binding. Since the plaintiff is the legal representative of Narayanayya she is entitled to one out of seven shares in the property. The document alleged to be executed by Narayanayya in favour of defendants 1 and 2 being vitiated by coercion and undue influence etc. is liable to be set aside and therefore the plaintiff seeks a declaration that the document is invalid. 2. Defendants 1 and 2 in their joint written statement would contend that Narayanayya was hail and healthy and he, of his own accord and free will has executed a settlement deed dated 16.2.78. The plaintiff has been given Rs.5,000/- and she has executed a registered receipt and therefore she has acted upon the A.S. 624 OF 1996 -3- document and therefore she is estopped from contending otherwise in this case. Therefore the defendants pray for dismissal of the suit. 3. Defendants 3 to 10 had supported the case of the defendants 1 and 2 and contend for the position that the plaintiff is not entitled to any relief. In the trial court Exts.A1 to A3, B1 to B6 and C1 were marked. PW1 and DWs.1 and 2 were examined. On an analysis of the evidence the trial court held that the document dated 16.2.78 is invalid and further declared that the properties are to be divided. It is against that decision defendants 1 and 2 have come up in appeal. 4. Heard the learned counsel for the appellants as well as the contesting respondent. The crux of the matter depends upon the validity or invalidity of the document executed by A.S. 624 OF 1996 -4- Narayanayya in favour of defendants 1 and 2 on 16.2.78. Admittedly the properties belonged to the joint family and there was a division whereby the plaint schedule items were set apart to the share of Narayanayya in 1975. It is the case of the defendants 1 and 2 that Narayanayya on 16.2.78 had executed a settlement deed settling the present A schedule property in favour of the first defendant and B schedule property in the document in favour of the 2nd defendant. 5. In this case we are only concerned with the A schedule. The approach made by the trial court is that the entire burden is only on the defendants to prove that the document is valid. It has to be stated that when the document is sought to be challenged or set aside on the ground of fraud and undue influence or coercion A.S. 624 OF 1996 -5- the burden is squarely on the person alleging those vitiating circumstances. Most probably the only exception is that when it come under S.111 of the Indian Evidence Act where the person who is getting the document executed is having control over the person to execute the document or in cases of illiterate persons, pardanashin ladies and other physically disabled persons. Under the Code of Civil Procedure Order VI Rule 4 it is imperative to give the vitiating circumstances in order to enable the other side to answer the same. The mere repetitive use of the words 'coercion or undue influence' will not be a substitute for proper pleadings. Unless one is able to gather from the pleadings the grounds raised by the party regarding undue influence or coercion, the other party may not be able to answer the same properly. A.S. 624 OF 1996 -6- 6. Now the word 'undue influence' has been dealt with in so many cases by different Courts. The mere fact that one is able to be in a position to influence the feeling of the other does not mean undue influence. Undue influence is the thing where the relationship of the parties are of such a character that one is able to dominate the will of the other and by making use of that position unfair advantage is obtained by the party. Now it is true that the relationship between Narayanayya and defendants 1 and 2 are that of father and sons. There is nothing unnatural when the father is looked after by the children or the children are looked after by the parents. Now it is the case of the defendants that at the instance of Narayanayya defendants 1 and 2 had gone to the sub registrar's office wherein the document was A.S. 624 OF 1996 -7- executed and the property was given to them. According to the plaintiff the undue influence or coercion is that the father used to tell her about everything happening in the house and as he had not divulged the factum of execution of this 1978 document, it is vitiated. By any stretch of imagination it cannot be accepted. From the evidence of PW1 itself it is very clear that the father has even told her that the properties had been sold. She did not make any enquiry. The document is executed in 1978 and the father died only in the year 1983. The father was living with the mother and one of the sons. That does not mean that son was in a position to unduly influence the father. It has also to be stated he had 5 sons and other than this daughter no other son has any grievance against the validity of the document executed by A.S. 624 OF 1996 -8- the father. It is also to be stated that Ext.B2 is a registered receipt. It is a receipt alleged to be issued by the plaintiff in favour of the first defendant in accordance with the directions contained in 1978 document whereby she has been directed to be given a sum of Rs.5,000/- by the first defendant. It is true that the attesting witness is not examined. The scribe had been examined. The document is registered. The trial court just washes away that document on the ground that the attesting witness is not examined. It cannot be accepted. When a document is registered it has to be stated that the registering authority is expected to follow certain procedural formalities that is why it is given a validity of presumption under S.114 of the Evidence Act. A scribe is a competent person. He had deposed A.S. 624 OF 1996 -9- before Court that the document has been registered and the receipt is issued. Therefore the trial court's decision that Ext.B2 cannot be accepted also is not correct. It has also to be stated that the father had lived for five long years after the execution of the document. It is submitted by the plaintiff that immediately after 1975 partition deed father became paralytic which made him unable to look after his affairs. Except for her interested oral vibrations nothing is forthcoming to establish that father was not well. Whereas the document executed in the year 1978 will show that the father had gone all the way from the house to the sub registrar's office and had executed that document. It shows that the condition of the father was not bad. There is no evidence tendered before Court that the father was having A.S. 624 OF 1996 -10- any loss of memory or any other ailment. Therefore the repetitive use of the words 'coercion or undue influence' will not in any way be a substitute for valid proof. In this case since it is not proved that Narayanayya was having any disability and that he was under the dominating control of the defendants 1 or 2, it may not be correct to hold that the burden is on the defendants to establish it otherwise. The attending circumstances namely the support by the other defendants who are also otherwise entitled to get share of the property would reveal that all is not well with the case of the plaintiff. Therefore from these discussions I hold that the trial court had erred in arriving at a decision that the document dated 16.2.78 is invalid or not binding. I hold that it is a valid document executed by Narayanayya in favour A.S. 624 OF 1996 -11- of the defendants 1 and 2 which has been acted upon and in pursuance of the same amount has been paid and that has been received by the plaintiff. Therefore the judgment and decree of the trial court are liable to be set aside and I do so. In the result the appeal is allowed, judgment and decree of the trial Court are set aside and the suit O.S.11/92 is dismissed. Considering the relationship between the parties, I direct the parties to bear their respective costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 624 OF 1996 -12- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.624 OF 1996 = = = = = = = = = = = J U D G M E N T 15th November, 2010.