IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 RSA.NO. 290 OF 2010() ---------------------------------- AS.129/2009 OF ADDL. DISTRICT COURT, PARAVUR OS.9/2003 OF MUNSIFF COURT, PARAVUR .................... APPELLANT/APPELLANTS/PLAINTIFFS --------------------------------------------------- PARAMESWARAN,S/O.KRISHNAN, CHETTETHU PARAMBIL,KUTHIYATHODU,CHALAKKA KARA, PUTHENVELIKKARA VILLAGE,PARAVUR TALUK. BY ADV. SRI.T.H.ABDUL AZEEZ SRI.B.AMANULLA RESPONDENT(S) – RESPONDENTS - DEFENDANTS --------------------------------------------------------------------- 1. SUBRAMONIAN,S/O.KRISHNAN, CHITTETHU PARAMBIL,KUTHIYATHODU,CHALAKKA KARA, PUTHENVELIKKARA VILLAGE,PARAVUR TALUK. 2. BABY,S/O. KRISHNAN, DO. DO. 3. SOBHA,W/O. LATE CHANDRAN,NJARABA HOUSE, POIKKATTUSSERY KARA, MEKKADU VILLAGE, ALUVA TALUK. 4. PRABHA,W/O.SOMAN,CHERIYAN PARAMBIL, KARAKKATTUKUNNIL MEKKATTU VILLAGE. 5. LAKSHMI,W/O. LATE KRISHNAN, KUTHIYATHODU,CHALAKKA KARA, PUTHENVELIKKARA VILLAGE PARAVUR TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO. 290 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 18th day of March, 2010 J U D G M E N T --------------------- Second Appeal is directed against judgment and decree of learned Additional District Judge, N. Paravur in A.S.No.129 of 2009 confirming judgment and decree of the court of learned Munsiff, N.Paravur in O.S. No.9 of 2003. Suit property originally belonged to the late Krishnan, father of appellant and respondents. Appellant claimed that with his funds he constructed a building in the suit property in the year 1982 and until in connection with his employment he had to stay away he was staying in the house maintaining the property. Respondent Nos.1 and 2 were employed in the Gulf. While so, fraudulently and exerting undue influence on the father who was physically and intellectually weak during the relevant time respondent Nos.1 and 2 got a sale deed and a settlement deed (copy of which are Exts.A1 dated 29.7.2000 and Ext.A2 dated 12.8.2002, respectively) in their favour in respect of the suit property. Appellant would allege that the said documents are vitiated by fraud, undue influence and misrepresentation and hence prayed for a declaration that the said documents are void and R.S.A. No.290 of 2010 -: 2 :- sought partition of his 1/3rd share in the suit property. Respondents Nos.1 to 4 resisted the suit denying that the late Krishnan was physically or intellectually weak at the time the impugned documents were executed and that those documents are the result of fraud, undue influence and misrepresentation. They also claimed that appellant got employment at the age of 36 years, got married and took up separate residence looking after himself and family. Respondent Nos.1 and 2 who got employment in the Gulf, were sending money for maintenance of the father and it is while so, that father executed the documents in favour of respondent Nos.1 and 2. They produced Exts.B1 and B2, pass books to show that they have been sending money from abroad to their father. Exhibits B5 to B7 are produced to show that there were certain liabilities over the suit properties which according to them were discharged with their funds. Trial court found that the allegations regarding vitiating circumstances as to execution of Exts.A1 and A2 are not proved and consequently dismissed the suit. First appellate court has confirmed that finding and dismissal of the suit. Hence this Second Appeal urging by way of substantial questions of law whether respondent Nos.1 and 2 with whom the late Krishnan was staying were not in a position to dominate his will at his old age and got Exts.A1 and A2 R.S.A. No.290 of 2010 -: 3 :- executed and whether it was reasonable and probable to expect that father would have executed Exts.A1 and A2 in favour of respondent Nos.1 and 2 disinheriting the appellant and whether courts below are legally correct in holding that Exts.A1 and A2 are valid. 2. Evidence regarding the alleged vitiating circumstances is attempted to be brought in by the evidence of P.Ws.1 and 2, P.W1 being the appellant and P.W2, a sister of the late Krishnan. So far as P.W.1 is concerned he has no direct information about the alleged fraud, undue influence and misrepresentation and claimed to have got information about it from the neighbours. P.W.2 of course stated about the vitiating circumstances but the evidence of P.W2 reveal that she was nursing a grudge against Krishnan himself since according to her Krishnan had offered to give her a share in the property but resiled from it. Courts below were not impressed by the evidence given by P.W2. The only circumstance brought out is that Ext.A2 is executed on 12.8.2002 and about two months later, Krishnan died. That by itself is not sufficient to think that he was not having sound disposing state of mind at the time the documents were executed. There is no dispute regarding execution of Ext.A1 and A2 and both are documents registered in accordance with the R.S.A. No.290 of 2010 -: 4 :- law in force. For the mere saying that the documents are obtained by undue influence, misrepresentation or fraud, such registered documents cannot be set aside. Though registration by itself is not proof of execution that went a long way in proving the same since the endorsement made by the Registrar is prima facie evidence of his complying with the mandatory provisions for registration under the Registration Act which included questioning the executant whether he had executed the document. On the evidence on record courts below found that challenge to Exts.A1 and A2 cannot stand. Consequence was a dismissal of the suit. On going through the judgments under challenge and hearing learned counsel I am not satisfied that any substantial question of law is involved requiring admission of this Second Appeal. Second Appeal is dismissed in limine. Interlocutory Application No.722 of 2010 shall stand closed. THOMAS P.JOSEPH, JUDGE. vsv