IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 AS.No. 303 of 1998(A) ------------------------------ OS.173/1994 of SUB COURT, QUILANDY .................... APPELLANT(S): PLAINTIFF -------------------------------------- CHERUKATTU UMMAMMA AMMA, D/O. CHEERU AMMA, CHATHOTH, KAYANNA AMSOM, KOYILANDY TALUK, KOZHIKODE. (DIED). *ADDL. APPELLANTS 2 AND 3 IMPLEADED. 2. KUNHIKRISHNAN NAIR, S/O. LATE UNNUMMA AMMA, RESIDING AT KODAKKALLUR CHATHOTH, KAYANNA AMSOM, MATTANODU DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 3. KUNHIKELU NAIR, S/O. LATE UNNUMMA AMMA, RESIDING AT KODAKKALLUR CHATHOTH, KAYANNA AMSOM, MATTANODU DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.R.JAYAKRISHNAN RESPONDENT(S): DEFENDANTS ----------------------------------------------- 1. MADATHIL C.P. KUNHIRAMAN NAIR, S/O. MADHAVI AMMA, KANDOTH, KAVILUMPARA AMSOM AND DESOM, VADAKARA TALUK, KOZHIKODE. 2. DINESHAN, S/O. KAMALAKSHI AMMA, KANDOTH, KAVILUMPARA AMSOM AND DESOM, VATAKARA TALUK, KOZHIKODE. 3. SHAILAJA, W/O. SREEDHARN, PULLANTHERI, CHATHOTH VEETTIL, PALANGAD AMSOM DESOM, KOZHIKODE. A.S. NO.303/1998. 4. CHATHOTH JITHENDRAN, KANDOTH, KAVILUMPARA AMSOM DESOM, VADAKARA TALUK, KOZHIKODE. *SUPPLEMENTAL RESPONDENTS 5 TO 7 IMPLEADED. 5. LAKSHMI AMMA, MANIKULUKKIYIL HOUSE, KAYANNA AMSOM, MATTANODU DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 6. SANKARAN NAIR, KODAKKALLUR CHATHOTH, P.O. MATTANODU, VIA PERAMBRA, KOZHIKODE DISTRICT. 7. JANAKI AMMA, MURINGNATTU CHALIL, PANAGAD AMSOM DESOM, P.O. KINALUR, KOYILANDY TLAUK, KOZHIKODE DISTRICT. *ADDL. APPELLANTS 2 AND 3 AND SUPPLEMENTAL RESPONDENTS 5 TO 7 ARE IMPLEADED AS LEGAL HEIRS OF THE DECEASED SOLE APPELLANT AS PER ORDER DTD. 5.7.2010 ON IA. 1902/2004. ADV. SRI.T.A.RAMADASAN R1 TO R4 BY ADVS. SRI.T.G.RAJENDRAN, ADDL. R5 TO R7 BY SRI.CIBI THOMAS THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO. 2315/1998 IN AS. NO.303/1998 DISMISSED 20/07/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 303 OF 1998 = = = = = = = = = = = = = = = Dated this the 20th day of July, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Quilandy in O.S.173/94. The suit is one for partition after setting aside the document No.856/79 of S.R.O. Kavilumpara. The property described in the plaint schedule admittedly belonged to one Kamalakshi. She died on 1.4.79. The said Kamalakshi left behind her mother, the plaintiff and defendants 2 to 4 as her legal representatives. According to the plaintiff by virtue of the death of Kamalakshi she is entitled to 1/4 shares in the property. It is contended by her that the document stated in the reply notice alleged to be executed by her in A.S. No. 303 OF 1998 -:2:- favour of her grand-children is not executed by her and is not valid and binding on her and therefore she had filed a suit to set aside that document and effect a partition. 2. On the other hand the defendants would contend that after the death of Kamalakshi, at the request of the plaintiff a document was prepared whereby she had relinquished her rights in favour of the minor children of Kamalakshi and therefore by the said document the plaintiff has lost right in the property. It is also alleged there was no fraud, coercion, undue influence or any other criteria which would render the document invalid. So they pray for dismissal of the suit. 3. In the trial court Exts.A1 to A7 and B1 to B6 and X1 and X2 were marked. PWs.1 and 2 A.S. No. 303 OF 1998 -:3:- and DWs.1 to 3 were examined. The Court on an analysis of the evidence found that the plaintiff has executed the disputed document and therefore negatived her right for partition. It is against that decision the plaintiff has come up in appeal. 4. Heard the learned counsel for the appellant as well as the defendants. The result of this litigation would depend upon the validity or correctness of Ext.B1. Ext.B1 is a registered release deed alleged to be executed by the plaintiff in favour of defendants 2 to 4 on 3.5.1979 whereby by receiving a consideration of Rs.4,000/- she had relinquished her right over the property. The learned counsel for the appellant would contend before me the materials are sufficient and admitted to the effect that A.S. No. 303 OF 1998 -:4:- the plaintiff is an illiterate old lady and therefore by virtue of the various decisions and the provisions of the Contract Act the burden is squarely upon the defendants to establish the execution and validity and genuineness of the document. When a person is illiterate and old necessarily there is a burden on the Court to satisfy its conscience that the document has been properly executed. One particular difficulty which I find in this case from the pleadings is that the plaintiff does not categorically deny the execution of the document but she would say that such a document could not have been executed by her and that the first defendant has played fraud on her. Whatever it may be, we will put the burden on the defendants and find out whether the defendants have A.S. No. 303 OF 1998 -:5:- succeeded in proving the execution of the document and its surrounding circumstances. 5. DW1 is the first defendant. He had deposed before Court that it was at the instance of his mother-in-law namely plaintiff the document was prepared and it was she who had given the document to the scribe and the document was prepared and as ladies could not go out of the house at that time the Registrar was brought and the document was registered with her full knowledge and consent. 6. DW2 is the scribe cum attesting witness. He had deposed before Court that he is a document writer and that he had prepared Ext.B1. He had further deposed that it was at the instance of the plaintiff the document was prepared and it was read over to her. It is A.S. No. 303 OF 1998 -:6:- also spoken to by him that it was the plaintiff who has signed in the document and that he had signed as the 2nd witness. He had also spoken that one Kunhammedkutty was the first attesting witness and all of them had seen each putting the signature. He also speaks about the fact that the document was presented for registration and the plaintiff has affixed her thumb impression and it has been registered. He had been cross examined at length. The cross- examination does not bring any peculiar facts which would tender the Court to disbelieve the evidence of DW2. In the cross-examination he had made it very clear that the plaintiff wanted the document to be prepared one week prior to this execution and that she had given the partition deed. It is also his version that it A.S. No. 303 OF 1998 -:7:- was the first defendant who had paid the money for the purchase of the stamp paper and it was written and registered. He had also stated that there was no physical or mental disability for this lady at the time of execution of the document. It is further stated at that point of time the real amount was never shown in the document. He would further depose the document was registered and there was DW3 and one Pokkan also there at the time of the registration of the document. So the evidence of DW2 on a close scrutiny does not show that it is untrustworthy or unbelievable. On the other hand he speaks about the whole transaction in a clear manner and I find his evidence is acceptable. 7. DW3 is one of the attesting witnesses to the document. He is a neighbour of the first A.S. No. 303 OF 1998 -:8:- defendant. He had deposed before Court that the plaintiff had put her signature and thumb impression. In the cross-examination also he had stated he knows her for a large number of years and I do not find anything brought out in cross-examination to discard his evidence. The repeated contention that it is vitiated by fraud is not a substitute for the evidence of fraud. Therefore the evidence of DW2 and DW3 does not suffer from any infirmity and it appears to be intrinsically reliable and inherently probable. A few circumstances which the learned counsel for the appellant points out to discard the evidence and unnaturality in execution of the document are that Kamalakshy died on 1.4.79, the document was registered on 3.5.1979. Therefore it is not normally probable to have a A.S. No. 303 OF 1998 -:9:- document registered in that fashion. It has to be remembered that the mother had lost the daughter. The daughter leaves this world leaving the minor children. Necessarily any affectionate grand-mother would have a feeling that the children of the daughter should not be deprived of their property. Therefore one cannot rule out the grand-mother doing the same. It is also to be stated that even from the evidence of PW1 it can be seen that she was having some problem with her liver and she herself submits that she was not that well at that point of time. So if such a thought has come to her mind to execute a document in favour of the minor children, one cannot call it as an improbable thing. A.S. No. 303 OF 1998 -:10:- 8. The next point which requires consideration is that the plaintiff would submit that she was living in the house of the daughter only for two months. But defendants have produced documents in the form of voter's list wherein the name of the plaintiff is shown in the voter's list for an election in 1983. So it would probabilise that the plaintiff was residing with the minor children. Further when the young minor children lost their mother, grandmother will be certainly very anxious and always like to spend time with those children so that the children do not feel the absence of their mother. So the story developed that she was only living for only two months also cannot be believed. A.S. No. 303 OF 1998 -:11:- 9. The document is executed in the year 1979. The plaintiff of-course would submit she was unaware of it. Under ordinary circumstances if there is a right and from the conduct of her it is evident that she wants right over the property she would not have kept quite for a long period of 15 years without doing anything with respect to the property. It is too difficult to believe that the son-in-law was giving mesne profits to the mother-in-law. That is only a story developed to explain away the time. 10. Learned counsel for the appellant very strongly submits before me that being an old and illiterate lady that fact has to be considered. As stated by me earlier illiteracy and oldage are two factors which the Court has to determine A.S. No. 303 OF 1998 -:12:- while appreciating the evidence and to find out whether the defendants had discharged their burden. From the conduct and the life which the plaintiff has lived would reveal that there was no much problem for her at the time of the death of her daughter. So far as illiteracy is concerned she just denied everything that comes in her way. DW2 and DW3 specifically asserts that the document has been prepared after it has been read over to her and she did sign it only after knowing the contents of the document. Further it is a house registration. The Registrar has come to the house. He had endorsed in the back of Ext.B1 that the document was presented for registration by the plaintiff and that she had admitted the execution of the document. It is an endorsement done by an A.S. No. 303 OF 1998 -:13:- officer in discharge of his function and it gives to a correct presumption u/s 114 of the Indian Evidence Act as well. There is no allegation including that the Sub-registrar has also been influenced so as to cause a document of this nature. So one cannot simply on the pretext of illiteracy or oldage to resist something which had happened 15 years back when the evidence clinches the factor that the document was executed knowing the contents of the document. Therefore I cannot accept that argument as well. 11. Therefore from these materials I have to hold that execution, genuineness and validity of Ext.B1 document is established by the defendants and when it is so the plaintiff does not have any right over the property after the execution A.S. No. 303 OF 1998 -:14:- of Ext.B1. Therefore the suit for partition cannot be entertained. So the judgment and decree of the trial court do not call for any interference. Therefore the appeal fails and the same is dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. No. 303 OF 1998 -:15:- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 303 OF 1998 = = = = = = = = = = = J U D G M E N T 20th July, 2010.