IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 1ST DAY OF JUNE 2021 / 11TH JYAISHTA, 1943
RFA NO. 147 OF 2018
AGAINST THE JUDGMENT AND DECREE DATED 06.01.2015 IN
O.S.NO.706/2012 OF SUB COURT, KANNUR,
APPELLANT/PLAINTIFF:
PUTHIYAPURAYIL JANAKI,
W/O. LATE BALAN ACHARI, AGED 73 YEARS,
PUTHIYAPURAYIL, ULICKAL P.O, VAYATHOOR AMSOM,
DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT.
BY ADVS.
SRI.K.C.SANTHOSHKUMAR
SMT.K.K.CHANDRALEKHA
RESPONDENT/DEFENDANT:
PUTHIYAVEETTIL SMITHA,
W/O. CHIRAKKAL MOHANAN, AGED 38 YEARS,
CHIRAKKAL HOUSE, THIMIRI P.O, THIMIRI AMSOM,
DESOM, TALIPARAMBA TALUK,
KANNUR DISTRICT - 670 141.
BY ADVS.
SRI.EBIN MATHEW
SRI.P.J.MATHEW
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD
ON 31.03.2021 THE COURT ON 01.06.2021 DELIVERED THE
FOLLOWING:
R.F.A. No. 147 of 2018
-:2:-
"C.R."
MARY JOSEPH, J.
------------------------
R.F.A. No. 147 of 2018
------------------------
Dated this the 01st day of June, 2021
JUDGMENT
This is a case wherein Mrs.Puthiyapurayil Janaki an aged lady who is none other than the mother of the respondent herein had allegedly gifted the plaint schedule property by a deed of gift No.1406/2012 of SRO Ulickal which has been devolved on her by virtue of a Will executed by Sri.Balan Achari, and registered at S.R.O, Ulickal as 117/2010 on 28.12.2010, in favour of the respondent, who is her eldest daughter. The Suit was filed by the lady as OS No.706/2012 before the Subordinate Judge's Court, Kannur (for short the 'trial court') seeking to declare gift deed No.1406/2012 of SRO Ulickal as voidable and to cancel the same. The Suit was dismissed by the trial court directing the parties to suffer their respective costs. The aggrieved lady has preferred the appeal on hand before this Court. Parties to this appeal will hereinafter be referred to as the plaintiff and defendant in accordance with their status before the trial court. R.F.A. No. 147 of 2018 -:3:-
2. According to the lady, the Will referred to above makes it obligatory on her to arrange the funds for the marriage of her younger daughter Smt.Saritha by disposing off 10 cents of property out of the total extent bequeathed by her husband in her favour. The younger daughter being unmarried at the time of the death of her husband, finding no other resources to arrange the funds for the marriage, she accepted the offer of the defendant and her husband, to provide Rs.2,00,000/- and thus the marriage was solemnised successfully on 05.12.2012. Smt.Janaki had promised to repay the money given by the defendant by selling 10 cents of land from the total extent devolved on her, as per the Will. Efforts made by her to sell the property, turned futile exercises, as purchasers did not turn up to purchase it.
3. The defendant and her husband proposed Mrs.Janaki to execute a gift deed for 10 cents of land in defendant's favour. The proposal was acceptable to her and due to her old age and vision and hearing impairment associated with that she depended upon the defendant and her husband to get the gift deed in respect of 10 cents of property, executed. Thus, the defendant and her husband got the gift deed drafted by a scribe of their R.F.A. No. 147 of 2018 -:4:- choice and got it executed. The contents of the gift deed were not made known to the lady and she was made to believe that the gift deed 1406/2012 covers only 10 cents of her property.
4. Much later to the execution of the deed as above, the defendant and her husband demanded the lady to vacate the house situated in the property and resided by her and only at that juncture she came to know that the gift deed was executed not in respect of 10 cents but in respect of the entire extent of plaint schedule property belonging to her. The defendant and her husband had played a foul play on her and caused the gift deed to be drafted and executed in such a manner and thereby made themselves the absolute owner of the plaint schedule property. Smt.Janaki when apprised of the foul play of the defendant was constrained to institute the suit as O.S.No.706/2012 before Sub Court, Kannur alleging fraud and misrepresentation in the matter of execution of the gift deed. It was specifically contended by her in the suit that the execution of the gift deed was without her free consent as contemplated under Section 14 of the Indian Contract Act, 1872 and sought to treat it as voidable and to cancel it.
R.F.A. No. 147 of 2018 -:5:-
5. In the written statement filed in the suit the status of the parties to the suit and the execution of Will No.117/2010 at SRO Ulickal were not disputed by the sole defendant. It was contended that cash worth Rs.3,00,000/- and gold ornaments worth Rs.2,25,000/- were given to the plaintiff with a view to assist her in the conduct of the marriage of her sister and not desirous of obtaining anything in return. The plaintiff had executed the gift deed in her favour voluntarily and the allegations of fraud, misrepresentation and lack of free consent are totally baseless and devoid of merits. Her father had indebted to several banks at the time of his death and she was constrained to clear off the liabilities of her deceased father, when recovery proceedings initiated by the bank were in process. The plaint schedule property was taken possession by her after effecting mutation and the suit on hand is only a venture with ulterior motives, initiated at the instigation of her sister Mrs.Saritha.
6. The trial court framed issues in the following manner:- "1. Whether gift deed numbered 1406/12 of SRO, Ullikkal is vitiated by fraud and mis-representation as alleged by plaintiff?
R.F.A. No. 147 of 2018 -:6:-
2. Whether plaintiff is entitled to get the above said gift deed cancelled?
3. Whether plaintiff is entitled to a decree as prayed?
4. Reliefs and costs?"
7. Evidence was adduced by the parties to the suit to establish the issues referred to above. PWs 1 to 4 were examined and Exts.A1 to A5 (c) were marked on the plaintiff's side. DW1 and DW2 were examined and Exts.B1 to B11 were marked on the defendant's side.
8. The trial court dismissed the suit mainly on the ground that the execution of Ext.A3 to the extent of 10 cents was admitted by the plaintiff and she failed to prove any of the vitiating elements of misrepresentation and lack of free consent as alleged by her.
9. Sri.K.C. Santhoshkumar, the learned counsel for the plaintiff has contended that the trial court is erred in appreciating the evidence on record and therefore the impugned judgment and decree suffers. According to him, the very execution of the document was not under challenge but execution beyond 10 cents alone was under challenge. But the trial court mistook it as R.F.A. No. 147 of 2018 -:7:- denial of execution in total. According to the learned counsel, the circumstances that can be deduced from the evidence on record, which constrained the lady to part with 10 cents out of the plaint schedule property was not properly appreciated by the trial court. According to him, the court below overlooked the factum that the hapless lady, who owns the plaint schedule property alone had gifted the entire extent of it in favour of the defendant, without even creating a life interest in her favour. It is further contended that if the oral testimonies of PWs 1 to 4 were appreciated by the trial court in its proper perspective, the court ought to have reached a conclusion regarding the misrepresentation of the defendant while executing the gift deed covering the entire extent of plaint schedule property. Lastly and finally it was contended that a party could deny execution of a document even when the signature found therein was admitted by him. The learned counsel has also relied on Velayudhan v. Velayudhan [2001 KHC 113] to fortify the above contention. The above decision has also been relied on to contend that in a context of the nature the onus is on the plaintiff to adduce evidence to establish execution.
R.F.A. No. 147 of 2018 -:8:-
10. The learned counsel for the defendant had contended that Ext.A3 gift deed being a registered document, it carries the presumption that it is a validly executed one. The learned counsel has relied on Jamila Begum(d) thr. Lrs. v. Shami Mohd. (d) thr.Lrs. and Another (2018 KHC 7002 = AIR 2019 SC 72) and Visalakshi Amma and Others v. Gangandharan Nair (2017 KHC 355 = 2017 (2) KLJ 422) to rest his contentions. Jamila Begum supra was relied on by the learned counsel for the defendant to contend that when undue influence is pleaded as an element vitiating the execution of a contract, for the reason that the parties are related to each other or that the executant was of old age or of weak character, presumption of undue influence will not arise. According to him, court must scrutinise the pleadings to find out that such plea has been made out before examining whether undue influence was exercised or not. The learned counsel has relied on the above decision also to establish that a registered document carries with it a presumption that it was validly executed and the parties challenging the genuineness of the transaction has to show that it is not valid in law.
R.F.A. No. 147 of 2018 -:9:-
11. In Visalakshi Amma supra relied on by the learned counsel, a Single Bench of this Court has held that when a document is challenged by a party for want of free consent, it is voidable at his/her option. The above case was also relied on by the learned counsel to contend that in the case of a registered document, the presumption under illustration (e) to Section 114 of the Indian Evidence Act, 1872 that the official acts have been regularly performed will be available.
12. In the case on hand, signature in Ext.A3 is not disowned by the plaintiff. Execution of Ext.A3 is denied only to the extent of the entire plaint schedule property. Admittedly of the plaintiff, Rs.2,00,000/- was given by the defendant for the conduct of the marriage of her youngest daughter and therefore she was desirous of assigning 10 cents of property in her favour by executing a gift deed. It was averred by the plaintiff that she depended on the defendant and her husband for executing the gift deed in respect of 10 cents out of the plaint schedule property and got the alleged gift deed executed at SRO Ulickal. According to her, the defendant and her husband managed to draft the gift deed covering the entire extent of the plaint schedule property by a scribe of their choice and made her to R.F.A. No. 147 of 2018 -:10:- sign without making her aware of its contents. According to her, she came to know about the execution of the alleged gift deed covering the entire extent of plaint schedule property, only when she was sought to be evicted from the residential house situated therein at the instance of the defendant.
13. It is true that in Velayudhan supra, a Division Bench of this Court has held that the a document being signatured does not amount to admission of the execution of the document and that execution could be denied despite admission of signature. The Court has also held that the onus is on the plaintiff to adduce evidence to establish execution. The above dictum was laid by the Court in a suit for specific performance of an agreement to sell the property, wherein the defendant had denied the execution. In the case on hand the factual context is different, the gift deed in question being a registered one. Therefore, as held by the Apex Court in Jamila Begum supra and this Court in Visalakshi Amma supra, it carries with it a presumption of valid execution and a party challenging the genuineness of the transaction covered by that document is bound to establish that. In that backdrop, it is essential to have a discussion of the evidence adduced to see whether the alleged vitiating elements R.F.A. No. 147 of 2018 -:11:- of misrepresentation and want of free consent were established by the plaintiff and the trial court has appreciated the same in the wrong perspective. In her venture to establish vitiating factors, the plaintiff had examined herself as PW1 and witnesses as PWs 2 to 4.
14. The disputed gift deed is marked in evidence as Ext.A3. According to the plaintiff, she had consented for execution of Ext.A3 to the extent of 10 cents of property. The plaintiff as PW1 has deposed strictly in tune with her pleadings in the plaint. Admittedly of her Rs.2,00,000/- was given by the defendant to her for the conduct of marriage of her younger daughter Smt.Saritha, which was solemnized after the death of her husband. According to her, her husband had executed Will No.117/2010 of SRO, Ulickal in her favour during his lifetime and it was recited therein that, if the marriage of Smt.Saritha has to take place after his death, the plaintiff must meet the expenses of her marriage from the sale consideration obtained after selling 10 cents of property from the total extent bequeathed in her favour by Will No.117/2010 of SRO, Ulickal.
15. Husband of PW1 died on 01.01.2011. Execution of the Will as Ext.A1 in PW1's favour and the non-solemnisation of R.F.A. No. 147 of 2018 -:12:- marriage of Smt.Saritha during the lifetime of PW1's husband and non disposal of 10 cents of plaint schedule property by Smt.Janaki at the relevant time of marriage were not denied by the defendant. The only contention was that cash worth Rs.3,00,000/- and gold ornaments worth Rs.2,25,000/- were given by her voluntarily to the plaintiff for the conduct of the marriage of Smt.Saritha. According to her, the money indebted by her deceased father to various banks was also cleared off by her. According to her everything was done voluntarily, without any expectation or demand to get anything in return. Ext.B5 was produced by her and it would only establish that her father was indebted to North Malabar Gramin Bank, Ulickal branch for Rs.10,810/- and it was cleared off on 16.03.2011 i.e, after his death. According to the defendant, PW1 proposed to repay the amount she had voluntarily spent and since her attempt to dispose of 10 cents out of the total extent of plaint schedule property failed, she took an alternative mode of discharging the liability, by way of gifting that extent of property to her. According to her, the stamp paper for execution of the gift deed was purchased by PW1 herself and she volunteered to sign the drafted deed and got it registered at SRO, Ulickal. According to R.F.A. No. 147 of 2018 -:13:- her, PW1 has no vision or hearing impairment at the time of execution of Ext.A3 as alleged by her. According to her the suit on hand challenging the execution of Ext.A3 was filed by PW1 only at the instigation of Ms.Saritha, her sister.
16. Smt.Saritha was examined as PW2. Her version corroborates with that of PW1 when she deposed categorically that the proposal was only to gift 10 cents of property. Admittedly, she was not available at SRO, Ulickal on the day when Ext.A3 was executed and registered.
17. The recital in Ext.A1 being relevant in the context is extracted hereunder:
"എനന മകൾ സരരിത എന്നവനളെ എനന ജജീവരിതകകാലതത്ത് വരിവകാഹഹ നചെയ്തു വരിടകാൻ എനരികത്ത് സകാധരികകാനത വരരികയകാനണെങരിൽ എനന കകാലശശേഷഹ ഈ വസ്തുവരിൽ നരിനഹ 10 നസൻറത്ത് വരില്പന നചെയത്ത്തകായകാലഹ ശമൽ പറഞ്ഞ സരരിതയുനട വരിവകാഹഹ നടതരിനകകാടുശകണ്ടതകാനണെനഹ നരിശ്ചയരിചരിരരിക്കുന."
18. The testator died without giving away PW2 in marriage. As is clear from the recital of Ext.A1 extracted above, the desire of the father was only to sell 10 cents of property for meeting the expenditure of the marriage of PW2 and therefore, PW1 was R.F.A. No. 147 of 2018 -:14:- obliged only to do so. According to PW1, her attempts to sell 10 cents of property failed and without any demand from her, DW1 stepped down to help her with Rs.2,00,000/- and the expenses of the marriage were met with that.
19. PW4 was a neighbour of PW1 & PW2 and he deposed that PW2 had worn only 5-6 sovereigns of gold ornaments on the date of her marriage. He has also gone to the extent of stating that PW1 had entrusted him to enquire and say whether any purchasers for 10 cents of property was available.
20. DW1 failed to deduce anything contrary to PW4's say during examination in chief as aforesaid. DW1 has produced Ext.B6 estimate to show that gold ornaments have been purchased by her for PW2. But, it is pertinent to note that bills have not been produced by DW1 to establish her case that gold ornaments worth Rs.2,25,000/- have been purchased for PW2. Likewise, DW1 failed to establish even her claim that Rs.3,00,000/- was given by her in cash for the marriage of PW2. But the plaintiff admits receipt of Rs.2,00,000/- in cash from DW1 for the marriage of PW2.
21. DW1 has no case that any assistance was sought by PW1 from her. According to DW1 the money and gold R.F.A. No. 147 of 2018 -:15:- ornaments were given voluntarily without expecting anything in return. If that be so, she would have resisted the alleged proposal of PW1 to gift the entire extent of plaint schedule property and the house situated therein resided by her, in her favour. If the alleged execution of the gift deed in respect of the plaint schedule property was known to other siblings, they would have stepped in to resist it.
22. PW1 had examined the signatory to Ext.A3 as PW3. He deposed to have no acquaintance with PW1 and seen her first only at SRO, Ulickal on the date of execution of Ext.A3. According to him, he was at the office of the Sub Registrar as attestor to a deed registered on the day by some other person and was made to affix his signature in Ext.A3 by DW1. According to him, PW1 voluntarily affixed her signature in Ext.A3 but, without reading its' contents. The husband of DW1 had also affixed his signature in Ext.A3 as a witness.
23. The version of PW2 that siblings other than DW1 had also spent money for the conduct of her marriage by PW1, was neither disputed nor denied by DW1. Not even an attempt was made to controvert PW2 on that aspect. DW1 had also not spoken that daughters other than herself were maintaining R.F.A. No. 147 of 2018 -:16:- ill-relationship with PW1 and PW2. It was also not brought out by DW1 in evidence that properties and house other than those allegedly gifted are there for PW1 to shift her residence and that other sources of income are there for her sustenance. DW1 also did not say that PW1 is being maintained by any of her other children. Therefore, the context undoubtedly creates a suspicion on voluntary assignment by PW1 of the entire plaint schedule property in favour of the defendant by execution of Ext.A3 deed. The fact that none of the other siblings of DW1 or any of the relatives accompanied PW1 to the office of the Sub Registrar when she proceeded thereto to execute the gift deed on 04.09.2012 is yet another suspicious circumstance pointing at the validity of the transaction. It appears from the evidence that on the alleged date of execution PW1, DW1, her husband, PW3 and DW2 alone were available at the office of the Sub Registrar. Therefore, there is scope for a probability that PW1 was brought to the Sub Registrar's office by DW1 and her husband themselves. The factum that a stranger to PW1 and the husband of DW1 were made to attest Ext.A3 also creates some doubts on the alleged voluntary execution of Ext.A3 by PW1. If it was a voluntary execution, DW1 must have made it R.F.A. No. 147 of 2018 -:17:- known to the other siblings also and would have procured any of them to the Sub Registry Office to witness the execution. On the contrary, the husband of DW1 and a stranger stood as attestors in Ext.A3. The attestors of Ext.A3 being partisans of DW1, the indication is that she in fact wants the execution of Ext.A3 covering the entire extent of plaint schedule property in her favour, to be a matter of secrecy.
24. The Sub Registrar of Ulickal was examined by DW1 as DW2 to establish that execution of Ext.A3 was properly and voluntarily done by PW1. DW2 had stated that PW1 had signed Ext.A3 before him. But DW2 did not say that before affixing her signature in Ext.A3, its contents were read by PW1 herself or read out to her either by DW1 or her husband.
25. Neither the plaintiff nor the defendant procured any materials and marked in evidence to establish the fair value or the value the plaint schedule property was liable to fetch in the market at the relevant time of execution of Ext.A3. It is gathered from the version of DW1 that the parting of cash worth Rs.3,00,000/- and gold ornaments worth Rs.2,25,000/- formed consideration for the execution of Ext.A3 by PW1 in her favour for the entire extent of the plaint schedule property. R.F.A. No. 147 of 2018 -:18:-
26. As already observed, DW1 failed to establish her claim that cash of Rs.3,00,000/- and gold ornaments worth Rs.2,25,000/- were given to PW1 for the conduct of the marriage of PW2. Therefore, PW1 had admitted receipt of cash worth Rs.2,00,000/- from DW1 for the conduct of marriage and therefore that alone can be taken to have basis. If that be the case, Rs.2,00,000/- alone can form consideration for the alleged execution of Ext.A3 covering the entire plaint schedule property in favour of DW1. In that context, the value the plaint scheduled property was liable to fetch in the market at the relevant time assumes relevance, but there is absolutely nothing on record.
27. It was PW1's husband who bequeathed the plaint scheduled property in her favour and when the testator as father of PW2 has expressed his intention only to sell 10 cents of property covered by Ext.A1 to meet the expenses of marriage of PW2, it is unlikely for PW1, to assign the entire extent of plaint schedule property and the residential house situated therein, which is established as her sole place of abode to DW1 by executing a gift deed as Ext.A3.
R.F.A. No. 147 of 2018 -:19:-
28. PW1 attempted to establish with the support of Ext.A4 series and Ext.A5 series that her vision and audibility were impaired partially. But, since the medical documents were not proved by examining the person responsible for issuance of those, the trial court discarded those. But the factum that PW1 was an old lady of 69 years at the relevant time of execution of Ext.A3 was an undisputed one. Moreover, evidence is not brought on record by DW1 to establish that PW1 was a literate lady capable of managing things on her own. Admittedly, 10 cents out of the total extent of plaint schedule property was intended to be gifted to DW1 for Rs.2,00,000/- given by her for the marriage of PW2. Independent evidence is not forthcoming to establish voluntary execution of Ext.A3 by PW1. The aforesaid circumstances are suspicious and this court is prompted to take a view on the basis of those that free consent of PW1 was lacking while affixing signature in Ext.A3.
29. As directed by the dictum in Jamila Begum supra, the plaintiff through oral evidence of her own as PW1 and that of the witnesses as PWs 2 to 4, coupled with the documentary evidence on record has successfully established that execution of Ext.A3 gift deed in so far as it relates to the entire extent of R.F.A. No. 147 of 2018 -:20:- plaint schedule property was vitiated for misrepresentation and lack of free consent. According to her, the defendant had made her to sign Ext.A3 without the contents of it being read out to her or making her to read its contents on her own. There is nothing on record to establish that Rs.2,00,000/- admittedly paid by DW1 is a consideration sufficient and satisfactory for the transaction covered by Ext.A3. Though the defendant has got a case that gold sovereigns worth Rs.2,25,000/- has been given to her sister, there is absolutely no evidence to strengthen the said contention. Though Ext.A3 is a registered document, the plaintiff has successfully discharged her burden to rebut the presumption of validity carried by that document. It has come out from the above discussion that the defendant has played some fraud on the plaintiff, who is a hapless lady. In the above circumstances, execution of Ext.A3 being vitiated for misrepresentation and lack of free consent, is liable to be set aside.
In the result, appeal succeeds and is allowed with costs. A decree is passed to the effect that Ext.A3 gift deed bearing No.1406/2012 registered at SRO Ulickal is void. A direction is R.F.A. No. 147 of 2018 -:21:- issued to SRO Ulickal to make an entry in the register kept at its office that the gift deed bearing No.1406/2012 is cancelled.
Sd/-
MARY JOSEPH, JUDGE NAB/MJL/ttb