IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 SA.No. 645 of 2000(B) --------------------------- AS.118/1989 of DIDTRICT COURT,KOLLAM OS.159/1984 of PRL.MUNSIFF COURT, KOLLAM .................... APPELLANT(S):APPELLANT/ADDITIONAL 3RD PLAINTIFF ------------------------------------------------------------------- EASWARI AMMA LEKSHMIKUTTY AMMA KANNAMOOLA PUTHEN VEEDU, MATHILIL CHERRY, THRIKKADAVOOR, KOLLAM. BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENT(S): RESPONDENTS/DEFENDANTS -------------------------------------------------------- 1. PACHAN PILLAI THULASEEDHARAN PILLAI THACHAZHIKATHU VEEDU, CHETHINAMKULATHU CHERRY, KARICODE, KILIKOLLOOR. 2. NATIONAL INSURANCE COMPANY, QUILON BRANCH, REPRESENTED BY ITS BRANCH MANAGER, KOLLAM. R1 BY ADV. SRI.P.B.SURESH KUMAR(QUILON) THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31/05/2011, THE COURT ON 08/06/2011 DELIVERED THE FOLLOWING: svs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 645 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of June, 2011. JUDGMENT Aggrieved by the concurrent decrees against the plaintiffs, the supplemental second plaintiff in O.S.159 of 1984 before the Munsiff's Court, Quilon has come up in appeal. 2. The suit, O.S. 159 of 1984, was instituted by late Udayakumari Amma, who is none other than the daughter of the appellant. Late Udayakumari Amma challenged the validity of Ext.A9 document, which is a sale deed said to have been executed by her in favour of Thulaseedharan Pillai, on the ground that it was a fraudulent and concocted document. Both the courts below found against the said claim. 3. The facts absolutely necessary for the disposal of this appeal are as follows: S.A.645/2000. 2 Late Udayakumari Amma, who was the original plaintiff, married Thulaseedharan Pillai, the first defendant on 24.1.1979 and a child was born to them in that wedlock. It appears that in 1982 Udayakumari Amma was diagnosed as suffering from Brain Tumor and till 8.12.1983 the couple resided together. The case of the original plaintiff is that on that day she was taken to her house by the first defendant and she was deserted by her husband. According to the original plaintiff, at the time of marriage, she had Rs.30,000/- as deposit in Central Bank of India, Quilon Branch and another branch of the same Bank and that amount was utilized for purchasing A, B, C and D schedule properties. The dates of the various purchases were given in detail and it is unnecessary to repeat the same for the reason that both the courts below have stated in extenso in the respective judgments. Though B schedule property stands in the name of Thulaseedharan Pillai, it was alleged that he had not contributed anything towards the purchase price and the entire funds were provided by the original S.A.645/2000. 3 plaintiff and therefore the property really belong to the original plaintiff. The allegation is that after leaving the original plaintiff at home on 18.12.1983 by the first defendant, the original plaintiff, in order to take income from the property, sent her brother in the first week of January, 1984 and also to get back the documents of the property from the first defendant. When the brother of the original plaintiff went to the first defendant, he was informed that the title with respect to A and B schedule properties stands in the name of the first defendant, and the original plaintiff could have title only with respect to C schedule property. It was then that the original plaintiff came to know that a fraudulent document had been created by the first defendant saying that plaint A schedule property had been sold to him by the original plaintiff. It is alleged in the plaint that the original plaintiff had never executed any such document and she had no intention to do so. It is therefore contended that the document is ab initio void and has no legal force. It is alleged that the original plaintiff continues S.A.645/2000. 4 to be the owner of plaint A and B schedule properties and reliefs were sought for in respect of the same. 4. The first defendant alone contested the suit. In the written statement by him, he controverted the allegations in the plaint and contended that for the purchase of A, B, C, and D schedule properties funds have been contributed to the tune of Rs.17,540/- and it is false to say that the entire consideration was provided by the original plaintiff. Plaint B schedule was bought in the name of the first defendant so as to put up a building. When it was found that a building could not be put up in that property, the original plaintiff and the first defendant decided to put up a building in plaint A schedule property. The first defendant at the relevant was employed with the second defendant and he decided to avail of a loan to put up a house. When it was found that B schedule property could not be utilized for the purpose of availing loan, it became necessary to have A schedule property assigned in favour of the first defendant so that he could avail of a loan from the second defendant to S.A.645/2000. 5 put up the house. Therefore the original plaintiff willingly executed Ext.A9 document. The first defendant had availed of a loan from the second defendant and put up a foundation in the said property. It was contended that Ext.A9 is dated 16.12.1981 at a time when the couple were residing together and there was no difference of opinion between them. It was only in April, 1982 that the illness of Udayakumari Amma was diagnosed and thereafter she was taken for treatment to various hospitals and he had to spend huge amount for the treatment of his wife. Ultimately it became necessary to sell D schedule property and it was so done. The further contention was that the parents of late Udayakumari Amma had taken her home to let their daughter reside with them for a few days. Later when the first defendant went to bring his wife back to his house, he was refused entry in the house. Suffice it to say, the contention is that Ext.A9 document is not vitiated due to any reason as alleged in the plaint. He therefore prayed for a dismissal of the suit. S.A.645/2000. 6 5. It appears that during the pendency of the suit the original plaintiff passed away and on the basis of a will, namely, Ext.A20 dated 8.4.1985 the supplemental second plaintiff sought to come on record. She was impleaded as per order dated 4.1.1986 in I.A. 2177 of 1985. It has to be noticed here that at the time when she was brought on record O.S. 999 of 1986 assailing Ext.A20 will was pending. 6. On the basis of the pleadings in the case, issues were raised by the trial court. The evidence consists of the testimony of P.Ws. 1 to 9 and documents marked as Exts.A1 to A24 from the side of the plaintiff. The contesting defendants had D.Ws.1 to 3 examined and Exts.B1 to B3 from the side of the defendants. Exts. C1 to C6 are the commission report and plan. Exts.X1 to X4 are third party exhibits. On an appreciation of the evidence in the case, the trial court came to the conclusion that Ext.A9, the original of which is Ext.X2, is a valid document and it is not vitiated due to any reason. In appeal, the lower appellate court in S.A.645/2000. 7 A.S.118 of 1989 before the District Court, Kollam confirmed the judgment and decree of the trial court. 7. When this appeal was taken up for hearing, learned counsel appearing for the contesting respondents pointed out that the appellant may not have any locus standi to maintain the appeal. Learned counsel went on to point out that the will, on the basis of which the appellant sought to come on record, has been found to be not a genuine one by the trial court and it has been confirmed in appeal. The second appeal arising out of the same, S.A.530 of 2000, has also been dismissed by this court and therefore the finding that the will relied on by the supplemental plaintiff to come on record is not genuine has become final. So she cannot come on record as a legatee as per the Will. 8. Learned counsel also went on to point out that even if the sale is without consideration as alleged is bad in law, the supplemental plaintiff, who is the appellant herein, cannot maintain the suit because she is not entitled to succeed to the property left behind by late Udayakumari S.A.645/2000. 8 Amma. Learned counsel relied on Sections 15 and 16 of the Hindu Succession Act. 9. In reply, learned counsel appearing for the appellant pointed out that even assuming that the will, on the basis of which the appellant sought to come on record, is not proved to be genuine, still she is a legal heir under the Hindu Succession Act and she can come on record in that capacity. 10. I am afraid, the contention of the learned counsel for the appellant is baseless. Section 15 of the Hindu Succession Act deals with general rules of succession in the case of female Hindus, which reads as follows: “15. General rules of succession in the case of female Hindus.-(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16,- (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; S.A.645/2000. 9 (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother. (2) Nothwithstanding anything contained in sub-section (1),- (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.” Section 16 of the Act deals with the order of succession and manner of distribution among the heirs of a female Hindu, which reads as follows: S.A.645/2000. 10 “16. Order of succession and manner of distribution among heirs of a female Hindu.- The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestates property among those heirs shall take place according to the following rules, namely:- Rule 1.- Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously. Rule 2.- If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death. Rule 3.- The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) to section 15 shall be in the same order and according to the same rules as would have applied S.A.645/2000. 11 if the property had been the father's or the mother's or the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death.” 11. There is no case for the parties that Section 17 of the Act has any application to the facts of the case. If one goes through Section 15, it is evident that the mother of the deceased Hindu female is an heir and she comes under Section 15(1)(c) of the Act. The priority of succession is mentioned in Section 16. It is stated in Section 16 that among the heirs specified in Section 15(1), those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously. Coming back to Section 15, Entry No.1, i.e. Section 15(1)(a) says that firstly sons and daughters (including the children of any pre-deceased son or daughter) and the husband. The second category is the heirs of the husband and the third category is the mother and father of the deceased female Hindu. It is admitted S.A.645/2000. 12 that late Udayakumari Amma at the time of her death left behind her son and husband. If that be so, going by Section 16 Rule 1 the son and husband succeed to the estate left behind by late Udayakumari Amma to the exclusion of her mother, if it is to be considered that late Udayakumari Amma died intestate. In the light of the fact that the will based on which the appellant sought to come on record has been found against by the courts and since that decision has become final, it has to be presumed that Udayakumari Amma died intestate. However, one has to notice that there is an earlier will executed by Udayakumari Amma namely Ext.B1 by which she has bequeathed all her assets to her only child. One need not labour much to ascertain whether the said will is genuine or not or is proved in accordance with law. Whatever that be, the sale held in favour of Thulaseedharan Pillai is concerned, she has nothing to do with the estate of late Udayakumari amma and on that ground, the appeal itself may not be maintainable. S.A.645/2000. 13 12. Notwithstanding the above fact, an attempt shall now be made to ascertain whether the findings of the courts below are justified on record. 13. Much of the allegations against the first defendant in the suit is regarding his non-caring attitude towards his wife and desertion of his wife. A good lot of pleadings and evidence covered the area of illness of Udayakumari Amma and the claim regarding the expenses met by her parents and others for the treatment of her illness. The allegation in the plaint is sought to be controverted by the first defendant pointing out that it was he who had taken Udayakumari Amma to various hospitals and had met the expenses. He would further say that due to the huge expenses the couple was constrained to sold 10 cents of property owned by Udayakumari Amma. 14. The allegation in the plaint is that Ext.A9 document which is a sale deed executed by Udayakumari Amma in favour of Thulaseedharan Pillai dated 16.12.1981 is a fabricated document. In the plaint, it is alleged that the S.A.645/2000. 14 original plaintiff had not executed any such document and it is a fraudulent and concocted deed. 15. Both the courts below have considered the rival claims in considerable detail. The courts below found the evidence of P.Ws.4 and 5 and D.W.2 convincing enough to show that Ext.A9 is a genuine document. 16. Learned counsel appearing for the appellant pointed out that the claim of the first defendant was that he had contributed funds for the purchase of the four items of properties acquired by Udayakumari Amma. Each of the four items, one of the items that is about 5 ½ cents, was purchased in the name of the first defendant himself for the purpose of constructing a house. It was admitted by the first defendant that Udayakumari Amma had Rs.30,000/- in deposit in Bank at the time of her marriage and that amount was utilized for purchase of the four items of property. However, he would contend that the fund available with Udayakumari Amma was insufficient and he had also contributed Rs.17,540/- for the purchase of the same. S.A.645/2000. 15 Learned counsel went on to point out that there is absolutely no evidence to show that the first defendant had at the time of marriage any amount with him and that he had contributed any amount for the purchase. It was further contended that the reason given for the assignment evidenced by Ext.A9 document is that it was indeed for the purpose of raising a loan to put up a house. Attention was drawn to the fact that 5 ½ cents was already available with the first defendant and the specific stand of the first defendant was that the suit properties were purchased in his name utilizing the fund of Udayakumari Amma in order to put up a building. When that property was available, it is inconceivable that the original plaintiff would have assigned 28 cents covered by Ext.A9 for the purpose of constructing a house. Attention of this court was drawn to the recitals in Ext.A9 regarding the consideration. It is pointed out therein that a sum of Rs.4,000/- was paid to Udayakumari Amma and apart from the payment of Rs.4,000/-, a sum of Rs.17,540/- which was the contribution of Thulaseedharan S.A.645/2000. 16 Pillai towards the purchase of the property by Udayakumari Amma in her name was also treated as part of consideration in Ext.A9. Learned counsel again emphasized that there is nothing to show that Thulaseedharan Pillai had contributed any amount for the purchase of the property and it is seen that Ext.A9 is not supported by consideration. Accordingly learned counsel went on to contend that Ext.A9 is vitiated due to fraud. According to learned counsel, it is a concocted and fabricated document and does not affect the right of the original plaintiff over the property covered by Ext.A9 document. 17. The courts below have chosen to accept the evidence of P.Ws.4, 5 and 6 and D.W.2. The question is whether the courts below were justified in doing so. 18. It has come out in evidence that Ext.A9 document is seen executed at a time when the couple were living happily together and there was no rift between them. The claim of the first defendant is that since it was found that a building could not be put up in 5 ½ cents standing in S.A.645/2000. 17 his name, it became necessary to assign 28 cents of property in his name so as to offer as security to raise loan for the purpose of constructing a house. According to him, it was late Udayakumari Amma, who suggested that the property could be assigned in his name so as to achieve the purpose. 19. P.W.4 is a scribe by profession. He, in his evidence, says that Ext.X2 was drawn up at the instance of the original plaintiff . The executant was familiar to him. He would also depose that the signature found on Ext.X2, which is the same as Ext.A9, is that of Udayakumari Amma and that she had signed in his presence. The suggestion made to him that the signature found on Ext.X2 is not that of Udayakumari Amma was denied by him. It is seen that the witness was declared hostile and counsel for the plaintiff was permitted to question in the nature of cross-examination. In his further examination, he asserted that Udayakumari Amma had signed in his presence in his office and that stamp papers were purchased by him. He S.A.645/2000. 18 remembers to have seen Udayakumari Amma in 1979 when she had come to take a document from the Registrar's office. However, he admitted that the sale consideration was not paid in his presence. But, the executant acknowledged having received the consideration. 20. P.W.5, though figures as an identifying witness, was not taken seriously by the courts below for the reason that he is a regular witness who receives remuneration for identifying persons who come to register documents. It is therefore not necessary to discuss his evidence. 21. P.W.6 is the scribe of the document. He is a licensed scribe. He says that he had drawn up the document as directed by P.W.4. As per his evidence when the document was being drawn up, the assignor, the assignee and others were present. He claims that he is familiar with the executant and she had come to the office on a prior occasion. He too would depose that the stamp papers were purchased by P.W.4 as directed by the first S.A.645/2000. 19 defendant. He asserts that the executant had signed in his presence. He further states that at the time of drawing up of the document, Gopala Pillai, Neelakanta Pillai, Rajendran Pillai and Ashokan were also present. 22. D.W.2 was the Sub Registrar of Eravipuram Sub Registrar office at the relevant time. He deposes that Ext.X2 was registered by him. He deposes that both Thulaseedharan Pillai and Udayakumari Amma had signed in his presence and affixed their thumb impression. His evidence shows that necessary enquiries were made by him before the document was registered. He also ensured that the consideration made mention of in the document has been received by the executant. 23. Even though the above witnesses were cross-examined at length, nothing could be brought out to discredit them. Both the courts below have chosen to believe the testimony. The attempt was to show that after leaving late Udayakumari Amma in her house, the first defendant had not cared to come to her house or to look S.A.645/2000. 20 after her affairs. According to the plaintiff, the entire expenses were met by the parents of Udayakumari Amma. However, this is belied by the evidence produced by the defendant which would show that it is he who had taken Udayakumari Amma to various hospitals. It is true that the defendant had not produced any document to show that at the time of marriage he had any deposits in the Bank, but the fact remains that he was employed at the relevant time with the second defendant. He has also stated that the consideration shown in the various sale deeds in favour of Udayakumari Amma and himself are not the true amounts paid and much higher amounts were paid. The said statement must be true because if as a matter of fact the consideration paid was as shown in the relevant documents, late Udayakumari Amma must have had considerable balance amount in her Bank account. On the other hand the case of the plaintiff is that it was utilizing the entire amount available with Udayakumari Amma at the time of marriage of that the properties were purchased. It is S.A.645/2000. 21 therefore obvious that a lower consideration has been shown in the relevant documents. 24. Both the courts below have considered the evidence in depth and has come to the conclusion that there is nothing to show that Ext.A9 which is the same as Ext.X2 was a concocted document. One must notice that the said document came into existence when the couple was leading a happy marital life and there was no reason as to why at that point of time the first defendant should think of fabricating a document forging the signature of his wife. It is true that things went astray thereafter. But that is not a ground to hold that the document, namely, Ext.A9, is vitiated. 25. The finding of the courts below that Ext.A9 is a valid document is based on the available evidence. The courts below have given cogent and convincing reasons to hold that Ext.A9 is a valid document. The result is that apart from the reasons already mentioned, no substantial question of law arises for consideration and the appeal is without any S.A.645/2000. 22 merits.