Fousiya Shereef vs Jaffarkhan P.I
2022 Latest Caselaw 3781 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR. JUSTICE P.SOMARAJAN
     TUESDAY, THE 5TH DAY OF APRIL 2022 / 15TH CHAITHRA, 1944
                       RFA NO. 272 OF 2020
 AGAINST THE JUDGMENT AND DECREE IN OS 59/2018 OF SUB COURT, PALA


APPELLANTS/ADDITIONAL PLAINTIFFS 2 TO 6 IN OS:

    1     FOUSIYA SHEREEF,
          AGED 49 YEARS,
          W/O.E.SHEREEF,PLAVILAYIL HOUSE,
          MANGARAM,PANDALAM,
          PATHANAMTHITTA DISTICT,PIN-689645.

    2     RASIA ISMAIL,
          AGED 51,
          D/O.P.S.ISMAIL,PUTHUPARAMBIL HOUSE,
          KOOTTICKAL,KOTTAYAM DISTRICT,
          PIN-686514.

    3     SAFIA BEEVI,
          AGED 53,
          W/O K I NAZAR,KARIPPAYIL HOUSE,
          KANJIRAPPALLY,KOTTAYAM DISTRICT,
          PIN-686514.

    4     ABDUL GAFOOR.P.I,
          AGED 46,
          S/O P.S.ISMAIL,PUTHUPPARAMBIL HOUSE,
          KOOTTICKAL,KOTTAYAM DISTRICT,
          PIN-686514.

    5     SHAMEER KHAN.P.I,
          AGED 44,
          S/O.P.S.ISMAIL,PUTHUPPARAMBIL HOUSE,
          KOOTTICKAL,KOTTAYAM DISTRICT,
          PIN-686514.

          BY ADVS.
          P.B.KRISHNAN
          SRI.P.B.SUBRAMANYAN
          SRI.SABU GEORGE
          SRI.MANU VYASAN PETER
          SMT.MEERA P.
          SMT.ANUSREE B
  RFA NO. 272 OF 2020

                                    2



RESPONDENTS/DEFENDANTS IN O.S:

    1          JAFFARKHAN P.I,
               AGED ABOUT 55 YEARS,
               S/O P.S.ISMAIL,RESIDING AT PUTHUPPARAMBIL
               HOUSE,KOOTTICKAL.P.O,
               KOOTTICKAL KARA,MUNDAKAYAM VILLAGE,
               KANJIRAPPALLY TALUK,KOTTAYAM DISTRICT,
               PIN-686514.

    2          P.I.MUHAMMED SHUKKOOR,
               AGED ABOUT 54 YEARS,
               S/O P.S.ISMAIL,RESIDING AT PUTHUPPARAMBIL
               HOUSE,KOOTTICKAL.P.O, KOOTTICKAL KARA,
               MNDAKAYAM VILLAGE,KANJIRAPPALLY TALUK,
               KOTTAYAM DISTRICT,PIN-686514.

    3          P.S.AMINA,
               AGED ABOUT 75 YEARS
               W/O P.S.ISMAIL,PUTHUPPARAMBIL HOUSE,
               KOOTTICKAL.P.O, KOTTICKAL KARA,
               MUNDAKAYAM VILLAGE,KANJIRAPPALLY TALUK,
               KOTTAYAM DISTRICT,PIN-686514.

               R1 BY ADVS.
               ABRAHAM GEORGE JACOB
               SRI.C.MURALIKRISHNAN
               SHRI.AKSHAY R




        THIS    REGULAR   FIRST    APPEAL   HAVING    COME     UP   FOR
HEARING    ON     05.04.2022,     THE   COURT   ON   THE     SAME   DAY
DELIVERED THE FOLLOWING:
  RFA NO. 272 OF 2020

                                     3



                             JUDGMENT

An age-old father of additional plaintiffs

and defendants 1 and 2 came up with a suit for

setting aside three settlement deed out of five

executed on 23/06/2018 on the ground that those

settlement deeds are not in accordance with the

instruction given by him to his eldest son with

whom he had entrusted the job of preparation of

settlement deeds and arrangement for its

execution. It is the specific case of the

plaintiff that all these five settlement deeds

were got prepared through his eldest son and

arrangements were made by him for its

registration and accordingly, Exts.A1, A3, A5,

A6 and A7 settlement deeds were prepared and

consent was given for its registration. Later

on, it was learnt that out of the five

settlement deeds, three settlement deeds were

not prepared as directed and it was concealed RFA NO. 272 OF 2020

from the notice of plaintiff, the executant, by

playing fraud and misrepresentation. On

enquiry, it was found that Exts.A1, A3 and A7

were executed in the name of first and second

defendants, the elder son and his brother, hence

the plaintiff came up for setting aside these

three documents on account of fraud and

misrepresentation. The trial court on

consideration of oral and documentary evidence

and after hearing both the parties dismissed the

suit, against which the plaintiff came up in

appeal,

2. It is the admitted case of the plaintiff

that he had executed five settlement deeds as on

23/06/2018 and registered it in accordance with

the law in force under the impression that all

these documents were prepared in accordance with

the direction given by him. It is also alleged

by the plaintiff that earlier, there was some

revenue recovery proceedings and outstanding RFA NO. 272 OF 2020

debts which were discharged. It is at that

time, the plaintiff took decision to give his

immovable properties to his children and the

work was entrusted with the elder son for the

preparation of five settlement deeds, besides a

power of attorney, by which he had directed to

execute separate settlement deeds in favour of

the 2nd defendant with respect to 1 Acre

property, an extent of 60 cents in favour of 1 st

defendant, 42.50 cents of property and the

building therein to his mentally ill daughter

and a settlement deed in favour of his other

four children with respect to 1 Acre 76 cents of

property. Thereon, the 1st defendant prepared

different settlement deeds as directed by the

plaintiff and got it executed and registered

under the false representation that the

documents were executed in accordance with the

direction issued. Believing the representation

made by 1st defendant, the eldest son, the

plaintiff had affixed his signature on all RFA NO. 272 OF 2020

settlement deeds prepared and had given consent

for its registration.

3. The documents, which are under challenge

is Exts.A1, A3 and A7. Ext.A1 settlement deed

is in favour of the 2nd defendant, the brother of

the 1st defendant. He was given yet another

property on the same day under Ext.A5 settlement

deed. He remained ex parte inspite of the fact

that large extent of properties were given to

him under Exts.A1 and A5 settlement deeds

executed on the same day. The plaintiff took

pain to examine the 2nd defendant as PW2 and in

the box, he had given oral testimony in tune

with what is alleged by the original plaintiff,

his father as against the first defendant

admitting misrepresentation and fraud played on

him. But in so far as the plaintiff is

concerned, he passed away before the

commencement of trial. The suit was proceeded

by the additional plaintiffs, who were impleaded

as the legal heirs of deceased original RFA NO. 272 OF 2020

plaintiff and they took pain to examine PW2,

their brother the second defendant. Hence, the

admission made by him during the course of his

examination regarding the fraud and

misrepresentation played on the deceased

plaintiff by the 1st defendant has to be analysed

with the other attending circumstances such as

the execution of two separate settlement deeds

in favour of the 2nd defendant on the same day by

the same executant without disclosing any reason

for executing two different settlement deeds in

favour of the very same person though the

subject matter of the settlement deeds form part

of the property held by the executant. It is

against the normal conduct and prudence of an

ordinary man. Instead of executing one

settlement deed, two settlement deeds were

executed in favour of the 2nd defendant and the

2nd defendant had admitted that the 2nd document

i.e. Ext.A1 is the result of fraud and

misrepresentation played on the plaintiff by the RFA NO. 272 OF 2020

1st defendant. The very same method was adopted

in the case of 1st defendant and instead of one

settlement deed, three separate settlement deeds

were executed in his favour with respect to

large extent of property on the very same day by

the very same executant, that too, with respect

to portions of property held by him. It is not

explained why three separate settlement deeds

i.e. Exts.A3, A6 and A7 were executed instead of

one and what actually prompted to prepare three

separate settlement deeds and got it registered

in favour of the same beneficiary, the first

defendant. Further, two such settlement deeds

were executed separately with respect to the

property comprised in the very same survey

number lying as a single compact plot. It is

for the purpose of execution of two separate

settlement deeds, the property was bifurcated

into two schedules, which would prima facie tell

upon what actually happened there. The high

inconsistency and improbability in the RFA NO. 272 OF 2020

preparation of three separate settlement deeds

in favour of the same person was not properly

explained. The reason behind it is well explicit

and clear that the preparation of five separate

settlement deeds was actually intended to appear

that separate deeds were prepared as directed

by the father with the intention to conceal the

fraud and misrepresentation played from the

notice of the executant father. Thereby, they

have actively concealed the factum of execution

of three settlement deeds in their favour i.e.

1st and 2nd defendants, in addition to two other

documents executed in their favour. In fact, if

it was prepared as two documents in their

favour, it would have been noticed by the father

then and there which would certainly reveal the

fraud and misrepresentation played on him. In

short, five settlement deeds were executed in

order to cover up and conceal the fraud and the

misrepresentation played on the father. It is

under that premise his signature and consent was RFA NO. 272 OF 2020

obtained for its execution and registration. The

present suit was filed just four months after

the execution of the documents, when the

property was attempted to be mutated in the

respective name of his children. It is submitted

by the learned counsel for the respondent that

no such question or issue was raised in the

trial court and even no such suggestion was put

up to any of the witnesses examined by the

defendant at the trial court. As such, the said

question cannot be taken up at first in the

first appellate stage. Since, the above said

fact is a material abnormality surrounded by

suspicion attached to the execution of five

settlement deeds and there is admission made by

the 2nd defendant regarding the fraud and

misrepresentation, the initial burden always

lies on the person who claims the document as

genuine and valid to clear out the material

abnormality attached with the execution of the

document, for which, necessarily, there should RFA NO. 272 OF 2020

be evidence from the part of persons who claimed

the document as genuine and valid, irrespective

of whether the said material abnormality was

brought up at the trial court or not. It is

well within the jurisdiction of the first

appellate court to look into the abovesaid

material abnormality especially in the light of

the admission made by the 2nd defendant, who is

the beneficiary under two settlement deeds.

Hence, there is no much weight in the argument

advanced by the learned counsel on that behalf.

4. The oral evidence tendered through DW3

scribe cannot be relied on as he is also a party

to the alleged commission of fraud and

misrepresentation in creating five settlement

deeds and it will not lend any support to the

case advanced by the first defendant.

5. In so far as the oral evidence tendered

by the Sub-Registrar, DW2 is concerned, the

plaintiff did not have any case that he had not

given any consent for its registration, but the RFA NO. 272 OF 2020

case advanced is that his consent was obtained

under the vitiating circumstance of fraud and

misrepresentation in which the Sub-Registrar may

not be a party. As such, the oral evidence

tendered through Sub-Registrar, DW2, that it was

registered in accordance with the mandate may

not have much relevance in the dispute.

6. From the abovesaid discussion, it is

clear that the first defendant had played fraud

and misrepresentation on the plaintiff/deceased

father in getting three documents in his favour

and his brother i.e. Exts.A1, A3 and A7

settlement deeds. There is total failure on the

part of the trial court in appreciating the

material defect and abnormality in the execution

and registration of the abovesaid documents in

the light of admission made by the 2nd defendant,

who is a beneficiary under two documents

inclusive of Ext.A1. Hence, Exts.A1, A3 and A7

are liable to be set aside.

The appeal is hereby allowed accordingly by RFA NO. 272 OF 2020

setting aside the decree and judgment of the

trial court in dismissing the suit and the suit

is decreed setting aside Exts.A1, A3 and A7

settlement deeds. No costs.

Sd/-

P.SOMARAJAN JUDGE SPV