S.A.No.279 of 1996 (G)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **WEDNESDAY, THE 28TH DAY OF MARCH 2012/8TH CHAITHRA 1934** ## **SA.No. 279 of 1996 (G)** **---------------------OS.230/1988 OF MUNSIFF COURT, ALATHUR AS.226/1990 OF 1ST ADDL. DISTRICT COURT, PALAKKAD ---------------** ## **4TH DEFENDANT / APPELLANT / APPELLANT :** **-------------------------------------------------------------------** **KOYAKUTTY, PEZHUMKOARA, VANDAZHI AMSOM, ALATHUR.** **BY ADVS.SRI.V.SIVASWAMY SRI.K.I.MAYANKUTTY MATHER SMT.JIJIMOL J. VADAKKEN** **PLAINTIFF AND DEFENDANTS 1 TO 3, 5 AND 6 / RESPONDENTS / RESPONDENTS :** **----------------------------------------------------------------------------------------------------------------------** **1. ATHIKA, W/O. MUSTHAFA, MELARKODE, THEKKETHARA AMSOM, ALATHUR.** ***2. VELLA UMMA, PEZHUMKORA, VANDAZHI AMSOM, ALATHUR (*DIED LR'S RECORDED)** **3. BEEPATHUMMA, PETTANKODE, KUMBALAKODE, PAZHAYANNOOR, THALAPPILLY.** ****4. PATHUMMA BEEVI, PATTERKOLUMBU, KINASSERY, PALAKKAD (*DIED ADDL.R7 TO R13 IMPLEADED)** **5. ABDUL KHADER, PEZHUMKORA, VANDAZHI AMSOM, ALATHUR.** **6. ABBAS, PEZHUMKOARA, VANDAZHI AMSOM, ALATHUR.** **...2/-** **SA.No. 279 of 1996 (G) -2-** ## ***LR'S OF DECEASED 2ND RESPONDENT RECORDED** **SECOND RESPONDENT IS DEAD AND THE APPELLANT AND RESPONDENT 1, 3 TO 6 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 2ND RESPONDENT AS PER ORDER DTD. 27/2/09 IN MEMO BEARING C.F. NO. 570/09.** ## ****4TH RESPONDENT DIED. ADDL.R7 TO R13 IMPLEADED** - ****7. SOORAMMA, W/O. YUSUF, KARAPPADAM HOUSE, KUZHALMANNAM, PALAKKAD.** - ****8. AYUB, S/O. SAITHALAVI, PATTARKULAMBU HOUSE, KINASSERY P.O., PALAKKAD.** - ****9. YUSUF, S/O. SAITHALAVI, PATTARKULAMBU HOUSE, KINASSERY P.O., PALAKKAD.** - ****10. SUBAIDA, W/O. IQBAL, POOLAKKADU P.O., PUTHUPALLYTHERUVU, PALAKKAD.** - ****11. SAFIA, W/O. JAHAN, KODUVAYUR HOUSE, KODUVAYUR POST PALAKKAD.** - ****12. MUJEED, S/O. SAITHALAVI, PATTARKULAMBU HOUSE, KINASSERY P.O., PALAKKAD.** - ****13. HASEENA, W/O. ABDULKHADER, PATTARKULAMBU HOUSE, KINASSERY P.O., PALAKKAD.** ## ****LEGAL HEIRS OF THE DECEASED 4TH RESPONDENT ARE IMPLEADED AS** **ADDL. R7 TO R13 AS PER ORDER DTD. 8/3/12 ON I.A. 228/09.** ## **R1 BY ADVS. SRI.P.R.VENKETESH** **SRI.P.R.RAJA** **R3 BY ADVS. SRI.P.G.PARAMESWARA PANICKER (SR.)** **SRI.P.GOPAL** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** ## P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - S.A.No.279 of 1996 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28[th] day of March, 2012 ## J U D G M E N T Aggrieved by the preliminary decree passed by the trial court in O.S.No.238 of 1988 which was confirmed in appeal by the lower appellate court in A.S.No.226 of 1990, 4[th] defendant in the suit has come up in appeal. 2. The parties and facts hereinafter referred to as they are arrayed before the trial court. 3. The plaint schedule property admittedly belongs to one Veerankutty Rowther, father of the plaintiff and defendants 2 to 6 and husband of the 1[st] defendant. During the lifetime of late Veerankutty Rowther he had executed different gift deeds in favour of his children. The plaint schedule property was not included in any of the gift deeds executed by him and it was available for partition. The plaintiff do not wish to continue the joint status and hence laid a suit for partition claiming 7/72 shares by the plaintiff and defendants 2 and 3. 4. 1[st] defendant did not contest the suit. The 2[nd] ## -:2:- ## S.A.No.279 of 1996 defendant disputed the gift deeds said to have been executed by his father during his life time which is admitted by the plaintiff and in fact contended that those properties were also available for partition. 5. Defendants 3 and 5 supported the gift deeds alleged in the plaint but also pointed out that the plaint schedule property is in the possession of the 4[th] defendant and he is in enjoyment of the same. They also contended that any document in favour of the 4[th] defendant said to have been executed by Veerankutty Rowther is void and not binding on them. 6. The 4[th] defendant, the main contesting defendant has filed written statement pointing out that the suit itself is not maintainable. He disputed that at the time of death of Veerankutty Rowther he had any subsisting rights over the suit property. According to this defendant Veerankutty Rowther had executed Ext.B1 gift deed in his favour in respect of the plaint schedule property and ever since the gift deed, he has been in absolute possession and enjoyment ## -:3:- ## S.A.No.279 of 1996 of the same. No other persons had any interest in the property and therefore the suit is only to be dismissed. 7. Based on the above pleadings issues were raised. The evidence consists of the testimony of PW1 from the side of the plaintiff. The defendants examined DWs 1 to 7 and Exts.B1 to B22 marked. Ext.X1 is the third party Exhibit. 8. The trial court after an evaluation of the evidence in the case came to the conclusion that the gift deed in favour of the 4[th] defendant is not valid and hence decreed the suit. Claim of the 2[nd] defendant was found to be not proved and therefore his prayer was declined. Consequently a preliminary decree was passed. 9. The matter was carried in appeal as A.S.No.226 of 1990 before the District Court, Palakkad by the 4[th] defendant. The lower appellate on an independent evaluation and consideration of the evidence found that the execution of the Ext.B1 deed is not proved and also that even if the gift deed has been executed by Beerankutty Ravuthar, it has not taken effect. The donor did not divest ## -:4:- ## S.A.No.279 of 1996 his complete rights over the property and therefore the gift deed is not valid. Based on these findings, the court below dismissed the appeal confirming the preliminary decree passed by the trial court. 10. During the pendency of this appeal 2[nd] and 4[th] respondent died and their legal heirs are brought on the party array 11. Notice is seen issued on the following questions of law:- - (a) Were the courts below justified in discrediting Exhibit B1 gift deed as being vitiated by undue influence or want of free consent especially when no particulars of such violating factors were set forth in the plaint as required under Order 6 Rule 4 C.P.C - (b) Was not the burden on the plaintiff to prove that Exhibit B1 was vitiated by undue influence? If so is not the finding of the courts below that it is vitiated by such undue influence unsustainable in law? - (c) Could the courts below have decreed the plaintiff's claim for partition as long as there was no prayer from the plaintiff or anyone else to have Ext.B1 set aside? - (d) Is not the 6[th] defendant liable to account for the sum of Rs.10,000/- deposited by his father Veerankutty and withdrawn by him later after his death? - (e) Will the mere deposit of the said amount in the name of -:5:- ## S.A.No.279 of 1996 the father and son payable to 'either or survivor' give any right to the said amount to the son to the exclusion of the other heirs of his father. 12. The learned counsel appearing for the appellant pointed out that the courts below have erred in law in holding that Ext.B1 gift deed is void and also that even if it was executed by Veerankutty Rowther it has not taken effect. Drawing attention to the averment in paragraph 6 of the plaint it is contended by the learned counsel that the defendants plea was that even if late Rowther had executed any document it was vitiated by fraud, undue influence and coercion. On filing of the written statement by 4[th] defendant, the plaintiffs were made aware of the fact of execution of Ext.B1 document by Rowther. In such circumstances, since the plaintiffs have pleaded vitiating elements in respect of document, the burden of proof was on them. Both the courts below have omitted to note this aspect and had wrongly cast the burden on the 4[th] defendant. As far as the acceptance of the gift is concerned the learned counsel ## -:6:- ## S.A.No.279 of 1996 pointed out that Ext.B1 itself recites that the possession has been given to donee and that is sufficient in law. In support of the said proposition the learned counsel relied on the decision reported in **Alavi V.Aminakutty and others (1981 KLT Shortnotes Page No.61 Case No.103 ).** 13. The learned counsel appearing for the appellant also pointed out that in the facts and circumstances of the case it was incumbent upon the plaintiff to seek a declaration that Ext.B1 gift deed is invalid or void as the case may be and seeking setting aside of the document without which the suit itself is not maintainable. For the above proposition the learned counsel relied on the decision reported in **Deepak Agro Foods V. State of Rajasthan and others ((2008) 7 SCC 748)** , **Pune Municipal Corpn. V.State of Maharashtra and Others ((2007) 5 SCC 211)** and **Jose T.A. & Company V. State of Kerala Others (2009(2) KLT 259)** . These vital aspects according to the learned counsel have been omitted to be noticed by ## -:7:- ## S.A.No.279 of 1996 the courts below and that has resulted in a wrong decree being passed. 14. The learned counsel appearing for the contesting respondent pointed out that the courts below have considered the matter in proper perspective and have concurrently found that the gift deed Ext.B1 document is not valid and also that it has not taken effect. Those are clear findings of facts arrived at on appreciation of evidence in the case. Those concurrent findings of facts are not open to challenge in second appeal unless it is shown that the findings are either perverse or unwarranted by the evidence. On going through the evidence according to the learned counsel it could not be said that the findings are perverse or unwarranted by the evidence on record. The learned counsel went on to point out that even assuming that a different view may be possible this Court exercising jurisdiction under Section 100 will not be justified in interfering with the preliminary decree passed by the trial court which was confirmed by the lower appellate court. -:8:- ## S.A.No.279 of 1996 15. The learned counsel appearing for the contesting respondent also contended that the appellant is not justified in contending for the position that the burden was on the plaintiff to prove that the document was vitiated by fraud, misrepresentation or coercion. This is a case where Section 111 of Indian Evidence Act is attracted and it cannot be disputed that the 4[th] defendant stands in a fiduciary relationship as far as his father Veerankutty Rowther is concerned. It is an admitted fact that Veerankutty Rowther was very sick at the relevant time and was under the care and custody of the 4[th] defendant. Under the said circumstances, it was for him to show that the document was one which was duly executed by Veerankutty Rowther. Both the courts below have considered the evidence in considerable detail and have come to the conclusion that evidence is far from satisfactory to show that Ext.B1 gift deed has been voluntarily executed by Ravuthar. It is also pointed out that both the courts below have found that based on testimony of DW3 that till the death of -:9:- ## S.A.No.279 of 1996 Veerankutty Rowther he continued to be in possession of the property even after execution of Ext.B1 deed and that shows that the gift has not taken effect, in the sense that the donor has not divested himself completely of all the rights over the property which is an essential ingredient for a valid Muhammadan gift. Accordingly it is contended that there are no grounds to interfere with the findings of the court below. 16. After having heard the counsel on both sides and having persused the records it is felt that the submission of the learned counsel for the repondent are justified. In the plaint in paragraph 6 it is true that it is stated that if any document has been executed by Veerankutty Rowther who was infirm at the relevant time, it is not binding on the plaintiff as it is vitiated by fraud, undue influence coercion etc. It is also true that normally in such cases when a transaction is assailed on certain vitiating grounds the burden of proof is on that person to establish the material factors. But the case on hand stands on a different status. -:10:- ## S.A.No.279 of 1996 17. In the case on hand as rightly pointed out by the learned counsel for the respondent Section 111 of the Indian Evidence Act is attracted. The evidence clearly shows that late Veerankutty Rowther was at the relevant time under care and custody of the 4[th] defendant. Ext.B1 is dated 19.05.1988 and late Veerankutty Rowther died on 24.05.1988. There is sufficient evidence to show that Veerankutty Rowther was sick and infirm at the relevant time and Registrar was brought to his house for registration. It cannot be disputed that the 4[th] defendant stands in fiduciary relationship as far as the donor is concerned. If that be so as rightly noticed by both the courts below the burden is on him to show that Ext.B1 was duly executed by late Veerankutty Rowther knowing fully the consequences of the recitals contained in the document. 18. The issue has been considered in the decision reported in **Krishna Mohan Kul Alias Nani Charan Kul and another v. Pratima Maity and others (2004) 9 SCC 468** wherein it was held as follows:- -:11:- S.A.No.279 of 1996 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 the 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 the onus to prove execution of the deed by Dasu Charan Kul on the plaintiffs. There was challenge by the plaintiffs to the validity of the deed. The onus to prove the validity of the deed of settlement was on Defendant 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 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 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 jealousy 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 -:12:- ## S.A.No.279 of 1996 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 ingrained 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 the Courts of Equity in England and America. This principle is that he who bargains in a matter of advantage with a person who places 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 for 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 others 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, it if 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 there a person gains a great advantage over another by a voluntary instrument, the burden of proof is thrown upon the person receiving the benefit and he is under the necessity of showing that the transaction is fair and -:13:- S.A.No.279 of 1996 honest. 19. Coming to the document Ext.B1 it had been executed five days prior to the death of the donor. As already noticed, the evidence is clinching to the effect that the executant was very sick at the relevant time. He was affected with leprosy and his limbs had become immobile. Both the courts below have noticed that usually late Veerankutty Rowther was in the habit of affixing his signature while executing the documents. In the document in question only a mark is shown as his signature. The lower appellate court has noticed that in law it may be sufficient that a mark may constitute a signature, but going by the facts and circumstances of the case the appellate court was of the opinion that it may not be sufficient in view of the nature of the illness from which Veerankutty Rowther was suffering and his physical state at the relevant time. 20. This Court is not unaware of the fact that being a Muhammadan gift the provisions of the transfer of property are not applicable. Therefore assuming that execution of ## -:14:- ## S.A.No.279 of 1996 the document is disputed, even if any one of the attesting witness is not examined, it may not be very significant as Muhammadan gift need not be in writing. Even though Section 68 of Indian Evidence Act may not have an application to the facts of the case, by way of an abundant caution it could be said that the attesting witness could have been examined. Whatever it may be, that need not detain this Court because both the courts below after independent consideration of the evidence found that evidence is far from satisfactory to show that Ext.B1 document was in fact executed by Veerankutty Rowther. Both the courts below have also considered the evidence of PW1 the Registrar have found it to be unsatisfactory to come to the definite conclusion that the document was duly executed by Veerankutty Rowther. It is true that the relevant documents were produced by the Registrar. But both the courts below on appreciation of the evidence found that those documents are not sufficient enough to come to the conclusion that Veerankutty Rowther had voluntarily ## -:15:- ## S.A.No.279 of 1996 executed Ext.B1 gift deed. Being a finding on fact based on appreciation of evidence, since it is not shown that findings are either perverse or unwarranted by the evidence on record, no interference is called for. 21. Apart from the above facts, the courts below have also found that Ext.B1 has not taken effect. For this purpose, both the courts below have relied on the evidence furnished by DW3. 22. It is true that in the decision reported in **Alavi V.Aminakutty and others (1981 KLT Shortnotes Page No.61 Case No.103 )** it has been held that the recital in the document that the possession had been handed over may be sufficient in the normal circumstances. But it is a rebutable presumption. In the case on hand when examined as DW3 the 4[th] defendant has categorically stated that till the date of death of Veerankutty Rowther he was in possession of property. As already noticed the gift deed is dated 19.05.1988 while Ravuthar died on 24.05.1988. The above statement made by the 4[th] defendant had been taken -:16:- ## S.A.No.279 of 1996 note of by both the courts below and they have come to the conclusion that there is no delivery of possession. 23. At this point of time, it may be only proper to refer to certain provisions of Mahomedan Law relating to gifts. Mulla principles of Mahomedan Law 19[th] edition in Section 147 it is stated that writing is not essential to the validity of a gift either of movable or of immovable properties. 24. Section 148 is relevant which reads as follows:- **148. Relinquishment by donor or ownership and dominion.--** It is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift(f). 25. Section 149 mentions about three essentials of the gift. It is essential to the validity of the gift that there should be (1) a declaration of gift from the donor (2) an acceptance of the gift, expressed or implied, by or on behalf of the donee and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150. Section 150 says that it is essential to the validity of a ## -:17:- ## S.A.No.279 of 1996 gift that there should be delivery of such possession as the subject of the gift is susceptible. Section 150 also says that the Registration of a gift deed does not cure the want of delivery of possession. 26. A reading of the above provisions makes it very clear that in the case of a Muhammadan gift delivery of possession and acceptance by donee are essential ingredients to constitute a valid gift. So also the donor should divest himself completely of all the rights over the subject matter of the gift, even though it may not be necessary for a valid gift that it should be made in writing. 27. It is also significant to notice that both the courts below have observed that the 4[th] defendant has not produced any document to show that the gift has infact been accepted and delivery of possession has been affected by the donor. 28. One contention needs to be noticed here. The learned counsel appearing for the appellant pointed out that since the donor and donee were residing together it may not ## -:18:- ## S.A.No.279 of 1996 be necessary for physical delivery of possession to establish the factum of possession. 29. However though the above proposition may be justified in certain circumstances, in the case on hand, it may not be applicable because the property which is the subject matter of the suit is a different property from the property where the donor and donee were residing. So also in the light of specific statement made by DW3, the father continued to be in possession of the property till his death, it could not be said that there has been a divestiture of entire rights by the donor and delivery of possession to the donee. 30. In the light of above aspects it may not be necessary to consider the question whether it is necessary for the plaintiff to seek a declaration that Ext.B1 gift deed is invalid in law, since the burden is on the 4[th] defendant to show that Ext.B1 was duly executed and that satisfied all the necessary ingredients to constitute a Muhammadan gift. Even assuming that the document is not sought to be -:19:- ## S.A.No.279 of 1996 declared invalid it may not be of much consequence. 31. Moreover the decision cited by the learned counsel for the appellant which as already mentioned earlier was related to the Administrative Law, where the issues like void, voidable etc were considered. 32. To recall in paragraph 6 of the plaint it has been specifically stated that any document which might have been executed by Veerankutty Rowther was vitiated by fraud, undue influence. It has already been discussed as to why the burden is cast on the 4[th] defendant to establish Ext.B1 document is a valid document. 33. Both the courts below have considered all these aspects in considerable detail and have come to the conclusion that Ext.B1 is not duly proved or not duly executed by Ravuthar and that delivery of possession was not effected by him. 34. The trial court has also considered the claim of the 4[th] defendant regarding a claim of a sum of Rs.10,000/which according to the 4[th] defendant were in the joint ## -:20:- ## S.A.No.279 of 1996 account of the Ravuthar and one of the defendants in a nationalised Bank. The trial court has found that being an account either or survivor the intention to give the property to the survivor and therefore it is not available for partition. The lower appellate court did not deem it fit to interfere with the said findings since it was not agitated before the lower appellate court. The result is that this appeal is without any merits and liable to be dismissed. I do so. No costs. P.BHAVADASAN, JUDGE kkj