IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 14TH JULY 2008 / 23RD ASHADHA 1930 RSA.No.238 of 2007 (C) ---------------------------- AS.20/2005 of DISTRICT COURT, KOTTAYAM OS.951/2000 of PRL.M.C., KOTTAYAM .................... APPELLANTS/APPELLANTS/PLAINTIFFS ----------------------------------------------- * 1. U.G. SARASU, D/O.LATE G.GOVINDAN ACHARI, AGED 64 YEARS, RETIRED TEACHER, RESIDING AT PALAKKAL VEEDU, ADICHIRA THELLAKOM P.O., PERUMBAIKADU VILLAGE, KOTTAYAM. [DIED, LRs IMPLEADED] * 2. K.G. KUTTAN ACHARI, S/O.LATE G. GOVINDAN ACHARI, AGED 66 YEARS, RESIDING AT MOOLAKADU VEEDU, NEAR NADAKUNNU DEVI TEMPLE, KIDANGOOR VILLAGE, KIDANGOOR P.O., KUMMANNOOR, KOTTAYAM. [DIED, LRs IMPLEADED] ADDL. APPELLANTS 3 TO 11 3. RAJAMMA, W/O K.G.KUTTAN ACHARI, RESIDING AT KOTTACKAL HOUSE, KOTTACHIRA, KIDANGOOR. 4. P.K.PRASAD, S/O K.G.KUTTAN ACHARI, RESIDING AT KOTTACKAL HOUSE, KOTTACHIRA, KIDANGOOR. 5. C.R.GIRIJA, W/O SREENIVASAN, VADAKKEJANRAMBUVILA, PAMAMKODU, PAPPANAMKODU, THIRUVANANTHAPURAM. 6. C.R.ANILA, KALARIKAL HOUSE, KONDOR, PANACKAPALAM P.O., ERATTUPETTA. RSA.No.238 of 2007 (C) 2 7. K.G.VIJAYAMMA, W/O RAJAPPAN, CHERUKOTHARA HOUSE, KUMANAM P.O., KOTTAYAM. 8. KRISHNANKUTTY ACHARI, S/O PARAMESWARAN ACHARI, AGED 75, PALAKKAL HOUSE, ADICHIRA, THELLAKAM, PERUMBAIKADU VILLAGE, KOTTAYAM. 9. SREELATHA K.S., D/O KRISHNANKUTTY ACHARI, OF ............................. DO.................................D0 10. BALACHANDRAN K.S., D/O KRISHNANKUTTY ACHARI, OF ............................. DO.................................D0 11. SURESH K.S., S/O KRISHNANKUTTY ACHARI, OF ............................. DO.................................D0 [ADDL. APPELLANTS 3 TO 7 ARE IMPLEADED AS THE LRs OF DECEASED 2ND APPELLANT AND ADDL. APPELLANTS 8 TO 11 ARE IMPLEADED AS THE LRs OF DECEASED FIRST APPELLANT AS PER ORDER DT.14/09/07 IN I.A.1255/07 AND I.A.1554/07 RESPECTIVELY.] BY ADV. SRI.T.I.ABDUL SALAM RESPONDENTS/RESPONDENTS/DEFENDANTS: ------------------------------------------------------ 1. K.G. DAMODARAN, S/O.LATE G. GOVINDAN ACHARI, AGED 56 YEARS, RESIDING AT KOTTACKAL VEEDU, NEAR VARISSERI JUNCTION, AYMANAM VILLAGE, MARIATHURUTHU P.O., KOTTAYAM. 2. K.G. RAMAKRISHNAN, S/O.LATE G. GOVINDAN ACHARI, AGED 58 YEARS, RESIDING AT KOTTACKAL VEEDU, NEAR VARISSERY JUNCTION, AYMANAM VILLAGE, MARIATHURUTHU NP.O., KOTTAYAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.238 of 2007 ------------------------------------------------ Dated this the 14th day of July, 2008 JUDGMENT The plaintiff in O.S.951/2000 on the file of the Munsiff's Court, Kottayam are the appellants and they challenge in this R.S.A, the concurrent decree passed by the courts below against them dismissing the suit. 2. The suit was instituted on the allegation that the scheduled property having an extent of ten cents belonged to Govindan Achari who is the father of plaintiffs and defendants 1 and 2; that he died on 22/10/1987; that on his death the property devolved on the plaintiffs and defendants in equal shares; that the first defendant is not willing to effect a partition in spite of repeated demands and he is in forcible possession of the scheduled property; that it is understood that the first defendant R. S. A. No.238 of 2007 -2- obtained a gift deed from his father in the year 1979 in respect of the scheduled property; that even if such a gift deed is obtained it is created by undue influence and coercion; that the plaintiffs came to know of the gift deed only on receipt of reply notice from the first defendant; that Govindan Achari has no necessity to execute such a gift deed; that since the property was obtained as kudikidappu he had no right to gift the property to any person; that the first defendant has constructed a residential building in the scheduled property after the death of Govindan Achari and the first plaintiff also has contributed financially for the construction of the building and that the gift deed executed by Govindan Achari in favour of the first defendant has to be set aside and the property has to be divided into four equal shares and one such share each has R. S. A. No.238 of 2007 -3- to be alloted to plaintiff 1 and 2. 3. The first defendant resisted the suit by filing written statement contending inter alia that on 17/07/79 Govindan Achari executed gift deed in his favour in respect of the scheduled property and ever thereafter the first defendant is in possession and enjoyment of the scheduled property; that he has effected mutation in his name and has obtained a loan of Rs.15,000/- for construction of a residential building under the House Building Advance Scheme of Government Servants on the security of the plaint schedule property; that he has spent Rs.75,000/- for the construction of the building and is residing therein and that fact is known to the plaintiffs and the second defendant; that at the time of death of the father, he had no right in the property and as such plaintiffs did not inherit any right over the scheduled property; that the R. S. A. No.238 of 2007 -4- first plaintiff was given in marriage in 1963 giving her share at the time of marriage and she is residing with her husband and the second plaintiff is also not entitled to get any share in the scheduled property; that the allegation that the gift deed is executed under undue influence and coercion are false; that Govindan Achary was competent to execute such a gift deed as the property belonged absolutely to him and the gift deed is not liable to be set aside and the plaintiffs are not entitled to get a decree effecting partition of the scheduled property as claimed. 4. On the above pleadings the trial court raised necessary issues for trial and considering the case also in the light of the evidence adduced at trial which consisted of oral evidence of PWs.1 to 3 and DW1 and documentary evidence of Exts.A1 and A2 and R. S. A. No.238 of 2007 -5- Exts.B1 to B14 dismissed the suit. The appeal filed by the plaintiffs before the first appellate court as A.S.20/05 was dismissed concurring with the findings of the trial court and hence, this appeal. 5. It is contended before me by the learned counsel for the appellants that pleadings sufficient to bring the case as one assailing the gift deed/Ext.B5 as being vitiated by coercion and undue influence is there in the plaint and it is further substantiated also by the evidence of PWs.2 and 3; that an amendment application was moved before the first appellate court seeking amendment of the plaint incorporating a prayer that Ext.B5 gift deed was executed on an understanding that the first defendant would reconvey the property to the father after constructing a building availing of Government loan but the said application was dismissed by R. S. A. No.238 of 2007 -6- the first appellate court; that the amendment should have been allowed and that the suit should have been decreed. 6. It is worthy to note that the solitary averment regarding undue influence and coercion is contained in para 8 of the plaint and that is to the effect that even if such a gift deed is in existence it is created by undue influence and coercion and without the knowledge of the plaintiff. When the document is alleged to be executed without the knowledge of the plaintiff, it is difficult to accept her allegation without some more details that the gift deed is brought into existence by undue influence and coercion. The plaintiff has no direct knowledge either about any undue influence exerted or about any coercion having been exercised to get gift deed executed from the father by the first defendant. The evidence that is attempted to R. S. A. No.238 of 2007 -7- be let in by examination of PWs.2 and 3 were found by the courts below to be not convincing and not acceptable. The further contention which the learned counsel for the appellant submits was attempted to be advanced before the first appellate court by amendment of the plaint but which was brushed aside by the first appellate court by refusing to allow the amendments sought for is also devoid of any merit for the reason that any understanding alleged to have been in existence between the first defendant and the father is not a matter on which plaintiff was having any direct knowledge or even hearsay knowledge as on the date of filing of the plaint. It is then obviously on the basis of evidence tendered by PWs.2 and 3 that such an argument was attempted to be advanced by amending the plaint. It is too much to believe that the first defendant would construct a building R. S. A. No.238 of 2007 -8- availing of Government loan in his name so as to have the property improved by putting up of a building and then to transfer it to the father so as to have the benefit to be derived by all the children. Thus on the whole, when the property is found to have been transferred by the father of the parties to the first defendant under EXt.B5 gift deed for setting aside which there is absolutely no ground established by the appellants/plaintiffs, the plaintiffs cannot aspire to get a decree for partition and separate allotment of their share as they have no right to claim partition at all. The dismissal of the suit concurrently by the courts below is on strong grounds and on a proper appreciation of the evidence adduced in the case and does not deserve to be interfered with in this R.S.A. There is no question of law and much less any substantial question of law arising for consideration in R. S. A. No.238 of 2007 -9- this R.S.A. 7. This R.S.A in the circumstances, is dismissed in limine refusing admission. K.P.BALACHANDRAN, JUDGE kns/-