Kerala High Court
Gopikumar K vs Kalyanikutty Amma on 7 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 7TH DAY OF JUNE 2024 / 17TH JYAISHTA, 1946
RSA NO. 167 OF 2024
AGAINST THE JUDGMENT AND DECREE DATED 01.11.2023 IN AS
NO.135 OF 2017 OF THE COURT OF DISTRICT JUDGE, PALAKKAD
ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.03.2017 IN
OS NO.127 OF 2013 OF MUNSIFF COURT, CHITTUR
APPELLANTS/SUPPLEMENTAL APPELLANTS 3 & 4/LRs OF THE
PLAINTIFF:
1 GOPIKUMAR K
AGED 50 YEARS
S/O SIVADASAN, KIZHAKKE MUNDARATH HOUSE, VILLAGE
OFFICE ROAD, NENMARA, CHITTUR TALUK, PALAKKAD
DIST-678508, NOW RESIDING AT "GEETHANJALI",
KONNANCHERRY, AYAKKADU POST, ALATHUR TALUK,
PALAKKAD DISTRICT., PIN - 678683
2 GEETHA K
AGED 45 YEARS
D/O SIVADASAN, KIZHAKKE MUNDARATH HOUSE, VILLAGE
OFFICE ROAD, NENMARA, CHITTUR TALUK, PALAKKAD
DIST-678508, NOW RESIDING AT "GEETHANJALI",
KONNANCHERRY, AYAKKADU POST, ALATHUR TALUK,
PALAKKAD DISTRICT., PIN - 678683
BY ADVS.SAJAN VARGHEESE K.
LIJU. M.P
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 KALYANIKUTTY AMMA
AGED 87 YEARS
D/O MEENAKSHI AMMA, KIZHAKKE MUNDARATH HOUSE,
PUTHANTHURA, NENMARA, CHITTUR TALUK, PALAKKAD
DISTRICT., PIN - 678508
2 SUBHADRA
AGED 64 YEARS
D/O KALYANIKUTTY AMMA, KIZHAKKE MUNDARATH HOUSE,
PUTHANTHURA, NENMARA, CHITTUR TALUK, PALAKKAD
DISTRICT, PIN - 678508
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
07.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
R.S.A.No.167 of 2024
C.S.SUDHA, J.
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R.S.A.No.167 of 2024
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Dated this the 7th day of June 2024
JUDGMENT
This second appeal under Section 100 read with Order
XLII Rule 1 CPC filed by the plaintiff/appellant is against the
judgment and decree dated 01/11/2023 in A.S.No.135/2017 on the
file of the Court of District Judge, Palakkad, which appeal in turn
is against the judgment and decree dated 31/03/2017 in
O.S.No.127/2013 on the file of the Munsiff Court, Chittur. The
parties and the documents will be referred to as described in
O.S.No.127/2013.
2. According to the plaintiff, the plaintiff and defendants
are the owners in joint possession and enjoyment of the plaint
schedule property along with certain other properties as per
partition deed No.40/1953 and consent deed 422/1955, SRO
Nenmara. The plaintiff has 1/6 share over the plaint schedule
property. The plaintiff on 10/12/2012 came to know that the
defendants have fraudulently and by cheating the plaintiff, had
managed to get Ext.A1 registered release deed bearing
No.311/2003 of SRO Nenmara, executed in favour of the first
defendant. There was an earlier suit, namely, O.S.No.311/2003 on
the file of the Subordinate Judges' Court, Palakkad, seeking
partition of the plaint schedule property. The plaintiff was
conducting business in one of the shop rooms situated in the plaint
schedule property. The plaintiff had completely trusted the first
defendant, his sister and therefore the said suit was conducted by
the first defendant and her children on behalf of the plaintiff. The
written statement in O.S.No.311/2004 was filed based on the
instructions given by the defendants and the plaintiff had no
knowledge of the same. O.S.No.311/2004 came up for trial on
10/12/2012 at which time when the plaintiff went through the
written statement filed, realised that the defendants had
fraudulently got executed Ext.A1 release deed in favour of the first
defendant. The plaintiff was under the impression that the
document executed was a power of attorney in favour of the first
defendant authorising her to conduct the aforesaid suit on his
behalf. When the plaintiff came to know of Ext.A1, he on
12/12/2012 instructed his counsel in O.S.No.311/2004, not to
appear for him in the said suit and also file a statement to the said
effect before the Subordinate Judge's Court, Palakkad. However,
the counsel without the plaintiff's knowledge filed
A.S.No.107/2012 on his behalf. The first defendant for the
purpose of evicting tenants who were occupying the shop rooms in
the plaint schedule property, had requested the plaintiff to execute
a registered power of attorney in his favour. Believing the words
of the first defendant, the plaintiff affixed his signature in some
papers under the belief and understanding that the deed was a
power of attorney for the purpose of initiating legal proceedings
for evicting the tenants from the shop rooms in the plaint schedule
property. The plaintiff was unaware of the fact that the first
defendant had initiated legal proceedings against the tenants of the
plaint schedule building based on Ext.A1 release deed. The said
release deed had been created only for the purpose of evicting the
tenants from the property. The plaintiff never intended to
relinquish his right over the property in favour of the first
defendant. The contents of the release deed have been
fraudulently incorporated by the defendants which are not binding
on the plaintiff. The recital in Ext.A1 release deed that an amount
of ₹30,000/- had been paid by the first defendant to the plaintiff
was denied. No consideration at all was paid by the first
defendant. Hence, the suit seeking cancellation of Ext.A1
registered release deed and for consequential injunction.
3. Defendants 1 and 2 filed joint written statement
denying the plaint allegations. The claim of the plaintiff that he
has 1/6 share in the property was denied. According to the
defendants, the plaintiff had no right, title or interest in the
property after execution of Ext.A1 release deed in favour of the
first defendant. The suit was also barred by limitation. The
allegation that the plaintiff came to know about the release deed
only on 10/12/2012 was denied. The defendants denied the
allegation that O.S.No.311/2004 had been conducted by the first
defendant and her children on behalf of the plaintiff. The
allegation that the plaintiff had executed Ext.A1 release deed under
the impression that it was a power of attorney was also denied.
The plaintiff had gone to the office of his lawyer at Alathur for
giving instructions for filing of the written statement in
O.S.No.311/2004 and it was after reading and understanding the
contents of the same, he had subscribed his signature thereto. The
plaintiff had received a consideration of ₹30,000/- for releasing his
share in the property. The allegation that it was executed under
undue influence, coercion, fraud, mistake of fact or mistake of law
was denied.
4. Necessary issues were framed by the trial court. On
the basis of the aforesaid pleadings, the parties went to trial. PW1
was examined and Exts.A1 to A3 were marked on the side of the
plaintiff. DW1 was examined on behalf of the defendants. No
documentary evidence was adduced by the defendants. The trial
court on a consideration of the oral and documentary evidence and
after hearing both sides, found the suit to be barred by limitation.
It was also found that the plaintiff had failed in establishing any
vitiating circumstances in the execution of Ext.A1 release deed and
hence dismissed the suit. Aggrieved, the plaintiff filed
A.S.No.135/2017. The appellate court also confirmed the
judgment and decree of the trial court. Hence, the plaintiff has
come up in second appeal.
5. Heard both sides.
6. It is submitted by the learned counsel for the plaintiff/
appellant that materials/clear evidence has come on record to
substantiate the plaintiff's case that there was no consideration for
Ext.A1 release deed. However, ignoring the same, both the courts
erroneously dismissed the suit. Ext.A1 was executed by the
plaintiff under the mistaken belief that the same is a power of
attorney. It was the first defendant who had misled him into
executing the said deed and therefore the document was liable to
be set aside, goes the argument.
7. Ext.A1 admittedly is a registered release deed. Though
it was alleged by the plaintiff that he came to know of Ext.A1
only in the year 2012, the trial court on the basis of the evidence
on record negatived the same. It was found that the plaintiff when
cross examined as PW1, admitted that he received information
regarding the execution of Ext.A1 way-back in the year 2004,
which apparently was against his claim in the plaint that he had
received information about the same only in the year 2012. The
trial court on a perusal of the records found that the plaintiff
herein, the fifth defendant in O.S.No.311/2004 had filed written
statement admitting the execution of Ext.A1 release deed, based on
which a decree in O.S.No.311/2004 was passed partitioning the
plaint schedule property among the sharers. Though the plaintiff
alleged that the written statement in O.S.No.311/2004 had been
filed by the first defendant on his behalf and that he was unaware
of the contents, he was unable to substantiate the same. The
plaintiff never produced a copy of the vakalth or the written
statement in the earlier suit. The trial court rightly found that the
production of records in O.S.No.311/2004 would have thrown light
on the point. However, for reasons best known to the plaintiff,
no evidence was adduced to substantiate his allegation that it was
the first defendant, his sister, who had contested the case on his
behalf and that the written statement had been filed by the latter on
his behalf. Thus taking into account all these factors, the trial
court found that though the plaintiff came to know about the
execution of Ext.A1 release deed way-back in the year 2004, the
suit had been filed only in the year 2013, which was obviously
much beyond the period of limitation. It was also found that the
plaintiff failed in proving any vitiating circumstances in the
execution of Ext.A1 deed and therefore the said allegation of the
plaintiff was also rejected.
8. It is argued by the learned counsel for the
plaintiff/appellant that the first defendant examined as DW1 in her
cross examination admitted that no consideration had been paid.
This itself, according to the counsel, is sufficient to show that
Ext.A1 was not supported by any consideration and therefore not a
valid document. I do not agree with the argument advanced as that
is not what DW1 has deposed. The trial court in paragraph 20 of
the judgment refers to the testimony of DW1 wherein she deposed
that ₹30,000/- had been paid as consideration to the plaintiff when
Ext.A1 release deed was executed. DW1 also deposed that the
second defendant, that is, her daughter refused to accept any
consideration and therefore no amount had been paid to the latter.
Evidence also came on record that after the execution of Ext.A1,
the first defendant came in possession of plaint schedule property
as well as the building situated therein. DW1 has never admitted
that no consideration had been paid. It is pertinent to note that the
second defendant is not challenging Ext.A1 deed. On the other
hand, she is sailing with her mother, the first defendant. The
plaintiff has no case that no consideration had been paid to the
second defendant and so the document is void. On the other hand,
his specific case is that he had not received any consideration and
that Ext.A1 came to be executed under certain vitiating
circumstances. DW1 stands by her case that an amount of
₹30,000/- had been paid to the plaintiff when Ext.A1 was
executed. This testimony of DW1 has to be appreciated in the
light of the finding that the plaintiff was unable to establish that he
was misled into executing the document. There is no infirmity or
perversity in the findings of the trial court or the first appellate
court calling for an interference by this Court. As no substantial
questions of law arise, the appeal is liable to be dismissed in
limine and hence I do so.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
ami/
