IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 AS.No. 442 of 2000(D) -------------------------------- OS.141/1992 of SUB COURT, KASARAGOD .................... APPELLANT IN AS PLAINTIFF NO.1 IN SUIT. ----------------------- SAMSUDDIN, S/O. BANGERA AMOO, RESIDING AT PERADISE MANZIL, NELLIKUNNU, ADKATHBAIL VILLAGE, KASARAGOD TALUK, P.O. KASARAGOD. BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE BY ADV. SRI.P.B.KRISHNAN RESPONDENT(S): 1 TO 13 IN AS/ DEFENDANTS IN THE SUIT. RESPONDENT NO.14 ------------------------- IN .AS. / PLAINTIFF NBO. 2 IN SUIT. 1. DAINABI, W/O. S.K.ABDULLA, RESIDING AT PADAPPIL HOUSE, NELLIKUNNU, ADKATHBAIL VILLAGE, KASARAGOD P.O., KASARAGOD TALUK. 2. RAFEEQ, S/O. DO. IN DO. DO. 3. FATHIMA, D/O. DO. IN DO. DO. 4. SAFIA, D/O.DO. DO. 5. AISABI, S/O. MAMMUNHI, RESIDING AT PADAPPIL, NELLIKUNJA, ADKATHBAIL VILLAGE, KASARAGOD TALUK AND P.O. 6. ABDUL KHADER, S/O. DO. IN DO. DO. 7. DAINABI, D/O. DO. IN DO. 8. PATHUMMA, D/O. DO. IN DO. DO. 9. ABDUL RAHIMAN, S/O. DO. IN DO. DO. A.S. NO.442/2000 10. NASIRA, D/O. DO. IN DO. 11. NABISA, D/O. DO. IN DO. DO. 12. ABDULLA, S/O. BANGRA AMOO, WORKING AT NAIMA STORE, F.M.C. 3/76, BAHUDAJI ROAD, SION, BOMBAY 27. 13. IBRAHIM, S/O. DO.WORKING AT C/O. HAMAD CATERING CO. LTD., POST BOX 2783, HOLLY MAKKAH, K.S.A. 14. ASHRAF, S/O. BANGRA AMOO, RESIDING AT PERADISE MANZIL, NELLIKUNNU, ADKATHBAIL VILLAGE, KASARAGOD TALUK, P.O. KASARAGOD. R1 TO R12 BY ADV. SRI.KODOTH SREEDHARAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO.1997/2008 IN AS. NO.442/2000 DISMISSED 01/06/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 442 OF 2000 & Cross Objection = = = = = = = = = = = = = = = Dated this the 1st day of June, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Kasaragod in O.S.141/92. The suit was one for cancellation of a release deed and for partition. It is the case of the plaintiffs that they are entitled to share over the property, i.e. 23/280 shares and that defendants 12 and 13 are entitled to 23/280 shares. According to them the defendants are not dividing the property under the pretext of a release deed executed by one Jainabi who is the mother of the plaintiffs as well as D12 and D13. The said document is not supported by any consideration and therefore it is submitted that the said document is vitiated by fraud etc. and therefore it is liable to be set aside. 2. The defendant would contend that the A.S. 442 OF 2000 -2- predecessor-in-interest of the plaintiffs and defendants 12 and 13 namely Jainabi had executed a release deed in favour of S.K.Abdulla, predecessor of the contesting defendants. Therefore it is contended that the plaintiffs and defendants 12 and 13 are not entitled to any relief. On an analysis of the materials the trial court had dismissed the suit but without costs. So against the dismissal the plaintiff has come up in appeal for setting aside the judgment and decree and contesting defendants had moved a cross objection against the disallowance of costs. 3. Heard. The ultimate result of the suit will depend upon the validity and genuineness of Ext.B1 document. The plaintiffs as well as the defendants 12 and 13 are the children of one Jainabi. This Jainabi is one of the daughters of Beepathumma. Beepathumma had four children out of which the first child is born to her in her first husband Abdulkhader. Now the entire case A.S. 442 OF 2000 -3- depends upon the genuineness of Ext.B1 document. 4. Ext.B1 is a registered release deed executed by Jainabi in favour of her brother Abdulla on 4.2.81. A perusal of the said document would reveal that for a consideration of Rs.3,000/- she relinquished her share in the property in favour of Mr.Abdulla. The attesting witness to the documents are the first plaintiff as well as DW1. The first plaintiff is none other than the son of this Jainabi. When confronted with such a difficult situation he pretends ignorance. When confronted with Ext.B1, PW1 had to admit his signature. Then he would suddenly turn round and would say his mother was under the impression that it is only a receipt and therefore the document is incorrect. One has to bear in mind that fraud will never attempted to be played on a party with her son, an attesting witness. It is often said that 'men may lie but circumstances will never lie'. DW1 the other attesting witness has categorically and clearly deposed A.S. 442 OF 2000 -4- that the instructions for the preparation of the document was given by Jainabi, Abdulla and PW1. He had also spoken about the registration of the document, his presence at the time of the execution as well as registration. He also speaks about the passing of consideration. There is an endorsement in Ext.B1 that 30 notes of 100 each was paid to the executant in the presence of Registrar. So the passing of consideration also is before the concerned Registrar who had registered the document. So all these materials would reveal that Jainabi had executed a release deed in favour of her brother for a consideration of Rs.3,000/- and Ext.B1 stands proved. 5. The plea of fraud or undue influence or coercion also does not stand established for the reason that no evidence is let in regarding the alleged fact of mis-representation or other things. The witness has clearly deposed that the registrar has made the A.S. 442 OF 2000 -5- executant know about the contents of the document then only it was registered. So from these materials it is clear that Ext.B1 document is executed by Jainabi in favour of S.K.Abdulla. Therefore after the said document of 1981 Jainabi did not have any right over the property. The subsequent conduct also confirms the said act. It is admitted by PW1 that after 1981, the defendants 1 to 11 were in possession of the suit property and it is also admitted that after Ext.A1 Jainabi or her children never paid basic tax for the property. The assessments stand in the name of Abdulla. Therefore Ext.B1 document is a voluntarily executed document that has been acted upon and therefore from the date of Ext.B1 Jainabi did not have any right over the plaint schedule property. When it is so there was nothing for the plaintiffs to succeed after the death of Jainabi. So the plaintiffs and defendants 12 and 13 are not entitled to any share in the property. So the contentions in the suit has not been proved hence A.S. 442 OF 2000 -6- dismissed correctly by the Court below. The trial court had used its discretion in directing the parties to bear their respective costs. I do not want to interfere with the said finding also and therefore the appeal as well as the Cross Objections are dismissed. Sd/- M.N. KRISHNAN, JUDGE. ul/- [true copy] P.A. To Judge. A.S. 442 OF 2000 -7- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 442 OF 2000 = = = = = = = = = = = J U D G M E N T 1st June, 2010.