IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 5TH APRIL 2011 / 15TH CHAITHRA 1933 SA.No. 551 of 1997(G) --------------------------------- AS.NO. 47/1990 of SUB COURT, CHERTHALA OS.NO. 562/1986 of ADDL.MUNSIFF'S COURT,CHERTHALA .................... APPELLANTS/ APPELLANTS/PLAINTIFFS: ------------------------------------------------------------ 1. MOHANAN,S/O.KUNJANKU, RESIDING AT CHANIYILAYA MANGALATH CHIRAYIL, UZHUVA MURI, VAYALAR WEST. 2. PAPPY AMMA VASUMATHY AMMA, DO----------DO---------- 3. PAPPY AMMA SARALA, DO-----------------DO---------------- 4. PAPPY AMMA OMANA, DO-------------------DO--------------- BY ADV. SRI.P.SANTHOSH KUMAR(TR) SRI.T.P.SAJAN RESPONDENT(S)/RESPONDENTS/DEFENDANTS: ----------------------------------------------------------------------- 1. VASUDEVAN, S/O.KUNJANKU, CHANIYIL, UZHUVA MURI, VAYALAR WEST. 2. PAPPY AMMA ALLI, NIKARTHIL, RESIDING AT CHANIYILAYA MANGALATH CHIRAYIL, NOW RESIDING AT THUNDUCHIRA, MAKKEKADAVU, MANAPPURAM.P.O., CHERTHALA. R1 & R2 BY ADV. SRI.P.R.VENKATESH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts S.A.NO.551/1997 ORDER ON C.M.P.NO.2212/1997 & C.M.P.NO.2213/1997 IN S.A.NO.551/1997 DISMISSED 05/04/2011 SD/-P. BHAVADASAN, JUDGE /TRUE COPY/ P.A.TO.JUDGE sts P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 551 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of April, 201. JUDGMENT The additional plaintiffs in O.S.562 of 1986 before the Munsiff's Court, Cherthala are the appellants. 2. The suit was one for setting aside Ext.B1 gift deed dated 9.3.1976. By the said document, the original plaintiff had gifted the plaint schedule property to the first defendant. According to the original plaintiff, she was made to execute that document on misrepresentation and practicing fraud and making her to believe that she was executing the chitty hypothecation deed to a chitty subscribed by the first defendant. It was much later that she came to know that the gift deed had been got executed by her. She says that she never knew that she was executing a gift deed in favour of the first defendant. Later she had executed Ext.A1 settlement deed also. On the ground that Ext.A2, which is the same as Ext.B1, is vitiated S.A.551/1997. 2 by fraud due to mis-representation, it was sought to be set aside. 3. The defendants resisted the suit. They pointed out that there is no basis for the allegation in the plaint. The original plaintiff had executed Ext.B1 gift deed fully conscious of the facts and fully aware of the dispositions made by her. A reading of the gift deed, according to the defendants will clearly show the reasons for executing the same. Eversince the gift deed, he claims to be in possession of the property and had made valuable improvements in the property. According to him, the gift deed had taken effect. On the basis of these contentions, he prayed for a dismissal of the suit. 4. On the basis of the above pleadings, issues were raised by the trial court. The evidence consists of he testimony of P.Ws.1 and 2 and documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendants had Exts.B1 to B3(b) series marked. Both the courts below on an independent appreciation of the evidence came to the S.A.551/1997. 3 conclusion that the claim of fraud, misrepresentation etc are without basis and Ext.B1 is a genuine document. Accordingly the suit was dismissed. 5. In the second appeal notice is seen issued on the following questions of law: “1) When the donee of an immovable property has not accepted the gift, is not the donor tor evoke gift deed, and execute another document in respect of the same property? 2) When in a suit for setting aside a document, the plaintiff who executed the same alleges that the said document is obtained by fraud and misrepresentation, and the plaintiff expires before she could adduce evidence, is it not the duty of the person who claim that the document was properly obtained, to prove the execution of the document? Wherein a case, the said party does not come before the court taking oath to prove the same is not the court below bound to consider the consequence of such refusal? 3) When as per Section 123 of the Transfer of Property Act for executing a gift deed for S.A.551/1997. 4 immovable property statutory formalities are prescribed, is not the court below bound to verify whether such statutory formalities are complied with, before finding that, the deed has taken effect? 4) Is the court below justified in relying on the stipulations made in a document which has been challenged as one obtained by fraud and misrepresentation, by the person said to have executed the same, to find that it is a genuine document? Can such a finding be entered into without corroboratory evidence to the genuineness of the said document? 5) When the person who executed a document ie. Ext.A1 vz the plaintiff in this suit expired during the pendency of a suit for setting aside an earlier document Ext.B1 in relation to the property belonging to her, is not the document ie. Ext.A1 which deals with the distribution of property among the family members a relevant document considered by the court? Is not the Court below justified in not taking into consideration, the stipulations made in Ext.B1 especially in the light of provisions contained in Section 32 of the Evidence Act. S.A.551/1997. 5 6) Whether a gift deed can take away the right of the person in property who executed the same, before it was accepted by the person in favour of whom it was executed?” 6. Learned counsel appearing for the appellant mainly contended that there are certain stipulations in Ext.B1 document, which have not been complied with and that shows that it has not taken effect. It is also contended that execution of Ext.B1 is a clear indication that the original plaintiff had no intention to gift the property to the first defendant. None of the stipulations made mention of in Ext.B1 has been performed. It is clear therefore that the document is vitiated by fraud and misrepresentation. 7. Learned counsel appearing for the respondent on the other hand contended that both the courts below have concurrently found that there is no infirmity with Ext.B1 document. Being essentially a question of fact, no interference is called for in Second Appeal. S.A.551/1997. 6 8. Ext.B1 was executed in 1976. A reading of Ext.B1 shows the reasons as to why the gift was executed in favour of the first defendant by the original plaintiff. It is significant to notice that the owner retains life interest over the property and it was after her life time enjoyment was given to the first defendant. That the first defendant had acted on the gift is evident from Exts.B2 and B3 series of documents. 9. One may at this juncture refer to the evidence of P.W.1, who is the fifth plaintiff. During the pendency of the suit, the original plaintiff died and her legal representatives were impleaded as additional plaintiffs 2 to 5. In chief examination she says that Ext.B1 was got executed by playing fraud and misrepresenting the facts before her mother. In one portion she says that her mother had told her about the circumstances under which the document had been executed and she was aware of the same. However, in cross examination she says that her mother was a very capable, knowledgeable lady and she S.A.551/1997. 7 used to take care of her own affairs. She also admitted that building tax and property tax had been paid by the first defendant. 10. It was the above facts, which had persuaded the courts below to find that there is no infirmity in execution of Ext.B1. None of the allegations against the said document is sustainable. As rightly pointed out by the learned counsel for the respondent, the finding is based on an appreciation of the evidence and is a finding of fact. There is nothing to show that the findings are either perverse or unwarranted by the materials available on record. This second appeal is without merits and accordingly it is dismissed. P. BHAVADASAN, JUDGE sb.