Amruthakumar, Kusumakumari and Ajitha Kumari v. MohananpillaI, Sarala Kumari, Reghukum ar, Anilkum ar, Jalaja Kumari, Retna Kumari, and Jaya Devan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA FRIDAY, THE 3[RD] DAY OF MARCH 2023 / 12TH PHALGUNA, 1944 RSA NO. 1050 OF 2017** **AGAINST THE JUDGMENT DATED 25.08.2017 IN AS 63/2014 OF III ADDITIONAL DISTRICT JUDGE, ALAPPUZHA WHICH IS AGAINST THE JUDGMENT AND DECREE IN OS 336/2011 DATED 18.06.2014 OF SUB COURT,ALAPPUZHA** **APPELLANTS/APPELLANTS IN A.S./DEFENDANTS NO.2, 4 AND 7TH IN O.S:** 1 AMRUTHAKUMAR AGED 58 YEARS S/O.MADHAVAN KUNJU PANICKER, AGED 58 YEARS, RESIDING AT SOWPARNIKA, 32/2156, P.J.ANTONY ROAD, EDAPPALLY, ERNAKULAM. 2 KUSUMAKUMARI W/O.KRISHNAN KUNJU PANICKER, AGED 71 YEARS, RESIDING AT SOGANTHIKAM, SANATHANAPURAM P.O., KALARCODE, ALAPPUZHA. 3 AJITHA KUMARI W/O.AJAYAKUMAR, AGED 55 YEARS, NAVANEETHAM, VALAMANGOLOM NORTH, THURAVOOR, ALAPPUZHA. BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA ## **RESPONDENTS/RESPONDENTS IN THE A.S/PLAINTIFFS AND DEFENDANT** ## **NO.1,3,5,6 AND 8TH IN O.S.:** 1 MOHANANPILLAI S/O.MADHAVAN KUNJU PANICKER, AGED 69 YEARS, PULIMUTTATHUVEETTIL,, KOYIPURAM VILLAGE, CHENGANNOOR, ALLEPPEY. 2 SARALA KUMARI W/O.KESAVA PILLAI, AGED 73 YEARS, RESIDING AT KRW 45, EDAPPALLY, PALARIVATTOM P.O., COCHIN-25, ERNAKULAM. R.S.A.No.1050/2017 2 - 3 REGHUKUMAR S/O.MADHAVAN KUNJU PANICKER, AGED 63 YEARS, ANANDA BHAVANAM, KUTHIYATHODE P.O., CHERTHALA, ALAPPUZHA. - 4 ANILKUMAR S/O.MADHAVAN KUNJU PANICKER, AGED 53 YEARS, "ASWATHI", EDAPPALLY, PALARIVATTOM P.O., COCHIN25, ERNAKULAM. - 5 JALAJA KUMARI W/O.SIVASANKARAN NAIR, AGED 61 YEARS, RESIDING AT POURNAMI, MARUTHORVATTOM, CHERTHALA, ALAPPUZHA. - 6 RETNA KUMARI W/O.MOHANAN NAIR, AGED 66 YEARS, "THRIPTHI", CHERUVARANOM P.O., VARANOM, CHERTHALA, ALAPPUZHA. - 7 JAYADEVAN S/O.VASUDEVAN PILLAI, AGED 33 YEARS, RESIDING AT GEETHANJALI, PATTANAKKADU P.O., ALAPPUZHA. BY ADVS. SRI.T.B.HOOD AND SMT.M.ISHA FOR R1 AND R2 SRI.GEORGE MATHEW AND HARIHARAPUTHRAN - R5 TO 7 THIS REGULAR SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 03.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A.No.1050/2017 3 ## **M.R.ANITHA, J** ****************** R.S.A.No.1050 of 2017 -------------------------------------------Dated this the 3[rd] day of March, 2023 ## **JUDGMENT** The Regular Second Appeal has been filed against the judgment and decree in A.S.No.63 of 2014 on the file of III Additional District Judge, Alappuzha which in turn arise out of the judgment and decree in O.S.No.336/2001 on the file of Sub Court, Attingal. 2. Appellants are defendants 2, 4 and 7. (Parties would hereafter be referred as per their status before the trial court). The suit is one for declaration, partition and permanent prohibitory injunction. Plaintiffs and defendant Nos.1 to 7 are siblings and defendant No.8 is the nephew of plaintiffs and defendant Nos.1 to 7. Parties got plaint schedule item Nos.1 and 2 properties by virtue of settlement deed No.3066/1993 dated R.S.A.No.1050/2017 4 11.10.1993 of Pulincunnu S.R.O. Plaint A schedule was allotted to the first plaintiff and defendant Nos.1 to 3 and plaint B schedule property was allotted to the second plaintiff and defendant Nos. 4 to 8. Settlement deed has been executed by the mother of the plaintiff and defendant Nos.1 to 7 and the maternal grandmother of 8[th] defendant. Mother retained her life interest over the plaint schedule properties. There is a residential building in the property where nobody has been residing over the last eight years. She had been suffering from various old age diseases and was totally bed ridden due to paralysis and she had been admitted to KVM Hospital, Cherthala from 06.07.2011 to 31.07.2011. After discharge from the hospital also she was fully bed ridden and was residing with the second defendant. She died on 12.10.2011 and after that, second defendant claimed absolute right over the schedule properties under the guise of cancellation deed No.2376 dated 26.08.2011 to revoke the settlement deed. On the same day, another settlement deed No.2377 was also got executed in the name of second defendant through undue influence and playing fraud upon the mother R.S.A.No.1050/2017 5 Thankamma. The revocation deed as well as settlement deed executed in favour of the second defendant is invalid in the eye of law and will not bind the plaintiffs or the schedule properties. Hence the suit has been filed for declaring that settlement deed dated 26.08.2011 and revocation deed are not binding on the plaintiffs and plaint schedule properties and also partition of the plaint schedule property as per settlement deed dated 11.10.1993. Apart from that, a decree of perpetual injunction is also sought against the second defendant from transferring the entire plaint schedule property or any portion thereof except his ¼ right over the plaint schedule item No.1 property. 3. Defendants 1 to 3 remained ex parte. Second defendant filed written statement denying plaintiff's right, title and interest over the plaint schedule item Nos.1 and 2 properties and he asserted his right and title over the schedule properties under the guise of revocation deed as well as settlement deed dated 26.08.2011. Even though the settlement deed on 11.10.1993 was executed, the second defendant has been in possession of the properties and was cultivating the properties R.S.A.No.1050/2017 6 and residing in the building. The allegation regarding old age diseases of Thankamma and her mental incapacity is denied. She is contended to be fully conscious till her death. So, the plaint schedule property is not partible and plaintiffs are not entitled for any share. 4. 7[th] defendant filed written statement supporting the second defendant and defendants 5, 6 and 8 supported the averments in the plaint and sought for partition and separate possession of 1/6[th] right each over schedule item No.2 property. PW1 to PW3 were examined and Exts.A1 to A4 were marked. Exts.X1 to X1(a) were also marked. There was no evidence from the side of the defendants. 5. The trial court, on evaluating the facts and circumstances and evidence, decreed the suit, as prayed for. Against which appeal was filed and the first appellate court, on reappreciation of facts and circumstances and evidence, dismissed the appeal confirming the judgment and decree passed by the trial court, against which present second appeal has been filed. 7 R.S.A.No.1050/2017 6. It is contended by the learned counsel for the appellants (hereinafter be referred as the 'contesting defendants') that the revocation deed was duly executed by the mother cancelling the settlement deed dated 11.10.1993 and subsequently the mother executed settlement deed No.2377 on 26.08.2011 in favour of the second defendant. The mother was fully conscious and executed the document on her free will and the courts below went wrong in decreeing the suit. 7. Learned counsel for the plaintiffs and the supporting defendants, on the other hand, would contend that the mother was fully bed ridden after fall on 06.07.2011 and had undergone treatment at K.V.M Hospital, Cherthala and was in unconscious stage and had been undergoing treatment in that hospital from 06.07.2011 to 31.07.2011 and she died on 12.10.2011. To prove the mental condition of the mother, plaintiffs examined PW3, the Doctor. Ext.X1 is the case sheet containing the details of treatment given to the mother. Ext.A4 is the discharge summary. PW3, the Doctor during evidence categorically deposed that the patient was suffering from heart disease, diabetics, fracture R.S.A.No.1050/2017 8 injury to the back bone, multi infarct dimensia, loss of consciousness, loss of memory and was suffering from paraplegia also and at the time of discharge she was advised to undergo tube feeding, care of bladder, care of skin, water bed, mouth care, turn in bed, home nurse and the doctor also categorically deposed that the patient cannot do anything on her own will. She was discharged from the hospital on 31.07.2011 and Ext.A3, the revocation deed was executed on 26.08.2011 and on the same day, the settlement deed was also executed settling the entire properties in favour of the second defendant. Plaintiffs were examined as PW1 and PW2 and they deposed in corroboration about the physical and mental condition of the mother during her last days and deposed in corroboration that at the time of execution of Exts.A2 and A3 the revocation deed as well as settlement deed dated 26.08.2011, the mother was not in a fit state of mind to execute the revocation deed or the settlement deed in favour of the second defendant. The concurrent findings so entered into by the courts below is perfectly in accordance with the facts and circumstances and R.S.A.No.1050/2017 9 evidence adduced in the case. Moreover, admittedly, mother executed a settlement deed settling her entire properties described in plaint schedule 1 and 2 properties equally among plaintiffs and defendants. It is in the year 1993. It has come out in evidence that settlement deed has come into effect and it is in the year 2011 the revocation deed Ext.A2 got executed by the defendant and consequently on the same day Ext.A3 settlement deed was also executed. So, the question is whether a settlement deed which is duly executed by the mother could be cancelled by executing a revocation deed. The answer to it definitely is a big 'No'. It is relevant in this context to quote **Gopalakrishnan v. Rajamma : 2006 (4) KLT 377** wherein a learned Single Judge has held that, after the acceptance of the gift if the donor wants to revoke the gift deed by resorting to Section 126, the donor has to institute a suit for the same. Without instituting a suit for cancelling the settlement deed of the year 1993, the settler cannot unilaterally revoke the settlement deed by executing a registered revocation deed. Moreover, in this case, it has already been found that the revocation deed as well as the subsequent R.S.A.No.1050/2017 10 settlement deed was not executed by deceased Thankamma on her free will and she was not in a fit state of mind to execute any document on the date of execution of Exts.A2 and A3. So, the concurrent findings made by the courts below allowing the prayer of the plaintiffs for declaration that the revocation deed and the settlement deed Exts.A2 and A3 respectively are not binding on the plaintiffs or the plaint schedule properties and the consequent order of partition of schedule properties and the perpetual injunction granted are perfectly in accordance with the facts and circumstances and evidence adduced in the case and I do not find any substantial question of law emerging for consideration for entertaining this second appeal. Appeal is found to be devoid of any merit and hence dismissed in limine. (sd/-) **M.R.ANITHA, JUDGE** jsr P.S to Judge True Copy