IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 442 of 2000(D)
1. SAMSUDDIN
... Petitioner
Vs
1. DAINABI
... Respondent
For Petitioner :SRI.S.V.BALAKRISHNA IYER (SR.)
For Respondent :SRI.KODOTH SREEDHARAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :01/06/2010
O R D E R
M.N. KRISHNAN, J.
= = = = = = = = = = = = = = =
A.S. NO. 442 OF 2000
= = = = = = = = = = = = = = =
Dated this the 1st day of June, 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.141/92. The suit was one for cancellation of a release
deed and for partition. It is the case of the plaintiffs that
they are entitled to share over the property, i.e. 23/280
shares and that defendants 12 and 13 are entitled to
23/280 shares. According to them the defendants are not
dividing the property under the pretext of a release deed
executed by one Jainabi who is the mother of the
plaintiffs as well as D12 and D13. The said document is
not supported by any consideration and therefore it is
submitted that the said document is vitiated by fraud etc.
and therefore it is liable to be set aside.
2. The defendant would contend that the
predecessor-in-interest of the plaintiffs and defendants
A.S. 442 OF 2000
-2-
12 and 13 namely Jainabi had executed a release deed in
favour of S.K.Abdulla, predecessor of the contesting
defendants. Therefore it is contended that the plaintiffs
and defendants 12 and 13 are not entitled to any relief.
On an analysis of the materials the trial court had
dismissed the suit but without costs. So against the
dismissal the plaintiff has come up in appeal for setting
aside the judgment and decree and contesting
defendants had moved a cross objection against the
disallowance of costs.
3. Heard. The ultimate result of the suit will
depend upon the validity and genuineness of Ext.B1
document. The plaintiffs as well as the defendants 12
and 13 are the children of one Jainabi. This Jainabi is one
of the daughters of Beepathumma. Beepathumma had
four children out of which the first child is born to her in
her first husband Abdulkhader. Now the entire case
depends upon the genuineness of Ext.B1 document.
A.S. 442 OF 2000
-3-
4. Ext.B1 is a registered release deed executed by
Jainabi in favour of her brother Abdulla on 4.2.81. A
perusal of the said document would reveal that for a
consideration of Rs.3,000/- she relinquished her share in
the property in favour of Mr.Abdulla. The attesting
witness to the documents are the first plaintiff as well as
DW1. The first plaintiff is none other than the son of this
Jainabi. When confronted with such a difficult situation
he pretends ignorance. When confronted with Ext.B1,
PW1 had to admit his signature. Then he would suddenly
turn round and would say his mother was under the
impression that it is only a receipt and therefore the
document is incorrect. One has to bear in mind that
fraud will never attempted to be played on a party with
her son, an attesting witness. It is often said that ‘men
may lie but circumstances will never lie’. DW1 the other
attesting witness has categorically and clearly deposed
that the instructions for the preparation of the document
A.S. 442 OF 2000
-4-
was given by Jainabi, Abdulla and PW1. He had also
spoken about the registration of the document, his
presence at the time of the execution as well as
registration. He also speaks about the passing of
consideration. There is an endorsement in Ext.B1 that 30
notes of 100 each was paid to the executant in the
presence of Registrar. So the passing of consideration
also is before the concerned Registrar who had registered
the document. So all these materials would reveal that
Jainabi had executed a release deed in favour of her
brother for a consideration of Rs.3,000/- and Ext.B1
stands proved.
5. The plea of fraud or undue influence or
coercion also does not stand established for the reason
that no evidence is let in regarding the alleged fact of
mis-representation or other things. The witness has
clearly deposed that the registrar has made the
executant know about the contents of the document then
A.S. 442 OF 2000
-5-
only it was registered. So from these materials it is clear
that Ext.B1 document is executed by Jainabi in favour of
S.K.Abdulla. Therefore after the said document of 1981
Jainabi did not have any right over the property. The
subsequent conduct also confirms the said act. It is
admitted by PW1 that after 1981, the defendants 1 to 11
were in possession of the suit property and it is also
admitted that after Ext.A1 Jainabi or her children never
paid basic tax for the property. The assessments stand in
the name of Abdulla. Therefore Ext.B1 document is a
voluntarily executed document that has been acted upon
and therefore from the date of Ext.B1 Jainabi did not have
any right over the plaint schedule property. When it is so
there was nothing for the plaintiffs to succeed after the
death of Jainabi. So the plaintiffs and defendants 12 and
13 are not entitled to any share in the property. So the
contentions in the suit has not been proved hence
dismissed correctly by the Court below. The trial court
A.S. 442 OF 2000
-6-
had used its discretion in directing the parties to bear
their respective costs. I do not want to interfere with the
said finding also and therefore the appeal as well as the
Cross Objections are dismissed.
M.N. KRISHNAN, JUDGE.
ul/-
A.S. 442 OF 2000
-7-
M.N. KRISHNAN, J.
= = = = = = = = = =
A.S. No. 442 OF 2000
= = = = = = = = = = =
J U D G M E N T
1st June, 2010.