Visalakshi Amma and others v. Gangadharan Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **TUESDAY, THE 4TH DAY OF APRIL 2017/14TH CHAITHRA, 1939** **RSA.No. 720 of 2007 (B)** **------------------------** **AGAINST JUDGMENT DATED 31-01-2007 IN AS 43/2001 OF I ADDL.SUB COURT, KOZHIKODE** **AGAINST JUDGMENT DATED 05-04-2000 IN OS 344/1993 of ADDL.M.C.,KOZHIKODE-II** **APPELLANT(S)/APPELLANTS/SUPPL.PLAINTIFFS 2 TO 5:** **-----------------------------------------------** **1. VISALAKSHI AMMA, W/O KRISHNAN NAIR(LATE), PULARI HOUSE, KUNNAMANGALAM AMSOM DESOM, KOZHIKODE TALUK.** **2. ANAND, S/O.VISALAKSHI AMMA, PULARI HOUSE, KUNNAMANGALAM AMSOM DESOM, KOZHIKODE TALUK.** **3. RAMANI, D/O.VISALAKSHI AMMA, PULARI HOUSE, KUNNAMANGALAM AMSOM DESOM,** **KOZHIKODE TALUK.** **4. SREEVALSAN, S/O.VISALAKSHI AMMA, PULARI HOUSE, KUNNAMANGALAM AMSOM DESOM, KOZHIKODE TALUK.** ## **BY ADV. SRI.P.V.KUNHIKRISHNAN** ## **RESPONDENT(S)/RESPONDENTS/SUPPL.DEFENDANT NO.2:** **-----------------------------------------------** **GANGADHARAN NAIR, S/O CHIRUTHA AMMA, KUNNAMANGALAM AMSOM DESOM, KOZHIKODE TALUK.** ## **RESPONDENTS BY ADV. SRI.M.P.MOHAMMED ASLAM** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **[CR]** ## **B. KEMAL PASHA, J.** ................................................................ R.S.A. No. 720 of 2007 ............................................................... Dated this the 4[th] day of April, 2017 ## **J U D G M E N T** Challenging the concurrent findings entered by the Munsiff's Court, Kozhikode-II in O.S.No.344/1993, followed by those of the Subordinate Judge's Court, Kozhikode in A.S.No.43/2001, the plaintiffs have come up in second appeal. 2. The suit is one for declaration that Ext.B1, by which the defendant had cancelled Ext.A1, is void, and for a decree of perpetual injunction restraining the defendant from trespassing into the plaint schedule property on the strength of Ext.B1, and from creating any alienations or R.S.A.720 of 2007 -: 2 :- encumbrances based on Ext.B1. The trial court dismissed the suit. Aggrieved by the dismissal, the plaintiff preferred A.S.No.60/2001 before the District Court, Kozhikode. Thereafter, the said appeal was made over to the Subordinate Judge's Court, Kozhikode wherein it was renumbered as 43/2001. The lower appellate court has also concurred with the findings entered by the trial court and dismissed the appeal, and hence this second appeal. 3. This Court admitted this second appeal on the following substantial questions of law: _“(1) When execution of Ext.A1 sale deed was admitted and the contention of the respondent was that it was vitiated by fraud, undue influence and misrepresentation, whether respondent, executant of Ext.A1, is entitled to cancel Ext.A1 sale deed under Ext.B1 and if so, whether Ext.B1 is valid?_ _(2) Whether courts below on the evidence were justified in holding that_ R.S.A.720 of 2007 -: 3 :- _Ext.A1 sale deed was vitiated and Ext.B1 cancellation deed is valid?_ _(3) Whether finding of courts below that suit is barred by limitation is sustainable, when appellants instituted the suit immediately after getting knowledge of existence of Ext.B1?”_ 4. Heard the learned counsel for the appellants Sri. P.V. Kunhi Krishnan and the learned counsel for the respondent Sri.Mohammed Aslam. 5. The learned counsel for the appellants has argued that Ext.B1 cancellation deed is void and inoperative and the same could not have cancelled a valid sale deed in the form of Ext.A1. It has also been argued that both the courts below have gone wrong in finding that Ext.A1 is not valid and by further finding that Ext.B1 cancellation is a valid document. 6. _Per contra_ , the learned counsel for the respondent has argued that the original defendant was an R.S.A.720 of 2007 -: 4 :- illiterate woman and therefore, she should be treated as in the case of a _pardahnashin_ lady. When the contents of Ext.A1 were not made known to the defendant, the pleadings resorted to by the defendant should be treated as denial of execution. It has also been argued that the admission of mere signature in the document will not invite an admission of execution. According to the respondent, the judgements passed by both the courts below do not call for any interference at all. 7. The case of the plaintiff is that through Ext.A1 sale deed dated 17.05.1985, the defendant sold 11 cents of property to the plaintiff for valuable consideration. The plaintiff thereafter mutated the property in his favour and paid the tax for the property for the period from 1991 to 1998 through Exts.A2 to A7 tax receipts. In the year 1992, the plaintiff wanted to avail a loan by mortgaging the said property, for which he procured Ext.A8 encumbrance certificate dated 03.12.1992. He was taken aback to see R.S.A.720 of 2007 -: 5 :- from the encumbrance certificate that Ext.B1 cancellation deed dated 07.06.1985 was incorporated in it. According to the the plaintiff, he came to know about Ext.B1 through Ext.A8 dated 03.12.1992 only, and hence the suit. 8. The original defendant filed a written statement contending that Ext.A1 has no legal validity since the same was caused to be executed by the plaintiff without paying any consideration and by exerting fraud, undue influence and misrepresentation. According to her, the possession of the property was not delivered and still she continues to be in possession of the property. At the first portion of the written statement she was pretending as if she was not aware of the execution of Ext.A1. According to her, when she realised regarding the execution of Ext.A1, she rushed to the Sub Registrar's office and executed Ext.B1 cancellation deed. 9. When the plaint was amended, the defendant filed an additional written statement contending that the R.S.A.720 of 2007 -: 6 :- plaintiff caused the execution of Ext.A1 without reading over the contents of Ext.A1 to the defendant. It is also contended that the defendant was taken to the Sub Registry on a false representation that the plaintiff wanted to get a document executed for availing a loan and thereby the defendant was misled, and fraud was exerted. 10. Ext.A1 is the original sale deed dated 17.05.1985 executed by the defendant in favour of the plaintiff in respect of 11 cents of property out of the property devolved on her through Ext.B2 partition deed dated 03.10.1980. It is true that the plaintiff was also residing along with the defendant and her husband, in the building situated in the property allotted to the defendant, almost over a period of 20 years. Consideration is shown passed from the plaintiff to the defendant in Ext.A1. The stamp paper in which Ext.A1 was prepared was also purchased in the name of the plaintiff. In Ext.B1 the defendant has clearly admitted the execution of Ext.A1. In Ext.B1 her case is that no consideration was paid R.S.A.720 of 2007 -: 7 :- to her and the plaintiff has got executed Ext.A1 by misrepresentation and by insisting her. It was on the said grounds, she cancelled Ext.A1 through the execution of Ext.B1. 11. On an overall analysis of the contentions resorted to by the defendant in her written statement, additional written statement, Ext.B1, and in her evidence as DW1, it seems that she has virtually admitted the execution of the document. At the same time, her contention is that the plaintiff got executed Ext.A1 by exerting fraud, undue influence and misrepresentation. Either in the first written statement or in Ext.B1 she has no case that the contents of Ext.A1 were not made known to her. In such case, it seems that her contention is that Ext.A1 is devoid of free consent within the meaning of Section 14 of the Indian Contract Act, since it is hit by fraud, undue influence and misrepresentation. 12. When the document is challenged for want of free R.S.A.720 of 2007 -: 8 :- consent, definitely the document is voidable at the option of such a party. When the document is voidable at the option of the executrix and the document is not void _ab initio,_ in such case, the executrix ought to have filed a suit for getting the said document set aside. Only through a judicial intervention, such an exercise can be made. 13. Ext.A1 clearly constitutes a sale within the meaning of Section 54 of the Transfer of property Act. It is a registered document. The presumption under Illustration(e) to Section 114 of the Indian Evidence Act is available to the plaintiff. It may be presumed that the official acts have been regularly performed, when Ext.A1 has been registered as per the provisions of the Registration Act, 1908. In a suit like the present one, the burden is heavily on the defendant to prove that Ext.A1 is hit by lack of free consent on account of fraud, undue influence and misrepresentation. If it is proved that there was lack of free consent, the document becomes voidable at the option of the executrix. Therefore, R.S.A.720 of 2007 -: 9 :- the defendant ought to have sued the plaintiff for getting Ext.A1 document set aside. Instead of that she had executed Ext.B1 cancellation deed by simply cancelling a sale deed executed by her. Ext.B1 is not valid for any purpose and the same will not bind Ext.A1, the plaintiff or the property covered by Ext.A1. 14. The learned counsel for the respondent has invited the attention of this Court to the decision in _**Krishna Mohan Kul v. Pratima Matty** [AIR 2003 SC 4351]_ wherein it was held in paragraphs 16 and 17 as follows: _“It is, therefore, manifest that the rule evolved for the protection of pardahnashin ladies not be confused with other doctrines, such as fraud, duress and actual undue influence, which apply to all persons whether they be pardahnashin ladies or not." 17. The logic is equally applicable to an old, illiterate, ailing person who is unable to comprehend the nature of the document or the contents thereof. It should_ R.S.A.720 of 2007 -: 10 :- _be established that there was not mere physical act of the executant involved, but the mental act. Observations of this Court, though in the context of pardahnashin lady in Mst. Kharbuja Kuer v. Jang Bahadur Rai and others (AIR 1963 SC 1203) are logically applicable to the case of the old, invalid, infirm (physically and mentally) and illiterate persons."_ 15. It was a case wherein the executrix of the document was above the age of 100 and illiterate. In the present case, the defendant who executed Ext.A1 was only 44 years old. It cannot be said that she was weak and age old. It may be true that she is illiterate; at the same time, it seems that in the written statement filed by her she has written down her name. She has explained that she is illiterate and she came to know how to right her name from her mother. At the same time, it has not been pleaded in the written statement that she was illiterate. Even though, lack of free consent has been mentioned, the facts to constitute R.S.A.720 of 2007 -: 11 :- any such fraud, undue influence and misrepresentation have not been specifically pleaded in the written statement. What has been pleaded is that the defendant was not well informed person about the contents of the said document. 16. It seems that the plaintiff has examined PW2, who was one of the attestors to the document. The plaintiff has proved the execution of Ext.A1 through her evidence as well as the evidence of PW2. The defendant has not discharged her burden to prove the lack of free consent or the lack of knowledge about the contents of Ext.A1. 17. Even though the trial court has taken the view that the suit is barred by limitation, the said view is totally baseless and unfounded. It has been specifically pleaded that the plaintiff came to know for the first time regarding the execution of Ext.B1, through Ext.A8 encumbrance certificate dated 03.12.1992. The suit was filed on 12.07.1993. Therefore, the suit was filed in time. 18. Matters being so, the plaintiff is entitled to get a R.S.A.720 of 2007 -: 12 :- decree as prayed for. Both the courts below have gone wrong in non-suiting the plaintiff. The judgments and decrees passed by both the courts below are therefore, liable to be set aside and the suit is liable to be decreed in terms of the plaint, and I do so. In the result, this Second Appeal is allowed. The judgments and decrees passed by both the courts below are set aside. The suit is decreed in terms of the plaint. In the nature of this appeal, the parties shall bear their respective costs. All interlocutory applications in this appeal are closed. ## **Sd/- B. KEMAL PASHA, JUDGE.** ul/- // true copy // P.S. to Judge.