IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 SA.No. 98 of 1997(C) ------------------- AS.30/1990 of D.C. & SESSIONS COURT,KOZHIKODE OS.80/1988 of SUB COURT, VADAKARA .................... APPELLANT/DEFENDANT/PLAINTIFF: ---------------------------------------------------- KIZHAKKAYIL PARKKUM EDAKKAKANDYIL CHERIYA PARMBATH KALLIANI AMMA, D/O. CHATHU NAIR AGED 63 YEARS, PALLIKKARA AMSOM & DESOM OF QUILANDY TALUK, KOZHIKODE DISTRICT BY ADV. SRI.MKS.MENON RESPONDENT(S): --------------- 1. ERAVATH NARAYANI AMMA, D/O.MADHAVI AMMA, AGED 72 YEARS 2. ERAVATH THAMASIKKUM MALAMMEL MANARAN NAIR, S/O.CHATHU NAIR, AGED 48 YEARS 3. - DO – VEETTIL THAMASIKKUM MALAMMEL LAKSHMI AMMA, AGED 42 YEARS 4. ERAVATH GOVINDAN NAIR, S/O.LAKSHMI AMMA, AGED 55 YEARS ALL RESIDING IN AYANIKAD AMSOM AND DESOM OF QUILANDY TALUK SRI.R.PARTHASARATHY FOR R1 TO R4 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN -UL- RASHID, J -------------------------------- S.A.NO.98 OF 1997 -------------------------------- Dated this the 19th day of July, 2010. JUDGMENT Plaintiff in O.S.80/1988 on the file of the Sub Court, Vadakara is the appellant. The suit was filed for partition of the plaint schedule property after setting aside the gift deed dated 16.5.1986. The trial court decreed the suit allowing partition of the plaint schedule property into four equal shares. It is declared that the plaintiff is entitled to 1/4th share and defendants 1 to 3 jointly entitled to the remaining three shares. Consequent, reliefs were also granted by the trial court. The lower appellate court reversed the findings of the trial court, set aside the judgment and decree and dismissed the suit. Parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. 2. Admittedly, the plaint schedule property originally belonged to Eravath Chathu Nair who is the father of the plaintiff. He died on 12.01.1987. The plaintiff is the daughter of S.A.NO.98 OF 1997 2 Chathu Nair by his first wife. The 1st defendant is the second wife. Defendants 2 and 3 are her children and the 4th defendant is her son in-law. In the plaint it is alleged that during 1970 Chathu Nair was laid up with urinary infection and paralysis and was not in a sound and disposing state of mind. It is the case of the plaintiff that after the death of Chathu Nair plaintiff made enquiries and came to know that on 16.05.1986 the defendants have got executed a gift deed purporting that executed by Chathu Nair with the ulterior motives of defeating the rights of the plaintiff over the plaint schedule property. According to the plaintiff it was neither executed registered, nor Chathu Nair has put his signature in the document. The gift deed is marked as Ext.B2. According to the plaintiff, Chathu Nair was laid up with urinary infection and paralysis and was not in a sound and disposing state of mind in and around the period when Ext.B2 gift deed is alleged to have been executed. 3. The donee under Ext.B2 gift deed is his two children and son in-law, who are the defendants 2 to 4. The plaintiffs S.A.NO.98 OF 1997 3 contended that in the gift deed purported to be executed by Chathu Nair, it is seen that he had disinherited his wife, the 1st defendant and included his son-in-law the 4th defendant and further contended that Chathu Nair would never disinherit his wife, so that Ext. B2 gift deed was executed by practicing misrepresentation and undue influence. The plaintiff wanted to ignore Ext. B2 document and prayed for partition of suit property into four and to allot her 1/4th share. 4. In the written statement filed by the defendants 1 to 4 jointly, it is inter alia contended that the allegations regarding the registration of the gift deed are not correct, that at the time of execution of gift deed Chathu Nair had no ailment and he was in a sound and disposing state of mind and denied the averments that the gift deed was a concocted document. The contention of the plaintiff that Ext.B2 document is concocted and the document came into existence by practicing fraud and collusion is denied. It is also contended that Chathu Nair had executed a registered will on 27.4.1973 bequeathing the plaint schedule property in S.A.NO.98 OF 1997 4 favour of his wife and two children and that later, Chathu Nair decided that to confer title to defendants 2 to 4 and therefore he had executed Ext.B2 gift deed, that defendants 2 to 4 have accepted the gift and they are in possession of the plaint schedule property, that the gift deed was executed by the free will and consent of Chathu Nair and therefore, the defendants 2 to 4 have acquired right, title and interest over the plaint schedule property. They prayed for dismissal of the suit. 5. The trial court examined the questions raised by the parties in the light of oral and documentary evidence adduced by them. On the plaintiff's side PWs1 and 2 were examined and Ext.A1 to A3 were marked and on the defendants side DWs1 to 3 were examined and Exts.B1 to B27 were marked. Ext.B2 is the original gift deed executed by Eravath Chathu Nair. It has come out in evidence that late Chathu Nair has executed a will in 1973 marked as Ext.B1. He bequeathed the plaint schedule property in favour of defendants 1 to 3 who are his second wife and two children. Subsequently, in the year 1986 Ext.B2 gift deed was S.A.NO.98 OF 1997 5 executed in favour of defendants 2 to 4, who are his children and son-in-law. In Ext.B2 gift deed no reasons are stated for not including the 1st defendant's name, who is his second wife as a donee. The trial court observed that no reasons are stated for including 4th defendant, who is his son-in-law, as one of the donees. The reasons stated by the trial court, cannot stand. It is not necessary to state any reason for not including his second wife in the gift deed or any reason need be stated for including his son-in-law as a donee. Every person is entitled to execute gift deed in favour of any person according to his choice and no reasons need be stated for excluding his wife or his daughter who is the plaintiff or any other relations. It is for the deceased Chathu Nair to decide as to whom the property shall be gifted. 6. Another observation of the trial court is that late Chathu Nair did not reserve life interest in his favour. It is up to the donor to make provision for reservation of life interest. That also cannot be a reason for finding that the gift deed was not properly executed or it is a concocted document. The trial court also held S.A.NO.98 OF 1997 6 that the defendants fail to cite and examine the scribe of Ext.B2 gift deed. The trial court held that there are several suspicious circumstances, surrounding the execution of Ext.B2 gift deed. The trial court also observed that the witnesses to Ext.B2 gift deed are employers of defendants 2 and 4 and that DW1 was present at the time of registration of Ext.B2 gift deed. All these factors were taken into account by the trial court and held that these circumstances are very strong suspicious ones which would strengthen the plaintiff's case that Ext.B2 gift deed was got executed by practicing fraud and undue influence. Chathu Nair an aged man died few months after the execution of Ext.B2 gift deed. On the basis of the said findings, the trial court passed the preliminary decree as prayed for by the plaintiff. 7. Defendants preferred the appeal, the lower appellate court examined the question as to whether there is vitiating circumstances, which show that the gift deed was got executed by practicing fraud, misrepresentation and undue influence. PW1 testified that she does not know who prepared Ext.B1 and S.A.NO.98 OF 1997 7 who registered the document, that she does not know the persons who signed Exts.B1 and B2. From Ext.B2 it is seen that the document was produced by Chathu Nair for registration. DW3 is one of the identifying witnesses and DW2 is one of the attestor to the gift deed. By the examination of DW1 to DW3 and their evidence, there is compliance of Section 68 of the Evidence Act. The appellate court held that on going through the evidence of DWs2 and 3, there is no reason to disbelieve their evidence and their testimony has not been discredited in any manner. After appreciating the oral evidence, the appellate court further held that execution and registration of Exhibit B2 has been proved through the evidence of DW2 and DW3. One of the circumstance pointed out by the plaintiff is that Chathu Nair had no other property other than the suit property at the time of execution of Ext.B2 and therefore, it is quite unlikely that he had executed the gift deed and parted possession without making any reservation for his livelihood. It is not necessary that in all cases the donor should reserve life interest and therefore, it is difficult S.A.NO.98 OF 1997 8 to hold that the document is vitiated for the said reason. 8. The contention of the respondent regarding the role played by the 4th defendant in getting Ext.B2 document is also projected as a vitiating circumstance. The 4th defendant denied his presence at the time of registration of the document. The trial court rightly held that even if the 4th defendant was present at the time of registration of Ext.B2 and taken a copy of the deed, that by itself is no ground to hold that the document is vitiated. The 4th defendant/son-in-law, is the nephew of Chathu Nair. Even if he is present at the Registration Office that by itself is not a ground for declaring that the document is vitiated. 9. Ext.B1 is the registered will of 1973 executed by Chathu Nair. In Ext.B1 will the bequeath is in favour of defendants 1 to 3. Plaintiff was not a legatee under the will. Chathu Nair died only in the year 1987. The lower appellate court held that Ext.B1 document is not a forged document and is not fraudulently executed by the defendants in 1973, Exhibit B1 was executed about 14 years prior to the death of Chathu Nair. The lower S.A.NO.98 OF 1997 9 appellate court relied on the evidence of DWs2 and 3 who are the identifying witness and attesting witness respectively. Relying on the evidence of DWs1 to 3 the lower appellate court held that execution of Ext.B2 has been proved. The appellate court also examined all the vitiating circumstances one by one and held that the circumstances alleged by the plaintiff are not vitiating circumstances and the plaintiff failed to prove that the document was executed fraudulently practicing undue influence or misrepresentation. The lower appellate court also discussed the evidentiary value of Exts.B13, B19, B22, B24, B25 and B26 and held that the documents in fact proved sound and disposing state of mind of Chathu Nair. The facts and circumstances proved in the case show that there is no truth in the allegations made by the plaintiff. 10. The question whether Ext.B2 is vitiated by misrepresentation and undue influence was examined by the lower appellate court in detail and on the basis of facts, evidence and surrounding circumstances held that the document is S.A.NO.98 OF 1997 10 executed by deceased Chathu Nair and the allegation regarding misrepresentation and undue influence is unfounded and alleged without any basis. The findings of the court below are based on facts supported by reasonings and sound conclusions. I do not find any reason to interfere with the findings of facts recorded by the lower appellate court. I also find that no question of law much less any substantial question of law arises for consideration in this appeal. In the result, the appeal fails and accordingly, dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. pm