IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 RSA.No. 1198 of 2010(A) ----------------------- AS.64/2006 of I ADDL. DISTRICT COURT, PALAKKAD OS.37/2004 of MUNSIFF COURT, ALATHUR .................... APPELLANT/APPELLANT/DEFENDANT NO.1 ----------------------------------------------------------------- DEVADASAN, S/O.KUNCHELAN, PERAPPATTYKALAM, NECHUR P.O., PAZHAMBALACODE AMSOM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S): RESPONDENTS/PLAINTIFF & DEFENDANTS NO.2: ------------------------------------------------------------------------------------------------ 1. SULOCHANA, W/O.KUNCHELAN, PERAPPATTYKALAM, NECHUR P.O., PAZHAMBALACODE AMSOM AND DESOM, ALATHUR TALUK, PALAKKAD DISTRICT.678 541 2. AJITHKUMAR, S/O.KUNCHELAN, PERAPPATTYKALAM, NECHUR P.O., PAZHAMBALACODE AMSOM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT.678 541 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 1198 OF 2010 =========================== Dated this the 23rd day of November,2011 JUDGMENT First defendant in O.S.37/2004 on the file of Munsiff Court, Alathur is the appellant. First respondent is the plaintiff and second respondent the defendant in the suit. Appellant is the son of the first respondent. First respondent instituted the suit seeking a decree to set aside Ext.B1 settlement deed registered as 2155/2000 of S.R.O., Alathur seen executed on 26.5.2000, alleging that it is vitiated by fraud and misrepresentation and for a permanent prohibitory injunction restraining the appellant and the second respondent from trespassing into the plaint schedule property. First respondent contended that plaint schedule property belongs to her under gift deed 2325/1979 of SRO, Alathur and she has been in possession of the property. She is illiterate. RSA 1198/2010 2 Appellant and second respondent are her children. Believing them she had to sign several papers for getting assistance of the Government. It was alleged that first respondent was taken to the Government offices and also to the office of the document writer at Alathur and without informing her about the contents of the papers, she was made to sign those papers and without having any suspicion she affixed her signature. But later on 25.8.2003 when there was a talk of execution of a partition deed in respect of the property of the first respondent and her husband, appellant revealed that the plaint schedule property has already been settled under Ext.B1 sale deed (Ext.A1 being its copy). On inquiry it was seen that Ext.B1 is a registered document was got executed. It is contended that it was vitiated and first respondent has been in possession of the property and the document is liable to be RSA 1198/2010 3 cancelled. Appellant filed a written statement resisting the suit denying the plaint allegations. It was contended that plaint schedule property exclusively belong to them under Ext.B1 sale deed and first respondent has no subsisting right in the property. It was contended that first respondent executed Ext.B1 knowing the contents of the settlement deed and it is not vitiated and in such circumstances suit is only to be dismissed. 2. Learned Munsiff on the evidence of first respondent as PW1 appellant as DW1 and the scribe of Ext.B1 as DW2 Ext.A1, B1 and B2, granted a decree declaring that Ext.B1 settlement deed is null and void. It was set aside. Appellant and second respondent were restrained by a permanent prohibitory injunction from trespassing into the plaint schedule property. Appellant challenged the decree and judgment before District Court, Palakkad in A.S.64/2006. Appeal was dismissed. It is RSA 1198/2010 4 challenged in the second appeal. 3. Learned counsel appearing for the appellant was heard. 4. The argument of the learned counsel is that the courts below did not properly appreciate the evidence and wrongly cast the burden on the appellant on the basis that appellant was in a dominant position to influence the first respondent mother and therefore it is for the appellant to establish that Ext.A1 was executed voluntarily, without any undue influence or misrepresentation and that the very basis of the conclusions is not correct. Learned counsel argued that Ext.B1 was executed by the first respondent, a middle aged woman and her evidence as PW1 establishes that she is well versed with similar transactions and had entered into several transactions and she deposed that the records were obtained by the first respondent herself without the assistance of any RSA 1198/2010 5 other person and in such circumstances based on her evidence it should not have been found that Ext.B1 is vitiated. Learned counsel argued that Ext.B1 shows that one of the attesting witness is the brother of the respondent and on the entire evidence courts below wrongly found that Ext.B1 is vitiated. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 6. Learned Munsiff who had occasion to see and note the demeanour of PW1, the mother and DW1, the son, appreciated their evidence in the prospective and found that the evidence establish that PW1 is an illiterate lady and was under the influence of her children the appellant and the second respondent. Courts below also found that it was the specific case of the first respondent that she did not voluntarily execute Ext.B1 settlement RSA 1198/2010 6 deed and she was made to sign in several papers and without having any suspicion on the conduct of the children, she affixed her signatures and only later it was known to her that Ext.B1 was got executed as a settlement deed. In the nature of the contentions raised, it cannot be said that first respondent admitted execution of Ext.B1 as a settlement deed. In such circumstances appellant is bound to examine at least one of the attesting witnesses, as provided under section 68 of the Indian Evidence Act to prove the execution. Though one of the attesting witness is no more, the other attesting witness was available for examination. For reasons best known to the appellant he did not choose to examine him. Though DW2 the document writer was examined and he had given evidence with regard to the execution, the evidence of DW2 which was made available by the learned counsel establish that his evidence cannot be relied on. In the RSA 1198/2010 7 light of the evidence on record, finding of the courts below that appellant and the second respondent failed to establish that Ext.B1 settlement deed was voluntarily executed by the first respondent with the knowledge that she is thereby settling the property in favour of the children is perfectly correct. On the facts and evidence, I do not find any substantial question of law involved in the appeal. The appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006