Cheriya Mananthala Parkkum Thekkethil Cheriyammakutty v. Padinjare Mananthala Muraleedharan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 10TH DAY OF JANUARY 2012/20TH POUSHA 1933** **RSA.No. 12 of 2011 ( )** **==================** **AS.109/2003 of ADDL.DISTRICT COURT, KOZHIKODE OS.57/2001 of SUB COURT, QUILANDY** ## **APPELLANT/RESPONDENT/DEFENDANT:** **===================================** **CHERIYA MANANTHALA PARKKUM THEKKETHIL CHERIYAMMAKUTTY, RESIDING AT MELADI AMSOM AND KANNAMKULAM DESAM, KOYILANDY TALUK, KOZHIKODE DISTRICT.** **BY ADV.SRI.E.NARAYANAN** ## **RESPONDENT/APPELLANT/PLAINTIFF** **=================================** **PADINJARE MANANTHALA MURALEEDHARAN, S/O.KUNHIRMAN, AGED 42 YEARS, RESIDING AT MELADI AMSOM, KANNAMKULAM DESOM, KOUILANDY TALUK, KOZHIKODE DISTRICT-673 522.** **BY ADVS. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2012 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DG** ## **RSA.No. 12 of 2011 ( )** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE-A1: COPY OF THE ULTRA SCAN REPORT DATED 12.04.05. ANNEXURE-A2: COPY OF THE PRESCRIPTION DATED 28.10.05 ISSUED BY DR.P.BALAKRISHNAN TO THE APPELLANT. ANNEXURE-A3: COPY OF THE PRESCRIPTION DATED 01.05.07 ISSUED BY DR.P.BALAKRISHNAN TO THE APPELLANT. ANNEXURE-A4: COPY OF THE PRESCRIPTION DATED 18.11.08 ISSUED BY DR.P.BALAKRISHNAN TO THE APPELLANT. ANNEXURE-A5: COPY OF THE PRESCRIPTION DATED 24.07.09 ISSUED BY DR.P.BALAKRISHNAN TO THE APPELLANT. RESPONDENT'S EXHIBITS - NIL** **/TRUE COPY/** **P.A.TO JUDGE** ## **DG** ## **THOMAS P. JOSEPH, J.** **----------------------------------------** ## **R.S.A.No.12 of 2011** ## **---------------------------------------** ## **Dated this 10[th] day of January, 2012** ## **JUDGMENT** After hearing counsel on both sides the following substantial questions of law are framed. (i) Whether the lower appellate court erred in holding that Ext.A3, gift deed is valid and the same cannot be cancelled by Ext.B1, cancellation deed? (ii) Whether the lower appellate court erred in deciding the case by not framing any issue with respect to the genuineness of Ext.A3, gift deed? (iii) Whether the court below erred is not considering the issue whether the donee has accepted the gift? 2. The suit property originally belonged to Chathu, husband of the appellant who gifted the same to the appellant as per Ext.A1, gift deed No.1752 of 1967. The property devolved on the appellant. Appellant got purchase certificate with respect to property in the year, 1976 as per Ext.A2. Appellant executed Ext.A3, gift deed dated 02.02.1982 allegedly conveying her right, title, interest and possession of the property in favour of respondent but reserving a right to take usufructs from the property until her death. Later, appellant executed Ext.B1, dated R.S.A.No.12 of 2011 -: 2 :- 21.08.2001 whereby Ext.A3, gift deed dated 02.02.1982 was cancelled. The fact of cancellation was intimated to the respondent by registered notice dated 17.09.2001. Alarmed at that, respondent filed O.S.No.57 of 2001 in the Court of learned Sub Judge, Koyilandy for a decree for prohibitory injunction to restrain the appellant from transferring or alienating any portion of the suit property to third parties or inducting third parties into the said property. Appellant resisted the suit contending that respondent and his father insisted her to execute Ext.A3, gift deed. She stated that at a time when there was nobody to look after her after the death of her husband, respondent offered to look after her in her old age. In that situation she happened to execute Ext.A3, gift deed in favour of the respondent. She also contended that Ext.A3, gift deed has not taken effect and it is sham. The further contention is that by Ext.B1 dated 21.08.2001 she cancelled the gift and that was intimated to the respondent by registered notice. She claimed to be in possession and enjoyment of the suit property. Learned Munsiff framed issues among other things whether Ext.A3, gift deed is a sham document, whether respondent has right, title or possession of the suit property and whether Ext.B1, cancellation deed No.2176 R.S.A.No.12 of 2011 -: 3 :- of 2001 is valid. Respondent gave evidence as PW1 and examined PW2. He proved Exts.A1 to A8. Appellant gave evidence as DW1 and proved Exts.B1 to B4. Trial court found that respondent could not adduce acceptable and reliable evidence to show that he had accepted the gift. Cancellation of the gift was accepted. Result was dismissal of the suit. Respondent challenged that decree in A.S.No.109 of 2003. Learned first Additional District Judge, Kozhikode allowed the appeal holding that Ext.A3, gift deed is genuine and is valid, has taken effect and hence Ext.B1, cancellation deed has no effect. Finding possession of the suit property with the respondent, learned Additional District Judge granted decree as prayed for. Judgment and decree of the learned Additional District Judge is under challenge in this second appeal on the above framed substantial questions of law. Appellant also filed I.A.No.67 of 2012 to amend the written statement to include a counter claim for declaration that the gift deed is null and void. 3. It is contended by the learned counsel for appellant that finding entered by the learned Additional District Judge is erroneous. According to the learned counsel, there is sufficient evidence to show that Ext.A3, gift deed has not taken effect and R.S.A.No.12 of 2011 -: 4 :- that notwithstanding the gift, property continued to be in the possession and enjoyment of appellant. It is also contended by learned counsel that evidence shows that respondent and his father where in a position to dominate will of the appellant and get Ext.A3, executed by undue influence. In the said circumstance Ext.A3, gift deed is voidable under Sec.16 of the Indian Contract Act. It is contended that in such a situation burden of proving that there was no undue influence exerted on the appellant was on the respondent. Reliance is placed on the decisions in **Philip Lukka Vs. Franciscan Association, Vashappally and Ors. (AIR 1987 Kerala 204), Krishnan Vs. Rajesh (2001(1) KLT SN 23 (C.No.25)) and Krishna Mohan Kul @ Nani Charan Kul and Anr. Vs. Pratima Maity and Ors. (AIR 2003 SC 4351 (paragraph 12))** . It is argued that appellant had not executed Ext.A3, gift deed “voluntarily” which is an essential ingredient of a gift. Reliance is placed on **State of Kerala Vs. Thomas (1986 KLT 861 (paragraph 4))** . 4. In support of I.A.No.67 of 2012 for amendment of written statement learned counsel has placed reliance on the decision in **North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (2008(8) SCC 511)** to contend R.S.A.No.12 of 2011 -: 5 :- that at any stage of the proceeding Court has the power to allow amendment of pleadings to decide the real controversy. 5. Learned counsel for respondent has contended that none of the above contentions would stand in the nature of contentions raised in the written statement. It is pointed out that the contention raised in the written statement is only that it was under 'insistence' of respondent and his father that appellant executed Ext.A3, gift deed in favour of respondent. According to the learned counsel, that allegation is not sufficient to bring the case within the mischief of 'undue influence' as understood in law. It is pointed out that even the evidence of appellant as DW1 would show that it was merely for the reason of respondent not looking after her of late, that she preferred to cancel Ext.A3, gift deed. It is contended that one Cheerukutty is behind Ext.B1, cancellation deed. According to the learned counsel, question of 'undue influence' on facts and evidence does not arise and hence there was no burden on the respondent to show that Ext.A3, gift deed is valid and was acted upon is admitted by the appellant since by Ext.B1, cancellation deed she chosen to cancel Ext.A3, gift deed only because otherwise Ext.A3, gift deed will remain in force conferring title on the respondent. Learned counsel R.S.A.No.12 of 2011 -: 6 :- objected to I.A.No.67 of 2012. It is contended that at the fag end of the proceeding appellant may not be allowed to amend written statement which would only result in the proceeding being dragged further. 6. So far as the contention raised by the appellant regarding the burden of proof is concerned, no doubt decisions on the point say that in situations where a party is able to dominate the will of another and the latter executes a document in favour of the party who thus dominates the will of the executant, having regard to the circumstances of the case the burden is on the person taking advantage of the transaction to show that there was no undue influence. In this case, at the time Ext.A3, gift deed was executed on 02.02.1982 appellant was aged 52 years. No doubt, at that time her husband was no more and they had no issue. From the above, it is difficult to say that appellant was in such a position that respondent or his father was able to dominate the will and caused her to execute Ext.A3, gift deed. There is no evidence to show that appellant was suffering from any illness, then. It is not as if appellant on account of old age or illness during the time Ext.A3, gift deed was executed was in such a situation that respondent aged about 21 years then or R.S.A.No.12 of 2011 ## -: 7 :- his father could dominate her will and make her execute Ext.A3. The only plea raised in the written statement is that since appellant had no issue, her husband was no more and respondent who used to come to her house offered to look after her until death, and as respondent and his father 'insisted', she executed Ext.A3, gift deed. 7. 'Undue influence' is the unfair persuasion of a party who is under the domination of person expressing the persuasion or who, by virtue of the relation between them is justified in assuming that the person will not act in a manner inconsistent with his welfare. A person who has been induced to enter into a transaction by the undue influence of another (the wrongdoer) is entitled to set the transaction aside as against the wrongdoer. Such undue influence is either actual or presumed. In **Bank of** **Credit and Commerce International SA v. Aboody** (1992) 4 All E.R. 955 = (1990) 1 QB 923) the Court of appeal adopted the following classification (regarding cases of undue influence). “Class 1: actual undue influence. In these cases it is necessary for the claimant to prove affirmatively that the wrongdoer exerted undue influence on the complainant to enter into the particular transaction which is impugned”. R.S.A.No.12 of 2011 -: 8 :- Class 2: presumed undue influence. In these cases the complainant only has to show, in the first instance, that was a relationship of trust and confidence between the complainant and the wrongdoer of such a nature that it is fair to presume that the wrongdoer abused that relationship in procuring the complainant to enter into the impugned transaction. In class 2 cases therefore there is no need to produce evidence that actual undue influence was exerted in relation to the particular transaction impugned: once a confidential relationship has been proved, the burden then shifts to the wrongdoer to prove that the complainant entered into the impugned transaction freely, for example by showing that the complainant had independent advice. Such a confidential relationship can be established in two ways, viz: Class 2A. Certain relationships (for example solicitor and client, medical advisor and patient) as a matter of law raise the presumption that undue influence has been exercised. Class 2B. Even if there is no relationship falling within class 2A, if the complainant proves the de factor existence of a relationship under which the complainant R.S.A.No.12 of 2011 -: 9 :- generally reposed trust and confidence in the wrongdoer, the existence of such relationship raises the presumption of undue influence. In a class 2B case therefore, in the absence of evidence disproving undue influence, the complainant will succeed in setting aside the impugned transaction merely by proof that the complainant reposed trust and confidence in the wrongdoer without having to prove that the wrongdoer exerted actual undue influence or otherwise abused such trust and confidence in relation to the particular transaction impugned.” Facts, circumstances and evidence in this case do not bring the case with the mischief of undue influence. 8. Evidence given by the appellant as DW1 cuts the root of undue influence. She admitted executing Ext.A3, gift deed and stated that she continues to take yield from the suit property pursuant to the reservation made in Ext.A3. She also stated that she thought of cancelling Ext.A3 since, of late, respondent who went abroad was not looking after her. In other words, the reason for cancellation by Ext.B1 is not that there was undue influence practiced on her but, because according to the appellant, respondent did not comply with his commitment to R.S.A.No.12 of 2011 -: 10 :- look after her. Hence the plea of 'undue influence' has only be dismissed. 9. Then the next question is whether cancellation of Ext.A3, gift deed by Ext.B1 is valid. The position of law in this regard is settled that once the gift is accepted and has taken effect, question of its cancellation except through the process of Court does not arise. In Ext.B1, cancellation deed it is stated that appellant wanted to cancel the gift as respondent has not fulfilled his commitment. It is seen from Ext.A3 that by the said document appellant while reserving the right to take usufructs from the property until her death divested herself of her right, title, interest and possession of the property in favour of respondent. Ext.A3, gift deed is not onerous. So far as gifts which are onerous are concerned, acceptance could be implied and only slight evidence is required to prove it. Even the recital in the document would be sufficient to prove acceptance of the gift. Ext.A3 as aforesaid divests appellant of right in the property except the right to take usufructs. Further, Ext.A3, original gift deed was produced by the respondent in the trial court. Ext.A4 series show that respondent paid revenue for the suit property during 1990-2002. Appellant as DW1 admitted that she paid tax R.S.A.No.12 of 2011 -: 11 :- but in the name of respondent (obviously because he is the title holder). Ext.A5 is the certificate of possession issued by the Village Officer. Ext.A7 is the adangal extract which shows that mutation of property was affected in the name of respondent. Ext.A6 is the electoral card produced by the respondent to show that he is residing in the building in the suit property. Ext.A8 is the application filed by the respondent to the local authority for permission to construct building in the suit property. These documents are sufficient to show that respondent has accepted and acted upon the gift. In that situation, question of its revocation by the appellant by Ext.B1, document does not arise. The decisions relied on behalf of the appellant have no application to the facts of the case. 10. Then the next question is whether request for amendment of written statement has to be allowed?. Attempt is to incorporate a counter claim in the written statement to include a declaration that Ext.A3, gift deed is void. Ext.A3, gift deed is executed on 02.02.1982 and Ext.B1, cancellation deed came on 21.08.2001. In 2012, notwithstanding the facts and evidence which I have stated above, appellant comes with a prayer to amend the written statement to incorporate a prayer that Ext.A3, R.S.A.No.12 of 2011 -: 12 :- gift deed is void. No doubt, the Court has power to allow amendment of pleading at any stage of the proceeding, even in appeal or second appeal provided such a course is necessary in the ends of justice to decide the real controversy between the parties. 11. Respondent has a contention that the person behind the appellant is one Cheerukutty. Though, it is denied by the appellant when examined as DW1, she admitted that Cheerukutty had helped her in executing Ext.B1, cancellation deed. That would speak volumes. I am not inclined to think that in the circumstance, request for amendment has to be allowed. Hence I.A.No.67 of 2012 will stand dismissed. 12. Courts below have raised the relevant issues. First appellate court has raised necessary points for consideration and has correctly decided the points having regard to the facts, evidence and the law on the point. Substantial questions of law are answered as above. The second appeal fails. It is dismissed. No cost. ## Sd/- **(THOMAS P. JOSEPH, JUDGE)** Sbna/-