IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 966 of 2001()
1. RATHI DEVI
... Petitioner
Vs
1. SIVASANKARAN NAIR
... Respondent
For Petitioner :SRI.K.V.JAYACHANDRAN
For Respondent :SRI.ASP.KURUP
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :02/03/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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S.A .NO. 966 OF 2001
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Dated 2nd March 2007
J U D G M E N T
Plaintiffs in O.S.299/93 on the file of Sub
court, Ernakulam are appellants. Defendant is the
respondent. Suit was filed for a declaration that
Ext.A2 sale deed is not binding on plaintiffs and to
set aside the same and for recovery of possession of
plaint schedule property. Case of appellants was that
Gopalakrishnan, husband of first appellant and father
of appellants 2 and 3 are the son of Devaki Amma and
plaint schedule property was set apart to the
Thavazhy of Devaki Amma and her daughter deceased
Saraswathi as per partition deed No.3312/1119 of
S.R.O, Edappally and Gopalakrishnan was born
thereafter and he derived a right over the thavazhy
property by his birth and while so, Saraswathi died
as a child and her right also devolved on
Gopalakrishnan. Devaki Amma sold a portion of
property along with Gopalakrishnan during 1983 under
Ext.A1 sale deed. Gopalakrishnan died on 5/12/1991.
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After the death of Gopalakrishnan, Devaki Amma was
mentally weak and was not mentally free to take her own
decisions. It was alleged that respondent exerting undue
influence on her and prevailed over Devaki Amma to
execute Ext.A2 sale deed and property was sold, as if
the property belongs absolutely to Devaki Amma. It was
contended that being legal heirs of Gopalakrishnan
appellants have also right over the property and Ext.A2
sale deed is vitiated. It was contend that as legal heirs
of deceased Gopalakrishnan, appellants have 3/8th shares
in the property and Devaki Amma had 5/8th shares and
appellants are entitled to get a decree for declaration
that Ext.A2 sale deed is not valid and binding on plaint
schedule property and also to set aside Ext.A2 which is
void due to undue influence and appellants are entitled
to get decree for recovery of possession also.
2. Respondent filed written statement contending
that plaint schedule property having an extent of 27
cents was obtained by Devaki Amma and her daughter
Saraswathi as per partition of 1119 and Gopalakrishnan
was born several years thereafter and he has no right
over the property and in 1992 Devaki Amma sold the
property to respondent for valid consideration and
before the sale Gopalakrishnan had died and Devaki Amma
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has no mental incapacity as alleged and Ext.A2 is a
valid document and appellants are not entitled to the
decree sought for.
3. Learned Munsiff framed necessary issues. On the
side of appellants first appellant was examined as PW1
and a relative was examined as PW2. On the side of
respondent he was examined as DW1. Exts.A1 and A2 were
marked. Learned Munsiff on appreciation of evidence found
that by birth Gopalakrishnan had a right over the plaint
property as the property was allotted under partition
deed in 1119 M.E to the Thavazhy consisting of Devaki
Amma and her children and on the death of Saraswathi her
right also devolved on Devaki Amma and Gopalakrishnan
and on the death of Gopalakrishnan his rights devolved
on appellants, his wife and children and therefore
appellants have 3/8 share in the plaint schedule
property. Learned Munsiff also found that appellants
did not succeed in establishing that Ext.A2 is vitiated
either by fraud, misrepresentation or undue influence
Ext.A2 is valid as against share of Devaki Amma. Though
decree for recovery of possession was sought learned
Munsiff in the interest of justice granted a preliminary
decree for partition of the 3/8 shares of appellants
over plaint schedule property. Appellants challenged
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the decree and judgment before District court, Ernakulam
in A.S.9/1995. Learned Additional District Judge on re-
appreciation of evidence confirmed the decree and
judgment passed by learned Munsiff and dismissed the
appeal. It is challenged in this appeal.
4. Appellants contended that first appellate court
did not consider the grounds urged for challenging the
judgment and on the evidence it should have been found
that no consideration was paid for Ext.A2 and executant
Devaki Amma was not having sound mental capacity to
execute the sale deed and hence should have set aside
Ext.A2 and held that respondent has no right over the
property and appellants are entitled to recover the
possession of property on the strength of their title.
5. Learned counsel appearing for appellants
vehemently argued that there is no evidence to prove that
consideration shown in Ext.A1 was paid by respondent to
Devaki Amma and evidence also establish that Devaki Amma
was not mentally sound to execute Ext.A2 sale deed at
that time as after the death of Gopalakrishnan she was
mentally weak and respondent by exerting undue influence
got executed the sale deed and therefore decree and
judgment are unsustainable.
6. On hearing learned counsel appearing for
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appellants and on going through the judgment and decree
of courts below, I do not find any substantial
questions of law involved in the appeal. Plaint schedule
property admittedly originally belonged to the Tharavadu
of Devaki Amma. It was allotted to the Thavazhy of
Devaki Amma and her daughter Saraswathi who was alive at
that time. Gopalakrishnan, husband of first appellant
and father of other appellants was born only
subsequently. As property was allotted to the Thavazhy,
by birth Gopalakrishnan has got right over the property.
Though under Ext.A2 sale deed Devaki Amma sold property
as if it belongs exclusively to her, learned Munsiff and
learned Sub Judge rightly found that that sale deed will
not affects the rights of Gopalakrishnan or the legal
heirs of Gopalakrishnan and therefore upheld the case of
appellants that being legal heirs of deceased
Gopalakrishnan they have 3/8 shares over plaint
schedule property. Courts below held that Ext.A2 will
not effect the 3/8 shares of appellants and appellants
are entitled to their share.
7. Though it was vehemently argued that after the
death of Gopalakrishnan, Devaki Amma was mentally weak
and was not free to take her on decisions and
respondent succeeded in getting executed Ext.A2 sale deed
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by undue influence, on appreciating the evidence courts
below found that evidence is insufficient to prove undue
influence or fraud or mis-representation. That is a
question of fact. Exercising powers under Section 100 of
Code of Civil Procedure, it cannot be interfered. Nothing
was pointed out to interfere with that finding, except
the argument that Devaki Amma was mentally weak and
consideration was not paid. Documents show that
consideration was paid. No other evidence was adduced. In
such circumstances, I find no reason to interfere with
concurrent findings of courts below.
Appeal is dismissed.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.
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M.SASIDHARAN NAMBIAR,J.
JUDGMENT
S.A.No.966 OF 2001
2ND March 2007
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