Ramachandran v. Ajith Kumar and Rajeevan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 3RD DAY OF JULY 2014/12TH ASHADHA, 1936** ## **RSA.No. 1408 of 2013 ()** **-----------------------AS 280/2012 of ADDL. DISTRICT COURT(ADHOC 2), THRISSUR IN OS 529/2008 of PRL.SUB COURT,IRINJALAKUDA** **----------** ## **APPELLANT/APPELLANT/PLAINTIFF :** **----------------------------------------------------** ## **RAMACHANDRAN** **S/O.VADAKKEPURAKKAL NARAYANAN, THRIKKUR DESOM, MUKUNDAPURAM TALUK, REP. BY MUKHTIYAR AGENT, SMITHA, W/O RAMACHANDRAN, AGED 32 YEARS.** **BY ADVS.SRI.K.P.VIJAYAN SRI.V.M.SYAM KUMAR SMT.KRIPA ELIZABETH MATHEWS SMT.C.B.SUMA DEVI** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **--------------------------------------------------------------------** ## **1. AJITH KUMAR, AGED 45 YEARS,** **S/O.VADAKKEPURAKKAL NARAYANAN, THRIKKUR DESOM, MUKUNDAPURAM TALUK. 680 314.** ## **2. RAJEEVAN, AGED 45 YEARS,** **ADVOCATE, S/O.VADAKKEPURAKKAL NARAYANAN, THRIKKUR DESOM, MUKUNDAPURAM TALUK. 680 314.** **R1 BY ADV. SRI.A.R.GANGADAS(CAVEATOR)** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **P.BHAVADASAN, J.** ## **----------------------------------------------Regular Second Appeal No.1408 OF 2013 ----------------------------------------------Dated this the 3[rd] day of July, 2014.** ## **J U D G M E N T** The plaintiff in a suit for partition which was partly decreed by the trial court granting 1/8[th] share of the suit property has come up in appeal claiming that in fact he is entitled to 1/3[rd] share. The courts below refused to accept the claim for 1/3[rd] share. The facts absolutely necessary for the disposal of the appeal are as follows. 2. The property in question which is slightly over 8 cents stood in the joint name of the parents of the parties. The father of the parties died in 1984 and their mother on 12.07.2008. The plaintiff laid the suit on the basis that consequent on the death of the father and mother, each of the parties i.e. plaintiff and the defendants are entitled to 1/3[rd] share. 3. The defendants resisted the suit by pointing out that the plaintiff is not entitled to 1/3[rd] share in view of the fact that the **R.S.A No.1408/2013** **2** mother had executed a sale deed in respect of her share evidenced by Ext.B2 document in favour of the 2[nd] defendant. Therefore, at best, the plaintiff would claim only 1/8[th] share. It is not in dispute that the plaintiff had a replication challenging the genuineness and validity of Ext.B2 assignment deed. It was alleged that the mother was incapable of executing such a document as she was ill health and she was not in a disposing state of mind and even if there is any such document, it was vitiated by fraud, coercion and undue influence and it can have no binding force. It was also alleged that the document needs to be ignored. 4. On the above pleadings, issues were raised and the parties went to trial. The plaintiff, as he was abroad, authorised his wife by power of attorney to give evidence on his behalf. PWs 1 to 4 were examined and Exts.A1 and A2 were marked on the side of the plaintiff. The defendants had DWs 1 to 4 examined and Exts.B1 to B3 marked. Exts.C1 and C2 are commission reports. Ext.X1 is 3[rd] party exhibit. 5. Both the courts below, on appreciation of the evidence, **R.S.A No.1408/2013** **3** came to the conclusion that infirmity alleged against Ext.B2 did not exist and that there was no evidence to show that Ext.B2 was bad in law due to any vitiating circumstances. It was found to be valid and genuine document. Thereby the courts below held that whatever rights which the 1[st] defendant and the mother had over the suit property, that stood assigned in favour of the 2[nd] defendant. The courts below found that therefore the plaintiff could not claim any share of the property left behind by his mother. Challenging the findings of the courts below, the plaintiff has come up in appeal. 6. Learned counsel appearing for the appellant contended that there has been misappreciation of evidence in the case and wrong approach adopted in law resulting in miscarriage of justice. There is ample evidence on record, according to the learned counsel, to show that as late as in 2007, the mother was seriously ill as could be seen from the evidence of PW4 doctor. It is significant to notice, according to the learned counsel, that the impugned document is executed in 2008. There is no evidence to show that subsequent to 2007 till when it is shown that she was **R.S.A No.1408/2013** **4** chronically ill, her health had been improved and she was in a fit condition to execute the document in 2008. Learned counsel for the appellant went on to point out that the courts below have not appreciated the law applicable in case of allegation of undue influence and erroneously thrown the entire burden on the plaintiff. The law regarding undue influence stands on a different footing when the transaction is between close relatives. When beneficiary is a close relative and he occupies a fiduciary relationship, burden is on that person to show that the transaction is not vitiated. In the case on hand, the mother who was old, ailing and was also sick had executed a document in favour of her son. It was therefore incumbent on the part of the 2[nd] defendant to show that Ext.B2 was validly executed by the mother knowing fully well about the consequence of the deed. 7. Drawing attention to the evidence, learned counsel for the appellant pointed out that one would have expected better evidence from the 2[nd] defendant with regard to due execution of Ext.B2. For the reasons best known to the 2[nd] defendant, none of the attesting witnesses nor the Registrar who can authentically **R.S.A No.1408/2013** **5** state about the registration has been examined. Instead the scribe alone was examined. There is no explanation offered as to why the attesting witnesses were not examined. It is also pointed out that the transaction as such was challenged and it was alleged that the 2[nd] defendant at the relevant time did not have the financial capacity to pay sale consideration shown in the document and that aspect has been conveniently omitted to be noticed by the courts below. It is pointed out that even assuming that the medical record produced by the plaintiff shows that the mother of the parties was seriously ill till 2007, there are no subsequent documents produced by the 2[nd] defendant to show that her health had improved. In the light of the fact that the transaction is seriously challenged by the plaintiff, the burden is shifted to the 2[nd] defendant to show that the transaction was good in law. 8. For the above proposition, learned counsel for the appellant relied on the decision in _**Krishna Mohan Kul alias Nani Charan Kul and another** vs._ _**Pratima Maity and others**_ (AIR 2003 Supreme Court 4351) and _**Afsar Shaikh and**_ **R.S.A No.1408/2013** **6** ## _**another**_ vs. _**Soleman Bibi and others**_ (AIR 1976 Supreme Court 163). Based on the principles laid down in the above decisions, learned counsel went on to contend that the courts below have misappreciated the evidence and the decree and judgment cannot stand. 9. Per contra, learned counsel appearing for the respondents contended that there is absolutely no basis for any of the contentions raised by the appellant. The courts below have meticulously considered the evidence on record and have come to the conclusion that there is want of evidence to hold that the mother of the parties was so sick and ill that she was incapacitated for executing a document. In fact, the evidence of PW4 examined on behalf of the plaintiff goes against the plaintiff and there is nothing to show from the evidence of PW4 the doctor who treated the mother that she was mentally unfit or her state of health was such that she was incapable of executing a document or understanding what she was doing. It is also pointed out that the evidence of the scribe is not sufficient to show that the document was drawn out with the full knowledge of **R.S.A No.1408/2013** **7** all the three persons namely, plaintiff as well. The evidence of PWs 2 and 3 is of little significance in the light of the evidence furnished by PW4. Probably, according to the learned counsel, one could say that staying with the 2[nd] defendant the mother might have been felt obliged or might have been more affectionate towards him or there might have been some indication from his part regarding the property owned by the mother. But, that is far from saying that he exerted undue influence or forced the mother against her will to execute the document in his favour. In order to say that the document was vitiated by undue influence, the evidence much more strong in character is required. 10. Learned counsel for the respondents then went on to point out that both the courts below, on appreciation of evidence in the case, have come to an identical conclusion that Ext.B2 is not vitiated due to any reason and that being essentially a finding of fact and since it is not shown that the findings are either perverse or contrary to the evidence on record, this Court may not be justified in interfering under Section 100 of the Code of **R.S.A No.1408/2013** **8** Civil Procedure. 11. Well the core issue centres along the genuineness or validity of Ext.B2 document. It is not in dispute that the plaintiff was employed abroad. It is also not in dispute that at the relevant time, the 2[nd] defendant was practising as an Advocate. The mother was aged. That is also not in dispute. Ext.X1 and the evidence of PW4 would show that the mother was a chronic renal patient. Ext.B2 document is dated 28.03.2008 and the mother died on 12.07.2008. 12. The law regarding plea of undue influence is almost well settled. Going by Order VI Rule 4 of the Code of Civil Procedure, it is incumbent on the person who alleges undue influence to give necessary particulars in that regard. The law is also well settled that the burden is on that person who alleges undue influence to establish the same. But the law provides an exception in the case of transaction between persons who are occupying a fiduciary relationship. For example, teacher-taught, father-son, mother-son etc. When a person who is in such a position and who is capable of influencing the mind of the **R.S.A No.1408/2013** **9** executor and that person obtains benefit under the document executed by the executor, normally law casts burden on that person to prove that the transaction is good and not vitiated. However, initial burden is on the person who alleges undue influence. 13. In the decision in _**Bellachi (dead) by L.R.** vs._ _**Pakeeran**_ (AIR 2009 Supreme Court 3293), the Apex Court observed as follows: “15. Section 16 of the Indian Contract Act provides for as to what constitutes undue influence. Relationship between the parties so as to enable one of them to dominate the will of the other is a sine qua non for constitution of undue influence. Findings of fact as noticed hereinbefore have been arrived at by both the trial Judge as also the first appellate court that the respondent was not in a position to dominate the plaintiff's will. 16. In a given case it is possible to hold that when an illiterate, pardanashin woman executes a deed of sale, the burden would be on the vendee to prove that it was the deed of sale was a genuine document. It is, however, a registered document. It carries with it a presumption that it was executed in accordance with law. Again a concurrent finding of **R.S.A No.1408/2013** **10** fact has been arrived at that she was not an illiterate woman or she was incapable of understanding as to what she had done”. ## 14. In the decision in _**Krishna Mohan Kul alias Nani Charan Kul and another** vs._ _**Pratima Maity and others**_ (AIR ## 2003 Supreme Court 4351), it was observed as follows: “12. As has been pointed out by the High Court, the first Appellate Court totally ignored the relevant materials and recorded a completely erroneous finding that there was no material regarding age of the executant when the document in question itself indicated the age. The Court was dealing with a case where an old, ailing illiterate person was stated to be the executant and no witness was examined to prove the execution of the deed or putting of the thumb impression. It has been rightly noticed by the High Court that the Courts below have wrongly placed onus to prove execution of the deed by Dasu Charan Kul on the plaintiffs. There was challenge by the plaintiffs to validity of the deed. The onus to prove the validity of the deed of settlement was on defendant No. 1. When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a **R.S.A No.1408/2013** **11** 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, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position.This principle has been engrained in Section 111 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). The rule here laid down is in accordance with a principle long acknowledged and administered in Courts of Equity in England and America. This principle is that he who bargains in a matter of advantage with a person who **R.S.A No.1408/2013** **12** places a confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The transaction is not necessarily void ipso facto, nor is it necessary or those who impeach it to establish that there has been fraud or imposition, but the burden of establishing its perfect fairness, adequacy and equity is cast upon the person in whom the confidence has been reposed. The rule applies equally to all persons standing in confidential relations with each other. Agents, trustees, executors, administrators, auctioneers, and other have been held to fall within the rule. The Section requires that the party on whom the burden of proof is laid should have been in a position of active confidence. Where fraud is alleged, the rule has been clearly established in England that in the case of a stranger equity will not set aside a voluntary deed or donation, however, improvident it may be, if it be free from the imputation of fraud, surprise, undue influence and spontaneously executed or made by the donor with his eyes open. Where an active, confidential, or fiduciary relation exists between the parties, there the burden of proof is on the donee or those claiming through him. It has further been laid down that where a person gains a great advantage over another by a voluntay instrument, the burden of proof is thrown upon the person receiving the benefit and he is under the **R.S.A No.1408/2013** **13** necessity of showing that the transaction is fair and honest”. ## 15. In the decision in _**Afsar Shaikh and another**_ vs. ## _**Soleman Bibi and others**_ (AIR 1976 Supreme Court 163), it ## was observed as follows: “15. While it is true that 'undue influence', 'fraud', 'misrepresentation' are cognate vices and may, in part, overlap in some cases, they are in law distinct categories, and are in view of Order 6, Rule 4, read with Order 6, Rule 2 of the Code of Civil Procedure, required to be separately pleaded with specificity, particularity and precision. A general allegation in the plaint, that the plaintiff was a simple old man of ninety who had reposed great confidence in the defendant, was much too insufficient to amount to an averment of undue influence of which the High Court could take notice,particularly when no issue was claimed and no contention was raised on that point at any stage in the trial court, or, in the first round, even before the first appellate court”. 16. From a reading of the above decisions, it becomes clear that the proof regarding undue influence depends upon facts of each case. Though it can be said that initial burden is on the **R.S.A No.1408/2013** **14** plaintiff, in a case where there is fiduciary relationship only a very slight evidence is required initially, then the burden is shifted to the person who has derived benefit as per the document to show that the document is not vitiated. 17. Bearing the above principles in mind, an attempt shall now be made to see whether Ext.B2 is vitiated due to undue influence. It is significant to notice that Ext.B2 was jointly executed by the 1[st] defendant and his mother in favour of the 2[nd] defendant. It is true that the sale consideration shown is Rs.81,000/-. There is a contention on behalf of the plaintiff that financial status of the 2[nd] defendant was not such that he could have such a huge amount at the relevant time which both the courts below found against the plaintiff. Admittedly, 2[nd] defendant was a practising Advocate. May be, he was a junior Advocate. The courts below, on appreciation of evidence, had come to the conclusion that it may not be possible to say that he was unable to earn the amount paid as consideration. That finding being one of facts does not call for interference. 18. Coming to the question as to whether the 2[nd] defendant **R.S.A No.1408/2013** **15** ought to have examined the Registrar and the attesting witnesses depends upon the question whether the evidence adduced by both parties can lead to the conclusion regarding the genuineness or not of Ext.B2 document. If it is found that the evidence adduced by the 2[nd] defendant is found wanting in some respect, then only the question of non examination of attesting witnesses and the Registrar will assume significance and importance. It has to be remembered that both sides have adduced evidence in respect of their case. The definite stand taken by the plaintiff was that the mother was so sick and ill that she was unable to comprehend the action done by her. Reliance is placed on Ext.X1 i.e. treatment record of 2006-2007 mainly for this purpose. No doubt, it shows that the mother was suffering from severe renal disease and she was weak and sick. But the evidence of PW4, the doctor who treated her is to the effect that her faculties were normal and she had a sound mind. Even though PWs 2 and 3 neighbours were examined from the side of the plaintiff to show the incapacity of the mother, DW2, a close relative of the parties would say otherwise. Probably, one could say that PWs 2 and 3 **R.S.A No.1408/2013** **16** were disinterested witnesses. When the evidence of PW4 is to the effect that the mental capacity of the executor namely, mother is normal, one would have expected the plaintiff to adduce further medical evidence to show that her mental status was poor and she could not understand the nature of the transactions. There was no such attempt from the side of the plaintiff. He left that aspect with the evidence of PW4 produced as Ext.X1 document. Normally, a person is presumed to be in possession of his faculties unless shown otherwise. 19. At the risk of repetition, it may be noticed that the document namely, Ext.X1 and the evidence of PW4 is insufficient to come to the conclusion that mother was incapacitated or was not in possession of her mental faculties at the relevant time. It is not shown that the 1[st] defendant had any axe to grind against the plaintiff. 20. It is significant to notice that Ext.B2 is executed by the mother as well as the 1[st] defendant together in favour of the 2[nd] defendant. The 1[st] defendant stands by the transaction and he is examined as DW1. It is significant to notice that he too lost the **R.S.A No.1408/2013** **17** entire rights of the properties in favour of the 2[nd] defendant. From the evidence on record, it would appear that the two sons namely, the plaintiff and the 1[st] defendant were better of than the 2[nd] defendant. Probably, that would have invoked the compassion of the mother who might have executed Ext.B2 in favour of the 2[nd] defendant. It is not disputed that the mother was staying with the 2[nd] defendant and that he was looking after her affairs. PW1, the wife of the plaintiff claims to have frequently visited the mother and also claims that her husband spent money for her treatment. If, in the light of the fact that the mother was being looked after by the 2[nd] defendant who was in station and if the mother felt more affection towards him and executed the document, it could not be said that the approach is wrong especially in view of the fact that her other two sons were better of than the 2[nd] defendant. There is nothing to indicate that the 2[nd] defendant had taken any major role in the execution of Ext.B2. Nor is it suggested also. A mere allegation that there was undue influence which prompted the mother to execute document may not suffice. **R.S.A No.1408/2013** **18** As rightly pointed out by the learned counsel for the respondents, at any rate two courts have appreciated the evidence in considerable detail and have come to an identical conclusion that the plea of undue influence is not substantiated. Probably, there might have been some error in passing the decree. But the fact remains that both the courts have come to identical conclusion on facts. It could not be said that the approach made by the courts are wrong in law and the findings are contrary to the evidence on record. At any rate, it is a possible view. If that be so, this Court exercising its jurisdiction under Section 100 of the Code of Civil Procedure will not be justified in interfering with the findings of the courts below. This appeal is without merits and it is accordingly dismissed. Sd/- ## **P.BHAVADASAN JUDGE** smp // True Copy // P.A. to Judge.