Dismissed

Valsala.M. v. Jayarajan

Kerala HC20 Jul 2012RSA/881/2012

Case brief

AI extract

What is this about?

In this second appeal, the High Court of Kerala upheld the lower courts' judgment vindicating the validity of an assignment deed executed by a deceased defendant. The court held that evidence demonstrated the deceased had mental capacity on the execution date and rejected allegations of fraud. No substantial question of law was found to be involved, and the appeal was dismissed.

What did the court decide?

The second appeal is dismissed upholding the assignment deed.

Valsala.M. Vs Jayarajan — Succession and Inheritance | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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FRIDAY, THE 20TH DAY OF JULY 2012/29TH ASHADHA 1934

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RSA.No. 881 of 2012 ()

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AS.124/2010 OF II ADDL. DISTRICT COURT, KOZHIKODE OS.379/2006 OF ADDL. MUNSIFF COURT - II, KOZHIKODE

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APPELLANTS /APPELLANTS/PLAINTIFFS:

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1. VALSALA.M. W/O.CHANDRAN, D/O.KUTTAYN, ELITHOLOTTU HOUSE KUNNAMANGALAM AMSOM, KARANTHOOR DESOM KOZHIKODE TALUK

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2. GEETHA M.,

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D/O.KUTTAN, ADACHIKKADU HOUSE, KALLAI

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PANNIYANKARA AMSOM DESOM, KOZHIKODE TALUK

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3. RANI M.,

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D/O.KUTTAN, KODAKKADAN HOUSE

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CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK

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BY ADV. SRI.P.V.KUNHIKRISHNAN

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RESPONDENTS/RESPONDENTS/DEFENDANTS 1, 3, 4 AND LEGAL HEIRS OF DECEASED

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-----------------------------------------------------------------------------------------------------------------------------2ND DEFENDANT :

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1. JAYARAJAN,

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S/O.KUTTAN, MOOSARITHARAMMAL HOUSE, REJI NIVAS KASABA AMSOM, KARYAKUNNU DESOM

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KOZHIKODE TALK-673571

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2. RAJEESH KUMAR

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S/O.KUTTAN, MOOSARITHARAMMAL HOUSE, REJI NIVAS KASABA AMSOM, KARYAKUNNU DESOM

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KOZHIKODE TALK-673571

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3. ANITHA M.

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W/O.DINESAN, PAYYAMBALLI HOUSE, BANK ROAD KASABA AMSOM DESOM-673571

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...2/-

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RSA.No. 881 of 2012 () -2-

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4. SHEEJA

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WIDOW OF 2ND DEFENDANT ANIL KUMAR

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RESIDING AT PULPARAMBIL KOLOOLI AMSOM DESOM KOZHIKODE (LEGAL HEIR OF DECEASED 2ND DEFENDANT)- 673016

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5. UNNAMED BOY, S/O. 2ND DEFENDANT, AGED 2 YEARS (MINOR)

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REPRESENTED BY HIS MOTHER 4TH RESPONDENT

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RESIDING AT PULPARAMBIL KOLOOLI AMSOM DESOM

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KOZHIKODE (LEGAL HEIR OF DECEASED 2ND DEFENDANT) - 673016

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P. JOSEPH, J.

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R.S.A. No. 881 of 2012

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Dated this the 20^th day of July, 2012

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JUDGMENT

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The second appeal is drawn from the judgment and decree of learned 2^nd Additional Munsiff, Kozhikode in O.S No.379 of 2006, confirmed by the learned 2^nd Additional District Judge, Kozhikode in A.S.No.124 of 2010.

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The suit property, it is not disputed originally belonged to one Madhavi Amma, the grandmother of appellants/plaintiffs and respondents 1 to 4/defendants 1 to 4 and the mother of deceased 5^th defendant (she died pending of the suit) as per assignment deed No.300 of 1964. On the death of said Madhavi Amma, the said property is devolved upon the deceased 5^th defendant as her sole legal heir. According to the appellants, the deceased 5^th defendant had various ailments and was admitted in the MIMS, Kozhikode on 03/11/2004. While so, respondents 1 to 3 got Ext.A1, assignment deed No.281 of 2006 executed by the deceased 5^th defendant. Appellants say that the said assignment deed is invalid since the deceased 5^th defendant was not able to understand the consequence of her act on account of her ailments and since the document was got executed fraudulently. Appellants prayed for declaration and that

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R.S.A. No. 881 of 2012

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Ext.A1, assignment deed is void and for injunction against respondents 1 to 3 alienating the property.

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Respondents 1 and 2/defendant 1 and 2 contended that the deceased 5^th defendant was residing with them. They denied the allegations regarding the nature of illness of the deceased 5^th defendant. According to them income deceased 5^th defendant was getting from her property was meagre, not sufficient for her treatment and hence she wanted to sell that property. Accordingly, she assigned the property to the respondents 1 to 3 as per Ex.A1, for consideration.

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The 4^th respondent/the4^th defendant supported the appellants.

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The deceased 5^th defendant contended that she executed Ext.A1 on her own Will. She denied the allegation of her incapacity to execute the document. She denied that the document was got executed fraudulently. Respondents 1 to 3 had spent amounts for her treatment. She, on her own executed Ext.A1, Assignment Deed in favour of respondents 1 to 3.

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Pending the suit the 5^th defendant died. The trial court on evidence found against plea of the appellants and dismissed the suit. That was confirmed by the first appellate court. Hence this second appeal.

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The learned counsel for the appellants has contend that the

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R.S.A. No. 881 of 2012 3

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finding entered by the courts below as to the capacity of the deceased 5^th defendant to execute the document and the validity of that document are erroneous. It is contended by the learned counsel that immediately after the deceased 5^th defendant appeared in the case the appellants filed I,A.No.2888 of 2006 to record evidence of the 5^th defendant. Though, no order was passed on that application, circumstances reveal that the respondents were reluctant to produce the 5^th defendant in court. The learned counsel points out from the evidence of DW1 that according to him it was because the deceased 5^th defendant was not interested in coming to the court that she did not appear and give evidence (as prayed for on I.A. No.2888 of 2006. It is also pointed out by the learned counsel that Ext.B1 affidavit, allegedly of the deceased 5^th defendant was sworn on 30/09/2006 but produced in the court only on 08/04/2008.

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It is not as if Ext.B1 was rejected by the courts below. Ext.B1 is an affidavit (allegedly) sworn by the deceased 5^th defendant and attested by a Notary Public. Its authenticity has to be presumed. The courts below only said that Ext.B1 being an affidavit cannot be taken as evidence (of the facts stated therein) in the trial of the case. But, Ext.B1, affidavit stands as sworn by the deceased 5^th defendant before a Notary Public and attested by him. In other words, though Ext.B1 cannot be taken as evidence, fact remains that on 30/09/2006 the

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R.S.A. No. 881 of 2012 4

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deceased 5^th defendant was capable of swearing an affidavit. That indicates her mental capacity as on that day.

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Even if Ext.B1 is kept apart, there is sufficient evidence to show that Ext.A1 was executed by the deceased 5^th defendant on her own and that the allegation of fraud is not correct. The first and foremost testimony for that is the written statement filed by the deceased 5^th defendant on her own, appearing through a lawyer and supporting due execution of Ext.A1. No doubt, she was not available for giving evidence. As the learned counsel has fairly conceded, the trial court had not passed any order on I.A.No.2888 of 2006 requiring the deceased 5^th defendant to appear in court to record her evidence. Therefore there is nothing wrong in the deceased 5^th defendant not appearing in the court as requested in I.A.No.2888 of 2006.

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Exts.B2, B4 and B5 are documents executed by the deceased 5^th defendant. If Ext.A1, the impugned document is dated 03/03/2006, Ext.B2 and B3 are dated 23/06/2006 and 28/08/2006 respectively. B4 and B5 are dated 30/08/2006. Both are registered instruments duly executed by the deceased 5^th defendant. Therefore, it is clear that the deceased 5^th defendant was sound, both in mind and body to execute Ext.A1 on 03/03/3006. It has also come in evidence that appellants and the 4^th respondent executed Ext.B3 in acknowledgment of receipt of certain amount reserved to be paid to

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R.S.A. No. 881 of 2012

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them. DW6 is an attester in Ext.B3 and has given evidence in support. It is relevant to remember that even PW1 is admitting his signature in Ext.B3 but, claiming that he signed on blank paper.

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So far as medical evidence let in by the appellants is concerned, it is through PW2 and Exts.X1 and A5. That evidence only shows that the deceased 5^th defendant was admitted in the hospital on 03/11/2004 and discharged on 12/11/2004 (While Ext.A1 was executed on 03/03/2006). The evidence of PW2 is that at the time of discharge, the sensorium of deceased 5^th defendant was improved. He stated that long ailments can affect the faculties of brain but, the deceased 5^th defendant could talk and understand things. It is also in evidence that at the time she was discharged from the hospital on 12.11.2004, she was conscious. The court below observed that the evidence of PW2 does not show that condition of the deceased 5^th defendant was so bad as attempted to be depicted by the appellants and as spoken by PW1.

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It is based on the above evidence that the courts below found in favour of due execution of Ext.A1. That is a finding of fact based on the evidence. The first appellate court also has confirmed that finding.

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On hearing the learned counsel and going through the judgments under challenge, I do not find any substantial question of

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R.S.A. No. 881 of 2012 6 law involved in the matter requiring its admission. The second appeal is dismissed.

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THOMAS P. JOSEPH, JUDGE.

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mns

Valsala.M. v. Jayarajan

Case brief

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Valsala.M. v. Jayarajan

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