Paul @ Kunjippalu v. Jeena George

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THURSDAY, THE 29TH DAY OF JUNE 2017/8TH ASHADHA, 1939 Mat.Appeal.No. 768 of 2011 ( ) ------------------------------- AGAINST THE ORDER/JUDGMENT IN OP 18/2006 of FAMILY COURT,THRISSUR DATED 13-07-2011 APPELLANT(2ND RESPONDENT): ------------------------- 1. PAUL @ KUNJIPPALU, AGED 76 YEARS, S/O. KUNJUVAREED, PUTHUR THARAYIL HOUSE, ROSE GARDENS, NADATHARA P.O., NADATHARA VILLAGE,, THRISSUR TALUK AND DISTRICT. (*DIED) (*ADDITIONAL APPELLANTS 2-6 ARE IMPLEADED AS PER ORDER DATED 21/8/2012) *ADDITIONAL APPELLANTS 2 TO 6 2. PRINCE PAUL,S/O.LATE KUNJIPPALU, PUTHUR THARAYIL HOUSE, INDIRA NAGAR II STREET, 33/1 MANNUTHY, THRISSUR. 3. THANKAMMA, W/O LATE KUNIPPALU,PUTHUR THARAYIL HOUSE, ROSE GARDENS,, NADATHARA P.O., THRISSUR DISTRICT. @4. JOSHY PAUL, S/O. LATE KUNJIPPALU, PUTHUR THARAYIL HOUSE, NADATHARA, THRISSUR DISTRICT. (DIED) 5. ROSE MOLE,D/O.LATE KUNJIPPALU AND W/O KURIAN, THEKKODAN HOUSE, BEHIND K.S.E.B.OFFICE, KARUVANNOOR PO, THRISSUR DISTRICT. 6. MANOJ PAUL, S/O. LATE KUNJIPPALU, PUTHUR THARAYIL HOUSE, NADATHARA P.O., NADATHARA VILLAGE, THRISSUR TALUK AND DISTRICT. (*LEGAL REPRESENTATIVES OF DECEASED APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 6 AS PER ORDER DATED 21.8.2012 IN IA 1953/12 IN MA 768/11.) (@ DEATH OF 4TH APPELLANT IS RECORDED AS PER ORDER DATED 30/5/2017VIDE MEMO DATED 2/6/2017) BY ADV. SRI.K.A.SATHEESA BABU R1 BY SRI.SREEKUMAR G. CHELUR Mat.Appeal No.768/2011 -2- RESPONDENT(S)/(PETITIONER, R3, 4, 5, 6 AND 7): ---------------------------------------------- 1. JEENA GEORGE, AGED 35 YEARS, D/O. GEORGE, VADASSERY HOUSE, PARIYARAM P.O., PARIYARAM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. **2. THANKAMMA, AGED 61 YEARS, W/O PAUL @KUNJIPPALU, PUTHUR THARAYIL HOUSE, ROSE GARDENS, NADATHAR APO, NADATHARA VILLAGE, THRISSUR TALUK AND DISTRICT IS DELETED AS PER ORDER DATED 17/9/2012. **3. JOSHY PAUL, S/O KUNJIPPALU,PUTHUR THARAYIL HOUSE, THRISSUR TALUK AND DISTRICT IS DELETED AS PER ORDER DATED 17/9/2012. **4. PRINCE PAUL, S/O KUNJIPPALU, PUTHUR THARAYIL HOUSE, ROSE GARDENS, NADATHARA PO, NADATHARA VILLAGE, THRISSUR TALUK AND DISTRICT (THE PRESENT ADDRESS IS PRINCE PAUL, S/O KUJIPPALU, THARAYIL HOUSE, INDIRA NAGAR II STREET, 33/1, MANNUTHY, THRISSUR IS DELETED AS PER ORDER DATED 17/9/2012. **5. ROSE MOLE D/O KUNJIPPALU, PUTHOOR THARAYIL HOUSE, ROSE GARDENS, NADATHARA PO, NADATHARA VILLAGE, THRISSUR TALUK AND DISTRICT (THE PRESENT ADDRESS IS ROSE MOLE KURIAN, W/O KURIAN, THEKKOODAN HOUSE, BEHIND K.S.E.B. OFFICE, KARUVANNOOR PO, THRISSUR IS DELETED AS PER ORDER DATED 17/9/2012. **6. MANOJ PAUL, S/O KUNJIPPALU, PUTHUR THARAYIL HOUSE, NADATHARA PO, NADATHARA VILLAGE, THRISSUR TALUK AND DISTRICT. IS DELETED AS PER ORDER DATED 17/9/2012 (**RESPONDENTS 2 TO 6 ARE DELETED FROM THE ARRAY OF PARTIES AT THE RISK OF THE APPELLANT/PETITIONER AS PER ORDER DATED 17/9/2012 IN IA NO.1948/2012 IN MA NO.768/2011) R1 BY ADV. SRI.K.RAVI (PARIYARATH) R1 BY ADV. SRI.G.SREEKUMAR (CHELUR) THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 3005-2017, THE COURT ON 29/6/2017 DELIVERED THE FOLLOWING: ## **Mat.Appeal No.768 of 2011** ## **APPENDIX** ## **APPELLANT'S EXHIBITS** **ANNEXURE 1: MEDICAL CERTIFICATE DATED 31.7.11 ISSUED TO THE APPELLANT.** ## **//True Copy//** **PS to Judge** **Rp** ## **A.M. SHAFFIQUE & ANU SIVARAMAN, JJ.** =========================== Mat.Appeal No. 768 of 2011 ================== Dated this, the 29[th] day of June, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed by the 2[nd] respondent in OP No.18/2006 challenging order dated 13/7/2011 of Family Court, Thrissur. The original petition is filed by the 1[st] respondent seeking for return of gold ornaments, recovery of patrimony paid at the time of marriage, past and future maintenance and also for compensation. The Family Court by the impugned order decreed the original petition and directed the appellant to pay a sum of `6,50,000/- to the 1[st] respondent and further directed that the decree amount will be a charge over the petition B schedule property. 2. While impugning the aforesaid order, the appellant contended that the court below having found that Ext.A1 is a concocted document should not have relied on the same. It is submitted that the authenticity of Ext.A1 has been doubted and Mat.Appeal No.768/11 -:2:- there was no evidence to show that it was signed by his son Shibu Paul. Further, the evidence adduced in the case was not properly appreciated by the Court below. 3. On the other hand, learned counsel appearing for the 1[st] respondent while supporting the order of the Family Court contended that there was no dispute regarding the signature of the appellant as far as Ext.A1 was concerned and no attempt was made to disprove the fact that Shibu Paul had not signed the said document. 4. Having heard the learned counsel on either side and having perused the records, we are of the view that a reappreciation of the facts and evidence in the case is required for considering the contentions urged on behalf of the appellant. 5. To narrate the facts of the case, we are referring to the parties as described in the original petition. 6. The petitioner married late Shibu Paul on 11/4/1999 as per custom prevailing in the Christian community. A child was born to them on 12/8/2000 and the child died on 15/1/2001. Respondents 2 and 3 are the parents of Shibu Paul. 7. It is stated that their marital life was not happy and Mat.Appeal No.768/11 -:3:- peaceful. At the time of marriage, he was having a jewellery shop which he later closed and he went for other jobs where he did not remain for quite some time. He thereafter started another business at Panthalam and in the meantime, he was admitted in a hospital due to continuous fever. On 9/8/2005, sister of her husband told her and her relatives that he was suffering from AIDS since 1995 and they were aware of the said fact. He was therefore taken to Medical College Hospital, Thrissur and admitted on 11/8/2005 till 6/9/2005. Later, he died on account of his disease. Petitioner further contends that at the time of marriage, she was given `4,50,000/- as patrimony from which she purchased 30 sovereigns of gold ornaments and the balance amount were entrusted to the respondents. The amount was entrusted by her father and brother two days prior to the marriage. After marriage, the gold ornaments were also entrusted to the respondents as a trustee. While the 1[st] respondent/husband was admitted in the hospital, an agreement was arrived at between the members of the family by which respondents agreed to give her `2 lakh as compensation. In the mediation held on 22/12/2005, they agreed to pay `6,50,000/- in full and final Mat.Appeal No.768/11 -:4:- settlement of gold ornaments, maintenance, loss suffered by her etc., and an agreement was executed between the parties and they have agreed to pay the amount on 31/12/2005. The 1[st] respondent again fell ill and respondents 2 and 3 sought for time to pay the amount as agreed. Since the same was not paid, the original petition was filed. 8. After the original petition was filed, 1[st] respondent expired. Respondents 2 and 3 are his parents and respondents 4 to 7 are his brothers and sisters who were also impleaded in the case. Respondents 2 to 7 filed counter statement inter alia contending that they have not received `4,50,000/- as alleged and no gold ornaments were entrusted. It is also contended that her parents had no capacity to arrange such an amount. According to them, 1[st] respondent was under the control of the petitioner and they did not have any knowledge about the jewellery business or other factors as alleged. They denied the liability to pay any amount. Further, they also denied the existence of any agreement and contended that the agreement which has been produced is a concocted one. According to them, on the day of the alleged agreement, 1[st] respondent was Mat.Appeal No.768/11 -:5:- completely bed ridden and was unable to move. He was incapable of understanding the purport of his acts and he did not put signature in the agreement. They also denied the signature of the 2[nd] respondent and contended that it was a forged one. It is further stated that the petitioner with the help of another person obtained the signature of the 2[nd] respondent in two papers representing that those were necessary for getting insurance claim and those papers were used to create the alleged agreement. 9. Before the Family Court, the petitioner relied upon the oral testimony of PWs 1 to 3 and the respondent examined RWs1 to RW5. Exts.A1 and A2 were marked on the side of the petitioner and the respondents relied upon Exts.B1 to B4. The documents which were summoned by the Court is produced as Exts.X1 to X5 and Ext.C1 is the opinion of the handwriting expert. The Family Court after considering the evidence on record found that on the basis of Ext.C1 expert opinion it is rather clear that the 2[nd] respondent has signed the document and therefore, it is found that Ext.A1 is a validly executed document and the petitioner is entitled to get the amount claimed as stated in the said petition. Mat.Appeal No.768/11 -:6:- The contentions urged on behalf of the respondents were rejected. 10. The short question to be considered in the above appeal is in respect of validity of Ext.A1 agreement. Learned counsel for the appellant submits that the decree had been passed only on the basis of Ext.A1 document which according to him cannot be relied upon. He placed reliance on a judgment of this Court in _**Krishnankutty v. Velayudhan**_ (2005 (2) KLT 854) wherein this Court had occasion to consider the validity of a promissory note which has been materially altered. It was held that the rights and liabilities under a negotiable instrument arise only if what is delivered under Section 46 of the Negotiable Instruments Act is a completed negotiable instrument. In a case where the promissory note had been signed by two persons, and it is found that the signature of one of the persons is forged, no decree can be passed against the other person. It is therefore argued that in this case also, it is rather clear from the materials placed on record that the 1[st] respondent could not have signed the document at that point of time and he was not in a mental capacity to understand the purport of the said agreement. Mat.Appeal No.768/11 -:7:- Therefore, even if there is evidence to show that the signature of the 2[nd] respondent is found to be genuine by expert opinion, in the light of the principle laid down in the above judgment, no decree could be passed against the appellant. 11. In the original petition, petitioner had submitted that respondents 1 and 2 agreed to return `4,50,000/- and to pay a further compensation of `2,00,000/-, on the basis of which the agreement was signed offering to pay the amount on 31/12/2005. The agreement came into existence based on the discussion between members of both the families on 23/12/2005. RW2 is a Doctor who was working at Thrissur Medical College from 11/8/2005 to 30/4/2006. He proved Ext.B1 discharge card of the 1[st] respondent. 1[st] respondent was admitted on 19/12/2005 and discharged on 22/12/2005 at their request. He also narrates the treatment given and further states that he was readmitted on 28/12/2005 for tuberculosis and was discharged on 4/1/2006. He further deposes that since August 2005, patient had difficulty in memory which was continuing till discharge on 4/1/2006. He also proves Ext.B2. In cross examination, he states that from Exts.B1 and B2, it is not discernible that he had seen the patient. He Mat.Appeal No.768/11 -:8:- further deposes that patient had memory loss but he was not unconscious. He has also stated that from 28/12/2005 to 4/1/2006, he was in the hospital and from Exts.B1 and B2 it could not be seen that he had seen the patient. Further he states that the condition of the patient on 23/12/2005 cannot be seen from Exts.B1 and B2. Whether he was at his residence or at any other hospital is also not known. In re-examination he submits that when the patient was admitted on 19/12/2005, he showed altered behaviour in addition to other diseases. RW3 is a Postal Assistant of Panthalam Post Office. The 1[st] respondent had his post office savings account. He had produced the extract of the said register as Ext.X1 which would show the specimen signature of 1[st] respondent. Ext.X2 is a photocopy of the register and the cheque book issued to him, which is marked as Ext.B3. In cross examination he submits that he does not know whether 1[st] respondent had signed Ext.B3. RW4 is the Doctor of a Nursing Home. He produced Ext.X3 register in order to prove the fact that when the petitioner was admitted to the Nursing home for delivery, she was diagnosed as HIV positive. RW5 is the Professor of Neurology, Medical College, Thiruvananthapuram. He had Mat.Appeal No.768/11 -:9:- examined the 1[st] respondent on 23/8/2005. He deposes that on 25/11/2005 patient had symptoms of epilepsy and on 1/12/2005 he developed liver disfunctioning. He identifies Ext.X5. He deposed that patient was deteriorating in spite of treatment for HIV. His right side was weak due to paralysis and at that time he was diagnosed of having tuberculosis meningitis. He further states that due to severe dementia, he was not in a state of sound disposing mind. He was discharged on request, on 22/12/2005. During cross examination, he deposed that he saw the patient on 23/8/2005. He also states that he has seen the patient on 19/12/2005 and 20/12/2005. He further deposes that in Ext.X5 at page 16 relating to the entry on 22/12/2005, it is recorded that patient was better, obeys commands, oriented and had occassional drowsiness. When it was suggested that he was conscious till his death, the Doctor answered that in the case sheet it was written that the level of consciousness was swinging, alertness was drowsiness. In re examination he submits that the findings recorded at page 7 of Ext.X5 were not written by him. 12. The petitioner in order to prove Ext.X1 relies upon the evidence of PWs1 to PW3 and the opinion of the expert which is Mat.Appeal No.768/11 -:10:- marked as Ext.C1. PW1 in chief examination had filed a proof affidavit in terms with the averments in the petition. Suggestion to her during cross examination was that Ext.A1 was a fabricated document. PW2 is the brother of petitioner who supported her version. He deposed that her share was `4½ lakhs out of which they purchased gold for `1 lakh and balance `3.5 lakhs was given to respondents 1 to 3 on 9/4/1999. He also deposed regarding the agreement on 23/12/2005. He had signed the agreement as second witness and he had seen the petitioner, 1[st] respondent and 2[nd] respondent signing the same and affixing their thumb impression. He had also seen the other witness Sri.A.P.Jose signing the same. Cross examination proceeds on the basis that 1[st] respondent was incapacitated from signing or affixing the thumb impression in the document and the 2[nd] respondent had not signed the said document or put his thumb impression. According to him, he had personally seen them affixing their thumb impression. PW3 is the other witness who had signed the document. When he was asked whether the 1[st] respondent was physically and mentally not in a position to take any decision on his own and he suffered from memory loss, the Mat.Appeal No.768/11 -:11:- answer was that when he saw him, he had no problem and the 1[st] respondent died on 7/1/2006. He also had seen all of the signatories signing the document. 13. Apparently, there is evidence to prove execution of Ext.A1 agreement. The signature of 2[nd] respondent was sent for analysis to an expert on his disputing his signature and the report Ext.C1 indicates that he has signed Ext.A1. Further, evidence of Pws 2 and 3 who are witnesses to the agreement also proves Ext.A1 agreement. The only contention urged is that the 1[st] respondent was not in a mental capacity to sign the said agreement at that point of time for which the appellant relies upon the evidence of the Doctor. RW2 in his chief examination states that during the period of treatment, 1[st] respondent's general condition was deteriorating and in cross examination, he states that there is record showing that the patient was having memory loss on 21/11/2005. He also further states that he is not aware of the mental condition of the patient as on 23/12/2005 based on Exts.B1 and B2 and he cannot say the condition of the patient as on 23/12/2005. Ext.B1 is a discharge card dated 22/12/2005 and the clinical note would only indicate altered Mat.Appeal No.768/11 -:12:- behaviour. Ext.B2 would show that he was admitted on 11/8/2005 to 6/9/2005 and later on 28/12/2005 to 4/1/2006. Ext.B3 is the cheque book with signatures of the 1[st] respondent which apparently he had given for payment of loan in instalments. The said signatures showed marked difference with signature in Ext.A1. Ext.B5 is the certificate of registration of motor vehicle. Ext.X4 is the case sheet of the patient at Medical College Hospital in respect of treatment given from 11/8/2005 till 2/9/2005 and Ext.X5 is the case sheet for the period of treatment from 19/12/2005 to 22/12/2005. In Ext.X5, the discharge summary would show that the patient had altered behaviour and TB meningitis. He was discharged on request and had to come back the next week to restart the medicine. Document also shows the treatment given. 14. Though as already indicated, there is some difference in the signature of the 1[st] respondent compared to that of the cheque leaf Ext.B3 produced in the case, still, it cannot be discerned that he had not signed the said document at a later stage of his life. While he was completely sick, there is always a possibility of his signature changing from time to time. Even the Mat.Appeal No.768/11 -:13:- signatures in Ext.B3 at different pages are not consistent. In the light of the aforesaid facts, it cannot be concluded that respondents 1 and 2 have not signed the agreement. 15. There is yet another aspect which requires to be noticed. This is a case in which petitioner contended that the respondents have not disclosed the fact that he was suffering from HIV at the time of marriage. She became pregnant and she was found to have HIV. The child born to them died. He died on account of the related diseases due to HIV. She comes to know about this fact only after marriage. Under such circumstances, there is every possibility of the members of the 1[st] respondent's family to agree to pay compensation to the petitioner which is quite normal and cannot be brushed aside. Therefore, there is every possibility that an agreement has been entered into between the parties for payment of compensation and the compensation now offered is very reasonable and cannot be found to be inappropriate in any manner. 16. Even if it is assumed that there is some infirmity in the agreement, still the fact remains that the petitioner ought to have been compensated for the fraud committed by the respondents in Mat.Appeal No.768/11 **==> picture [27 x 9] intentionally omitted <==** not informing her about the disease that the 1[st] respondent was suffering at the time of marriage. 17. In the said circumstances, we do not think that the appellant has made out any grounds to interfere with the order of the Family Court, Accordingly, the appeal is dismissed. The parties shall bear their own costs. Sd/- **A.M. SHAFFIQUE, JUDGE** Sd/- **ANU SIVARAMAN, JUDGE** Rp //True Copy// P.S to Judge