IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 387 of 1998()
1. K.MOHAN
... Petitioner
Vs
1. K.NALINI
... Respondent
For Petitioner :SRI.V.RAJENDRAN
For Respondent :SRI.K.G.GOURI SANKAR RAI
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :24/05/2010
O R D E R
M.N. KRISHNAN, J.
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A.S. NO. 387 OF 1998
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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/-
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M.N. KRISHNAN, J.
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A.S. No. 387 OF 1998
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J U D G M E N T
24th May, 2010.