Rajan v. Sarada and Ammu Amma (Mat.Appeal No. 828/2011)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 19[TH] DAY OF JULY 2021 / 28TH ASHADHA, 1943 MAT.APPEAL NO. 828 OF 2011 AGAINST THE JUDGMENT IN OP 331/2009 OF FAMILY COURT, PALAKKAD** ## **APPELLANT/PETITIONER:** RAJAN,AGED 54 YEARS S/O.KUTTIMALU, PARAMANJATTIL VEEDU, MATTYAM DESOM,, NHANGATTIRI (P.O), OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.I.J.AUGUSTINE SRI.BENOJ C AUGUSTIN SRI.M.NOOHUKUNJU SAHIB SRI.PRATHAP PILLAI SRI.SEBIN THOMAS ## **RESPONDENTS/RESPONDENTS:** 1 SARADA, AGED 48 YEARS D/O.AMMU AMMA, PARAMANJATTIL VEEDU, MATTYAM DESOM, NHANGATTIRI (P.O), OTTAPALAM TALUK, PALAKKAD DISTRICT - 679 303. 2 AMMU AMMA, AGED 70 YEARS W/O.MADHAVAN PARAMANJATTIL VEEDU, MATTYAM DESOM, NHANGATTIRI (P.O), OTTAPALAM TALUK, PALAKKAD DISTRICT - 679 303. (DIED*) *DEATH OF 2ND RESPONDENT AMMU AMMA IS RECORDED AS PER ORDER DATED 14/7/2021 IN I.A.1/2019 IN M.A.828/2011 Mat.Appeal No.828/2011 -:2:- **R3 **ADDITIONAL RESPONDENTS R3 AND R4 IMPLEADED SETHUMADHAVAN, AGED 43, S/O AMMU AMMA, PARAMANJATTIL VEEDU, MATTYAM DESOM, NHANGATTIRI(PO), OTTAPALAM THALUK, PALAKKAD DISTRICT 679303. **R4 SARASWATHI, AGED 38, D/O AMMU AMMA PARAMANJATTIL VEEDU, MATTYAM DESOM, NHANGATTIRI (PO), OTTAPALAM THALUK, PALAKKAD DISTRICT. 679303. (**ADDITIONAL RESPONDENTS R3 & R4 ARE IMPLEADED AS PER ORDER DATED 14/7/2021 IN IA 1/2019 IN M.A.828/2011) BY ADVS. SRI.P.R.AJITHKUMAR SRI.K.MANOJ CHANDRAN THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 14.07.2021, THE COURT ON 19.07.2021 DELIVERED THE FOLLOWING: Mat.Appeal No.828/2011 -:3:- J U D G M E N T Dated this the 19[th] day of July, 2021 ## Dr.Kauser Edappagath, J. The dismissal of a suit for partition filed by the husband against his wife and mother-in-law is under challenge in this appeal. 2. The appellant and the first respondent are husband and wife. The 2[nd] respondent is the mother of the first respondent. Admittedly, the appellant and the first respondent are living separately since 2009. The plaint-schedule property originally belonged to the 2[nd] respondent. She gifted it in favour of the first respondent as per Ext.A1 in the year 1997. According to the appellant, thereafter in the year 2005, as per Ext.A2 gift deed, the first respondent gifted half right over the plaintschedule property in his favour, and as such, he is the co-owner of the plaint-schedule property along with the first respondent. Since he did not want to keep the property in joint possession, owing to difference of opinion with the first respondent, he Mat.Appeal No.828/2011 -:4:- instituted a suit to pass a preliminary decree for partition to divide the plaint-schedule property into two equal shares by metes and bounds and to allot one such share to him. 3. The respondents filed separate written statement. In their written statement, they contended that the appellant does not have any right over the plaint-schedule property and it absolutely belongs to and is in exclusive possession of the first respondent. It is specifically stated in the counter statement that right from the inception of marriage, the appellant had been treating the first respondent with cruelty and the first respondent happened to execute Ext.A2 by threat, coercion and undue influence exercised by the appellant. It is further contended that even though Ext.A2 was executed, it was not acted upon. There was no acceptance of gift or the delivery of possession of the gifted property, it was contended. The respondents sought for the dismissal of the original petition. 4. The parties went on trial. The appellant himself was examined as PW1 and Exts.A1 and A2 were marked on his side. The first respondent was examined as RW1 and Exts.B1 to B8 were marked on the side of the respondents. After trial, the court Mat.Appeal No.828/2011 -:5:- below believing the case of the respondents found that Ext.A2 was executed by exercising threat, coercion and undue influence by the appellant and it was never acted upon. Accordingly, the petition was dismissed holding that the alleged gift was not a legally valid one. Challenging the decree and judgment dismissing the original petition, the appellant preferred this appeal. 5. Heard both sides. 6. The only point that arises for consideration is whether Ext.A2 is legally valid or not. Going by Sections 122 and 123 of the Transfer of Property Act, the execution of the registered gift deed, acceptance of gift and delivery of possession makes the gift complete. Ext.A2 is a registered gift deed. The donor is the wife and the donee is the husband. However, it has come out in evidence that their relationship was not cordial right from the beginning. The definite case of the respondents is that the appellant used to torture the first respondent, both physically and mentally, and on account of the threat, coercion and undue influence exercised by him, the first respondent was forced to execute Ext.A2 in his favour. During evidence, RW1 spoke the Mat.Appeal No.828/2011 -:6:- circumstances which led to the execution of Ext.A2 in favour of the appellant. She deposed that she was forced to execute the document due to unbearable physical and mental torture as well as threat. 7. Section 16 of the Indian Contract Act deals with “ _undue influence_ ”. The concept behind S.16 is that, when a person who is in a position to dominate the will of another, by reason of his authority or fiduciary relation over the other, or on account of mental or bodily distress, uses that position to create an unfair advantage over the other in a contract, then, such a contract will not be one regarded as having been entered into with free consent. Recently, the Division Bench of this Court in _**Mary v. Leelamma and Another**_ (2020 (4) KHC 176), held that in the matter of proof of undue influence, a statutory presumption is created, whereby, the transaction appears to be unconscionable, the burden to prove that there was no undue influence shall be upon the party who was in a position to dominate the will of the other. In _**Krishna Mohan Kul alias**_ ## _**Nani Charan Kul and another v. Pratima Maity and Others**_ (AIR 2003 SC 4351), it was held by the Supreme Court that when Mat.Appeal No.828/2011 -:7:- a person is in a fiduciary relationship with another, and the latter is in a position of active confidence, the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position and he has to prove that there was fair play in the transaction and that the transaction is genuine and bonafide. The appellant is the husband of the first respondent. It has come out in evidence that the appellant used to torture the first respondent. So, it is evident that the appellant was in a position to dominate the will of the first respondent. There is absolutely no explanation forthcoming from the appellant under what circumstances the first respondent happened to gift half share over the plaint-schedule property in his favour. The evidence of RW1 clearly would prove that the appellant has used his dominating position to obtain an unfair advantage. Thus, the transaction covered by Ext.A2 appears to be _prima facie_ unconscionable. Then, the burden is upon the appellant to prove that the transaction was not induced by undue influence and it was a genuine transaction. The appellant has miserably failed to prove the same. Apart from his interested testimony, no other evidence is forthcoming. It is pertinent to Mat.Appeal No.828/2011 ## -:8:- note that the appellant has not even produced the original gift deed. Ext.A2 is a certified copy. Admittedly, the appellant is not in possession of the original gift deed. There is nothing on record to prove that the gift was accepted by the appellant or the delivery of possession was given to him. Admittedly, mutation was not effected in his name as well after Ext.A2. Exts.B1 to B3 would show that the land revenue of the plaint-schedule property is paid in the name of the first respondent alone even after Ext.A2. There is a house in the plaint-schedule property. According to the respondents, it was constructed by the first respondent. PW1 has admitted that the house was constructed by taking loan in the name of the first respondent. RW1 deposed that the loan was repaid by her. There is nothing on record to show that any money was contributed by the appellant towards the construction of the house. Exts.B4 to B6, the building tax payment receipts, would also show that the building stands in the name of the first respondent. All these evidence would show that Ext.A2 was not acted upon, the alleged gift was not accepted or delivery of possession was not taken. The court below on appreciation of evidence found that Ext.A2 gift is not legally valid Mat.Appeal No.828/2011 -:9:- and hence, the appellant does not have any right over the plaintschedule property. On re-appreciation of evidence, we find no reason to take a different view. We, accordingly, dismiss the appeal. The parties shall bear their respective costs. Sd/- **A.MUHAMED MUSTAQUE** **JUDGE** Sd/- ## **DR. KAUSER EDAPPAGATH** **JUDGE** **Rp**