Kerala High Court
Vijayakumar vs Janardhanan on 5 September, 2024
Author: T.R.Ravi
Bench: T.R.Ravi
2024:KER:67378
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 5TH DAY OF SEPTEMBER 2024 / 14TH BHADRA, 1946
RFA NO. 119 OF 2019
AGAINST THE ORDER/JUDGMENT DATED 28.09.2018 IN OS
NO.208 OF 2012 ON THE FILE OF SUBORDINATE JUDGE'S
(ADDITIONAL) COURT, PALAKKAD
APPELLANT/DEFENDANT:
VIJAYAKUMAR,
S/O.ANGALAN, AGED 62,
ATHANIMOOCHIKKAL VEEDU, PANNAIYANKARA, ALATHUR
TALUK, PALAKKAD DISTRICT.
BY ADVS.
SAJAN VARGHEESE K.
SRI.LIJU. M.P
SRI.JOPHY POTHEN KANDANKARY
RESPONDENTS/PLAINTIFFS NO.2 & 3:
1 JANARDHANAN,
S/O.LATE ANGALAN,
AGED 54,
ATHANIMOOCHIKKAL HOUSE, MANKARA POST, PALAKKAD
TALUK - 678 613.
2 LALITHA,
W/O.CHANDRAN, AGED 48, KALATHIL HOUSE,
ATHIRAKADU, GANDHISEVASADAN POST, PATHIRIPPALA,
PALAKKAD TALUK - 679 302.
3 ADDL.R3.SUBASH
R.F.A. No. 119 of 2019
2024:KER:67378
2
(SOUGHT TO BE IMPLEADED)
4 ADDL.R4.A.C.RAJESH
(SOUGHT TO BE IMPLEADED)
BY ADVS.
RAJESH SIVARAMANKUTTY
K.K.RAJEEV
ARUL MURALIDHARAN
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD
ON 05.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
R.F.A. No. 119 of 2019
2024:KER:67378
3
T.R.RAVI, J
--------------------------------------
R.F.A.No. 119 of 2019
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Dated this the 05th day of September, 2024
JUDGMENT
The appeal is filed against the judgment and decree in
O.S.No.208/2012. The defendant has filed the appeal. The suit is for
cancellation of gift deed No.1657/2010 of S.R.O., Parli. The suit was
initially filed by the mother of the appellant and after her death, the
appellant's brother and sister have got themselves impleaded as
additional plaintiffs.
2. The plaint schedule properties originally belonged to one
Angalan, the father of the appellant. He executed a registered gift
deed No.874/1966 in favour of his wife. The mother, late Thatha
executed the gift deed in favour of the appellant on 05.06.2010
whereby, six and a half cents was gifted to the appellant. As per the
plaint, the mother had contended that the gift deed was executed
owing to misrepresentation. The specific case put forward was that
the appellant had taken her to a financial institution for the purpose
of taking a loan in favour of the appellant and made her sign certain
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documents and she was not aware that what was being executed
was a gift deed. The appellant had contended that his mother was a
person who had clear knowledge about dealing with property and
that she had initially executed a registered Will as Document No.
06/1992 of the Parli, S.R.O., whereby an extent of 47 cents was
bequeathed in favour of two of her sons. The said document was
cancelled by Ext.B1 Will dated 07.09.1999, registered in the very
same Sub Registrar Office. This was followed by two documents,
Exts.B3 and B4, dated 06.10.2000, which are assignment deeds
executed by the mother in favour of two of her daughters named
Chandrika and Lalitha. Thereafter, the mother had executed Ext.B2
assignment deed on 18.12.2009, registered as Document
No.5008/2009 in favour of one Prathapan. This was followed by yet
another document, Ext.B5, dated 18.05.2010, whereby Ext.B1 Will
was cancelled by the mother, stating that the persons in whose
favour the bequest had been made as per Ext.B1 were not looking
after her. It is after executing these six documents in the very same
Sub Registrar's Office that Ext.B9 gift deed in favour of the appellant
was executed on 05.06.2010. It is hence submitted that it was
impossible to believe that the mother did not know where the
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document was being executed.
3. On the side of defendants, DW1 and DW2 were
examined. DW2 was the scribe of the gift deed, which is sought to
be set aside. On the side of the plaintiffs, the appellant's sister
Lalitha was examined and Ext.A1 copy of the gift deed dated
16.08.1966 executed by Angalan in favour of the mother was
produced in evidence. The trial Court has decreed the suit on a
short ground that the defendant did not examine any of the
witnesses to the document as is required under Section 68 of the
Indian Evidence Act. It is held that the execution of the gift deed has
not been proved and therefore, the gift deed is liable to be
cancelled.
4. Heard counsel for the appellant and the respondents.
5. The contention of the counsel for the appellant is that
the trial Court did not consider the pleadings and evidence on
record. It is submitted that the proviso to Section 68 can have no
application since it is a case where the execution of the document is
admitted and there is no prayer for declaring that the document is
null and void. The prayer, in fact, is for setting aside the document
on the ground of misrepresentation and fraud. It is also submitted
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that the contention that the executor of Ext.B9 was not aware of the
document that was being executed also cannot be believed since
executant had earlier executed and registered six documents in the
very same Sub Registrar's Office between 1992 and 2010. In fact,
Ext.B5 was executed about three weeks before Ext.B9 document.
The counsel relied on a decision of the Division Bench of this Court
in Kannan Nambiar v. Narayaniamma and Ors. [1984 KLT 855],
wherein this Court has held that the specific denial contemplated in
Section 68 of the Evidence Act, 1872, is an unambiguous and
categorical statement that the donor did not execute the document.
This Court held that what has to be specifically denied is the
execution of the document. The case before the Division Bench was
one where one of the gift deeds was allegedly created by exerting
undue influence. The Court held that where the pleading is that the
document was executed under vitiating circumstances, it is not a
specific denial of execution. A similar view was taken by a learned
Single Judge of this Court in Kadiya Umma v. Mayankutty [1992(1)
KLT 461], relying on the judgment in Kannan Nambiar (supra).
Another learned Single Judge has in Rohini Juliet @ Lekha v.
Sherry Kunju and Another [2019 KHC 5621] reiterated the legal
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position after referring to Kannan Nambiar (supra) and the
judgment of the Supreme Court in Govindbhai Chhotabhai Patel
and Ors v. Patel Ramanbhai Mathurbhai [(2019) 12 SCALE 732].
In view of the settled legal position, the conclusion drawn by the
Court below cannot be legally justified. It is seen that the Court has
not considered the pleadings and the evidence in the case before
going into the question whether the proviso to Section 68 will apply
or not. Another reason that is stated by the Court below is that the
appellant did not produce the original of the gift deed and what was
produced was only a certified copy. The said conclusion also is not
justified. The appellant had clearly pleaded that after the execution
of the gift deed he had got the property mutated and has paid the
tax and possession certificate has also been issued to him. Exts.B6
to B8 evidences the above fact. Apart from that, it is also stated that
a suit had been filed by two persons from whom the appellant had
taken a loan, which was decreed on 21.07.2016 and to satisfy the
said decree, the appellant had transferred the properties involved in
the gift deed to the decree holders, as per document No.2217/2016.
It has been stated that the original of the gift deed has been handed
over to the transferee. The said document was executed in 2016 at
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the time when the suit itself had abated owing to the death of the
appellant's mother. It is only thereafter that the additional plaintiffs
got impleaded.
In the above circumstances, the judgment of the trial Court
cannot be sustained and the same is set aside. The matter is
remanded back to the trial Court for fresh consideration, if
necessary, after permitting the parties to adduce any additional
evidence. The parties shall appear before the trial Court on
03.10.2024.
Sd/-
T.R.RAVI
JUDGE
Mms
