Dismissed

Muraleedharan v. Vattakunnel Subhashini

Kerala HC23 Jan 2014RSA/1361/2013

Case brief

AI extract

What is this about?

This regular second appeal was filed by legal heirs of a deceased plaintiff challenging the dismissal of their original suit for declaration and recovery of possession. The High Court, while hearing the matter, dismissed the appeal, holding that no substantial question of law arose and the courts below correctly rejected the challenge to the settlement deed.

What the court decided

AI extract

Muraleedharan Vs Vattakunnel Subhashini — Partition | Kerala HC (2014)

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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 N.K.BALAKRISHNAN

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THURSDAY, THE 23RD DAY OF JANUARY 2014/3RD MAGHA, 1935

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RSA.No. 1361 of 2013 ()

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---------------------------------AGAINST THE JUDGMENT IN AS 147/2011 of ADDL. DISTRICT COURT. KOZHIKODE- II DATED 15-06-2013

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AGAINST THE JUDGMENT IN OS 868/2008 of ADDL.MUNSIFF COURT, KOZHIKODE-II DATED 27-06-2011

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APPELLANT(S):

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1 MURALEEDHARAN, S/O. LATE GOVINDAN AGED YEARS, TIRUVAMBADI AMSOM AND DESOM PONNAMKAYAM (VIA) THIRUVAMBADI, KOZHIKODE TALUK

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2 GIRIJA, D/O. VATTAKUNNEL LAKSHMI AGED YEARS, TIRUVAMBADI AMSOM AND DESOM PONNAMKAYAM, (VIA) THIRUVAMBADI, KOZHIKODE TALUK

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BY ADVS.SRI.R.S.KALKURA

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SRI.M.S.KALESH SMT.A.V.PRIYA SRI.HARISH GOPINATH

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RESPONDENT(S):

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1 VATTAKUNNEL SUBHASHINI, AGED 48 YEARS W/O. LATE RADHAKRISHNAN, VATTAKUNNEL HOUSE THIRUVAMBADI AMSOM AND DESOM PONNAMKAYAM, (VIA) THIRUVAMBADI,KOZHIKODE - 673 603

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ADDL.2. ARATHI, D/O. RAVEENDRAN, RESIDING AT VATTAKUNNEL HOUSE, MANALVAYAL PO, VIA SULTHAN BATHERY, WYNAD DISTRICT - 673 121

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3 SHOBIN, S/O. RADHAKRISHNAN, VATTAKUNNEL HOUSE THIRUVAMBADI AMSOM AND DESOM, PONNAMKAYAM, (VIA) THIRUVAMBADI, KOZHIKODE - 673 603

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4 ADVAITH, S/O. RADHAKRISHNAN, VATTAKUNNEL HOUSE,THIRUVAMBADI AMSOM AND DESOM, PONNAMKAYAM, (VIA) THIRUVAMBADI, KOZHIKODE - 673 603

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5 PRAKASH, S/O. GOVINDAN, TIRUVAMBADI AMSOM AND DESOM, PONNAMKAYAM, (VIA) TIRUVAMBADI, KOZHIKODE - 673 603

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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das

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N.K.BALAKRISHNAN, J.

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==========================

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R.S.A. No. 1361 of 2013

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=================================== Dated this the 23^rd day of January, 2014

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JUDGMENT

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Appellants are the legal heirs of the deceased plaintiff, who filed the suit for declaration, recovery of possession and injunction. The appeal filed against the same was dismissed. The legal heirs of the appellant, who have filed this second appeal, contends that the courts below have not considered the oral and documentary evidences in the correct perspective and that the courts have totally misread and misinterpreted the pleadings. It was also contended that admissions were made by defendants in the pleadings and in evidence, but those admissions were not taken into consideration by the courts below. According to the appellants, the reasoning given by the courts below for upholding the gift deed (Ext.B2) dated 29.09.2001 is unsound and untenable. It was also contended that

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-: 2 :-

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R.S.A.No.1361/2013

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defendants took advantage of the old age and physical infirmity of the executant to get the document executed purporting to be the gift deed. At another place, it was contended that the gift deed was not executed by the deceased plaintiff.

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PW1 to PW3 were examined and Exts.A1 to A8(d) were marked on the side of the plaintiff and DW1 to DW3 were examined and Exts.B1 to B4 were marked on the side of the defendants.

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The learned Munsiff meticulously considered the entire evidence adduced by the parties and came to the conclusion that even from the affidavit filed in lieu of chief examination, it is discernible that she was not contesting the case seriously. It was admitted that she has no enmity towards the defendants and that her relationship with the defendants was cordial. Though an attempt was made by the plaintiffs to contend that the donor/executant was not having that much mental capacity to execute document,

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-: 3 :-

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R.S.A.No.1361/2013

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that was found against. The document was executed in September 2006. The affidavit in lieu of chief examination (proof affidavit) was filed in the year 2011. If she is having such mental capacity to file the proof affidavit in 2011, the contention that she was incapable of executing the document in 2006 cannot be accepted.

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It was contended that the plaintiff was taken to the house of another daughter after the execution of the document. It is in evidence that the first appellant had obtained her signatures in certain papers and only then she came to know about the pendency of this case. On the other hand, the evidence adduced on the side of the defendants would show that the settlement deed was executed by the plaintiff and that the said document (Ext.B2) is not vitiated on any of the grounds alleged by the plaintiffs. The gift was accepted and acted upon by the donee. The courts below have accepted the evidence to that effect given by defendants. It is not in dispute that

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-: 4 :-

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R.S.A.No.1361/2013

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plaint schedule property belonged to the husband of the plaintiff and after the death of the plaintiff's husband there was a partition deed as per which the plaint schedule property was separately allotted to the plaintiffs. It was in respect of that property, Ext.B2 settlement deed was executed in the year 2006. Courts below also found that the plea raised by the plaintiff that she and her son were residing in the ancestral house, would belie the version that she was residing with the defendant and her son Damodaran.

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So many circumstances have been pointed out by the courts below to hold that Ext.B2 is not vitiated on any of the grounds alleged by the plaintiff. As such, the suit was dismissed by the trial court and it was rightly confirmed by the appellate court.

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No substantial question of law arises in this appeal. Hence, this second appeal is dismissed.

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Sd/- N.K.BALAKRISHNAN, JUDGE

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das

Muraleedharan v. Vattakunnel Subhashini

Case brief

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Muraleedharan v. Vattakunnel Subhashini

Case brief

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