Ammalukutty v. Gokuldas and Leelavathi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 17TH DAY OF SEPTEMBER 2020 / 26TH BHADRA, 1942** ## **RFA.No.529 OF 2014** **AGAINST THE JUDGMENT AND DECREE DATED 31-03-2014 IN O.S.NO. 157/2011 OF SUB COURT, OTTAPPALAM** ## **APPELLANT/PLAINTIFF:** **AMMALUKUTTY, AGED 81 YEARS, W/O. KADASSEERI PUTHAN VEETTIL LATE SANKARAN PILLA, VADAKKUMBRAM AMSOM, KADAMBOOR DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.P.JAYARAM** ## **RESPONDENTS/DEFENDANTS:** **1 GOKULDAS, S/O. KARIMBATHADAM NARAYANAN, VADAKKUMBRAM AMSOM, KADAMBOOR DESOM, P.O. KADAMBOOR, OTTAPALAM TALUK, PALAKKAD DISTRICT-679 515.** **2 LEELAVATHI, W/O. GOKULDAS, VADAKKUMBRAM AMSOM, KADAMBOOR DESOM, P.O.KADAMBOOR, OTTAPALAM TALUK, PALAKKAD DISTRICT-679 515. R1-R2 BY ADVS. SRI.SANTHEEP ANKARATH SRI.ARUN MATHEW VADAKKAN** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 15-09-2020, THE COURT ON 17-09-2020 DELIVERED THE FOLLOWING:** **R.F.A.No.529 of 2014** ## **:-2-:** **Dated this the 17[th] day of September, 2020** ## **J U D G M E N T** The plaintiff in O.S.No.157/2011 on the file of Sub Court, Ottappalam, is the appellant. Her suit for partition and declaration that Ext.A1 release deed dated 9.1.2008 is void, was dismissed by the court below. Being aggrieved by the dismissal, she filed this appeal. 2. She claims to be a co-owner with the second defendant who is the niece of her deceased husband, Sankara Pillai. The spouses after marriage did not have any child and therefore, they fostered second defendant who was the daughter of Sankara Pillai's brother. In 1992, plaint schedule property of 18 cents with a house was purchased in the joint names of plaintiff, her husband and the second defendant. After Sankara Pillai died in 2007, the plaintiff ## **R.F.A.No.529 of 2014** **:-3-:** became the co-owner holding two-third share in the plaint property. 3. Plaintiff was looking after the second defendant and she claims to have conducted second defendant's marriage with the first defendant spending her funds. After she became a widow, there was nobody to look after her. She therefore requested the defendants to join her and stay in the house and property in which the second respondent was having one-third share. She even offered to bequeath her undivided share and instructed the defendants to arrange for execution of a Will deed in their joint names. 4. It is the contention of the plaintiff that on 9.1.2008, the defendants arranged for execution of Ext.A1 which she admits having executed before the Sub Registrar. According to her, she signed Ext.A1 on the impression that it was a Will but ## **R.F.A.No.529 of 2014** ## **:-4-:** came to know that it was actually a release deed only when she received Ext.A3 reply notice dated 20.11.2010 from defendants in answer to Ext.A2 suit notice sent to them claiming partition and separate possession of the plaint property. 5. It is contended that she fully believed the defendants who were in the position of active confidence and therefore executed Ext.A1 without trying to understand the contents. The case set up in the plaint is that the impugned deed is the result of fraud played on her by the defendants and the transaction under Ext.A1 was unconscionable. According to her, she did not intend to assign her undivided share for any consideration nor did she have any need for consideration also. The document is contended to be vitiated by fraud and therefore, she sought to declare the release deed as void and not binding on her and consequently to partition ## **R.F.A.No.529 of 2014** ## **:-5-:** plaint property and allot two-third to her share. 6. The defendants in their joint written statement, contended that they were not persons in the position of active confidence of the plaintiff and the second defendant was not brought up as a fostered daughter. It is contended that Ext.A1 is not an unconscionable disposition but on the other hand, the undivided share of the plaintiff was assigned under the deed for adequate consideration. She executed the document in her own volition and she never offered to bequeath the property by way of Will. The arrangement for execution of the document was made by the plaintiff and the defendants did not participate in that process at all. She transferred her share after taking a decision to live with her brother who is behind the institution of the suit. In short, the allegation of fraud was denied contending that Ext.A1 is a ## **R.F.A.No.529 of 2014** ## **:-6-:** valid deed which is not liable to be set aside under any of the circumstances as alleged. 7. The trial court framed necessary issues and considered the material question as to whether Ext.A1 was brought into existence by fraud played on the plaintiff. 8. The appellant was examined as PW1 and Exts.A1 to A3 were marked on her side. The scribe who prepared Ext.A1 was examined as DW2 and the husband of the second defendant as DW1. Exts.B1 to B6 were marked on the side of the respondents. In addition to these items, Ext.C1 commission report which contains the information as to market value of the property and building also forms part of the evidence. 9. The court below on evidence found that Ext.A1 being a registered document, it carried the presumption that execution and registration of the ## **R.F.A.No.529 of 2014** ## **:-7-:** document were completed in accordance with law which was not rebutted by the appellant. It was also held having regard to the nature and conduct of the appellant that she was capable of taking care of herself and she was not defrauded. 10. After analysing the evidence tendered by the scribe, DW2 it was held that necessary instruction for execution of Ext.A1 was given by the appellant herself. The alleged insufficiency of consideration according to the court below has no bearing in so far as there are reasonable circumstances in the case to assume that the appellant executed the document only after understanding the contents therein. So holding, the suit was dismissed refusing the claim for both partition and declaration. **==> picture [402 x 10] intentionally omitted <==** appellant as well as the respondents. ## **R.F.A.No.529 of 2014** **:-8-:** 12. The material issue that arises for consideration in this appeal is whether Ext.A1 release deed is the outcome of fraudulent misrepresentation as contended by the appellant. This is no doubt a matter which requires to be decided on the facts and evidence. 13. The learned counsel for the appellant submitted that the appellant having discharged the initial burden, it was upto the respondents who were standing in the position of active confidence of the appellant to have shown that the impugned document was not vitiated by the alleged fraud. According to the learned counsel, the parties stood in such a fiduciary relationship that burden of proof to show the transaction to be fair lay on the respondents. Relying on Section 111 of the Indian Evidence Act, 1872 and also decisions reported in **Daya Shankar v. Bachi (AIR 1982 All 376)** , **Anil** ## **R.F.A.No.529 of 2014** **:-9-:** **Rishi v. Gurbaksh Singh (AIR 2006 SC 1971), Krishna Mohan Kul alias Nani Charan Kul & anr. v. Pratima Maity & ors. (AIR 2003 SC 4351)** and **Pratima Chowdhury v. Kalpana Mukherjee & anr. [(2014)4 SCC** 196], it was submitted that when a question arises as to the good faith of a transaction between parties standing in fiduciary relationship, the burden of proving the good faith or fairness of the transaction in question lies on the party who stands in the position of active confidence. This legal position is no doubt, undisputed. But the question is whether the parties as on Ext.A1 date stood in fiduciary relationship and the impugned document contained an unconscionable transaction. 14. Though the respondents disputed that second defendant was not brought up as a foster daughter, this is against the very recitals in Ext.A1 release deed itself. It is a fact that appellant and her ## **R.F.A.No.529 of 2014** **:-10-:** husband, Sankara Pillai did not have any child of their own and further the parents of second defendant had also died at her early age. In such circumstance, there is no reason to disbelieve the appellant's evidence that she brought up the second defendant and also conducted her marriage with first respondent. Quite naturally, therefore, there was every reason for the appellant to have considered the second respondent being in the position of a person of active confidence. 15. The learned counsel for the appellant also contended that being a widow, she had no reason to have parted with her joint share to anyone when she had no roof of her own to lay over her head. It is also submitted that appellant admittedly continued to stay in the house in the plaint property even subsequent to the execution of Ext.A1 release deed and the respondents did not have any explanation ## **R.F.A.No.529 of 2014** ## **:-11-:** under what arrangement she was allowed to continue stay in the house. The gist of the contention is that she was continuing stay in the house under the impression that she was having rights in the property and the document executed on 9.1.2008 was a Will. 16. On the other hand, the learned counsel for the respondents contended that the appellant had taken a decision to join her brother in another house and reside with his family after assigning her share to the respondents who are willing to purchase the property for consideration. She continued to reside even after Ext.A1 because of the existing relationship maintained between the parties. It is also contended that the appellant herself instructed DW2 scribe to execute Ext.A1 and received adequate consideration from the respondents which she admitted before the Sub ## **R.F.A.No.529 of 2014** ## **:-12-:** Registrar also. It is further contended that having regard to the nature and conduct of the appellant on the whole, even before and after execution of Ext.A1, it would manifest that she is not a woman vulnerable to tricks and foul play. It was finally contended that entire evidence would convince the court that appellant executed the document on her own volition and for consideration. 17. Having heard both sides, I am of the opinion as already stated above that the question as to whether Ext.A1 is vitiated by fraud or misrepresentation is to be answered on the basis of evidence on record. Even assuming that as persons standing in fiduciary relationship with the appellant, burden of proof lay on the respondents to show that Ext.A1 transaction was fair and made in good faith, on analysis of evidence as a whole, I am of the opinion that they discharged the burden ## **R.F.A.No.529 of 2014** ## **:-13-:** and there is no reason to hold that Ext.A1 release deed is vitiated by fraud or misrepresentation. 18. The appellant though being an aged widow and also low educated is a woman who can read and write and she herself conceded in cross examination that she was not in the habit of signing documents without reading the contents. She said that she used to attend cases conducted before the Forest Tribunal, Palakkad, unassisted by others. Going by her evidence there is enough reason to think that she is capable of managing affairs by herself. In other words, she is not a vulnerable woman who could be easily defrauded or misrepresented. This is the view taken by the court below also. 19. This is not a case where the appellant was deprived of means to discover the real nature of transaction recorded in Ext.A1 document. The document being registered, it should be necessarily ## **R.F.A.No.529 of 2014** ## **:-14-:** presumed that the contents were brought to the notice before she admitted execution of Ext.A1 before the Sub Registrar. The testimony given by DW2 scribe, makes it crystal clear that appellant and her brother gave specific instruction regarding execution of the document. This must be true because appellant's brother's daughter, Sundari is a staff of the office of DW2. There is every probability of appellant having taken assistance of her brother, Sankara Pillai in having the impugned document executed. 20. The court below fully believed DW2 and on re-appreciation of his testimony, I also do not have any legitimate reason to disbelieve him. It is pertinent to note that the appellant does not have a specific contention that DW2 was either enemical to her or had any special interest in the respondents. When the evidence and circumstances ## **R.F.A.No.529 of 2014** ## **:-15-:** formidably suggest that there was no occasion for the appellant to act under any misrepresentation or fraud and she in all probability, executed the document being aware of the contents, it was no longer necessary for the respondents to have examined the first respondent or Sundari as the witnesses to substantiate that the disputed transaction was fair and made in good faith. 21. The learned counsel for the appellant drew my attention to the recitals in Ext.A1 and pointed out that what was in fact conveyed to the respondents was half share of the appellant in lieu of the two-third share held by her. This contention is advanced to point out that there was no proper instruction at the instance of the appellant and the document was prepared under assumptions and at the instruction of someone. I do not consider this argument to be of any significance. The error might ## **R.F.A.No.529 of 2014** ## **:-16-:** be because the document writer had taken the second respondent as the adopted daughter of the appellant in the place of foster daughter. I do not consider this to be a material circumstance in support of appellant's case that Ext.A1 is the outcome of a fraudulent creation. 22. The impugned document shows that it was executed for consideration and the amount received by the appellant was Rs.65,000/- only. Ext.C1 commission report, on the other hand, shows that the land itself would have fetched market value of Rs.9 lakhs and the house a value of another Re.1 lakh. But considering the intimate relationship of the parties, it is only probable that the appellant was not interested for any bargain and the property was assigned for a value of appellant's choice. The court below took the same view which, in my opinion, cannot be said to be unreasonable. ## **R.F.A.No.529 of 2014** **:-17-:** 23. I am satisfied on evaluation of entire evidence and circumstances that Ext.A1 release deed does not suffer from any infirmity and is not vitiated by fraud as alleged by the appellant. I therefore find no reason to interfere with the impugned judgment of the court below. **==> picture [402 x 12] intentionally omitted <==** dismissed. All pending interlocutory applications are closed. Sd/- ## **T.V.ANILKUMAR JUDGE** ami/