Ulleri Achuthan and others v. Ulleri Ajeesh and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 25TH DAY OF SEPTEMBER 2017/3RD ASWINA, 1939** **RSA.No. 903 of 2017 ()** **-----------------------** **AGAINST THE JUDGMENT AND DECREE DATED 11-04-2017 IN AS 90/2014 of SUB COURT, TIRUR** **AGAINST THE JUDGMENT AND DECREE DATED 30-08-2014 IN OS 19/2013 of MUNSIFF COURT, PARAPPANANGADI** ## **APPELLANTS/APPELLANTS/PLAINTIFFS:** **---------------------------------** **1. ULLERI ACHUTHAN,** **S/O. ARAMUGHAN, ULLANAM AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM.** **2. ULLERI VELAYUDHANKUTTY, S/O. ARAMUGHAN, ULLANAM AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM.** ## **BY ADV. SRI.E.NARAYANAN** **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **-----------------------------------** **1. ULLERI AJEESH, S/O. ARAMUGHAN, ULLANAM AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM - 676 303.** **2. ULLERI SHAJU, S/O. ARAMUGHAN, ULLANAM AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM - 676 303.** **3. ULLERI SUMATHI, W/O. THARAYIL DASAN, ULLANAM AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM - 676 303.** **4. ULLERI AMBIKA,** **W/O. KILIYANKANDI CHANDRAN, KADALUNDI AMSOM, PAZHANCHANNUR DESOM, KOZHIKODE TALUK - 673 302.** **5. ULLERI PUSHPAJA, W/O. CHELATH VALAPPIL JAYAPRAKASH @ UNNI, THRIKKANDIYOOR AMSOM, MUTHOOR DESOM, TIRUR TALUK, MALAPPURAM - 676 101.** **RSA.No. 903 of 2017 ()** ## **----------------------** ## **6. ULLERI SINDHU,** **W/O. PATTAYIL NARAYANAN, VALLIKKUNNU AMSOM, DESOM, P.O.VALLIKKUNNU, TIRURANGADI TALUK, MALAPPURAM - 676 306.** ## **7. ULLERI ARAMUGHAN,** **S/O. AYYAPPUTTY, ULLANAM AMSOM, DESOM, P.O. PARAPPANANGADI, TIRURANGADI TALUK, MALAPPURAM - 676 306.** ## **8. ULLERI MANI,** **W/O. ARAMUGHAN, ULLANAM AMSOM DESOM, P.O.PARAPPANANGADI, TIRURANGADI TALUK, MALAPPURAM - 676 303.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DSV/-** ## **B. KEMAL PASHA, J.** =================== R.S.A. No.903 of 2017 ==================== _Dated this the 25[th] day of September, 2017_ ## **J U D G M E N T** ## **-----------------------** Challenging the concurrent findings entered by the Munsiff’s Court, Parappanangadi, in O.S.No.19 of 2013, followed by those of the Subordinate Judge’s Court, Tirur in A.S.No.90 of 2014, the plaintiffs have come up with this Regular Second Appeal. 2. The suit is one for declaration that Exhibits-B1 to B6 settlement deeds allegedly executed by defendants 7 and 8 in favour of defendants 1 to 6 are void and also for a declaration that the said documents are not binding on defendants 7 and 8. A decree of perpetual injunction has also been sought for, for restraining defendants 1 to 6 from committing trespass into the properties on the strength of R.S.A. No.903/17 : 2 : ## Exhibits-B1 to B6 settlement deeds. 3. Defendants 1 to 6 are none other than the siblings of plaintiffs 1 and 2. They are the children of defendants 7 and 8. 4. Plaintiffs have alleged that, because of their old age, defendants 7 and 8 were not in a position to exercise their free will and free consent for executing any document in respect of their properties. It is alleged that defendants 1 to 6 have prevailed upon defendants 7 and 8, and by dominating their will, defendants 1 to 6 could obtain Exhibits-B1 to B6 settlement deeds executed in their favour. It has been further alleged that after the execution of the said documents, defendants 7 and 8 were thrown out from their properties by defendants 1 to 6. Plaintiffs have filed the suit as if they wanted to protect the interest and rights of defendants 7 and 8. 5. Defendants 1 to 6 have filed written statements contending that Exhibits-B1 to B6 were executed by R.S.A. No.903/17 : 3 : defendants 7 and 8 with their free consent and they have sufficient mental capacity and strength to exercise their free will and free consent. According to them, the plaintiffs have no _locus standi_ to file the suit, and the suit as such is not maintainable. 6. Defendants 7 and 8 have filed a separate written statement contending that they have exercised their free will and free consent to execute Exhibits-B1 to B6 pertaining to their self acquired properties. Therefore, the plaintiffs have no _locus standi_ to interfere in the matter. According to them, the plaintiffs have no right or authority to challenge the validity of Exhibits-B1 to B6. Further, according to them, they have absolute right and authority to execute documents in respect of their properties. 7. The Munsiff’s Court, after recording evidence, dismissed the suit. Aggrieved by the judgment and decree of dismissal, the plaintiffs preferred A.S.No.90 of 2014, before the Subordinate Judge’s Court, Tirur. The lower R.S.A. No.903/17 : 4 : appellate court also concurred with the findings entered by the trial court, and dismissed the appeal with costs, and hence the Regular Second Appeal. 8. Heard the learned counsel for the appellants on the question of admission of the Regular Second Appeal. 9. The learned counsel for the appellants has argued that Exhibits-B1 to B6 could only be treated as documents, which are void as against these appellants and the same would adversely affect their interest and it would cause them serious injury and therefore, they are entitled to get those documents cancelled within the meaning of Section 31 of the Specific Relief Act. The learned counsel for the appellants has relied on the decision in _**Gomathy v. Kesavan Neelakantan** [2013 (3) KLT S.N.43 (C.No.47)]_ rendered by a learned Single Judge of this Court. In the decision noted _Supra_ , the learned Single Judge has considered a case, wherein, the executant of a gift deed became senile and could not exercise any power to R.S.A. No.903/17 : 5 : approach a court to get that document canceled or its validity challenged. In that context, it was held that even a third party could challenge the said documents. 10. In this particular suit, the 7[th] defendant, who is the unfortunate father of the plaintiffs, had approached the trial court when defendants 1 to 6 were about to be visited with the consequences of violating an order of temporary injunction passed by the trial court. It seems that initially, the trial court without any wisdom had chosen to pass an interlocutory order restraining defendants 1 to 6 from getting any documents with regard to the properties of defendants 7 and 8 from them. _Per se_ that order was perverse and illegal. The trail court ought not to have passed such an order. In that contest, when their children, who are defendants 1 to 6 were about to be visited with the consequences under Order XXXIX Rule 2A of the Code of Civil Procedure, the appellants herein, who are also the children of defendants 7 and 8, had approached the trial R.S.A. No.903/17 : 6 : court. The 7[th] defendant deposed that he along with his wife, the 8[th] defendant has exercised their free will and free consent to execute Exhibits-B1 to B6 settlement deeds in favour of their other children, who were not in hostile terms with them. Based on that deposition, an interlocutory application filed under Order XXXIX Rule 2A of the Code of Civil Procedure was dismissed. Subsequently, the suit was also dismissed. 11. According to the learned counsel for the appellants, the courts below ought not to have relied on the testimony of the 7[th] defendant before the trial court in the interlocutory application stage to non-suit the plaintiffs and to find that defendants 7 and 8 had exercised their free will and free consent to execute Exhibits-B1 to B6 settlement deeds. 12. Still the unfortunate parents are alive. They had opted to execute Exhibits-B1 to B6 settlement deeds in respect of their properties to their children other than the R.S.A. No.903/17 : 7 : plaintiffs. The plaintiffs are the elder ones. Even though the plaintiffs have alleged that defendants 7 and 8 have no mental capacity to exercise free will and free consent, the plaintiffs have failed to prove that defendants 7 and 8 have become senile or that they are devoid of sufficient mental capacity to exercise their free will and free consent. 13. On the contrary, the father, who is the 7[th] defendant had deposed before the trial court at the interlocutory application stage to defend defendants 1 to 6 against action under Order XXXIX Rule 2(a) of the Code of Civil Procedure that those documents were executed by him and his wife by exercising their free will and free consent. In a case wherein, the validity of a document is challenged on account of the lack of free consent within the meaning of Section 14 of the Indian Contract Act, it is for the person, who is alleging such lack of free consent, to plead and prove such lack of free consent. Burden is heavily on the plaintiffs in the suit to prove that Exhibits-B1 to B6 are devoid of free R.S.A. No.903/17 : 8 : consent. 14. When the father has chosen to depose before the trial court that Exhibits-B1 to B6 were executed by him and his wife by exercising their free consent, the question whether such a deposition was made by him during the interlocutory stage or trial stage does not assume any importance at all. It is the specific admission made by the 7[th] defendant for him as well as for and on behalf of his wife, who is the 8[th] defendant. Further, a joint written statement was filed by the defendants 7 and 8 clearly asserting and admitting the execution of Exhibits-B1 to B6 with their free consent. 15. After all, what is the right of the appellants over the properties in question. If at all, no documents are executed by defendants 7 and 8, so long as they are alive, the right at the most on the part of the plaintiffs is mere ' _spes successionis'_ and nothing more. Still the unfortunate parents are alive and they are being dragged into the R.S.A. No.903/17 : 9 : Regular Second Appeal also unnecessarily for the mere fact that they happened to be the parents of these appellants. In this particular case, the appellants have no _locus standi_ to file the suit for challenging the validity of Exhibits-B1 to B6. Any substantial question of law or even question of law does not emerge from this Regular Second Appeal. Therefore, this Regular Second Appeal is not maintainable and is also devoid of merits. The same is only to be dismissed at the threshold and I do so. In the result, this Regular Second Appeal is dismissed. Sd/- ## **(B.KEMAL PASHA, JUDGE)** DSV/26/9/17 // True Copy // P.A. To Judge