IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 RSA.No. 260 of 2006(E) ------------------------------------- AS.152/1998 of ADDL. DISTRICT COURT (ADHOC-I), THALASSERY OS.410/1996 of MUNSIF COURT, KUTHUPARAMBA .................... APPLLENT/SUPPL. APPELLENT NO.2: NITTOOR NARAYANAN NAMBIAR, S/O.RAMAN, AGED 60 YEARS, THAYYULLANADUKKANDIYIL, KANDAMKUNNU AMSOM, PO.NEERVELI, THALASSERY TALUK. BY ADV. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL RESPONDENTS/RESPONDENTS/DEFENDANT: 1. PUTHUSSERI NARAYANI, W/O.KUNHAPPA NAMBIAR, AGED 57 YEARS, NO OCCUPATION, NADUKKANDIYIL VEEDU, KANDAMKUNNU AMSOM DESOM PO, NEERVELI, THALASSERI TALUK. 2. PUTHUSSERI BALAKRISHNAN, S/O.KUNHAPPA NAMBIAR, AGED 37 YEARS, AGRICULTURIST, NO OCCUPATION, DO. DO. 3. PUTHUSSERI SATHI, D/O.KUNHAPPA NAMBIAR, AGED 32 YEARS, NO OCCUPATION, DO. DO. 4. PUTHUSSERI PAVITHRAN, S/O.KUNHAPPA NAMBIAR, AGED 27 YEARS, COOLIE, DO. DO. 5. PUTHUSSERI GEETHA, D/O.KUNHAPPA NAMBIAR, AGED 26, NO OCCUPATION, DO. DO. 6. PUTHUSSERI KARTHIYANI, W/O.KUNHAPPA NAMBIAR, AGED 37, NO OCCUPATION, DO. DO. BY ADV. SRI.R.SURENDRAN FOR R1 TO 5 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.No. 260 of 2006 --------------------------- JUDGMENT The supplemental second appellant in A.S.No. 152/98, who is impleaded as the legal representative of the sole appellant, who died pending appeal, is the appellant. The original sole appellant was the sole plaintiff in O.S.No. 410/96 on the file of the Munsiff's Court, Kuthuparamba. That suit was dismissed concurrently in both the courts below. 2. The original plaintiff instituted the above suit for declaration that Document No.2817/96 of Kuthuparama Sub Registry Office is void and for partition of the scheduled properties into twelve equal shares and for allotment of four such shares to her and for direction to the defendants to pay her the share of profits from the scheduled property from the date of plaint, inter alia, on the allegations that the scheduled properties originally belonged to late Madhavi, who is the RSA 260/06 2 younger sister of the plaintiff; that Madhavi obtained the said property included under 'C' schedule in the partition deed executed in 1966 and she was in possession and enjoyment of the property till her death; that late Madhavi was illiterate and she passed away on 28.9.1996 at Nadukkandiyil House, which belongs to Kunhappa Nambiar, who is the brother of Madhavi; that the first defendant is the wife of Kunhappa Nambiar and defendants 2 to 5 are their children; that the sixth defendant is Kumba, another sister of Madhavi; that the plaintiff used to visit Madhavi at Nadukkandiyil House; that one month immediately preceding the date of her death, she was bed ridden on account of paralytic stroke; that her memory had been considerably impaired and power of vision had been lost and she was not in a position to recollect anything and she was physically and mentally invalid during that period; that she was not in a position to execute a registered deed during the said period; that on the RSA 260/06 3 death of Madhavi the property devolved on her legal heirs, viz., plaintiff and defendants 2 to 6; that the plaintiff and defendants 2 to 6 are in joint possession of the scheduled properties; that on the next day of the death of Madhavi, the first defendant informed Narayanan, the son of the plaintiff, that Madhavi assigned her properties to her about a week prior to her death; that on inquiry the plaintiff came to know that an assignment deed was obtained from Madhavi by the first defendant on 20.9.1986; that the assignment deed is only a concocted document and is not one executed by Madhavi in sound disposable state of mind; that no consideration had also passed to Madhavi for the said assignment; that it is doubted that the document has been created by committing impersonation; that the document was registered at the house of the defendants, wherein Madhavi was residing and one of the identifying witnesses is the fourth defendant himself; that the witnesses in RSA 260/06 4 the documents are stooge of the first defendant; that Madhavi died after one week of execution of the document; that the witnesses to the document are on inimical terms with the son of the plaintiff for the reason that he had questioned them for persuading deceased Madhavi to gift the properties to defendants 2 to 5; that the assignment deed does not confer any right or title over the property on the first defendant and plaintiff and defendants 2 to 6 are the legal representatives of Madhavi and the property shall be divided into twelve equal shares and four such shares are to be allotted to the plaintiff and the sixth defendant and one share each has to be allotted to defendants 2 to 5. 3. The sixth defendant filed written statement admitting the plaint claim. Defendants 1 to 5 filed a joint written statement disputing the plaint claim. According to them, Madhavi assigned the said property to the first defendant on 20.9.1996 receiving sufficient consideration and ever RSA 260/06 5 thereafter, the properties were in possession and enjoyment of the first defendant; that Madhavi was not illiterate; that it is incorrect to say that Madhavi was bed ridden due to paralytic stroke for one month prior to her death; that she was not having any serious illness till her death and she was of sound mental and physical health till her death and her memory had not been impaired, though she had some difficulty for walking; that she was of good disposable state of mind even at the time of her death as well as at the time of execution of the assignment deed; that Madhavi assigned the properties to the first defendant receiving consideration thereof and plaintiff and defendants 2 to 6 have no right in the scheduled properties after the death of Madhavi in view of the said assignment deed; that there is no infirmity in the document and the document is binding on all the parties; that there is no animosity between the plaintiff or her son with the witnesses as alleged; RSA 260/06 6 that the property is not liable to be divided as claimed and the suit is to be dismissed. 4. The trial court raised necessary issues for trial and in the light of the pleadings and evidence adduced in the case, which consisted of oral evidence of PWs 1 and 2 and DWs 1 to 4 and documentary evidence Exhibits A1 and B1 to B5, dismissed the suit upholding the assignment under Exhibit A1 of the scheduled properties in favour of the first defendant by deceased Madhavi. Appeal filed by the plaintiff as A.S.No.152/98 before the District Court was prosecuted by the supplemental second appellant as the sole appellant died pending appeal. The said appeal was also dismissed by the first appellate court concurring with the findings of the trial court. Hence, this Regular Second Appeal by the aggrieved legal heir of deceased original plaintiff. 5. Arguments were advanced vehemently before me by the learned counsel for the appellant RSA 260/06 7 assailing Exhibit A1 on the ground that it is a document executed by late Madhavi just one week prior to her death; that Madhavi was illiterate and was ailing and bed ridden and was not in a disposable state of mind at the time of the alleged execution of Exhibit A1 in favour of the first defendant and that therefore, the decrees and judgments of the courts below, negativing the claim of partition advanced by the original plaintiff, is incorrect and deserves to be reversed by this Court. 6. The learned counsel has invited my attention to the evidence of DW4, the Sub Registrar, to contend that his evidence will not prove execution of Exhibit B1 by deceased Madhavi. It is seen that in chief examination, DW4 has deposed that Exhibit B1 was registered by him after Madhavi was made to understand the contents therein. He has also averred that it is incorrect to say that on the date of registration of Exhibit B1, the executant RSA 260/06 8 late Madhavi was unconscious and was not able to understand matters and that Exhibit B1 was registered undergoing all the formalities of registration of document. In cross-examination, he has deposed that he had no prior acquaintance with late Madhavi and she was being identified to him by the identifying witnesses. 7. It is worthy to note that the plaintiff has no case successfully advanced to contend that it was not Madhavi, who executed Exhibit B1 document, but, that it was caused to be executed by somebody else through impersonation. The identifying witnesses were also not examined on those lines. He has also asserted that he registered Exhibit B1 only because Madhavi was competent to understand the contents of Exhibit B1. In re-examination, he has also stated that for registration of document at the residence, necessarily, an application from the executant has to be there. Thus, the evidence of DW4 shows that it was on the application of late RSA 260/06 9 Madhavi that he went over to her residence, where defendants 1 to 5 were also having their residence and registered Exhibit B1 assignment deed. 8. It is also worthy to note in this context that deceased Madhavi had no issues and she was residing along with the defendants, namely, her brother Kunhappa Nambiar, his wife and their children. It is quite natural that when she is looked after by defendants 1 to 5. She would execute document, in the normal course of events, in their favour only, assigning the properties she has in her last days. The plaintiff, who is not residing with her, assails Exhibit B1 only on suspicion and the suspicion cannot be given undue weight especially, in the light of the evidence adduced in the case, which has been evaluated properly by both the courts below. 9. It is also pointed out by counsel for the respondents that there is also evidence of PW3, an attesting witness, to support the case of execution RSA 260/06 10 of Exhibit B1 by deceased Madhavi. In the circumstances, the contention that presumption under Section 114(c) of the Evidence Act cannot be stretched so as to have the execution also proved, has no much relevance. The alleged substantial questions of law formulated in the appeal memorandum are not even questions of law and much less, any substantial questions of law, which arises for consideration by this Court in this second appeal. This Regular Second Appeal, in the circumstances, is devoid of merit and deserves only to be dismissed upholding the concurrent findings of the courts below. In the result, I dismiss this Regular Second Appeal in limine, refusing admission. 29th May, 2008 (K.P.Balachandran, Judge) tkv