IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 309 of 2009()
1. V.MOHANAKUMAR, AGED 54 YEARS,
... Petitioner
Vs
1. KOMALAVALLY AMMA, AGED 63 YEARS,
... Respondent
2. GIREESH KUMAR, AGED 40 YEARS,
For Petitioner :SRI.P.G.PARAMESWARA PANICKER (SR.)
For Respondent :SRI.N.DHARMADAN (SR.)
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :31/03/2010
O R D E R
THOMAS P JOSEPH, J.
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R.S.A.No.309 of 2009
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Dated this 31st day of March, 2010
JUDGMENT
The late Velayudhan Pillai retired as a High School Assistant
and breathed his last on 02-05-1997. He executed Ext.A9,
registered Will No.54/89 dated 15-06-1989 as per which his
properties were divided into four schedules and bequeathed to his
sons, appellant, Sasidharan Nair and Rajendran Nair and daughter,
respondent No.1. The D schedule in Ext.A9 which was allotted to
the appellant is described in the plaint as A and B schedules. It is
the case of appellant that since the father was old and incapable of
managing the properties, he was put in possession of plaint A and B
schedules on execution of the Will and he was managing the same.
While so, his mother died. The father started residing with
respondent No.1 and family. In the year 1992, the father became
senile and bedridden. While in that state, respondent Nos.1 and 2
(respondent No.2 is the son of respondent No.1) got executed
Exts.A1 and A2, assignment deeds in their favour concerning plaint
A and B schedules. Certain other documents also were got
executed by the father all of which according to the appellant are
vitiated by fraud, undue influence and coercion. The father who
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was bedridden was not in sound disposing state of mind due to
senility and there was no consideration for the said assignments.
Respondent No.1 on the strength of the assignment deed in her
favour executed Ext.B2, assignment deed in favour of respondent
No.2 on 22-01-1992 concerning plaint A schedule. Appellant would
say that on account of the vitiating circumstances stated above,
assignment deeds got executed by the father in favour of
respondent No.1 and consequently, the assignment deed executed
by respondent No.1 in favour of her son, respondent No.2 are void
and have not taken effect. Appellant continued to be the absolute
owner in possession of plaint A and B schedule properties on the
strength of Ext.A9, Will, prayed for a declaration to that effect,
cancellation of Exts.A1, A2 and B2 assignment deeds and
consequential reliefs. Respondent Nos.1 and 2 resisted the suit
contending that allegations concerning vitiating circumstances are
all incorrect and that the father was hale and healthy in body and
mind at the time impugned assignment deeds were executed.
Execution of those assignment deeds amounted to revocation of
Ext.A9, Will concerning plaint A and B schedules. Appellant has no
title or possession of the said properties. They claimed to have
acquired title and possession of suit properties as per the
impugned assignment deeds. They also contended that the father
had executed other assignment/settlement deeds in respect of his
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remaining properties. In the course of the trial alleging that
respondents trespassed into the suit properties appellant got the
plaint amended to incorporate a prayer for recovery of possession.
Respondent No.2 filed O.S.No.1367 of 2002 against the appellant
seeking decree for prohibitory injunction to protect what he
claimed, his possession of plaint A schedule. That suit was resisted
by the appellant on the very same grounds pleaded in O.S.No.1040
of 1999. Learned Munsiff tried the suits jointly, decided issue
regarding validity of the impugned assignment deeds in favour of
the respondents, held that it amounted to revocation of Ext.A9, Will
concerning suit properties and dismissed O.S.No.1040 of 1999 filed
by the appellant. A decree for prohibitory injunction was granted
in O.S.No.1367 of 2002. Appellant challenged the common
judgment and decree in A.S.Nos.198 of 2004 and 209 of 2004 but,
without success. Appellant challenged judgment and decree in
A.S.No.198 of 2004 in R.S.A.No.308 of 2009 while judgment and
decree in A.S.No.209 of 2004 are under challenge in R.S.A.No.309
of 2009. When R.S.A.No.308 of 2009 came up for hearing on
admission, this court as per judgment dated 31-03-2009 dismissed
that appeal in limine observing that contentions raised by appellant
in that appeal could be raised in the present appeal and that
dismissal of R.S.A.No.308 of 2009 will not operate as resjudicata in
this appeal. The following substantial questions of law are framed
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in the present appeal:
(i) Having regard to the provisions contained in Section 16 of
the Indian Contract Act, are not the facts and circumstances
available on record sufficient to cast the burden of proof on
the defendants to show absence of undue influence and if
so, have they discharged that burden?
(ii)Is the finding of the courts below that execution of
documents subsequent to the Will by itself constitute
revocation of the Will sustainable in view of Section 70 of
the Indian Succession Act?
(iii)Is the finding of the courts below that the sale deeds
Exts.A1 and A2 are not vitiated by undue influence and that
they conveyed absolute title to the vendees sustainable?
2. Learned Senior Advocate appearing for respondent
raised objection regarding the substantial questions of law framed
in the case on the ground that it is on a premise that transactions
in favour of respondent Nos.1 and 2 were unconscionable and that
executant was in such a state that respondents could dominate his
will that substantial questions of law are framed. Respondents
have filed an affidavit in that line. Having regard to the
contentions raised by the appellant I do not find reason to redraft
the substantial questions of law framed though, question whether
respondents were able to dominate the will of the late Velayudhan
Pillai and the transactions are unconscionable as contended by the
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appellant has to decided on the evidence on record before deciding
upon the question of burden of proof.
3. Ext.A9 is the registered Will dated 15-06-1989 which, I
stated bequeathed the properties belonging to the late Velayudhan
Pillai in favour of his children including appellant and respondent
No.1. It is not disputed that D schedule therein allotted to the
appellant is referred to in the plaint A and B schedules. The A
schedule in Ext.A9 was bequeathed to respondent No.1 while, B
schedule in Ext.A9 was bequeathed to Sasidharan Nair, son. C
schedule in Ext.A9 was bequeathed to another son, Rajendran Nair.
The turn of events thereafter, is as under. Velayudhan Pillai
executed Ext.B1, assignment deed dated 15-07-1992 in favour of
one Sulochana and Jaya in respect of 15 cents and covered by A
schedule item No.1 in Ext.A9 which was allotted to respondent
No.1 as per the said Will. Then came Ext.B6, settlement deed
dated 08-03-1993 executed by the said Velayudhan Pillai in favour
of Vijayakumaran Nair, another son regarding B schedule in
Ext.A9, Will. Velayudhan Pillai then executed Ext.A1, assignment
deed dated 22-06-1994 in favour of respondent No.1 regarding
plaint A schedule – 16 cents. He executed Ext.A2, assignment deed
dated 13-02-1995 in favour of respondent No.2 regarding plaint B
schedule. Respondent No.1 who claimed title and possession of
plaint A schedule as per Ext.A1 executed Ext.B2, assignment deed
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dated 22-01-1999 in favour of respondent No.2. On 18-09-1995
Velayudhan Pillai executed Ext.B7, assignment deed in favour of
Sreekala, daughter of respondent No.1 regarding another 5 cents.
It is not disputed that properties dealt with as per Exts.A1, A2, B1,
B6 and B7 are covered by Ext.A9, Will.
4. Now challenge is to Exts.A1, A2 and B2, assignment
deeds. In paragraphs 5 to 7 of the plaint it is stated that
Velayudhan Pillai was sick and old and became senile in the year
1992 itself and since then he was bedridden in the house of
respondent No.1. Paragraph 6 of the plaint refers to the impugned
assignment deeds and in paragraph 7 it is stated that the said sale
deeds were got executed by respondent Nos.1 and 2 by exerting
undue influence and coercion and playing fraud on the said
Velayudhan Pillai who was aged and who had lost his senses
completely and was bedridden with various illness. It is also
averred that the said deeds were got executed without any
consideration. Learned Senior Advocate appearing for appellant
contends that in all the assignment deeds the same set of attesting
witnesses figure and all the assignment deeds referred to the sale
consideration being received by the late Velayudhan Pillai either
for discharging his liabilities or to meet his livelihood. Learned
Senior Advocate contends that there is no evidence to show that
the late Velayudhan Pillai was indebted in such a way that he had
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to sell the properties and discharge the liability. Velayudhan Pillai
was a retired HSA and must have been drawing monthly pension
and hence it was not necessary for him to have sold away his
properties already bequeathed in favour of his children as per
Ext.A9 and raise money for livelihood. So far as Ext.B1,
assignment deed dated 15-07-1992 in favour of Sulochana and Jaya
(who are strangers to the late Velayudhan Pillai) is concerned
circumstances show that the said assignment was taken for the
benefit of respondent No.1 herself in that, respondent No.1 figured
as an attesting witness in Ext.B1. Learned Senior Advocate has
drawn my attention to the decisions in Lakshmi Amma and
Another Vs. Talengala Narayana Bhatta and Another (AIR
1970 SC 1367), M.Kunka Kurup and Another Vs.
Lakshmikutty Amma and Ors. (1984 KLJ 786) and Gomathi
Amma and Ors. Vs. C.V.Krishnan Nair and Another (1985(1)
ILR 478).
5. Per contra it is contended by learned Senior Advocate
appearing for respondents that there is neither sufficient plea nor
evidence of any fraud or undue influence, not to say about alleged
coercion in the matter of execution of impugned assignment deeds.
Learned Senior Advocate points out that when a party relies on
fraud, undue influence , coercion etc, Order 6 Rule 4 of the Code of
Civil Procedure (for short, “the Code”) mandates him to state
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particulars of such fraud, undue influence, coercion etc which is
absent in this case. What is stated in paragraph 5 and 7 of the
plaint is only that the late Velayudhan Pillai was senile since 1992
onwards and that assignment deeds were executed without
consideration. Learned Senior Advocate points out that evidence
on record shows that late Velayudhan Pillai was in sound disposing
state of mind at the time of execution of the impugned documents
which were registered at the office of the Sub Registrar concerned.
It is also contended by learned Senior Advocate that trial and
appellate courts have referred to the evidence at depth and come
to the conclusion that on facts, evidence and circumstances plea of
fraud, undue influence and coercion cannot be sustained. Hence
no substantial question of law is involved in that regard. Reliance
is placed on the decision in Satgur Prasad Vs. Har Narain (AIR
1932 PC 89). It is further contended that the decision in
Lakshmi Amma and Another Vs. Talengala Narayana Bhatta
and Another (supra) has no application to the facts of this case
where none of the circumstance as in the reported case is proved
to exist. Learned Senior Advocate has placed reliance on the
decisions in Subhas Chandra Das Mushib Vs. Ganga Prosad
Das Mushib and Ors. (AIR 1967 SC 878).
6. Two grounds upon which Exts.A1 and A2 are
challenged are fraud and undue influence. Sir. Frederick Pollock in
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“The Law of Fraud, Misrepresentation and Mistake in British India”
states at page 17.
“Fraud may be described, for most usual
purposes, as the procuring of advantage to oneself, or
furthering some purpose of one’s own, by causing a
person with whom one deals to act upon a false belief”.
Pollock would say that the above is not a definition and that there
may be ‘fraud’ without any seeking of personal advantage.
According to Fawcett, J (Raneegunge Coal Association Vs. Tata
Iron and Steel Co. Ltd – AIR 1929 Bombay 119) a necessary
element in ordinary fraud is deception or deceit and getting
somebody to believe something that is not really correct. In
Tomlin’s Law Dictionary, ‘fraud’ is defined as deceit in grants and
conveyances of lands, and bargaining and sales of goods, etc., to
the damage of another person which may be either by suppression
of the truth, or suggestion of a falsehood. “Fraud” means and
includes any of the following acts committed by a party to a
contract, or within his connivance, or by his agent, with intent to
deceit another party thereto or his agent, or to induce him to enter
into the contract:
(i) the suggestion, as to a fact, of that which is not
true by one who does not believe it to be true;
(ii)the active concealment of a fact by one having
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knowledge or belief of the fact;
(iii)a promise made without any intention of
performing it;
(iv)any such act or omission as the law specifically
declares to be fraudulent.
(See P. Ramanatha Iyer, The Law Lexicon, Second
Edition, Page 757)
7. Coming back to the facts of this case, I do not find,
apart that there is no particulars of the alleged fraud pleaded in the
plaint, any evidence of fraud in respondent Nos.1 and 2 getting
Exts.A1 and A2 executed by the late Velayudhan Pillai. On the
other hand evidence on record would show that the said documents
were executed by him and presented for registration before the
Sub Registrar. It is not the case of appellant that said Velayudhan
Pillai was illiterate or was blind at the time the documents were
executed. On the other hand, he is a retired HSA. In such a
situation one could not raise a plea of non est factum. Courts
below on evidence has found against the plea of fraud and that
involves no substantial question of law.
8. Then the question is whether finding of the courts
below regarding undue influence is legally correct. The court of
appeal in Bank of Credit and Commerce International SA Vs.
Aboody (1992 (4) All.E.R.955) classifies the different modes of
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undue influence. Class 1 is actual undue influence. In these
cases it is necessary for the claimant to prove affirmatively that the
wrongdoer exerted undue influence on the complainant to enter
into the particular transaction which is impugned. Class 2 relates
to presumed undue influence where the complainant need only to
show, in the first instance, that was a relationship of trust and
confidence between the complainant and the wrongdoer of such a
nature that it is fair to presume that the wrongdoer abused that
relationship in procuring the complainant to enter into the
impugned transaction. Class 2A deals with certain relationships
(for example, solicitor and client, medical advisor and patient)
which as a matter of law raise the presumption that undue
influence has been exercised. Class 2B relates to cases where
there is no relationship in as in Class 2A but the complainant
proves the de factor existence of a relationship under which the
complainant generally reposed trust and confidence in the
wrongdoer. In this case, there is no relationship as in Class 2A so
that any presumption of undue influence could be raised. Here is
a case where respondent No.1, daughter is said to have exerted
undue influence on the father in getting Exts.A1 and A2 executed.
It is for the appellant to prove that respondent No.1 was able to
and did actually dominate the will of her father. Section 16(1) of
the Indian Contract Act (for short, “the Act”) states that a contract
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is said to be induced by “undue influence” where the relations
subsisting between the parties are such that one of the parties is in
a relation to dominate the will of the other and uses that position to
obtain an unfair advantage over the other. Subsection (3) says that
when a person who is in a position to dominate the will of another
enters into a contract with him and the transaction appears on the
face of it or on the evidence adduced, to be unconscionable then
the burden of proving that such contract was not induced by undue
influence shall lie upon the person who is in a position to dominate
the will of another. To be precise, for subsection (3) of section 16
of the Act to apply certain circumstances are to be proved by the
person alleging undue influence viz; the person who derived the
benefit was in a position to dominate the will of the executant, who
entered into contract with the person who thus dominated the will
and, on the face of the record or, from the evidence it appeared
that the transaction was unconscionable. That is what the
Supreme Court has dealt in Subhas Chandra Das Mushib Vs.
Ganga Prosad Das Mushib and Ors. (supra). There, in
paragraph 4 the requirements to raise the initial presumption of
subsection (3) of section 16 of the Act is stated. If the transaction
appeared to be unconscionable then the burden of proving that the
contract was not induced by undue influence was on the person
who was in a position to dominate the will of another. In
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paragraph 10, it is stated that before the court is called upon to
examine whether undue influence was exercised or not, it must
scrutinise the pleadings to find out that such a case has been made
out and that full particulars of undue influence have been given as
required under Order 6 Rule 4 of the Code. In paragraph 25, it is
stated that the mere fact that executant of the document was old or
sick by itself is not sufficient to draw any initial inference throwing
the onus to the person in whose favour the transaction is entered
into to prove that the transaction is not unconscionable. In
Lakshmi Amma and Another Vs. Talengala Narayana Bhatta
and Another(supra) the person who entered into transaction was
in a state of senility suffering from diabetics and other ailments and
the circumstances unclingingly revealed that the transaction was
unconscionable in that not even a life interest was provided for the
wife of the executant. It also came out that the executant was in
such a position that he was not able to move out from the nursing
home where he was undergoing treatment at the relevant time so
that the Sub Registrar has been summoned to that place and the
document got executed. There was a definite finding that mental
faculty of the executant was affected. No draft was prepared with
the approval or under the directions of executant nor had he given
any instructions for preparing the document. On those facts and
evidence subsection 3 of section 16 of the Act was applied. That
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decision can only be taken as one on the factual situation emerging
in that case. Now, I shall refer to the evidence on record to
appreciate the argument that the finding of the courts below
regarding undue influence is unsustainable. Ext.B7 which is the
last documents executed by the late Velayudhan Pillai would show
that he was aged 89 years at the time that document was executed
on 18-09-1995. Ext.A1 is executed on 22-06-1994 while Ext.A2 is
executed on 13-02-1995. In Exts.A1 and A2 it is specifically stated
by the executant (the late Velayudhan Pillai) that he has received
sale consideration stated therein, according to him for the
discharge of his liabilities or, to make up for his livelihood. There
is no evidence to show that consideration has not passed
notwithstanding the recital in Exts.A1 and A2. On the face of
recitals in Exts.A1 and A2 burden was heavy on the appellant to
show that no such consideration has passed. No reliable evidence
is produced. So far as Exts.B1, B6 and B7 are concerned, it is seen
that Ext.B6 is executed in favour of Vijayakumaran Nair, son of the
late Velayudhan Pillai and Ext.B7 is in favour of Sreekala, daughter
of respondent No.1 and as the evidence goes, that document was
executed on the eve of her marriage with DW3. Ext.B1 is in favour
of two strangers. Though, appellant has a contention that Ext.B1
transaction was intended to benefit respondent No.1 there is
absolutely no evidence in that line. Merely because respondent
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No.1 is an attestor in Ext.B1, no such inference is possible. Ext.B1
and B7 also say that sale consideration has passed in favour of the
executant, the late Velayudhan Pillai. Nor can undue influence be
inferred from the fact that attesting witnesses in the other
documents are the same. No finding against validitly of Exts.B1,
B6 and B7 is also possible as the beneficiaries under those
documents are not parties in the case. Appellant could not succeed
in proving that the late Velayudhan Pillai was not having sound
disposing mind at the time of Exts.A1 and A2. Appellant relies on
Exts.A5 to A8. These documents only revealed that the late
Velayudhan Pillai was hospitalised on four occasions during 1991-
92 either for diabetic ulcer or for diabetic cellular. It is not shown
that the said illness affected his mental faculty in any manner
whatsoever. There is no evidence to show that after 1992
Velayudhan Pillai had undergone any such treatment or that there
was anything bad with his disposing state of mind. There is the
evidence of DW2, brother of respondent No.1 in whose favour
Ext.B6, settlement deed was executed. He stood by Ext.B6
(though, he is also is a legatee under Ext.A9, Will) and stated that
the father (Velayudhan Pillai) was hale and healthy at the time of
Ext.B6 dated 08-03-1993. DW3, husband of Sreekala (assignee
under Ext.B7) and son-in-law of respondent No.1 stated that the
late Velayudhan Pillai had attended his marriage. This is further
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proved by DW4, a photographer who claimed to have taken
photographs on the occasion. DW5 is the postman of Thirumala
post office and stated that he used to deliver pension to the late
Velayudhan Pillai until his death and on some occasions the late
Velayudhan Pillai even came to the post office and collected
pension. Thus evidence on record is in favour of the sound
disposing state of mind of the late Velayudhan Pillai during the
time the impugned documents (Exts.A1 and A2) were executed and
registered. It is relevant to note that the legatees of the property
(as per Ext.A9, Will) covered by Exts.B1 and B7 have not
challenged those documents. It is in these circumstances that
courts below came to the conclusion that allegation of undue
influence is also not established. There is no evidence to show,
except that the Velayudhan Pillai was aged about 89 years at the
time of Exts.A1 and A2 and was staying with his daughter,
respondent No.1 that the latter was in a position to dominate the
will of the former. Nor do circumstance reveal that Exts.A1 and A2
are unconscionable in nature so that onus of proving absence of
undue influence shifted to the respondents. The burden lay with
the appellant and he was not successful in discharging that burden.
Hence the question of application of Section 16(3) of the Act does
not arise. It is not disputed before me that execution of Exts.A1
and A2 amounted to revocation of Ext.A9, Will to the extent it
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concerned the suit properties. The substantial question of law
framed are answered accordingly. The result is that appeal has to
fail.
Resultantly the second appeal fails and it is accordingly
dismissed. No cost.
(THOMAS P JOSEPH, JUDGE)
Sbna/-
