IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 RSA.No. 569 of 2009() --------------------- AS.377/2007 of ADDL.DISTRICT COURT (ADHOC), KOTTAYAM OS.446/2006 of ADDL.M.C.,KOTTAYAM .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------- JOY JORPHY,S/O.JORPHY, SRAMBICKAL HOUSE,MOOLAVATTOM KARA, NATTAKOM VILLAGE,KOTTAYAM,THROUGH POWER OF ATTORNEY HOLDER SHOBANA RAJU,PADINJARE VEEDU, KUTTAMBALAM P.O.,KOTTAYAM. BY ADV. SRI.P.VIJAYAKUMAR SRI.C.R.REGHUNATHAN SRI.M.V.ASHIM RESPONDENT: RESPONDENT/PLAINTIFF ---------------------------------------------------------- THANKAMMA,W/O.THOMAS, SRAMBICKAL HOUSE,MOOLAVATTOM KARA, NATTAKOM VILLAGE,KOTTAYAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A NO. 1247 OF 2009 IN R.S.A. NO. 569 OF 2009 DISMISSED SD/- HARUN-UL-RASHID,JUDGE 24.6.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 569 of 2009 ---------------------------------------- Dated this the 24th day of June, 2009 JUDGMENT The Second Appeal is directed against judgment and decree in A.S. No. 377/2007 on the file of the District Court Kottayam which arises from the decree and judgment in O.S. No. 446/2006 on the file of the Additional Munsiff Court,Kottayam. The suit was filed by the respondent herein as plaintiff for setting aside the sale deed No.2682 of 1996. The trial court decreed the suit and cancelled the said document and granted a decree of permanent prohibitory injunction restraining the defendant from alienating the plaint schedule property or from creating encumbrance or committing any sort of waste there in. The trial also declared that the plaintiff is entitled to costs of the suit. The judgment and decree passed by the trial court was confirmed by the lower appellate court. Hence this Second Appeal. The defendant in the suit is the appellant herein. The parties hereinafter referred to as plaintiff and defendant as arrayed in the suit. The plaintiff is the mother of the defendant. 2. Admittedly, the plaint schedule property and building belongs to the plaintiff . At the time of execution of Ext.A1 sale deed the plaintiff was aged 80 years old and she is now aged more than 92 years. According to the plaintiff the defendant who is one of her sons had created Ext.A1 sale deed with respect to the plaint schedule property and building R.S.A. No. 569 of 2009 -2- in his favour that she got knowledge of the execution of the same only on 15.4.2006 . It is further pleaded that she has 7 children and her intention was to share the plaint schedule property to all the children equally and has no intention to give the same to the defendant alone. It is further averred that in July 1996 the defendant approached the plaintiff and convinced her that he required money to purchase a property and a residential building, that he had arranged a bank loan and plaint item No. 2 property be given as a collateral security for availing the loan. The defendant also further convinced the plaintiff that since he was working abroad and earning sufficient income he would be able to repay the loan amount without default. In the circumstances the plaintiff acceded to the demand of the defendant and the defendant made the plaintiff to sign various papers stating that the signed papers are necessary for obtaining bank loan. Thereafter the plaintiff was made to believe that the loan was sanctioned and it was necessary to give the plaint schedule property as a collateral security for which the document was to be registered and took the aged plaintiff along with him to the Registry's Office. The plaintiff never realised that the deed being executed was a sale deed with respect to the plaint schedule property. The plaintiff was made to believe that she was executing a document for the purpose of giving the plaint schedule property as collateral security to the bank. The plaintiff has no education and is unable to read and write English nor the capacity to understand the R.S.A. No. 569 of 2009 -3- same even if the document read over. The impugned sale deed is written in English. The plaintiff never realised her son was cheating her. The plaintiff was made to sign the impugned sale deed by misrepresentation fraud and undue influence. The plaintiff had not received any consideration. When the plaintiff learnt about the impugned sale deed and the attempt to alienate the plaint schedule property and to induct strangers into the plaint schedule property and forcefully evict the plaintiff from the residential building the suit was filed . 3. The defendant interalia contended that the suit is barred by limitation, that the plaintiff is not having possession over the plaint schedule property that the defendant is in exclusive possession and enjoyment of the same that the said sale deed was executed for valuable consideration etc. The said sale deed was executed by the plaintiff voluntarily and understanding its nature and contents and the same is binding on the plaintiff. It is also contended by him that the suit was filed at the instance of her other children and that she is not entitled to get any reliefs as sought for in the plaint. 4. The trial court examined the issues raised, one by one, as to whether the suit is barred by limitation, whether the said sale deed is liable to be set aside for the reasons stated by the plaintiff, and whether the R.S.A. No. 569 of 2009 -4- plaintiff is entitled to a decree of permanent prohibitory injunction . 5. On the side of the plaintiff, PW1 was examined and Exts.A1 and A2 were marked. On the side of the defendant DW1 was examined and Exts.B1 to B5 were marked. 6. The plaintiff is an old lady aged 80 at the time when the impugned sale deed was executed. It has come out in evidence that she cannot read, understand and write English. Ext.A1 sale deed is written in English. The trial court observed that the burden is on the defendant who is claiming possessory right over the plaint schedule property under the impugned sale deed , to prove the execution of the same. The defendant himself did not adduce any oral evidence to substantiate his pleadings and was not available for cross-examination. The oral evidence adduced by the defendant was through DW1 who is the scribe of the impugned sale deed . DW1 is an advocate by profession. DW1 also deposed that he could not recollect as to who had approached him for the preparation of the sale deed and that he had no role in its registration. Considering the close relationship between the plaintiff and the defendant and considering the fact that the document is written in English, the trial court held that the versions of the plaintiff are probable and also noted the fact that the defendant has not adduced any evidence to disprove the versions of the plaintiff nor to bring out any circumstances as to why the R.S.A. No. 569 of 2009 -5- plaint schedule property and the residential building were given to the defendant exclusively when the plaintiff has six other children. The trial court also noted the fact that having possessed the plaint schedule property and the building as her own asset , no attempt has been taken by her even to reserve her life interest. 7. The trial court on a consideration of all facts, circumstances and evidence, concluded that plaintiff did not voluntarily executed Ext.A1 sale deed, that Ext.A1 do not reveal that the plaintiff has received any consideration at the time of execution of Ext.A1, that the nature of the transactions alleged and the recitals with respect to the consideration in Ext.A1 sale deed cast doubt with respect to the payment of consideration. According to the trial court there is absolutely no evidence to prove that the plaintiff had intended to sell the plaint schedule property to the defendant . The trial court also noted PW1's deposition to the effect that her intention was only to assist her son and Ext.A1 sale deed was executed fraudulently under misrepresentation and undue influence of the defendant. For the above said reasons the trial court passed a decree in favour of the plaintiff. 8. The question of limitation was also considered by the trial court. It was also held that the period of limitation in this case will run only from the date of knowledge of such misrepresentation and fraud R.S.A. No. 569 of 2009 -6- committed and if so, the suit is filed within the period of limitation. 9. The very same contentions were re-agitated by the defendant before the lower appellate court The lower appellate court also evaluated the entire facts circumstances and evidence and arrived at the very same conclusions of the trial court. I do not find any reason to take a different view from the views taken by the courts below in the given circumstances. Moreover the issues raised in the suit were answered by the courts below in the right perspective on the basis of the facts circumstances and evidence. I find that no grounds are urged by the defendant/ appellant to invoke section 100 of the C.P.C, in this Appeal. No question of law much less any substantial question of law arises for consideration in the Second Appeal. The Second Appeal is devoid of any merit and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 569 of 2009 ---------------------------- JUDGMENT 24th June, 2009