Thomas and others v. Valsamma @ Kunjumol

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941** ## **RSA.No.322 of 2011** **AGAINST THE JUDGMENT IN AS 340/2009 of III ADDITIONAL DISTRICT COURT, KOLLAM AGAINST THE JUDGMENT IN OS 158/2006 of SUB COURT,KOTTARAKKARA** ## **- - APPELLANTS IN R.S.A. APPELLANTS IN A.S. DEFENDANTS IN SUIT:** **1 THOMAS, S/O. DANIEL, ALUVILA HOUSE MANJACKALA MURI, THALAVOOR VILLAGE, PATHANAMPURAM TALUK, HAVING PERMANENT RES: AT 64/1,RAJA RAM MOHAN, ROY ROAD,KOLKATTA, (PRESENTLY AT HOUSE NO.19(NEW NO.33), MAJOR SIVA SHANMUKHAM STREET, NUNGAMBAKKAM, CHENNAI, TAMIL NADU) 2 ANNAMMA, ALUVAILA HOUSE,MANJACKALA MURI THALAVOOR VILLAGE, PATHANAMPURAM TALUK, HAVING, PERMANENT RESIDENCE AT HOUSE NO.10(NEW NO.33),MAJOR SIVA, SHANMUKHAM STREET,NUNGAMBAKKAM VILLAGE,CHENNAI, (PRESENTLY AT NO. 23, 1ST CROSS STREET, MALLESWARI NAGAR, THAMBARAM, TAMIL NADU) 3 CATHERINE(KATHRINE) DANIEL, ALUVILA HOUSE MANJACKALA MURI,THALAVOOR VILLAGE,PATHANAMPURAM, TALUK, HAVING PERMANENT RESIDENCE AT HOUSE NO.10(NEW NO.33), MAJOR SIVA SHANMUKHAM STREET,NUNGAMBAKKAM,CHENNAI 4 ELIZABETH MANJACKALA MURI,THALAVOOR VILLAGE,PATHANAMPURAM TALUK, HAVING PERMANENT RESIDENCE AT HOUSE NO.10(NEW NO.33),MAJOR SIVA SHANMUKHAM STREET, NUNGAMBAKKAM, CHENNAI, (PRESENTLY AT 19/10,ASOK AVENUE DIRECTORS COLONY, KODAMBAKKOM, CHENNAI, TAMIL NADU)** RSA.No.322 of 2011 2 **5 MARY DANIEL, ALUVILA HOUSE, MANJACKALA MURI, THALAVOOR VILLAGE,PATHANAMPURAM TALUK, HAVING PERMANENT RESIDENCE AT HOUSE NO.10(NEW NO.33),MAJOR SIVA, SHANMUKHAM STREET,NUNGAMBAKKAM,CHENNAI, (PRESENTLY AT NO. 102, FIRST FLOOR, CHITRA SHOPPING COMPLEX, CHITRA AVENUE, CHOLARMEDU, CHENNAI, TAMIL NADU.)** **6 RICHARD DANIEL, S/O.LATE IDICULA ALUVILA HOUSE,MANJACKALA MURI,THALAVOOR VILLAGE,, PATHANAMPURAM TALUK, HAVING PERMANENT RESIDENCE, AT HOUSE NO.10(NEW NO.33),MAJOR SIVA SHANMUKHAM, STREET, NUNGAMBAKKAM, CHENNAI** **BY ADVS. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.B.SUBRAMANYAN SRI.P.M.NEELAKANDAN SRI.R.SURAJ KUMAR** ## **- - RESPONDENT IN R.S.A. RESPONDENT IN A.S. PLAINTIFF IN SUIT:** **VALSAMMA @ KUNJUMOL, W/O. IDICULA (LATE) FROM MANGALASSERIL THEKKATHIL,KARUVATTA MURI, ADOOR AND HAVING PRESENT ADDRESS AT ALUVILA, HOUSE, MANJACKALA MURI, THALAVOOR P.O. AND VILLAGE, PATHANAPURAM TALUK-691514** **BY ADVS. SRI.K.SHAJ SRI.SAJJU.S** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA.No.322 of 2011 3 ## **JUDGMENT** Defendants No. 1 to 5 along with sixth defendant came up with this appeal, aggrieved by the decree and judgment rendered by both the courts below in a suit for partition. The plaintiffs are the wife and children of one G.D. Idikkula @ Thankachan. He died on 7.7.2006. The property in question originally belonged to Rahel, his mother and her three sons including G.D. Idikkula @ Thankachan. Rahel died in the year 1997. She was having three other daughters, they are the defendants 3 to 5 in the suit. One brother Kunjumon died in the year 2005. According to the defendant, his wife and two children settled in Syria. The other brother of Idikkula is one Thomas, who is the first defendant in the suit. The suit was filed by the plaintiff, the legal heirs of G.D. Idikkula @ Thankachan claiming 9/32 share over the plaint schedule property. The suit was decreed by both the courts below by granting a preliminary decree. Aggrieved by the said decree and judgment, the defendants 1 to 5 came up with this appeal. 2. The questions raised at the time of admission RSA.No.322 of 2011 4 ## of appeal are:- - 1) When the plaintiff is challenging Ext.B1 power of attorney as well as Exts. A2 and A3 sale deeds, on the ground of fraud and coercion, whether without proper pleading regarding the allegations of fraud and coercion and without seeking a decree to set aside the document or declaration that they are void, whether the plaintiff is entitled to seek partition and separation of the shares due to her husband. - 2) Whether the courts below on the evidence, justified in holding that Ext.B1 is vitiated. - 3) Whether without proof of Exts. A6, X1 and X2, by examination of the concerned doctors, could be relied on. - 4) Even if plaintiff is entitled to a share, whether the shares allotted to the plaintiff by the courts below is correct. 3. The case advanced by the defendants is that during the life time, G.D.Idikkula @ Thankachan had executed Ext.B1 power of attorney in favour of the third defendant and the third defendant in turn had executed a sale deed in favour of the first defendant on 03.07.2006 and the first defendant in turn, on the same day, executed a re-conveyance under Ext.A3 in favour of the third defendant with respect to the plaint schedule RSA.No.322 of 2011 5 property. Both the Courts below found that Ext.B1 is the result of undue influence and coercion exerted by the defendants on the deceased, husband of plaintiff and also found that the G.D.Idikkula @ Thankachan was not having sufficient mental stability at the time when Ext.B1 power of attorney was executed. 4. Ext.B1 power of attorney was executed on 29.06.2006. The G.D.Idikkula @ Thankachan was passed away on 07.07.2006. Exts.X1, X2 and Ext.A7 are the document of treatment and the certificate issued by the doctor, who attended the victim G.D.Idikkula @ Thankachan. Ext.A7 is issued by Dr. P.K. Ganga, wherein it is certified that the said G.D.Idikkula @ Thankachan was admitted in the hospital in a semi-conscious stage in connection with the ailment of diabetes and throat ulcer and he was discharged on 07.07.2006. It is an admitted case of both the parties that G.D.Idikkula @ Thankachan died on that day, 07.07.2006. Ext.X1 shows the various treatment given to him in connection with Tuberculosis and Diabetes Mellitus and the allied developments - ulcer to the throat and such other injuries, infection due RSA.No.322 of 2011 6 to fungal attack. Ext.B1 was executed on 29.06.2006 just one week prior to his death. The documents Exts.X1 and X2 would show that G.D.Idikkula @ Thankachan was suffering from physical aliments, such as Tuberculosis and Diabetes Mellitus and he has got ulcer to his throat and such other ailment. But that does not mean that he had lost his mental capacity or ability. Physical aliment cannot be substituted in the place of mental incapacity. In order to bring and to establish mental incapacity, there should be evidence to show that the physical ailment suffered by the victim is of that extent sufficient to impire his mental faculty to arrive at a rational judgment. Exts.X1, X2 and A7 will not satisfy the same. The non-examination of Dr. P.K. Ganga is so fatal. 5. Yet another ground was also raised by the plaintiff that Ext.B1 was obtained by playing fraud on the victim, G.D.Idikkula @ Thankachan. It may be a sufficient ground for setting aside the document created based on the power of attorney. Based on Ext.B1 power of attorney, two documents were created, Exts.A2 and A3. The present suit is one for partition simplicitor without RSA.No.322 of 2011 7 seeking to set aside Exts.A2 or A3. A simple suit for a partition without seeking to set aside the deed of alienation created over the property cannot be maintained. The legal position was very much settled by a Division Bench of this Court in **Thamarasseri Roman Catholic Diocese v. Umadevi Nambiar [2017(1) KLT 71]** . 6. The subsequent conduct of the parties by executing Ext.A2 deed by the third defendant, who is the power holder on 03.07.2006 in favour of the first defendant and execution of a re-conveyance by the first defendant on the very same day in favour of the third defendant would sufficiently show what was actually played by the third defendant in collusion with the first defendant acting on Ext.B1 power of attorney just before the death of G.D.Idikkula @ Thankachan. But Ext.B1 power of attorney is a registered one and the executent was introduced before the registrar by his wife Valsamma, who is none else the first plaintiff. It is the further case of the plaintiff that she was brought under coercion and threat and her signature was obtained by RSA.No.322 of 2011 8 playing threat and coercion. No specific finding was rendered into the question of mental stableness or capacity of the deceased. But the document relied on by the plaintiff, Exts.X1, X2 and A7 were relied on by the Court below for the purpose of determination of fraud and coercion as alleged by the plaintiff. At this juncture, the learned counsel for the respondent pressed for a remand of the matter to the Trial Court. The above said question need be addressed separately, as to whether Ext.B1 document was executed by a person having no sound state of mind and also to address the question of threat and coercion separately. For that purpose, the decree and the judgment of both the Trial Court and the First Appellate Court are hereby set aside and the matter is remanded back to the trial court for fresh disposal, in accordance with the law in force. The parties may be permitted to adduce additional evidence, if any, by examining the Doctors, who had attended the victim, so as to satisfy itself with respect to mental faculty or dearrangement of mental faculty of the deceased G.D.Idikkula @ Thankachan and also to address the RSA.No.322 of 2011 9 question of threat and coercion exercised on the first plaintiff, Valsamma, in getting her signature in that document. The parties are at liberty to call for the entire treatment record of the deceased and can obtain expert evidence in that behalf regarding the mental condition of the deceased at the time when Ext.B1 was executed. The lower court hereby is directed to dispose of the matter within three months untrammelled by any of the observations made by this Court. Parties shall appear before the trial court on 24.07.2019. The appeal is allowed in part. No costs. **Sd/-** **P.SOMARAJAN** **JUDGE** DCS RSA.No.322 of 2011 10 The wordings **"the learned counsel for the respondent pressed for a remand of the matter to the Trial Court"** , contained in paragraph 6 of the judgment dated 08.07.2019 in R.S.A. No.322/2011 stands deleted as per order dated 30.09.2019 in R.P. No. 904/2019 in R.S.A. No. 322/2011. sd/Deputy Registrar