IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 RSA.No. 614 of 2003(F) ---------------------- AS.376/1999 of DISTRICT COURT, THRISSUR OS.131/1998 of M.C.,VADAKKANCHERRY .................... APPELLANTS/RESPONDENTS/DEFENDANTS: ------------------------------------------------- 1. KRISHNA PRASAD S/O. THEKKEVAKKIYIL SAROJINI AMMA, PANJAL VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT. 2. SETHUMADHAVAN S/O. URAMBATHU KOCHU AMMA, DO.DO.DO. BY ADV. MR.SANTHEEP ANKARATH RESPONDENT/APPELLANT/PLAINTIFF: ----------------------------------------- PARUKUTTY AMMA D/O. LAKSHMI AMMA, THEKKEVAKKIYIL HOUSE, PANJAL VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT. ADV. MR.BABU JOSEPH KURUVATHAZHA THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RSA.No. 614 of 2003(F) ORDER ON I.A.NO.668/2003 IN R.S.A.NO.614/003 DISMISSED. 30.6.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ R.S.A.No.614 Of 2003 ---------------------- Dated this the 30th day of June, 2010. J U D G M E N T The plaintiff in O.S.No.131 of 1998 on the file of the Munsiff Court, Wadakkancherry is the appellant. Suit was filed for setting aside Ext.A1 sale deed and for recovery of possession. Suit was dismissed by the trial court. In appeal, the appellate court reversed the decree and judgment and a decree for declaration and recovery was passed. Parties are hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 2. Plaint schedule property belonged to the plaintiff. The first defendant is the grandson of the plaintiff and the second defendant is the father of the first defendant. Plaintiff is a lady aged 70 years at the time of filing of the suit. Suit property is 3¼ cents of land. The plaint schedule property is the only property belonging to the plaintiff. She has three daughters. She has executed Ext.A1 sale deed in favour of the first defendant. Plaintiff's case is that it was executed when a police case was filed against the first defendant alleging cutting and R.S.A.No.614 Of 2003 ::2:: removing a tamarind tree from the neighbouring property. At that time, the defendants told the plaintiff that the neighbour would file criminal proceedings against her and if so, she would have to attend the court and if conveyance of the property is executed they alone need appear. Defendants also promised her that on closing of the litigation the property would be re- transferred. Plaintiff filed the suit on the further allegation that at the time when the incident was happened, she was residing along with her daughter, Sarojini, her son 1st defendant and second defendant, who is the husband of Sarojini. It is also alleged that she was depending on Sarojini, mother of the 1st defendant and further alleged that the defendants dominated the will of the plaintiff, she happened to execute Ext.A1 sale deed. 3. In the written statement filed by the defendants, they denied the plaint averments and prayed for dismissal of the suit. In the written statement it was admitted that there was a police complaint. Further stated that conveyance deed was executed after receiving consideration. It is also stated that the plaintiff had no necessity to depend upon the mother of the first R.S.A.No.614 Of 2003 ::3:: defendant as she had other daughters. 4. Suit was filed for setting aside Ext.A1 sale deed on the plea that the defendants exercised undue influence on the plaintiff. Suit was defended by the defendants as if it is a case of undue influence. The lower appellate court referred to Section 16 (1) of the Contract Act. Section 16(1) of the Contract Act recites that “a contract would be affected by undue influence where one in a position to dominate the will of the other uses that domination and obtain unfair advantage.” Sub section (2) of Section 16 stipulates “a person is deemed to be able to dominate the will of another where he holds a real or apparent authority over the other or where he stands in a fiduciary relationship to be other or where the mental capacity of the other is even temporarily affected by reason of age, illness or mental or bodily distress.” Sub Section (3) deals with the nature of proof and burden. It reads as follows: “Where a persons who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of R.S.A.No.614 Of 2003 ::4:: proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other”. As I said earlier, plaintiff was aged 70 years at the time of filing of the suit. She hails from a poor family. The only asset she owns is the 3¼ cents of land. She has got three daughters. Except the mother of the first defendant the other daughters are not attending to her needs. She is residing along with her daughter Sarojini, who is the mother of the first defendant and wife of the 2nd defendant. In Ext.A1 sale deed the consideration show is Rs.1,000/-. As PW1 plaintiff testified that she did not receive any amount from the first defendant. She also testified that the property is worth Rs.30,000/-. She also deposed that she has no ability to work and earn her daily bread since she is sick. During the relevant time she was fully depending on her daughter, first defendant and second defendant. She is an ailing lady. She said she has blood pressure and she is also a diabetic patient. Lower appellate court also found that these facts are not refuted during cross examination. It is clear from the evidence R.S.A.No.614 Of 2003 ::5:: that she is an old woman having mental distress. She also testified before the court that after the death of her husband, nobody is looking after her properly. From the facts discussed above it is found the the plaintiff is an aged, impecunious, ailing widow and that she was residing along with the defendants. The lower appellate court on evidence found that it looks that she was abandoned after executing the deed. Her another daughter was residing nearby was inimical towards her and so, she was residing with Sarojini, mother of the first defendant. 5. The lower appellate court also discussed and examined the evidence tendered by the defendants. As DW1 the first defendant testified before the court that the sale deed was registered on 25.5.1995 and the tree was felled on 24.5.1995 i.e., on the previous day of registration. It is clear that the registration of the sale deed is after falling of the tree while police complaint was pending. The sale deed was executed at about the time of falling the tree and during the time police complaint was lodged. The facts discussed above would point out that the defendants are in a position to dominate the will of the plaintiff. R.S.A.No.614 Of 2003 ::6:: The very fact that the plaintiff was residing along with the defendants; and that the plaintiff was a dependant of her daughter and the defendants, it appears that there is fiduciary relationship. In the facts and circumstances discussed above, the lower appellate court came to the conclusion on facts that the plaintiff was in a position to be dominated by the will of the defendants. 6. The lower appellate court also examined the question as to whether the transaction is sustainable. It is the case of the plaintiff that the sale deed was executed for the purpose of meeting the police case and the same is not supported by consideration. As PW1 she testified that she did not receive any consideration. Consideration shown in the document is Rs.1,000/-. She testified before the court that that value of the property is Rs.30,000/-. It is clear that the consideration shown in the document is too low and grossly inadequate. From the evidence it looks that after the sale she was wandering in neighbouring houses and other places. The lower appellate court on the facts found that the transaction is unsustainable. The R.S.A.No.614 Of 2003 ::7:: lower appellate court in the facts and circumstances of the case rightly held that the onus is on the defendant to prove that the transaction was not hit by undue influence and supported by consideration. The evidence in this regard is the bald statement of DW1 which is an interested testimony. The 1st defendant has not chosen to adduce any evidence to discharge the burden cast upon him under Section 16(3) of the Indian Contract Act. The lower appellate court held that Ext.A1 sale deed is vitiated by undue influence and it is liable to be set aside. The court below also held that the defendants failed to adduce any evidence to discharge the burden of proof. 7. I have gone through the evidence on record, pleadings and evidence and heard the contentions of the respective parties. As I said earlier, the lower appellate court had entered findings based on the facts and evidence on record. I agree with the findings recorded by the lower appellate court in the facts and circumstances. I am also of the view that the only possible conclusion that can be arrived at in the given facts and circumstances is the conclusion arrived at by the lower appellate R.S.A.No.614 Of 2003 ::8:: court. I also find that no other view is possible in the given circumstances. No question of law muchless any substantial question of law arises for consideration in the appeal. In the result, the appeal fails and accordingly, dismissed. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-