Kerala High Court
D.Madhavan vs G.Devi Amma & Others on 18 June, 2025
RFA 119/2009
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 18TH DAY OF JUNE 2025 / 28TH JYAISHTA, 1947
RFA NO. 119 OF 2009
OS NO.47 OF 2007 OF SUBORDINATE COURT, VATAKARA
APPELLANT/PLAINTIFF IN OS.47/2007
D.MADHAVAN, S/O DAMODARA KURUP,
56 YEARS, THYULLATHIL HOUSE, ONCHIYAM AMSOM,,
KANNOOKKARA DESOM POST KANNOOKKARA, VATAKARA,
TALUK, KOZHIKODE DISTRICT, KEREALA STATE
BY ADVS.
SHRI.B.KRISHNAN
SHRI.R.PARTHASARATHY
RESPONDENTS/DEFENDANTS IN OS.47/2007
1 G.DEVI AMMA D/O GOVINDA KURUP,
54 YEARS, HOUSEWIFE, RESIDING AT, PUTHANPURAYIL,
ONCHIYAM AMOM, KANNOOKKARA DESOM, POST KANNOOKKARA
VATAKARA TALUK, KOZHIKODE, DISTRICT, KERALA STATE
[DIED]
2 D. VANAJA D/O. DAMODARA KURUP
AGED 53 YEARS, HOUSEWIFE, RESIDING AT 'MADHAV',
THYYIL, POST CHOKLI, THALASSERY TALUK,, KANNUR
DISTRICT, KERALA STATE.
3 D. RADHA D/O. DAMODHARA KURUP
AGED 50 YEARS, HOUSEWIFE, RESIDING AT 23-1/6,, NEW
STREET, MEYYANNUR ROAD, SALEM - 636 004.
ADDL.4 PUTHENPURAYIL PRASANTH.K,
D/O.LATE G.DEVI AMMA ,(WORKING AS CIVILIAN IN NAVY)
PUTHANPURAYIL HOUSE, ONCHIYAM AMSOM, KANNOOKKARA
DESOM, POST KANNOOKKARA ,VATAKARA TALUK, KOZHIKODE
DISTRICT, KERALA STATE - 673102
RFA 119/2009
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ADDL.5 PUTHENPURAYIL PRIYA K.
D/O.LATE G.DEVI AMMA , PUTHANPURAYIL HOUSE,
ONCHIYAM AMSOM, KANNOOKKARA DESOM, POST
KANNOOKKARA,VATAKARA TALUK, KOZHIKODE DISTRICT,
KERALA STATE - 673102
ADDL.6 PUTHENPURAYIL PREETHY K.
D/O.LATE G.DEVI AMMA , PUTHANPURAYIL HOUSE,
ONCHIYAM AMSOM, KANNOOKKARA DESOM, POST
KANNOOKKARA,VATAKARA TALUK, KOZHIKODE DISTRICT,
KERALA STATE - 673102
[ THE LEGAL HEIRS OF THE DECEASED FIRST RESPONDENT
ARE IMPLEADED AS ADDITIONAL RESPONDENTS 4 TO 6 VIDE
ORDER DATED 30/10/24 IN IA 2/2024.
BY ADVS.
SRI.S.V.BALAKRISHNA IYER (SR.)-R1
SHRI.P.VIJAYAKUMAR - R2
SRI.MANU VYASAN PETER
SHRI.C.R.REGHUNATHAN
SHRI.P.B.KRISHNAN (SR.)
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
SMT.B.ANUSREE
SMT.MEERA P.
SMT.AISWARYA MOHAN
SMT.CHITRA JOHNSON
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY
HEARD ON 5.6.2025, THE COURT ON 18.06.2025 DELIVERED
THE FOLLOWING:
RFA 119/2009
3
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JUDGMENT
Dated : 18th June, 2025
The plaintiff in O.S.47/2007 on the file of the Subordinate Judge,
Vatakara is the appellant. For the purpose of convenience the parties are
hereafter referred to as per their rank before the trial court.
2. In this suit for partition, originally there was only one item of
property. Subsequently the plaint 'B' schedule was also included and it contains
two items. Plaint 'A' schedule property originally belonged to Govindakurup
who died in the year 1987. Nani Amma, the wife of Govindakurup died on
14.10.2003. They had two children namely Devi Amma, the 1 st defendant and
Janaki, who died in 1960. The plaintiff and defendants 2 and 3 are the children
of deceased Janaki. Plaint 'B' schedule item No.1 also belonged to deceased
Govindakurp which he obtained as per Ext.B6 document. Plaint 'B' schedule
item No.2 belonged to Nani Amma which she obtained as per Ext.B7.
3. According to the plaintiff, deceased Nani Amma executed Ext.A1
settlement deed dated 9.7.2001 in his favour, settling her 1/3 share in plaint 'A'
schedule property. Therefore, the plaintiff claims 1/3 share of Nani Amma from
plaint 'A' schedule property by virtue of Ext.A1. In addition to the same, he
claims 1/3 share from out of 1/3 share belonged to his mother Janaki.
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Accordingly, the plaintiff claims 4/9 share from plaint 'A' schedule property. So,
according to him, the 1st defendant is entitled to get 3/9 share and defendants 2
and 3 are entitled to get 1/9 share each. With regard to partition of plaint B
schedule, there is no dispute. From the B schedule property, 3/6 share was
allotted to the 1st defendant and 1/6 share each was allotted to the plaintiff and
defendants 2 and 3.
4. In appeal the main dispute is with regard to the allotment of the
shares from plaint 'A' schedule property and the validity of Ext.A1 settlement
deed. In the written statement defendants 1 and 3 denied the execution of
Ext.A1 and contented that it was not executed by Nani Amma and also that
even if it was found that it was executed by Nani Amma, it was vitiated by
misrepresentation, fraud etc. They have also contended that there was no
evidence to prove the acceptance of Ext.A1 and as such, according to
defendants 1 and 3, plaint 'A' schedule property also is to be partitioned as if
Nani Amma died intestate. The 2nd defendant did not contest the matter.
5. The evidence in the case consists of the oral testimonies of PWs1
to 4, DWs1 and 2 and Exts.A1 and B1 to B9. After evaluating the evidence on
record, the trial court found that Ext.A1 settlement deed was executed in
vitiating circumstances and ignoring the same, partitioned the properties among
the 1st defendant, plaintiff and defendants 2 and 3 as claimed by defendants 1
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and 3 in their written statement, ie, half of the share was allotted to the 1 st
defendant and the remaining half was divided among the plaintiff and
defendants 2 and 3 equally. Dissatisfied with the above judgment and decree of
the trial court, the plaintiff preferred this appeal.
6. Now the points that arise for consideration are the following :
(i)Whether Ext.A1 settlement deed was executed in any vitiating
circumstances as contended by defendants 1 and 3 ?
(ii)Whether the plaintiff is entitled to get 4/9 share from plaint A
schedule property as claimed ?
7. Heard Sri.B.Krishnan, the learned counsel for the appellant,
Sri.S.V.B.Iyer, the learned Senior counsel appearing for the 1 st respondent/1st
defendant and Sri.P.Vijayakumar, the learned counsel for the 2 nd respondent/3rd
defendant.
8. The points :- The learned counsel for the respondents 1 and 2
would argue that there are several suspicious circumstances surrounding the
execution of Ext.A1 settlement deed and as such, the trial court was perfectly
justified in holding that it was not at all executed by Nani Amma. Therefore,
according to them, there is absolutely no grounds to interfere with the finding
of the trial court. On the other hand, the learned counsel for the
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appellant/plaintiff would argue that there is ample evidence to prove that
Ext.A1 was voluntarily executed by Nani and as such, the trial court was not
justified in ignoring Ext.A1.
9. One of the arguments advanced against Ext.A1 is that there are
some factual errors in it. It is true that there are some factual errors in Ext.A1.
The survey number in plaint 'A' schedule property shown in Ext.A1 was 8/C4
and Re-Survey number was shown as 47/6. However, the actual surrey number
of plaint 'A' schedule property was 10/2 and Re-Survey was 40/4. Even in the
plaint, the same mistake was there and it was by way of amendment the said
mistake was corrected after the defendants in their written statement pointed
out the above mistake. From Ext.B3, birth certificate of Nani, it is revealed that
her date of birth was 4.11.1911. Therefore in the year 2001 at the time of
execution of Ext.A1, her age was 89. However in Ext.A1, her age was shown as
84. The elder daughter of Nani Amma and Govindakurup namely Janaki died in
1960, before the death of Govindakurup. However, in Ext.A1 it is wrongly
stated that Janaki died after the death of Govindakurup. In addition to those
factual mistakes, the trial court has also relied upon certain other circumstances
to hold that Ext.A1 was executed in suspicious circumstances.
10. During the cross-examination of PW1 it is revealed that he along
with Nani were residing at Kannookkara, while the stamp paper for preparing
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Ext.A1 is seen purchased from Kannur, about 50 - 60 km away from
Kannookkara. It is also revealed that Ext.B6, the partition deed in the family of
Nani Amma was executed by a scribe by name Bhaskaran (DW2) while Ext.A1
was executed by another scribe (PW3) who is residing away from the residence
of Nani. PW2, one of the atterstors to Ext.A1 is also a person residing away
from the residence of Nani. It was contended that, at the time of execution of
Ext.A1 about Rs.20,000/- was spent towards stamp value, penalty and
registration fee and that Nani Amma who was depending on the plaintiff had no
source to spent that much amount for the purpose of execution of Ext.A1.
Further, it was argued that, PW4, the Sub Registrar in charge who registered
Ext.A1, has not complied the formalities as required under the provisions of the
Registration Act. Though it was revealed that the plaintiff was a retired
employee getting pension, in Ext.A1 it was stated that the settlement was
executed towards the means of livelihood of the plaintiff and the said statement
in Ext.A1 was also highlighted by the trial court for disowning Ext.A1.
Through DW2, another scribe, the defendants attempted to show that on an
earlier occasion, Nani entrusted him to prepare a partition deed allotting half
share to the 1st defendant and the remaining half share to the plaintiff and
defendants 2 and 3 and the said draft was produced and marked as Ext.B8. It
was argued that in the light of Ext.B8, the intention of Nani Amma was to allot
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her share to both the children equally and the above circumstance was also
highlighted to show that Nani did not want to execute a document like Ext.A1,
giving her entire share to the plaintiff.
11. PW2 is one Nanu, one of the attesting witnesses to Ext.A1
settlement deed. At the time of evidence, he in clear terms deposed that he saw
Nani Amma putting her signature in Ext.A1 and thereafter, he signed in it as
first witness and he has also seen the 2nd witness Karunakaran signing
thereafter. During the cross-examination he deposed that after Nani Amma
affixed her signature, he affixed his signature and thereafter Nani Amma has
not put her signature in Ext.A1. The evidence of PW2 was disbelieved by the
trial court on the ground that below the signature of PW2, again the signature of
Nani Amma appears in the last page of Ext.A1. Merely because the signature of
Nani Amma appears below the signature of the witnesses in the last page of
Ext.A1, it does not mean that the above signature was put by her after PW2
affixed his signature. The probability of Nani Amma affixing her signature in
all the pages including two signatures in the last page together, before the
witnesses affixed their signature could not be ruled out. Therefore, the evidence
of PW2 does not give a different meaning altogether, so as to disbelieve him.
12. It is true that during the cross-examination, PW2 revealed that he
does not know the name of the parents and the details of the family members of
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Nani Amma. In this context it is to be noted that even at the time of execution
of Ext.A1, Nani Amma was of 89 years and PW2 was residing about 10 km
away from her residence. The circumstance under which he happened to know
Nani Amma was disclosed by him. According to him, he used to come for
agricultural labour in the neighbouring property of Sreedharan Master, Koloth
Kandiyil Veedu who is his brother-in-law. The evidence of PW2 to the effect
that he used to come to the residence of his brother-in-law Sreedharan Nair, a
neighbour of Nani is not challenged. The suggestion put to PW2 was to the
effect that he had not seen Nani Anma affixing her signature in Ext.A1 and that
he does not know Nani Amma. The above suggestion was denied by him.
During the cross-examination of PW2, not even a suggestion was put to the
effect that the signature present in Ext.A1 does not belong to Nani Amma, PW2
and Karunakaran.
13. In the chief affidavit filed by DW1 it was stated that PW2 never
came to the residence of Sreedharan Master and also that he is not the brother-
in-law of Sreedharan Master. The trial court has given much emphasis to the
fact that the above evidence of DW1 was not cross-examined by the plaintiff.
Accordingly, the trial court believed that PW2 was not the brother-in-law of
Sreedharan Master and that he never went to the residence of Sreedharan
Master. However, it is to be noted that when PW2 himself was cross-examined,
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his evidence in that respect was not challenged during his cross-examination. In
the above circumstances, the above evidence of PW2 remains unchallenged and
therefore the evidence of DW1 to the contrary cannot be relied upon to
disbelieve the evidence of PW2 that he is the brother-in-law of Sreedharan
Master and that he used to visit that house, which is near to the residence of
Nani. Moreover, during the cross-examination of DW1 he had no such
complaint against PW2 and PW3.
14. During the cross-examination of PW2 he admitted that he stood
himself as witness in about 5 - 6 documents. The above evidence of PW2 was
highlighted by the learned counsel for the defendants to show that PW2 is a
regular witness in different documents. However, the mere fact that PW2
happened to be witness in 5-6 documents is not a ground to disbelieve his
testimony, especially when, during his cross-examination not even a suggestion
was put to the effect that the signature present in Ext.A1 does not belong to
Nani Amma.
15. Though in the written statement of defendants 1 and 2 they have
taken the contention that Ext.A1 settlement deed was vitiated by fraud,
misrepresentation and vitiating circumstances, at the time of evidence, the
defendants had no such case. In this case, the 1 st defendant has not entered the
witness box to swear her case in oath. Instead, her husband was examined as
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DW1. During the cross-examination of DW1 he admitted that his wife has no
case that Nani Amma executed Ext.A1 under the influence of the plaintiff or
under any pressure or vitiating circumstance exerted by the plaintiff. In the light
of the above admission made by DW1 the learned counsel for the appellant
would argue that therefore the burden of the plaintiff is limited to proving the
execution of Ext.A1. During the cross-examination DW1 clarified that his only
contention is that Ext.A1 was not executed by Nani Amma. Thereafter he
further clarified that, even if it was executed by Nani Amma, it has no legal
sanctity. When he was asked to explain further, he stated that the signature of
Nani Amma present in Ext.A1 is different from her signature in other
documents. Another ground raised by him is that there was some factual
mistakes in Ext.A1 and that is why he and his wife believed that Ext.A1 was
not executed by Nani Amma. However it is to be noted that during the cross-
examination of PWs1 to 4 not even a suggestion was put to any of them to the
effect that the signature in Ext.A1 does not belong to Nani Amma. According to
DW1, it was he who had given instruction to the lawyer that the signature in
Ext.A1 does not belong to Nani Amma. During the cross-examination of DW1
it is revealed that the 1st defendant had never seen the signature of Nani Amma
in Ext.A1.
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16. In this context it is to be noted that the plaintiff has not suppressed
the execution of Ext.A1 from the defendants. Instead, the plaintiff himself
informed about it's execution to the defendants. DW1 admitted that in the year
2005 one of the friends of the plaintiff approached him and told him that Nani
Amma had executed such a document in favour of the plaintiff and also
requested him to allot the residential building in the plaint 'A' schedule property
to the plaintiff, along with his share. He has also deposed that, on getting such
information from the friend of the plaintiff, he had taken the certified copy of
Ext.A1 from the Sub Registrar's office and perused the same.
17. When DW1 was asked whether, after perusing Ext.A1, his wife
had raised any objection against the same, he deposed that at that time there
was no such discussions. When he was asked as to what was the opinion of his
wife on coming to know about the execution of Ext.A1, he deposed that he is
not remembering the same at present. When he was asked whether any enquiry
was conducted as to who executed Ext.A1, he replied that he came to the
conclusion that Ext.A1 was not executed by Nani Amma in the light of her
signature in Ext.A1 and also in the light of the factual mistakes in it. According
to him, if Ext.A1 was prepared as per the instructions of Nani Amma, such
mistakes would not have occurred in it. From the evidence of DW1 it appears
that the actual grievance against Ext.A1 is to him and not to the defendants. The
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lawyer was also instructed by him and not by the 1st defendant. In this context it
is also to be noted that the 3rd defendant has not adduced any separate evidence
and the 2nd defendant remained exparte.
18. Though during the cross-examination of PW2, a suggestion was
put to the effect that he did know Nani Amma previously and that he has not
seen Nani Amma affixing his signature in Ext.A1, during the cross-examination
of DW1 he had no such case. According to DW1, he has not verified the details
of the scribe and the attesting witnesses in Ext.A1 and that he had not given
instructions to the counsel to the effect that the scribe and the witness in Ext.A1
does not know Nani Amma. The above evidence of DW1 cuts the very root of
the argument advanced against the evidence of PWs2 and 3.
19. During the cross-examination of DW1 itself it is revealed that
during the year 1991, Nani Amma fell down and sustained injuries and a
surgery was also conducted and following the surgery she was laid up for about
six months. According to DW1, thereafter Nani Amma was able to take care of
herself. Relying upon Ext.X1 certificate issued by the Medical Board for
obtaining electric connection, the learned counsel for the defendants would
argue that Nani Amma had 75% visual disability. It is true that in Exts.X1
certificate it is stated that Nani Amma was suffering from 75% visual disability.
The said certificate was issued for the purpose of obtaining electric connection
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alone. No witness who issued that certificate was examined to prove Ext.X1
before the Court. According to DW1, Nani Amma had undergone cataract
surgery and thereafter she complained that she had visual impairment.
20. In this context it is to be noted that the defendants themselves
produced Ext.B8, draft deed allegedly executed by DW2 as per the instruction
of Nani Amma. It is true that the date of preparation of Ext.B8 and the date on
which Nani Amma allegedly given instruction for preparing the same are not
clear from the evidence adduced by the defendants. However, at the time of
arguments the learned counsel for the defendants would submit that Ext.B8 was
prepared before the date of execution of Ext.A1. From Ext.B8 it is established
that, at the time of preparing Ext.B8 Nani Amma was capable of taking rational
decision about the devolution of her properties and also that she was capable of
giving instruction to his scribe for preparing such a document. In this context it
is to be noted that, though as per her instructions DW2 prepared Ext.B8 draft
and handed over the same to Nani Amma, she had not acted upon it. The reason
can only be that, she did not want to execute a document in the manner in
which it is prepared. As per Ext.B8 the property is to be divided equally among
her two children. Therefore, subsequent execution of Ext.A1 in a different
manner through a different scribe cannot be viewed with suspicion, unless there
is sufficient evidence to prove otherwise. In other words, Ext.B8 will not in
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anyway help the defendants to disprove the execution of Ext.A1, but it will
only substantiate the claim of the plaintiff that even at that time she was in good
health sufficient enough to give instructions regarding disposal of her property.
The above circumstances also only probabilises the execution of a document
like Ext.A1, in the place of Ext.B8.
21. PW3, the scribe who prepared Ext.A1 deposed that he had
prepared the said document as per the instruction of Nani Amma. He also
deposed that his residence is about 10 km away from the residence of Nani. It is
also admitted by PW3 that he knew DW2, the other scribe who prepared
Ext.B6. When PW3 was asked whether Nani had given instruction to the effect
that the plaintiff was depending on her, he stated that such a statement was
written in Ext.A1 as usually in settlement deeds such a statement will be
written and not as instructed by Nani. Though PW3 was cross-examined in
detail, nothing material could be brought out to discredit his testimony that he
had prepared Ext.A1 at the instance of Nani Amma.
22. PW4 was the Sub Registrar in charge of Azhiyor SRO, who
registered Ext.A1. He deposed that he personally did not know the executant
Nani and that she was identified by two witnesses. During the cross-
examination he admitted that he had not recorded the statement of the witnesses
who identified Nani. He also admitted that he had not read over the details of
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the survey number of the property to the executant. When he was asked
whether he insisted for a witness from the neighborhood of Nani to identify her,
he deposed that he has not insisted so. He also has not asked Nani as to why a
witness from her locality was not brought to identify her. However, it is
interesting to note that during the cross-examination of PW4 no suggestion was
put to the effect that the person who went to the Sub Registrar's Office for
executing Ext.A1 was not Nani Amma. Similarly no suggestion was put to him
to the effect that Nani Amma executed Ext.A1 without her free will or volition.
Moreover, as I have already stated above, during the cross-examination of
DW1, the defendants have no case that Nani executed Ext.A1 in any vitiating
circumstances. In the above circumstances, it is to be held that, in the light of
the evidence of PWs2 to 4 the plaintiff has succeeded in proving the execution
of Ext.A1 by Nani Amma.
23. In this context, it is to be noted that defendants have no case that
Nani Amma was illiterate or incapable of understanding the nature of the
document executed by her. Their only case is that at the time of execution of
Ext. A1, she was aged 89 years and that there are some factual mistakes in it.
Relying upon the decision of the Hon'ble Supreme Court in M. Rangaswami v.
Rangamma and others [2023 (7) SCC 683], the learned counsel for the
plaintiff would argue that merely because the donor was old or of weak
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character, no presumption of undue influence can be taken. In paragraph 15,
the Apex Court held that:
"In Subhas Chandra Das Mushib v. Ganga Prasad Das Mushib and
Ors., AIR 1967 SC 868, this Court held that the Court trying the case
of undue influence must consider two things to start with, namely, (1)
are the relations between the donor and the donee such that the donee
is in a position to dominate the will of the donor, and (2) has the donee
used that position to obtain an unfair advantage over the donor? Upon
the determination of these two issues a third point emerges, which is
that of the onus probandi. If the transaction appears to be
unconscionable, then the burden of proving that the contract was not
induced by undue influence lies upon the person who is in a position to
dominate the will of the other. It was further said that merely because
the parties were nearly related to each other or merely because the
donor was old or of weak character, no presumption of undue
influence can arise. ...."
24. As I have already noted above, even according to DW1, except
that in 1991, in connection with the surgery, Nani Amma was bedridden for
about six months, thereafter she was healthy and capable of taking care of
herself. It is also revealed from Ext.B8 that she had given instructions for
executing a document to DW2 during somewhere near to Ext.A1. I have
already stated that the signatures of Nani in Ext.A1 was not disputed by the
defendants. Ext.A1 contains six pages and in the first five pages, she signed at
the bottom of the document and in the last page, she signed at two places. On a
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perusal of the above signatures, it can be seen that they are similar in nature,
considering the age of the executant. Further, it can be seen that she has affixed
her signature in English, using capital letters 'NAN' in addition to other curves
and lines. A person who was aged 89 years, in the year 2009 affixed her
signature in English means she was at least reasonably educated and capable of
understanding the nature and contents of the document she executed.
25. In this context, it is to be noted that the plaintiff is the only male
member in her family and 1st defendant is her daughter and defendants 2 and 3
are the grand daughters. From the evidence of the defendants itself, it is
revealed that Nani Amma was residing along with the plaintiff. PW1 also
claimed that Nani was dependent on him and his wife. Though during the cross
examination of PW1, a suggestion was put to the effect that he did not permit
the defendants to visit Nani, the same was denied by him and according to him
they never used to visit Nani. From the above suggestion put to PW1, it can be
seen that the defendants did not even used to visit Nani and that she was looked
after by the plaintiff himself. The above circumstance under which Nani Amma
executed Ext.A1 is to be borne in mind, while appreciating it's genuineness.
26. Though in the year 2005 itself the defendants came to know about
the execution of Ext.A1, and immediately DW1 had taken a certified copy of it
from the SRO, he had not conducted any enquiry in that respect and has not
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ascertained from Nani as to whether it was executed by her. Instead, the
defendants waited till the plaintiff filed the suit for partition in 2007, for
challenging Ext.A1. In this context it also to be noted that Nani Amma had not
challenged Ext.A1 during her life time. The reason why the defendants have not
inquired about Ext.A1, though DW1 had knowledge about its execution as
early as in the year 2005 and why Nani Amma had not challenged Ext.A1
during her life time etc. are also circumstances probablising the genuineness of
Ext.A1.
27. It is true that in Ext.A1 there are some factual mistakes like
mistake in Survey Number, mistake in the age and mistake in stating that Janaki
died after the death of Govinda Kurup. However, considering the age of Nani
Amma, those mistakes are not serious enough to disbelieve the document. Her
intention is clear from Ext.A1, in spite of those mistakes. Such mistakes can be
lack of or defective memory of an old lady aged 89 years and as such, the same
will only probablises the genuineness of Ext.A1. Those mistakes are not fatal
enough to hold that Ext.A1 was not prepared as per the instruction given by
Nani Amma.
28. It is true that PW1 claimed at the time of evidence that at the time
of execution of Ext.A1, Nani was dependent on him as well as his wife. It was
in the above context, the learned counsel for the defendants argued that Nani
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was not in a position to spent the amount required for purchasing the stamp
paper and for meeting the registration expenses of Ext.A1. It is true that PW1
deposed that Nani was dependent on him and his wife and that it was he, who
looked after Nani. It does not mean that Nani was financially dependent on the
plaintiff and his wife. There is no positive evidence to prove that during the
time of execution of Ext.A1 Nani was financially dependent upon the plaintiff.
As argued by the learned counsel for the plaintiff, even if it is assumed that the
expense for the execution of Ext.A1 was met by the plaintiff, it will not make
any difference in the genuineness or validity of Ext.A1, as there is nothing
wrong in a grandson financially supporting his grandmother in meeting the
expenses of executing a document like Ext.A1 in his favour. In the light of the
above circumstance, the genuineness of Ext.A1 cannot be doubted.
29. Similarly, for the reason that the scribe, who prepared Ext.A1
namely PW3 was from a far away place and that she had not called DW2, a
nearby scribe for preparing Ext.A1 etc. are also not serious enough to suspect
the genuineness of Ext.A1. Since at the time of execution of Ext.A1 Nani was
residing along with the plaintiff, he might have helped Nani in arranging a
scribe of his choice and simply because of that reason, the genuineness or the
due execution of Ext.A1 cannot be doubted, especially because the defendants
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have no case at the time of evidence that Ext.A1 was executed in any vitiating
circumstances.
30. It is true that during the cross-examination of PW1 he deposed that
Nani Amma consulted a lawyer and sent somebody to Kannur for purchasing
stamp paper. It is true that the details of those persons were not disclosed and
they were not examined in this case. However, non-examination of those
witnesses are not fatal in the facts of this case as defendants have no case that
Ext. A1 was executed in any vitiating circumstance.
31. Non-compliance of Sections 52(1), 58(1), 59 and 63(2) of the
Registration Act, was also taken note of by the trial court to disown Ext.A1. It
is to be noted that the above provisions are only discretionary in nature and not
mandatory. Moreover, Section 87 of the Registration Act says that non-
compliance of such procedural formalities does not invalidate the document,
registered as per the provisions of the Registration Act. Therefore, even if the
statement of the witnesses who identified Nani were not recorded by PW4, the
same will not affect the validity of the registration of Ext.A1. Therefore, in the
light of the above circumstances, no adverse inference can be drawn against the
due execution and registration of Ext.A1. In other words, in this case there is
not even any suspicious circumstances, so as to disbelieve the execution of
Ext.A1 by Nani Amma.
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32. It is true that in the written statement the defendants 1 and 3 have
taken a contention that even if it is found that Ext.A1 was executed by Nani,
there is no evidence to show that it was accepted by the plaintiff during the life
time of Nani. The learned counsel for the plaintiff, relying upon the decision of
the Hon'ble Supreme Court in Ashokan v. Lakshmikuttiyamma and Others,
(2007) 13 SCC 210, would argue that the document contains recitals to the
effect that possession was handed over to the donee and hence further proof
regarding it's acceptance is not required and the above recital regarding transfer
of possession is enough to prove the acceptance of the said document. In
paragraph 20, the Apex Court held that:
"20. When a registered document is executed and the executors are
aware of the terms and nature of the document, a presumption arises in
regard to the correctness thereof. [See Prem Singh and Ors. v. Birbal and
Ors. (2006) 5 SCC 353] When such a presumption is raised coupled with
the recitals in regard to putting the donee in possession of the property,
the onus should be on the donor and not on the donee."
33. In paragraph 23, the court further held that:
"23. The deeds of gift categorically state, as an ingredient for a valid
transaction, that the property had been handed over to the donee and he
had accepted the same. In our opinion, even assuming that the legal
presumption therefore may be raised, the same is a rebuttable one but in
a case of this nature, a heavy onus would lie on the donors."
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34. In the decision in Kuttian Panmini v. Nelliyullaparambath
Mathew and Others, 2014 (1) KHC 759, a learned Single Judge of this Court
held that when the gift is not onerous, the normal presumption under law is that
even the knowledge of the gift by the donee can be treated as sufficient to hold
that there was acceptance. In the instant case, Ext.A1 was not an onerous gift
and from the evidence of PW1 and DW1, it is revealed that the plaintiff was
aware of execution of Ext.A1 during the life time of Nani. He had even sent his
friend to DW1 and informed him about the execution of Ext.A1 and calling
upon him to give the residential building in the A Schedule property to the
plaintiff along with his share. Therefore, from the evidence available on record,
it is proved that the plaintiff was very much aware of execution of Ext.A1 then
and there and the same is more than enough to prove the acceptance of Ext.A1
during the life time of the donor.
35. In the decision in Subramanian v. Ramachandran [1995 KHC
463], a Division Bench of this Court held that, in the case of execution of a
Will, the burden is on the propounder to remove the suspicion and to prove that
it was a Will executed without any coercion or undue influence and that the
testator had exercised his free will and that he has sound disposing state of
mind. In paragraph 7, the court held that:
"7. It is true that if there is any suspicious circumstances surrounding
the execution of the Will, the burden is on the propounder to remove that
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suspicion and to prove that it was a Will executed without any coercion
or undue influence and that the testator had exercised his free-will and
that he had sound disposing state of mind. The proof regarding Will was
elaborately dealt with by his Lordship Justice Gajendragadkar, as he
then was, in H. Venkatachala Iyengar v. B. N. Thimmajamma (AIR 1959
SC 443). This view was later endorsed by another decision reported in
Purnima Debi v. Khagendra Narayan, AIR 1962 SC 567. The nature of
evidence adduced by the parties is to be examined in the light of the
dicta laid down by the Supreme Court in the above decisions."
36. The Division Bench further held in paragraph 8, that during the
time of evidence, the plaintiff had given up his case of suspicious
circumstances, under which the Will was executed. Therefore, the the Division
Bench held that, in the above circumstance, the propounders of the Will, need
only prove the execution of the Will.
37. Going by the above dictum, in the instant case also, though in the
written statement, the defendants have raised a contention that Nani Amma
executed Ext.A1 under vitiating circumstances, at the time of evidence, DW1
had given a go by for the said contention. Therefore, the burden of the plaintiff
in this case is also much less and he need prove only it's due execution.
38. In the light of the evidence of PWs 1 to 4 the plaintiff has
succeeded in providing the due execution and registration of Ext.A1 by Nani
Amma. Therefore, the plaintiff is entitled to get the 1/3 share of Nani from
plaint A schedule property, in addition to the share from his mother Janaki. In
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other words, from plaint A schedule property, plaintiff is entitled to get 4/9
share, while 1st defendant is entitled to get 3/9 share and defendants 2 and 3 are
entitled to get 1/9 share each. However, with regard to plaint B schedule
property, there is no challenge and as such the division of plaint B schedule
does not call for any interference. Points answered accordingly.
39. In the result, the appeal is allowed as follows:
While sustaining the partition of plaint 'B' schedule property, the shares
due to the parties from plaint 'A' schedule property is modified as follows:
Plaint 'A' schedule property is to be divided into 9 shares. Out of
which, the plaintiff is entitled to get 4/9 shares, the 1 st defendant is
entitled to get 3/9 shares and defendants 2 and 3 are entitled to get 1/9
share each. Preliminary decree passed by the trial court is modified
accordingly. The cost of the appeal will form part of the estate.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/sou/9.6
