IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 AS.No. 387 of 1998() -------------------- OS.124/1994 of SUB COURT, KASARAGOD .................... APPELLANT(S): SUPPLEMENTAL 2ND PLAINTIFF -------------- K.MOHAN, WATCH REPAIRER AITHAPPA COMPOUND, K.S.R. ROAD MANGALORE, KARNATAKA BY ADV. SRI.V.RAJENDRAN SMT.VRINDA RAJENDRAN RESPONDENT(S): DEFENDANTS --------------- 1. K.NALINI, W/O M.KRISHNAN SANTHA DURGAMBA ROAD NELLIKKUNNU, KASARAGOD 2. K.SAROJINI, GANESHA NILAYA PERPALODY DEREBAIL, MANGALORE - 575 006 3. K.SREEDHARA, NEAR WATER TANK PRAKASH NAGAR, SOMESHWAR, P.O.KOTEKAR MANGALORE, KARNATAKA 4. K.SUDHAKARA, C/O SASIKUMAR AMBAR P.O.MANGALPADY, VIA UPPALA - 671 324 5. K.SREENIVASA, C/O GIRIJA NILAYA NEAR GANAPATHY TEMPLE, KATTIPALLA KAIKAMBA, P.O.KATTIPALLA, MANGALORE ADV. SRI.K.G.GOURI SANKAR RAI THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S.NO.387/1998 JUDGMENT Counsel for the appellant is absent. Counsel for the first respondent is present and ready. Appeal is dismissed for default. 17-08-2009 Sd/-, P.Q.BARKATH ALI, JUDGE M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 387 OF 1998 = = = = = = = = = = = = = = = Dated this the 24th day of May 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.124/94. The suit is one for cancellation of a gift deed and for recovery of possession after removing the unauthorized construction. The original plaintiff is the executant of the gift deed. It is averred that she has not executed any gift deed on her own volition and the first defendant and her husband had played a fraud and mis- representation on the original plaintiff and thus a document was executed and registered on 16.4.78. It is submitted that the original plaintiff was illiterate, unable to understand the consequences of her action and therefore the document is liable to be set aside. It is contended that when the original plaintiff came to attend a marriage the first defendant requested her that an A.S. 387 OF 1998 -2- authorisation letter is necessary for managing the plaint schedule property and therefore she had affixed her thumb impression to such a letter and therefore she has not executed the gift deed. It is also contended that only in the year 1991 she came to know about the execution of the gift deed and thereafter has filed a suit. 2. On the other hand the only defendant at the institution of the suit would contend that the gift deed is executed by the mother on her own volition and free will and the first defendant has accepted the gift and in pursuance of the same had made a construction on the property and therefore there are no grounds to set aside the document. 3. In the trial court PWs.1 and 2 and DWs.1 and 2 were examined and Exts.A1 to A4 and B1 to B8 were marked. During the pendency of the trial the original plaintiff died and her legal representatives are impleaded as supplemental 2nd plaintiff and supplemental A.S. 387 OF 1998 -3- defendants 3 to 5. The points that arise for determination in the appeal are, (1) Whether there are circumstances to set aside Ext.B1 document? and (2) Is there anything to interfere with the finding rendered by the lower Court? Points 1 and 2: 4. These points are answered together for the sake of convenience. Admittedly the relationship between the original parties is that of a daughter and mother. The case of the mother is that the daughter got document executed under the pretext of an authorisation document and therefore the document is vitiated by fraud and mis-representation. On the contra the daughter would contend that the mother had understood the contents of the document and she had voluntarily executed the gift deed on her own volition and free will and so it does not call for any setting aside. The original defendant has also got a case that really the mother has A.S. 387 OF 1998 -4- not understood the suit and it is the supplemental 2nd plaintiff who is behind the screen. Now whatever it may be when the matter reached the stage of trial the mother was not alive and so the fight was between the 2nd plaintiff and the first defendant. The 2nd plaintiff admittedly is the eldest son of the original plaintiff. The first defendant is the daughter and defendants 2 to 5 are also other children of deceased Leela, the original plaintiff. 5. So far as the execution of the document is concerned it is submitted that a document has been got registered. The signature in the document therefore cannot be put into dispute. But I am conscious of the fact that when a document is alleged to be executed by an illiterate woman, the person who claims benefit under the document under law has an obligation to prove that the person who executed the document was aware of the contents of the document and she had voluntarily executed the same. So this depends upon the A.S. 387 OF 1998 -5- appreciation of the evidence and the subsequent conduct of the parties. Now I will refer to the evidence available in the matter. 6. PW1 and DW1 are the two rival claimants. The evidence of PW1, (i.e. the supplemental 2nd plaintiff) would at least reveal one fact that according to him he was also available when the document was executed. The 2nd plaintiff and the other two sons of the original plaintiff were available on the spot at the time of the execution of the document. It is too far-fetched to think that a lady namely first defendant would have been in a position to over power them without permitting them to look into the contents of the documents. One of the brothers namely Sreedharan is an attesting witness to the document. 2nd attesting witness is another brother. Sreedharan as DW2 has very clearly deposed that he along with his brother had come all the way from Mangalore for the purpose of standing as a witness to the document and at the time of A.S. 387 OF 1998 -6- the execution of the document mother was capable of understanding the consequences of her action and according to him she had put her signature or thumb impression only after understanding the contents of the document. It is also deposed by him that a scribe has read over the document and the mother has agreed for the same and that had led to the writing of the original of the document and subsequent act of registration. The 2nd plaintiff would submit that he was available in the house when the document was registered. If he had any apprehension in the mind certainly he would have raised the same and certainly would not have kept quiet or allowed the mother to keep quiet for a long period of 13 years to initiate any action. It has to be stated that fraud cannot be inferred from conjectures and surmises. What is a fraudulent action has to be proved. Similarly the undue influence or mis-representation are also matters which has to be specifically pleaded and proved. In order A.S. 387 OF 1998 -7- to prove undue influence one should prove that one party was in a position to dominate the will of other party by virtue of the position and get the document executed. Admittedly the mother was not residing with the first defendant and therefore the question of any domination does not arise. So far as mis-representation is concerned it has to be stated even according to the 2nd plaintiff the first defendant and the mother were living together in the property prior to the execution of the document. The mother had understood the daughter and even according to the 2nd plaintiff besides mother three other children were available at the time of the registration of the document. Men may lie but circumstances will never lie. The two brothers who have got equal interest in the mother had chosen to be the witness to the gift deed and out of them one has mounted the box and had given clear and cogent evidence regarding the execution and understanding of the document by the mother. Why A.S. 387 OF 1998 -8- should he perjure and it is also interesting to note there is no case for the supplemental 2nd plaintiff that the other brothers have been won over by the 2nd defendant so as to give evidence against him. So the evidence of DW1 and DW2 would clearly and convincingly establish about the mental faculty of the mother, her execution of the documents, the acceptance of the gift etc. The fraud and the alleged mis-representation does not stand established at all. 7. It is also to be held just because the first defendant's husband happened to be a Registrar, all the officers working in the Department will support him. There is always a presumption u/s 114 of the Evidence Act and when a statutory act is done by a person in his official capacity that he does follow the procedure to be followed and then only do the act. So it has to be presumed that the person who had registered the document was totally aware of the act which he was A.S. 387 OF 1998 -9- performing and therefore it has to be also viewed in favour of the first defendant. 8. Now regarding the conduct of the parties. Had it only be an authorisation registered in 1978 under no stretch of imagination one can expect the persons to keep quiet till 1991. It has also to be stated that on the strength of the document the first defendant has moved in the right direction and had obtained a permit and constructed a building, had changed the mutation in her name and also the building tax assessment changed in her name. Therefore she has acted upon on the basis of Ext.B1 document. Though the 2nd plaintiff would contend that the mother had paid tax up to 1981 or 1985 not even a scrap of paper is forthcoming to establish the same. So it has to be held that the evidence of DW1 and DW2 is fully supported and corroborated by the subsequent conduct of the parties. A.S. 387 OF 1998 -10- 9. So far as the mother is concerned her capacity to understand is established and therefore there is nothing to prove regarding the inability element to her at the time of the execution of the document. Therefore from the materials available the Court below has rightly found out that the original plaintiff namely Leela had executed Ext.B1 fully understanding the contents of the same and had voluntarily gifted the property which has been accepted by the first defendant. Therefore there are no grounds to set aside the findings of the Court below. Hence the appeal fails and the same is dismissed but without costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 387 OF 1998 -11- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 387 OF 1998 = = = = = = = = = = = J U D G M E N T 24th May, 2010.