IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 AS.No. 912 of 1998(C) -------------------------------- OS.264/1980 of PRL.SUB COURT, THRISSUR .................... APPELLANT/PLAINTIFFS: ------------------------------------- 1. LAKSHMI, D/O.CHALIPAT KUNHUNNY AND W/O.THOTTUPURA NARYANAN, RESIDING AT NATTIKA AMSOM AND DESOM, CHAVAKKAD TALUK, TRICHUR DISTRICT. *2. BHANUMATHY, D/O. DO. AND W/O.CHERKARA ERANAZHATH VADAKKOTTAYIL KESAVAN, NOW RESIDING AT THATHAPPILLI, KOTTUVALLY VILLAGE, PARUR TALUK, ERNAKULAM DISTRICT. *(DIED) *ADDL. APPELLANT 3 TO 8 IMPLEADED ADDL. A3: V.K. ANANDAVALLY, W/O.MOHANAN, D/O.BHANUMATHY, NADUPARAMBIL HOUSE, P.O.THALIKULAM, TRICHUR. ADDL. A4: V.K. VASUDEVAN, S/O.BHANUMATHY, VADAKKOTTAYIL HOUSE, NATTIKA P.O., TRICHUR. ADDL. A5: V.K. SOBHANA, D/O. DO. W/O.SAMBASIVAN, VATTAPPARAMBIL HOUSE, NARAYANAMANGALAM, P.O.PULLOOT, KODUNGALLUR. ADDL. A6: V.K. JAYASREE, D/O. DO., W/O.SUGATHAN, BLANGATTU HOUSE, P.O.THALIKULAM, TRICHUR. ADDL. A7: V.K. AJITHA, D/O. DO., W/O.T.B. SUBRAMANIAN, P.O.MANNAM, N. PARAVOOR. ADDL. A8: V.K. PREETHA, D/O. DO., W/O.P.G. BABU, PORUMBUMKATTIL HOUSE, P.O. ALAPPAT, TRICHUR. *ADDL. APPELLANTS 3 TO 8 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 2ND APPELLANT, VIDE ORDER DATED 15/10/1999 ON C.M.P.1513/1999. BY SRI.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE AS.No. 912 of 1998(C) RESPONDENTS/DEFENDANTS 1 TO 6: -------------------------------------------------------- 1. RAJENDRAN, S/O.CHALIPAT RAMANUNNY VAIDYAR, ENGANDIYUR AMSOM, KUNDAZHIYUR DESOM, CHAVAKKAD TALUK, TRICHUR DT. 2. RAVEENDRAN, S/O. DO. DO. 3. RAMACHANDRAN, S/O. DO. DO. 4. PARIMALA, D/O. DO. AND W/O.KARAYIL SUKUMARAN, EDAMUTTAM AMSOM AND DESOM, DO. DO. 5. VIMALA, D/O. DO. ENGANDIYUR AMSOM, KUNDAZHIYUR DESOM, DO. DO. 6. DEVAYANI, W/O.DECEASED RAMANUNNY VAIDYAR, DO. DO. R1 TO R6 BY SMT.V.P.SEEMANDINI, SENIOR ADVOCATE, ADV. SMT.S.KARTHIKA, SRI.M.S.UNNIKRISHNAN, SRI.M.R.ANISON, SMT.K.B.VEENA. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. ........................................... A.S.NO.912 OF 1998 ............................................. Dated this the 19th day of August, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Trichur in O.S.No.264/1980. The suit is one for declaration and possession. The suit had been dismissed by the court below and it is against that decision, the appeal has been preferred. 2. It is submitted that both the appellants are dead and that the legal representatives of the deceased second appellant have come on party array as supplemental appellants 3 to 8. For the purpose of this appeal, I make it clear that since both the plaintiffs are claiming title under the same document, there is substantial representation, but I make it further clear that as the matter requires reconsideration by the court below, supplemental appellants have to bring on party array as the legal representatives of the deceased first plaintiff and if not, they have to amend the plaint seeking recovery of possession on behalf of them also. So, the appeal is now considered on that basis. 3. The property admittedly belonged to one Kunhunni. The plaintiffs and one Ramanunny are the children of this : 2 : A.S.NO.912 OF 1998 Kunhunni. Ramanunny died and his children are D1 to D5 and his widow is the 6th defendant. 7th defendant is the second wife of Kunhunni. It is the case of the plaintiffs that Kunhunni had executed four Wills, last of which is Ext.A4. According to them, by virtue of Ext.A4 on the death of Kunhunni, the property had devolved upon the plaintiffs and therefore, they are entitled to title over the property and therefore, seek for recovery of possession on the strength of title. 4. On the other hand, the contesting defendants would contend that Kunhunni had executed Ext.B1 settlement deed on 4.9.1978 whereby the property mentioned had been given to them and therefore, at the time of death of Kunhunni, the property was not available with him and so, no property will devolve by virtue of Ext.A4 Will on the plaintiffs. Kunhunni died on 15.2.1979. So, the crux of the matter depends upon the question whether at the time of death of Kunhunni, he had any existing right over the plaint schedule property. If Ext.A4 is properly proved and is not vitiated by any circumstance, the plaintiffs will get title over the property. On the other hand, if Ext.B1 is : 3 : A.S.NO.912 OF 1998 properly proved, then necessarily, there will not be any right for anybody else other than the contesting defendants and so, the plaintiffs have to be non suited. 5. The learned counsel for the appellants very strongly contends before me that by amending the plaint they had incorporated a pleading to the effect that Ext.B1 document is not signed by Kunhunni and that the court below without understanding the implication of Section 68 of the Evidence Act, had compared the signature and evidence and found it to be valid and further held that other contention regarding vitiating circumstance surrounding the execution of Ext.B1 has not been considered at all. 6. Now let us peruse Ext.B1. Ext.B1 is styled as a settlement deed. A perusal of that document would reveal that the property is given in favour of the persons therein on account of love and affection without receiving any consideration and therefore it satisfies all the ingredients necessary to constitute a gift under Section 122 of the Transfer of Property Act. The only thing is there are some conditions attached to the gift that they should pay certain amount to certain persons or in other words, it is a gift with : 4 : A.S.NO.912 OF 1998 some conditions which could be enforced by the persons who are entitled to that. So, it has to be held that Ext.B1 satisfies the ingredients of a gift. When it is construed as a gift, then Section 68 of the Evidence Act would come into play. Under Section 68, when a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving his execution and there is a proviso which states that other than in the case of Will if the execution of the document is admitted, attesting witness need not be called. When the plaint is amended challenging the signature of Kunhunni in the document, it amounts to denial of execution of the document. When it amounts to denial of the execution of the document, it is imperative to examine an attesting witness or at least follow the methodology given under Sections 68 to 71 of the Evidence Act to prove execution of the document. But, unfortunately, no attempt has been made in that regard and attesting witness has not been examined. But, I find in the original of the plaint that the plaintiffs challenged the document on the ground of fraud, coercion, undue influence etc., and if that had been the only pleading, : 5 : A.S.NO.912 OF 1998 then Section 68 may not attract to make it imperative to examine an attesting witness. But the wisdom prevailed on the plaintiffs later and they had amended the plaint. Unfortunately the defendants did not take any steps to examine the attesting witness. I feel, it is only on account of the confusion created in the mind that non examination has resulted. Therefore interest of justice requires an opportunity to be given to prove Ext.B1 document in accordance with law. So, I am inclined to grant an opportunity. 7. The next is regarding the vitiating circumstance. The trial court after exhaustive consideration held that the plaintiffs have failed to prove the vitiating circumstance. In para 21, it is made very clear that “ I further hold that the allegations of the plaintiffs that Ext.B1 was executed under fraud, coercion or undue influence are not true, and that the document is not liable to be set aside”. The court below in order to arrive at that decision had considered the materials available and discussed in paras 19 and 20 of the judgments. The court was convinced about the absence of evidence to find out the vitiating circumstance. Therefore it does not : 6 : A.S.NO.912 OF 1998 call for any interference. So the result of the litigation would depend upon a simple factor that whether Ext.B1 is executed by Kunhunni and if it is proved, then the plaintiffs will be out of court. Therefore judgment and decree of the trial court are set aside and the case is remitted back to the trial court as follows: 1. An opportunity is given to the contesting defendents to examine the attesting witness under Ext.B1 in order to prove proper execution of Ext.B1. 2. The finding that the document - Ext.B1 is not vitiated for the reasons stated in the plaint and it is not liable to be set aside is upheld. 3. For the purpose of Point No.1, let both the parties be permitted to adduce both documentary as well as oral evidence in support of their respective contentions and then the matter be disposed of in accordance with law. 4. The supplemental appellants herein namely supplemental appellants 3 to 8 are directed to take steps to implead the legal representatives of the deceased first plaintiff/first appellant and in case if they are not available to amend the plaint, make a prayer to effect recovery of : 7 : A.S.NO.912 OF 1998 possession on behalf of the legal representatives of the first plaintiff as well. Parties are directed to bear their respective costs in the appeal. 5. The District Collector may be addressed for realisation of the court fee including the court fee to be realised from this court after the final disposal of the case. So far as legal representatives are concerned, the defendants in the suit are permitted to file an application regarding their entitlement or dis entitlement under Order 33 of C.P.C and it can be enquired as a first point and the suit be disposed of thereafter. Parties are directed to appear before the trial court on 29.9.2010. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 8 : A.S.NO.912 OF 1998 M.N. KRISHNAN, J. ........................................... A.S.NO.912 OF 1998 ............................................. 19th day of August, 2010. J U D G M E N T : 9 : A.S.NO.912 OF 1998