Kerala High Court
Shibu vs Kasmin on 20 July, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 20TH DAY OF JULY 2023 / 29TH ASHADHA, 1945
RSA NO. 62 OF 2023
AGAINST THE ORDER/JUDGMENT IN OS 201/2016 OF MUNSIFF COURT, VAIKOM
AS 132/2019 OF ADDITIONAL DISTRICT COURT I, KOTTAYAM
APPELLANTS/APPELLANTS/COUNTER CLAIM DEFENDANTS:
1 SHIBU
AGED 58 YEARS, S/O VASUDEVAN,
KUNNEPARAMBIL HOUSE, HOUSE NO. 17,
WARD NO. 17, VAIKOM P.O,
PADINJATTUMCHERRY, THEKKEMURI KARA,
VAIKOM VILLAGE, VAIKOM TALUK,
PIN - 686141
2 SHAHIM
AGED 62 YEARS, S/O VASUDEVAN,
KUNNEPARAMBIL HOUSE, HOUSE NO. 323,
WARD NO. 21, VAIKOM P.O,
PADINJATTUMCHERRY, THEKKEMURI KARA,
VAIKOM VILLAGE, VAIKOM TALUK,
PIN - 686141
3 YAMUNA SALIM
AGED 58 YEARS, W/O SALIM,
HOUSE NO. 189, WARD NO. 7,
KAVINEZHATH HOUSE, (ARATTUKULANGARA),
VAIKOM P.O, FROM KUNNEPARAMBIL HOUSE,
PADINJATTUMCHERRY, THEKKEMURI KARA,
VAIKOM VILLAGE, VAIKOM TALUK,
PIN - 686141
4 ASMITH
AGED 25 YEARS, S/O SALIM,
HOUSE NO. 189, WARD NO. 7,
KAVINEZHATH HOUSE, (ARATTUKULANGARA),
VAIKOM P.O, PADINJATTUMCHERRY KIZHAKKEMURI,
NADUVILE VILLAGE, FROM KUNNEPARAMBIL HOUSE,
PADINJATTUMCHERRY, THEKKEMURI KARA,
VAIKOM VILLAGE, VAIKOM TALUK, PIN - 686141
RSA NOS.62 & 61 OF 2023
2
BY ADVS.
T.R.RAJAN
ALAN J YOGYAVEEDU
RESPONDENTS/RESPONDENT/COUNTER CLAIM PLAINTIFF:
KASMIN
AGED 65 YEARS, S/O VASUDEVAN,
KUNNEPARAMBIL HOUSE, PADINJATTUMCHERRY,
THEKKEMURI KARA, VAIKOM P.O,
VAIKOM VILLAGE, VAIKOM TALUK,
PIN - 686141
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
20.07.2023, ALONG WITH RSA.61/2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RSA NOS.62 & 61 OF 2023
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 20TH DAY OF JULY 2023 / 29TH ASHADHA, 1945
RSA NO. 61 OF 2023
AGAINST THE ORDER/JUDGMENT IN OS 201/2016 OF MUNSIFF COURT,
VAIKOM
AS 131/2019 OF ADDITIONAL DISTRICT COURT 1, KOTTAYAM
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 SHIBU
AGED 58 YEARS, S/O VASUDEVAN,
KUNNEPARAMBIL HOUSE,
HOUSE NO. 17, WARD NO. 17,
VAIKOM P.O, PADINJATTUMCHERRY,
THEKKEMURI KARA, VAIKOM VILLAGE,
VAIKOM TALUK, PIN - 686141
2 SHAHIM
AGED 62 YEARS, S/O VASUDEVAN,
KUNNEPARAMBIL HOUSE,
HOUSE NO. 323, WARD NO. 21,
VAIKOM P.O, PADINJATTUMCHERRY,
THEKKEMURI KARA, VAIKOM VILLAGE,
VAIKOM TALUK, PIN - 686141
3 YAMUNA SALIM
AGED 58 YEARS, W/O SALIM,
HOUSE NO. 189, WARD NO. 7,
KAVINEZHATH HOUSE, (ARATTUKULANGARA),
VAIKOM P.O, FROM KUNNEPARAMBIL HOUSE,
PADINJATTUMCHERRY,
THEKKEMURI KARA, VAIKOM VILLAGE,
VAIKOM TALUK, PIN - 686141
4 ASMITH
AGED 25 YEARS, S/O SALIM,
HOUSE NO. 189, WARD NO. 7,
KAVINEZHATH HOUSE, (ARATTUKULANGARA),
RSA NOS.62 & 61 OF 2023
4
VAIKOM P.O, PADINJATTUMCHERRY KIZHAKKEMURI,
NADUVILE VILLAGE, FROM KUNNEPARAMBIL HOUSE,
PADINJATTUMCHERRY, THEKKEMURI KARA,
VAIKOM VILLAGE, VAIKOM TALUK, PIN - 686141
BY ADVS.
T.R.RAJAN
ALAN J YOGYAVEEDU
RESPONDENT/RESPONDENT/DEFENDANT:
KASMIN
AGED 65 YEARS
S/O VASUDEVAN, KUNNEPARAMBIL HOUSE,
PADINJATTUMCHERRY, THEKKEMURI KARA, VAIKOM P.O,VAIKOM
VILLAGE, VAIKOM TALUK, PIN - 686141
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
20.07.2023, ALONG WITH RSA.62/2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RSA NOS.62 & 61 OF 2023
5
T.R. RAVI, J.
--------------------------------------------
R. S. A. Nos.62 & 61 of 2023
--------------------------------------------
Dated this the 20th day of July, 2023
JUDGMENT
Both these appeals are filed by the plaintiffs in
O.S.No.201/2016 of the Principal Munsiff Court, Vaikom in a suit
for cancellation of a document, partition, and prohibitory
injunction. The defendant had filed a counter claim against the
plaintiffs seeking an injunction. The trial court dismissed the suit
and allowed the counter claim. The appellate court confirmed the
judgment.
2. Heard the counsel for the appellants.
3. The counsel for the appellants argued in extenso. It is
forcefully contended that Ext.A1 settlement deed, which was
executed on 31.07.2003, was executed at a time when the mother
of the parties was suffering from cancer, and the document was
not executed exercising free will. It is contended that the
settlement deed is a void document, and the court went wrong in
dismissing the suit. There is also a case that the property was to
RSA NOS.62 & 61 OF 2023
be a parking area of the shopping complex, which was run by the
children of the executant in partnership, and the mother would not
have executed such a document in favour of one of her children
exclusively.
4. The trial court and the appellate court have considered
the case in detail and have analysed the evidence on record
thoroughly. As regards the validity of the settlement deed
No.2062 of 2003 (Ext.P1) is concerned, it is in evidence that on
the same day, Ext.A5 partition deed (No.2061 of 2003) was also
executed between the parties, including the mother. It is seen that
the partition deed was executed before the settlement deed. The
appellants have no contention that the said partition deed is also a
void document since the mother did not have the capability to
contract due to ill health. If the contention of the appellants is to
be accepted, then the vitiating circumstance alleged in the case of
Ext.A1 would also be there regarding Ext.A5. For this sole reason,
it has to be concluded that the settlement deed is a valid
document. If the settlement deed is a valid document, none of the
prayers made in the suit will survive since the defendant is the
owner of the property on the strength of the settlement deed
RSA NOS.62 & 61 OF 2023
executed in 2003. The trial court and the first appellate court were
fully justified in allowing the counter claim. No substantial
questions of law arise in these appeals. Both appeals are
dismissed.
Sd/-
T.R. RAVI
JUDGE
Pn
