## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR**
**TUESDAY, THE 27TH DAY OF OCTOBER 2020 / 5TH KARTHIKA, 1942**
## **RFA.No.360 OF 2015**
## **AGAINST THE JUDGMENT IN OS 417/2012 DATED 10-12-2014 OF III ADDITIONAL SUB COURT, KOZHIKODE**
## **APPELLANTS/PLAINTIFFS:**
- **1 MATHURI M., AGED 60 YEARS**
- **D/O.CHEROOTTY, 15/1072, MADHURI, KOVOOR ROAD, P O MARIKKUNNU, CHEVAYOOR AMSOM, DESOM, KOZHIKODE TALUK**
- **2 SASIDHARAN M, AGED 55 YEARS S/O.CHEROOTTY, SREESAILAM, THACHANPALLITHAZHAM, PIPELINE ROAD, P O MARIKUNNU, CHEVAYOOR AMSOM DESOM, KOZHIKODE TALUK**
- **3 KRISHNADASAN, AGED 54 YEARS S/O.CHEROOTTY, PAROTHODY NILAM, P O MARIKUNNU, CHEVAYOOR AMSOM DESOM, KOZHIKODE TALUK**
- **4 HEMACHANDRAN M, AGED 50 YEARS**
- **S/O.CHEROOTTY, RAMAMANDIR, THAYYIL PALLITHAZHAM PARAMBA, PIPELINE ROAD, CHEVAYOOR AMSOM, DESOM KOZHIKODE TALUK**
**BY ADVS. SRI.P.V.ANOOP SRI.PHIJO PRADEESH PHILIP SRI.K.V.SREERAJ**
## **RESPONDENT/DEFENDANT:**
**PRASANNA M.**
**D/O.CHEROOTTY, RAMA COTTAGE, ULLATTIL THAZHATH HOUSE P O MORIKKARA, MAKKADA AMSOM , DESOM, KOZHIKODE TALUK 673617**
## **BY ADV. SRI.T.H.ARAVIND**
**THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22-10-2020, THE COURT ON 27-10-2020 DELIVERED THE FOLLOWING:**
**R.F.A.No.360 of 2015**
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## **Dated this the 27[th] day of October, 2020**
## **J U D G M E N T**
Suit filed by four children of deceased Oruvingal Ammini for setting aside two deeds, partition and mandatory injunction was dismissed by III[rd] Additional Sub Judge, Kozhikode in O.S.No.417/2012, accepting the contention of the
sole defendant in the suit that plaint B schedule amount of compensation was not partible and it exclusively belonged to her. The respondent/ defendant is also one of the children of the
deceased Ammini. Being aggrieved by the judgment and decree dismissing the suit, the plaintiffs filed this appeal.
2. Smt.Ammini purchased kanom rights over 5 cents of property through Land Tribunal, Kozhikode as per Ext.B4 certificate dated 12.10.1976. She
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and the five children resided in the house in the property together for some time. It was a thatched building. She settled 3 cents in favour of respondent on 31.1.1989 by Ext.A2 registered gift
deed. On 23.11.1995, she executed Ext.B1 sale deed also in the name of the respondent conveying her entire 5 cents which consisted of 3 cents already settled, for an amount of Rs.10,000/-. Under Urban Road Development Scheme, the entire 5 cents were acquired for compensation and the respondent in whose name the title of the property stood, received compensation amount as per the award passed by the Land Acquisition authorities in 2011.
3. The appellants' case is that they came to know of receipt of the amount by the respondent only on 24.1.2012 and till then, their impression was that the property was held in the exclusive
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name of Smt.Ammini and after death of their mother it devolved in equal shares on them as her successors. The appellants contend that mother had no intention to execute Exts.A1 and A2 in the name of the respondent and these documents were obtained under fraud and misrepresentation exercised on the deceased during her lifetime. It is stated that the mother had a desire to renovate the building and since the respondent was living with her, she took her into confidence and got a few signed blank papers executed for obtaining permit and plan for the new building from the authorities. It is said that on two occasions Smt.Ammini was taken to the Sub Registrar's office since she allegedly wanted to raise loan for construction of the building. When the fund for construction of the house and the plan of the property were delayed, mother complained to the
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**:-5-:** appellants and on inquiry with the respondent, they were told that property was not till then pledged for loan but only deeds of power of attorney were executed twice authorising her to act on behalf of mother. Appellants' further case is that since the deed of power of attorney once executed was lost, another was registered second time also. Thus the mother was misrepresented that Ext.A1 settlement deed and Ext.A2 sale deed executed in the name of the respondent were either pledge mortgage deed or deed of power of attorney. Exts.A1 and A2 are therefore contended to be vitiated by fraud and misrepresentation and are sought to be set aside by a decree passed in the suit. Appellants seek division of the amount in the hands of the respondent equally among all cosharers in 1/5 share by a decree of partition and consequential mandatory injunction.
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4. The respondent denied all the plaint allegations and contended that Exts.A1 and A2 were executed voluntarily by the mother out of free will and volition and were not vitiated by fraud or misrepresentation. The respondent was employed as a Typist in the Government Press and according to her, she used to entrust her monthly salaries with the mother and therefore the mother had special love and affection for her which resulted in execution of settlement deed for 3 cents of property as per Ext.A1. She denied the mother
having had the desire for renovating the house in the property. On the other hand, respondent had a desire to reconstruct the thatched house in the property and for that purpose, requested the mother to sell the balance 2 cents also. Since there was a threat against acquisition of the property and nobody was willing to purchase,
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the mother sold the property to her for a consideration of Rs.10,000/- under Ext.A2 sale deed. She denied having taken the mother to Registrar Office for any purpose or obtained any blank documents from her. She also said that mother had given due shares from her assets to the appellants during her lifetime. The amount of compensation received from the Land Acquisition officer was thus contended to be wholly belonging to her and impartible and accordingly decree for partition and mandatory injunction was seriously opposed by her.
5. Before the trial court, the appellants examined the first plaintiff as PW1 and tendered Exts.A1 to A4 in evidence. The respondent did not adduce any oral evidence but she tendered Exts.B1 to B10 in evidence.
6. The court below considered the main issue
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as to whether Exts.A1 and A2 documents were created by fraud and misrepresentation and were liable to be set aside. It held that evidence was not sufficient to prove the case of fraud and misrepresentation as pleaded by the appellants. The oral evidence given by PW1 was considered to be weak and insufficient to prove the case of misrepresentation. The compensation amount for the
land acquired was held to be the exclusive property of the respondent and the partition
claimed was consequentially refused.
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appellants and the respondent.
8. The learned counsel for the appellants
submitted that the oral evidence given by PW1 was sufficient to prove that deceased Smt.Ammini was acting under fraud and misrepresentation exercised on her by the respondent, who during the relevant
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period was residing with the mother and looking after her affairs. In the absence of any rebuttal evidence being adduced by the respondent, the finding of the court below that case of misrepresentation was not proved is illegal. On the force of a decision reported in **Vidhyadhar v.**
**Manikrao and another (1999 KHC 1091)** it was argued
that non examination of the respondent rebutting the testimony of PW1 was fatal and adverse presumption ought to be have been drawn by the court below against the respondent.
9. It is also a fact that Ext.A2 sale deed showed that, the executant mother had no subsisting title for 3 cents on the date of its execution since she had already allegedly parted with her rights in favour of respondent under Ext.A1 gift deed 6 years ago. The learned counsel for the appellants contends that this is a
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suspicious circumstance giving inference as to existence of fraud exercised on the executant and this circumstance was not explained by the
respondent nor appreciated by the court below. It is another contention that merely because the respondent paid tax for the property during the relevant period, it would not confer title on her since collection of tax by the authorities was only for revenue. A decision in **Baldev Raj Sharma**
**v. Kanta Devi and others (2017 KHC 3845)** was cited in this respect.
10. On the other hand, the learned counsel
for the respondent sought to sustain the judgment and decree contending that there was absolutely no evidence to prove that the deceased was taken by the respondent to the Sub Registry office and the impugned documents were got executed putting her under any fraud or misrepresentation. It was
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therefore contended that examination of the respondent was not quite necessary in order to rebut an evidence which is otherwise weak and not inspiring.
11. After hearing both sides, I find that
what appears to be material in this appeal is the issue as to whether the fraud and
misrepresentation alleged, have been established by convincing evidence. On reappreciation of evidence, I do not have any reason to disagree with the approach made by the court below and take a different view.
12. There is no independent evidence brought
on record to show that Smt.Ammini was acting under anybody's fraudulent or misrepresentating acts or was in such a vulnerable state of body and mind as to be so influenced. She was a School Teacher. The appellants have no case that she was mentally or
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physically unsound in any respect and was disabled from understanding the nature and quality of her actions during her lifetime. She passed away on
1.1.2003 and till then, it is an undisputed fact
that the respondent was living with the respondent
in the thatched house in good faith and sound mind.
13. What PW1 testified before court was that
the mother had told the appellants that respondent had taken her on two occasions to the Sub Registrar office for executing documents for raising funds for renovation of the house in the property. When funds were not forthcoming, the mother used to tell the appellants about the delay and when appellants checked up with the respondent the reason for the delay, they were told that the documents registered were only deeds of power of attorney authorising respondent to act her behalf. It is difficult to accept that what PW1 said might
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be true. The evidence by all means might be interested also. There is no independent evidence to the effect that Smt.Ammini ever told the
appellants that she was taken by the respondent to the Sub Registrar's Office on two occasions.
Equally, there is no convincing evidence to show that respondent admitted having taken the mother for executing deeds of power of attorney in her
name. These are allegations based on no reliable
evidence. The need for respondent herself
testifying against what PW1 said, arises only when
the oral evidence is either trustworthy or inspiring truth. PW1 was sufficiently cross
examined and her evidence challenged and therefore
non examination of respondent is no ground for
drawing adverse inference against her.
14. PW1 did not say the date on which the
mother made the disclosure of having been taken to
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Sub Registry. The place where or the persons in whose presence the mother made such disclosure was not spoken to by PW1. A mere general allegation of fraud or misrepresentation made in the box does not bear any evidentiary value. Therefore, the lower court rightly held that allegation of fraud and misrepresentation was not proved by
satisfactory evidence.
15. It is true that on Ext.A2 date, the
mother had allegedly parted with 3 cents held in her name and therefore itself she could not have executed Ext.A2 sale deed transferring same 3
cents over again in the name of the respondent though the deed was executed adding 2 more cents. In my view, this circumstance does not help the appellants in any way since there is nothing on record to show that the mother was acting under any misrepresentation. If she chose to execute the
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impugned documents on her own accord, it is futile to contend that Ext.A2 document is vitiated. At the most, Ext.A2 could be said to be superfluous to the extent it transferred 3 cents again in the name of the respondent. Ext.A2 if at all is illegal, is not wholly void as to the rest of two cents. Respondent's title is not affected in as much as her rights over 3 cents are saved by Ext.A1 settlement deed. No legal position to the validity of transfer of rights does arise here in so far as the evidence on record does not satisfy the conscience of the court that the executant, Smt.Ammini was subjected to fraud or
misrepresentation. The impugned documents appear to have been voluntarily executed by her. In any view of the matter, the impugned documents being the registered documents have the presumption that the execution of the documents was only after
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observance of all legal formalities before the Sub Registrar. I therefore hold that the respondent alone is entitled to plaint B schedule compensation amount and the court below has rightly dismissed the suit.
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dismissed.
All pending interlocutory applications are
closed.
Sd/-
## **T.V.ANILKUMAR JUDGE**
ami/
