IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 15TH JULY 2011 / 24TH ASHADHA 1933 AS.No. 25 of 1998(A) -------------------- OS.55/1988 of ADDL.SUB COURT, IRINJALAKUDA .................... APPELLANT/PLAINTIFF: -------------- LEELA, D/O. KAVALAKKAL CHERPANATH ANTONY, ANNANAD DESOM, KALLUR, VADAKKUMURI VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.RENJITH THAMPAN RESPONDENTS/DEFENDANTS: --------------- * 1. KUNJAMMA @ ELISA, W/O. KAVALAKKAT CHERPANATH ANTONY (LATE) ANNANAD DESOM, KALLUR, VADAKKUMURI VILLAGE, KORATTI (VIA), THRISSUR DISTRICT. [IT IS RECORDED THAT THE 1ST RESPONDENT DIED AND THAT THE RESPONDENTS 2 TO 6 ALREADY IN THE PARTY ARRAY ARE HER LEGAL REPRESENTATIVES AS PER ORDER DATED 22/6/2011 ON MEMO DT.13.6.2011 WITH CF NO.2876/11] 2. JESSY D/O. 1ST RESPONDENT, -DO- - DO - 3. MARY, D/O. - DO - -DO - 4. THANKAMMA, W/O. THOMAS, PANIKULAM HOUSE, VYNTHALA DESOM, KALLUR, VADAKKUMMURI VILLAGE, THRISSUR DISTRICT. 5. LISSY, MALIAKKEL, HOUSE NO.8866, MALLOW DRIVE KNOX VILLE, TENNESSE, STATE U.S.A. 6.REETHAMA, W/O. KUNCHERIYA JOSEPH, FATHIMA MEDICAL CENTRE, KANJAGADU.P.O, KASARGODE DISTRICT. 7. JOY GEORGE, S/O. JESSY RESIDING ALONG WITH THE 2ND RESPONDENT. ADV. SRI.V.C.JAMES SMT.C.V.BINDU R8 BY SRI.P.R.VENKETESH R5 BY SMT.P.R.REENA R4 BY SMT.P.R.REENA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 15/7/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RKC P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - A.S.No. 25 of 1998 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of July , 2011 J U D G M E N T The plaintiff in OS 55/1988 before the Sub Court, Irinjalakuda, whose suit has partly decreed has come up in appeal. 2. The first defendant is the wife of late Antony, a retired school teacher. Plaintiff and other defendants are their children. Antony died on 16.12.1987. According to the plaintiff as Ext. per A19 will, dated 03.01.1974 items 6 and 7 in plaint schedule were bequeathed in her name. In 1973 Anthony suffered a cardiac arrest . The case of the plaintiff is that ever since then he was not in a position to manage his affairs properly and he had been bed ridden for a long time. It is also awarded in the plaint that late Anthony used to write letters to the plaintiff informing her about what had happened and also to receive financial help from her. It is the claim of the plaintiff that the building in the property was put up using her funds. Plaintiff, after her :2: A.S.No. 25 of 1998 marriage was stationed in USA. Taking advantage of her absence, it is alleged that the other defendants namely D2 to D6 have managed to create documents, as if they were executed by late Anthony usurping some of the properties. When the plaintiff returned to her native place, learned about the death of her father, she understood about the fraudulent documents. She therefore filed OS No.55/1988. From the written statement in that suit, the plaintiff came to know that various documents created by the defendants in their favour alleged to be executed by late Anthony. According to the plaintiff, Anthony was incapable of executing any documents consciously after the cardiac arrest suffered by him in 1973. He was incapable of understanding the nature of disposition made as per the alleged documents and according to the plaintiff documents on which defendants relied were got executed by misrepresentation or fraud. She therefore sought to have Exts.B1, B2, B5 and B8 set aside. She also sought relief in relation to A19 Will and :3: A.S.No. 25 of 1998 other consequential reliefs were also sought for. 3. Defendants 3 to 6 sought for allocation of 1/9th share of each of properties are found partible. 4. Defendants 1,2 and 7 filed a joint written statement. Plaintiff sought for relief on partition. 5. Defendants 3 to 6 joint written statement wherein any they disputed the allegations in the plaint and claimed that Exts.B1, B2, B5 and B8 were infact executed by late Anthony fully conscious of the nature of disposition made by him under the documents. They admitted that late Anthony had suffered cardiac arrest in 1973. But they denied the allegations that ever since then, late Antony was incapable of managing his affairs. According to them he recovered from his illness and was managing his own affairs as well as the properties. They did not dispute that late Anthony used to write regularly to plaintiff informing about various developments in the house, but disputed that documents are liable to be set aside. There was no justifiable reasons for :4: A.S.No. 25 of 1998 doing so. They also pointed out that late Antony had also executed two wills one in 1982 and other in 1985, and therefore partition if at all to be allowed should be in accordance with those wills. The allegation that after the cardiac arrest, Antony was incapable of doing anything on his own was false and contrary to facts, according to the defendants, till 1987 March, Anthony used to receive pension going to the concerned Treasury Office. Then they have given the details of the properties assigned by late Antony as per Exts.B1, B2, B5 and B8. They conclude by saying that properties covered by the above documents are not available for partition. 6. On the above pleading issues were raised. Evidences consists of testimony of PW1 and Exts.A1 to A10 series by the plaint. Contesting defendants P1 to P11 examined and Exts. P1to P11 marked. X1 and X2 are partition register. 7. One of the issues that has been raised was regarding the will of 1974, Mala Sub Registrar Office. Answering that :5: A.S.No. 25 of 1998 issue, lower court has observed that since the will was not probated, it cannot be given effect and also that the parties have given up their claims based on the wills. The findings of the court below that since the will was not probated it could not be taken note of, cannot be upheld in view of the amendment of Section 213 of Indian Succession Act. A decision on this aspect is unnecessary since the parties have given up their claims based on the various wills. 8. Core issue is regarding the validity of Exts.B1, B2, B5 and B8 documents. By Ext.B1 dated 23.07.1986 Anthony assigned item No.7 of the plaint schedule to the daughter of the second defendant namely Valsa. B1, B3 and B5 property was assigned to 7th defendant. The allegation in the plaint is that these documents were in fact executed by late Anthony under undue influence and misrepresentation and are fraudulent deeds. At the relevant time the mental state of Anthony was not sound and he was incapable of understanding the nature of disposition. According to the :6: A.S.No. 25 of 1998 plaintiff after the cardiac arrest in 1973 for which he remained in the hospital for two weeks, he was incapable of managing his affairs and he could not have consciously executed those documents. The plaintiff tries substantiate the claims relying the evidence of PW2. 9. The lower court has found that allegations made by the plaintiff are not substantiable. Lower court finds that Antony was owner of the nearly 10 acres of land which was being managed by him. In addition to that he was also managing the property of the husband of the plaintiff. The lower court also found that there is no evidence that late Antony was bed ridden as claimed by the plaintiff after hospitalization in 1973. Finally the lower court came to the conclusion that the plaintiff has failed to establish that Exts.B1, B2, B5 and B8 are vitiated due to any reason. 10. The question is whether the above findings call for any interference. 11. The plaintiff was examined as PW1. It was :7: A.S.No. 25 of 1998 admitted by her that late Anthony was the owner of 10 acres of land. But she would say that he used to approach her for financial help. She obliged. Her stand in chief examination is that the construction of the house was done utilizing the funds given by her and she has produced a number of letters written by her father some of which mention about the construction of the house. PW1 further says that in 1973 her father suffered a Heart Attack and he was hospitalized for two weeks. She would also claim that she had spent amounts for the marriage of her younger sister. She spoke about the amount spent by her, details of which are not very relevant. But she would say in chief examination after December 1980 she did not receive any letter form her father because he was incapable of writing letters thereafter. She would claim that he was bed- ridden and that her father could not have executed any documents inrelation to the properties as claimed by the contesting defendants. She thereafter says that she do not press the relief with respect :8: A.S.No. 25 of 1998 to Ext.A19 will. 12. In cross examination she admitted about execution of other wills by late Anthony. One of the witnesses in B3 is PW2. She would say that she had assailed documents Exts.B1, B2, B5 and B8 since she is certain that those were not executed by her father. However her claim that after December 1980, she did not receive any letters from her father was found to be false when she was confronted with a letter which disclosed that letters were written by her father in 1985 and 1986. She tries to get over the inconvenient situation by stating that it might have been got written by somebody else. However she had to admit that till 16.12.1987 her father received Pension from Treasury Office at Chalakkudy far away from the house. She admitted that her father had instituted maintenance proceedings against her. 13. The plaintiff examined PW2 who is the one of the witnesses of the Ext. B3 document. He was admittedly a :9: A.S.No. 25 of 1998 employee of late Anthony. Anthony suffered a heart attack some 20 years back. He would say that late Anthony after the heart attack was very weak and had been bed ridden. Ever since then he has been on medicines and was unable to manage his own affairs. He would said in his knowledge late Anthony had not given any property to anybody. The properties are lying undemarcated as a compact plot. He says that signature found on Ext.B3 is his signature but he would say that signature of Anthony was obtained while he was in the car to the Sub Registrar Office. The defendant was also present then. It was represented to Anthony that deed was being executed for the business purposes of the 7th defendant. 14. In cross examination he would say that it was signed at the office of the Registrar. He also admitted that two or three years prior to the death of late Anthony there were a few cases in the Magistrate Court and Munsiff Court in which Antony was a party and which he had attended. :10: A.S.No. 25 of 1998 15. The second defendant examined herself as DW2. She admitted that late Antony was fell ill in 1973 and was hospitalized for nearly two weeks. But she refuted the allegation that Anthony was incapable of managing his affairs thereafter and after all Exts.B1, B2, B5 and B8 were fraudulently obtained from late Anthony. She would say that till the death of her father he was healthy and capable of managing his affairs and he was also looking after properties which had an extent of nearly 10 acres. She then says about the various documents executed by Anthony. She would say that Anthony was fully conscious about the nature of the disposition made as per documents. She also asserted that in pursuance to documents executed the beneficiaries have taken possession of those property. 16. Contesting defendant had DW1examined. He was then the Registrar of Sub Registrar Office, Chalakkudy. Exts.X1 and X2 were produced to him. Ext.X1 file contains an application filed by late Anthony requesting the registrar :11: A.S.No. 25 of 1998 to come over to his house for registering a document, since he was incapable of going to the Registrars office. Ext.X2 contains statement of late Anthony recorded by the Registrar which shows that he was in possession of those faculties and had a sound mind. 17. Lower court as chosen to discard the evidence adduced by the plaintiff for convincing reasons. As regards evidence of illness of late Anthony, it is accepted by the contesting defendants he suffered a heart attack in 1973 and was hospitalized for two weeks. But regarding the state of mind and health of late Anthony, thereafter, there is considerable dispute. While plaintiff would say that he was sick, debilitated and thereafter was almost bed ridden, the contesting defendants would say otherwise. According to them Anthony regained his health and was looking after his affairs and was also managing the properties. 18. One must notice that if as a matter of fact Anthony was ill, and incapable of managing his affairs and was bed :12: A.S.No. 25 of 1998 ridden obviously he would have received medical attention. Infact PW2 says that on several occasions late Anthony went to a Doctor at Chalakkudy. If that be true there would have been some medical records to show that severity of illness of Anthony. Neither the doctor has been examined nor were any medical records produced to show that late Anthony was so sick and was bed ridden. No records are produced to show that he was not in full possession of his faculties. 19. The lower court has observed that PW.2's evidence cannot be accepted for the reason that according to him late Anthony subscribed his signature to B2 while he was in car to Registrar’’s office. That would mean that the document was executed and registered on the same day. But a perusal of Ext.B2 shows that the document was executed and registered on two different dates. The observation of the lower court that PW2 has little regard for truth seems well founded. 20. Coming to the mental capacity and health of :13: A.S.No. 25 of 1998 Anthony till his death, there is abundant evidence to show that he was capable of managing his affairs and knowing the nature of things. One may refer to Exts.X1 and X2. Ext.X1 is an application preferred by Anthony himself to the Registrar requesting him to come to the house of Antony for the purpose of registering a document. In pursuance of the application so made, records produced by DW1 show that registrar went to the house of late Antony. Late Anthony changed his mind and did not want to register the document and conveyed it to the Registrar. The deposition of late Anthony is recored in Ext.X2 by the Registrar. Evidence shows that registrar who recorded the disposition of Anotny is no more. It is significant to notice that there is no challenge by the plaintiff to Exts. X1 and X2. Exts.X1 and X2 are sufficient to belie the case of the plaintiff that after cardiac arrest in 1973 Anthony was very sick and was not in a position to understand what he did etc. 21. The claim of the plaintiff that after 1979 she had :14: A.S.No. 25 of 1998 not received any letters from her father is also found to be false as it could be seen from the answers given by her cross examination which have already been referred to. It is true that there is some doubt regarding that claim that properties covered by Exts.B1, B2, B5 and B8 were demarcated and were lying separately. Commissioner report belies this claim. But that by itself is a not a ground to doubt the validity and genuineness of Exts.B1, B2, B5 and B8. The evidence in this case clearly shows that at the relevant time Antony had a sound mind and and there is nothing to reveal that he was bed ridden. On the contrary, evidence is to the effect that till 16.12.1987, he used to go to treasury office to collect his pension. If further corroboration is required in this regard the same is furnished by Exts.X1 and X2 and the evidence of DW1. It was for the above reasons the trial court had chosen to accept the Exts.B1, B2, B5 and B8 were infact executed by late Anthony. 22. The trial court which had an opportunity to see :15: A.S.No. 25 of 1998 demeanour of the witnesses has come to the conclusion that reasons give to hold that Exts.B1, B2, B5 and B8 are vitiated have not been substantiated. 23. The appellant was unable to show that the reasons given by the lower court are either faulty or unwarranted by the evidence on record. There is nothing to show that the trial court has taken into consideration irrelevant facts and omitted to note relevant facts. 23. There is no reason to take a different view. This appeal is devoid of merits and is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE kkj