IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 AS.No. 759 of 1994() ----------------------------- OS.3/1992 of SUB COURT, SULTHAN BATHERY .................... APPELLANT(S): PLAINTIFFS ----------------------- 1. C.HAMZA, S/O. LATE HASSAN, AGED 47 YEARS, CHAKKALAKUNNAN HOUSE, NELLARACHAL P.O., THOMATTUCHAL AMSOM, SULTAN'S BATTERY TALUK, WYANAD DISTRICT. 2. BEEPATHU, W/O. LATE HASSAN, CHAKKALAKUNNAN HOUSE, NELLARACHAL P.O., THOMATTUCHAL AMSOM, SULTAN'S BATTERY TALUK, WYANAD DISTRICT. 3. C.KADEEJA, D/O. LATE HASSAN, CHAKKALAKUNNAN HOUSE, NELLARACHAL P.O., THOMATTUCHAL AMSOM, SULTAN'S BATTERY TALUK, WYANAD DISTRICT. 4. PATHUMMA , D/O. LATE HASSAN, CHAKKALAKUNNAN HOUSE, NELLARACHAL P.O., THOMATTUCHAL AMSOM, SULTAN'S BATTERY TALUK, WYANAD DISTRICT. 5. AYISHA D/O. LATE HASSAN, CHAKKALAKUNNAN HOUSE, NELLARACHAL P.O., THOMATTUCHAL AMSOM, SULTAN'S BATTERY TALUK, WYANAD DISTRICT. 6. NABEESA, S/O.LATE HASSAN, CHAKKALAKUNNAN HOUSE, NELLARACHAL P.O., THOMATTUCHAL AMSOM, SULTAN'S BATTERY TALUK, WYANAD DISTRICT. 8. JAMEELA , D/O. LATE HASSAN CHAKKALAKUNNAN HOUSE, NELLARACHAL P.O., THOMATTUCHAL AMSOM, SULTAN'S BATTERY TALUK, WYANAD DISTRICT. (APPELLANTS 2 TO 8 ARE REP.BY THEIR POWER OF ATTORNEY HOLDER C. HAMSA) BY ADV. SRI.PHILIP MATHEW AS. NO.759/1994 RESPONDENT(S): DEFENDANTS ------------------------- AMINA, D/O.LATE HASSAN, AGED 34 YEARS, MATTAI HOUSE, CHERUVAYAL P.O., NELLARACHAL, THOMATTUCHAL AMSOM AND DESOM, SULTAN'S BATTERY TALUK, WYANAD DISTRICT. ADV. SRI.VARGHESE C.KURIAKOSE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.4630/1994 IN A.S. NO.759/1994 DISMISSED 01.01.2009 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.S. TO JUDGE tss M.N.KRISHNAN, J ===================== A.S.No.759 OF 1994 ===================== Dated this the 1st day of January 2009 JUDGMENT This appeal is preferred against the judgment and decree in O.S.No.3 of 1992 of the Sub Court, Sulthanbathery. The suit is one for cancellation of a settlement deed No.1656 of 1991 and for a permanent prohibitory injunction. It is the case of the plaintiffs that plaintiffs and defendants are the children of one Hassan. The said Hassan died on 18.11.1991. According to the plaintiffs, when Mr.Hassan was suffering from diabetics, blood pressure and loss of memory under the pretext of taking him to a hospital, defendants took him to a lodge, then to the Sub Registrar's office and got the document executed and therefore the said document is vitiated by fraud, coercion, and undue influence. It is also contended that the said document has not come into effect for the reason that possession had not been handed over. AS 759/1994 -:2:- 2. On the other hand, defendants would contend that the averment in the plaint regarding the mental capacity as well as the plea of fraud, undue influence are incorrect and the suit is liable to be dismissed. It is further contended that the suit is filed only as a counter blast to O.S.No.16/1992. 3. In the lower court, Pws 1 to 5 and DW1 were examined. Exts.A1 to A5 and B1 to B7 were marked. On analysis of the materials, the court below found that the plaintiffs have not succeeded in proving the ground to set aside the document and therefore dismissed the suit. It is against that decision, plaintiffs have come up in appeal. 4. Heard the learned counsel. 5. The point that arises for determination is whether the trial court has erred in dismissing the suit for the reasons stated in the judgment. 6. A perusal of the plaint would reveal that the definite case of the plaintiffs is to the effect that Mr.Hassan was aged about 75 years at the time of his death and he died on 18.11.1991. It is further contended that he was suffering from diabetics, blood pressure and consequent loss of memory. According to the plaintiffs, on 15.5.1991 defendants and her husband took Mr.Hassan to Sulthan Bathery stating that he needed expert treatment. Defendants really did not take him to the hospital. But after coming back from the defendants' place Hassan deposed that he was taken to a lodge and AS 759/1994 -:3:- then to the Sub Registrar's office and a document has been executed. So the document is challenged on the grounds mentioned above. It is further contended that the said document has not been acted upon and possession has not been handed over by demarcating the property.Ext.A1 is the copy of the disputed document. It is dated 14.5.1991. It is styled as a settlement deed(.......................................................). The recitals in the document would show that on account of love and affection 10 cents of property described in the schedule is given possession and the executant had retained the right to reside and take the income till the end of his life. It is interesting to see that the very same Hassan had executed two documents which are marked as Exts. B1 and B2. Ext.B1 is also a settlement deed executed on 10.9.1991 in favour of Ayisha and the property is 10 cents. On the very same day another document is executed in favour of Pathumma and there also the extent is 10 cents. There is no dispute for the plaintiffs with respect to the execution of Exts. B1 and B2 and the recipients of these documents are also plaintiffs in the suit. The documents executed in favour of defendants is on 14.5.1991 and in favour of the other two mentioned persons on 10.9.1991 and Mr.Hassan has breathed his last on 18.11.1991. So it is after a period of six months from the date of execution of Ext.A1 Mr.Hassan had died. Admittedly in all these cases, Hassan had gone to the AS 759/1994 -:4:- Sub Registrar's office and the document is executed. The document Ext.A1 is challenged on the ground of coercion, fraud and undue influence. It is true that there cannot be any direct evidence for fraud and that it can be only inferred from the surrounding circumstances. Similarly, it is a well settled principle that fraud cannot be arrived at on the basis of mere conjectures and surmises. So far as coercion and undue influence are concerned any child will have an influence over the father and the vice versa. An influence become undue when the person on whom the said influence is exercised has become weak, dependant and the person exerting that influence is able to dominate his will over the other. So far as coercion is concerned, there must be force used for the same. The mere challenge of a document contending that it is vitiated by fraud, undue influence or coercion by itself is not sufficient. There must be acceptable legal evidence to infer those facts. Here, there is no such acceptable evidence tendered. The conduct of Hassan itself would reveal that subsequent to the execution of Ext.A1 he himself had gone to the Sub Registrar's office to execute Exts.B1 and B2. There is no case that he was weak at the time of execution of Ext.A1 and thereafter got himself rejuvenated and then became weak subsequently. So the evidence tendered in this case regarding vitiating circumstances are insufficient to hold the plea of the plaintiffs. AS 759/1994 -:5:- Therefore I cannot find fault with the trial court in arriving at a decision on that point. 7. Learned counsel for the appellant very strongly contends before me that being a Muslim gift delivery of possession is absolutely necessary. There cannot be any quarrel about that proposition for the reason to have a valid gift under the Mohammedan Law, there must be a donor and a donee and delivery of possession. But, in all cases there cannot be actual delivery of possession. Suppose the donor retains the right to take usufructs from the property and also reserves the right to reside in the house situated in the property he cannot totally abandon possession till his death and it is the manifest intention of the donor to divest himself of the right over the property, it has to be looked into. Here, it can be seen that there are clear recitals in the document to the effect that possession is handed over subject to restrictions. It is further seen from the judgment itself that even during the lifetime of the donor the mutation has been changed and tax has been paid by the donee. so these are all sufficient ingredients to show that the settlement deed has been acted upon and possession has been given to the extent it is possible and therefore it has to be held that all the ingredients necessary to constitute a valid Muslim gift is also available in this case. 8. Regarding the identification of the property, the trial court has AS 759/1994 -:6:- elaborately dealt with and the court also found that the defendant is the absolute owner with respect to 10 cents of property and that she is the co- owner with respect to 27 cents of property for the reason that out of the total extent of 57 cents of property by virtue of Exts.A1, B1 and B2 30 cents had been parted with and so the balance 27 cents remain as a co-ownership property. There cannot be any injunction granted against them. Refusal to grant injunction also cannot be find fault with. There is nothing to interfere with the decision of the trial court and therefore the appeal lacks merit and it is dismissed. But under the circumstances, there will be no order as to costs. M.N.KRISHNAN, JUDGE Cdp/-