Kerala High Court
Krishna Das. P.K vs P.K. Venuprasad on 31 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 31ST DAY OF MAY 2024 / 10TH JYAISHTA, 1946
RSA NO. 52 OF 2024
AGAINST THE JUDGMENT AND DECREE DATED 11.10.2023 IN AS NO.3
OF 2022 OF THE COURT OF SUBORDINATE JUDGE'S COURT, VADAKARA
ARISING OUT OF THE JUDGMENT AND DECREE DATED 30.11.2021 IN OS
NO.97 OF 2018 OF MUNSIFF COURT, VADAKARA
APPELLANT/APPELLANT/PLAINTIFF:
KRISHNA DAS. P.K
AGED 70 YEARS
S/O KUNHIRAMAN, RESIDING AT DOOR NO.1801, SEA QUEEN
HERITAGE, PLOT NO.6, SECTOR 18,PALM BEACH ROAD,
SANPADA, NAVI MUMBAI, MAHARASHTRA, PIN - 400705
BY ADVS.MANU VYASAN PETER
P.B.KRISHNAN
P.B.SUBRAMANYAN
SABU GEORGE
B.ANUSREE
RESPONDENTS/RESPONDENS/DEFENDANTS:
1 P.K. VENUPRASAD, AGED 65 YEARS
S/O KUNHIRAMAN, RESIDING AT 'KRISHNA VILAS',
VATAKARA AMSOM, DESOM, VATAKARA POST AND TALUK,
KOZHIKODE DISTRICT, PIN - 673101
2 VISMAY V. PRASAD
AGED 21 YEARS
S/O P.K. VENUPRASAD, RESIDING AT 'KRISHNA VILAS',
VATAKARA AMSOM, DESOM, VATAKARA POST & TALUK,
KOZHIKODE DISTRICT, PIN - 673101
3 ITHREYA V. PRASAD
AGED 15 YEARS
D/O P.K. VENUPRASAD, RESIDING AT 'KRISHNA VILAS',
VATAKARA AMSOM, DESOM, VATAKARA POST, VATAKARA
TALUK, KOZHIKODE DISTRICT (MINOR REPRESENTED BY HER
FATHER AND GUARDIAN, 1ST RESPONDENT), PIN - 673101
BY ADVS.K.LAKSHMINARAYANAN
SATHYASHREE PRIYA EASWARAN(k/00579C/1990)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
31.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
R.S.A.No.52 of 2024
C.S.SUDHA, J.
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R.S.A.No.52 of 2024
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Dated this the 31st day of May 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 11/10/2023 in A.S.No.3/2022 on the file
of the Subordinate Judge's Court, Vatakara, which appeal in turn is
against the judgment and decree dated 30/11/2021 in
O.S.No.97/2018 on the file of the Munsiff's Court, Vatakara. The
parties and the documents will be referred to as described in
O.S.No.97/2018.
2. The suit was one for declaration, partition and permanent
prohibitory injunction. The plaintiff and defendant are siblings.
According to the plaintiff, plaint A and B schedule property
belonged to their mother, late Kalyani. After her demise, the
property devolved on the plaintiff and defendant. Hence the
plaintiff is having one half share in the plaint schedule property.
The plaintiff also challenged Exts.A3 and A4 (Exts.B3 and B5)
settlement deeds dated 09/01/2013 executed by late Kalyani in
favour of the defendants alleging that from the year 2013, Kalyani
never had the necessary mental capacity to execute the deeds and
that the first defendant taking advantage of his fiduciary relationship
with Kalyani had got the documents executed. Hence a declaration
was sought that Exts.A3 and A4 (B3 and B5) are void documents
and for partition of the property.
3. Defendants on the other hand contended that Kalyani was
perfectly fit and healthy and had executed Exts.A3 and A4 (B3 and
B5) in favour of the defendants. No unfair advantage had been
taken by the first defendant in getting the documents executed in his
favour. Hence the plaintiff cannot claim any right over the property
covered by the said documents.
4. On the basis of the aforesaid pleadings, necessary issues
were framed by the court, on the basis of which the parties went
trial. PW1 was examined and Exts.A1 to A6 were marked on the
side of the plaintiff. DW1 to DW3 were examined and Exts.B1 to
B15 were marked on the side of the defendants. Exts.X1 to X3
series were also marked. The trial court on an appreciation of oral
and documentary evidence found that the property covered by
Exts.A3 and A4 documents was not available for partition as the
plaintiff was unable to prove any vitiating circumstances in the
execution of the said documents by late Kalyani. The suit was
partly decreed relating to the other items of property which were
found to be partible. Aggrieved the plaintiff filed A.S.No.3/2022.
The first appellate court also concurred with the findings of the trial
court. Hence, the present appeal.
5. Heard the learned senior counsel for the
plaintiff/appellant.
6. The main dispute is regarding a portion of the plaint A
schedule property relating to which Kalyani, the mother of the
plaintiff and the first defendant, had executed Exts.A3 and A4 (B3
and B5) settlement deeds in favour of the first defendant and
defendants 2 and 3 respectively. Though the plaintiff alleged that
Kalyani had not executed the documents on her free will and that
she was mentally incapable of executing or understanding the
contents of the deed and that the first defendant, his son, had taken
advantage of her condition and got the documents executed in his
favour, there was no evidence to support the said allegation apart
from the interested testimony of the plaintiff examined as PW1.
Ext.A1 is stated to be the medical record of late Kalyani. But this
document was marked subject to proof as the doctor(s) who had
treated and issued the same had not been examined. The plaintiff
had not taken any steps to examine the doctors who had issued
Ext.A1. Hence in such circumstances Ext.A1 was rightly not relied
on. Ext.X1 also does not help the plaintiff because it does not show
that Kalyani was in any way mentally incapable or did not have the
necessary mental capacity or suffered from dementia as alleged by
the plaintiff. The first defendant examined as DW1 disclosed the
details of the doctor who had regularly treated Kalyani. However
the plaintiff for reasons best known to him did not take any steps to
examine the doctor to substantiate his allegation that his mother
right from the year 2013, was ill, feeble and lacked the necessary
mental capability to execute any documents. The defendants
examined one of the attesting witness to the said documents, that is,
DW2, who also supported their case that Kalyani was hale and
healthy. It is true that certain inconsistencies or mistakes have
come up in the testimony of DW2 regarding the dates on which the
documents had been executed. But as rightly found by the trial
court those are just minor inconsistencies which had not in any way
affected the root of the case of the defendants. In addition to DW2,
there is also the testimony of DW3, an independent witness, who
supports the case of the defendants. Apart from the mere assertions
of the plaintiff as PW1 in the box, there is absolutely no evidence to
substantiate the allegations in the plaint. The trial court and the first
appellate court have rightly appreciated the oral and documentary
evidence and concluded that there were no vitiating circumstances
surrounding the execution of 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
question(s) 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/
