Dismissed

Sumathy v. Kalyani

Kerala HC12 Oct 2020RFA/72/2012

Case brief

AI extract

What is this about?

Up holding the Sub-Judge's dismissal of a partition suit, the High Court rejected the appellants' claim of undue influence in settlement deeds executed in 1998. The bench found medical evidence inconclusive regarding the deceased's mental incapacity and noted the appellants' failure to challenge the deed's validity immediately after its execution.

What did the court decide?

Appeal dismissed; judgment of the Sub-Judge upholds the settlement deeds and denies partition of the schedule properties.

Sumathy Vs Kalyani — Succession and Inheritance | Kerala HC (2020)

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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 T.V.ANILKUMAR

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MONDAY, THE 12TH DAY OF OCTOBER 2020 / 20TH ASWINA, 1942

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RFA.No.72 OF 2012

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AGAINST THE JUDGMENT AND DECREE DATED 31-03-2011 IN O.S.NO. 1680/2008 OF II ADDITIONAL SUB COURT,THRISSUR

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NAME AND ADDRESS OF THE APPELLANTS/PLAINTIFFS

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1 SUMATHY, AGED 57 YEARS,W/O.PARAMEL GOPINATHAN,AND D/O.LATE CHAKKAMADATHIL KITTUNNI, CHAKKAMADATHIL,VELAPPAYA VILLAGE,VELAPPAYA DESOM,THRISSUR TALUK.

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2 INDIRA, AGED 52 YEARS,W/O.CHULLIPARAMBIL GOPINATHAN, AND D/O.LATE CHAKKAMADATHIL KITTUNI, CHAKKAMADATHIL,VELAPPAYA VILLAGE, VELAPPAYA DESOM,THRISSUR TALUK.

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3 RAJALEKSHMI,

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AGED 51 YEARS,W/O.ADATTUPARAMBIL SANKARAN, AND D/O.LATE CHAKKAMADATHIL KITTUNI, CHAKKAMADATHIL,VELAPPAYA VILLAGE, VELAPPAYA DESOM,THRISSUR TALUK

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BY ADVS.SRI.R.SURAJ KUMAR SRI.M.KISHORKUMAR SRI.SUNIL J.CHAKKALACKAL

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NAME AND ADDRESS OF THE RESPONDENTS/DEFENDANTS

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*1 KALYANI(DIED), AGED ABOUT 83 YEARS,W/O.LATE CHAKKAMADATHIL KITTUNNI, CHAKKAMADATHIL, VELAPPAYA VILLAGE,VELAPPAYA DESOM,THRISSUR TALUK PIN 680596

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*IT IS RECORDED THAT THE 1ST RESPONDENT DIED AND THE APPELLANTS AND RESPONDENTS 2 AND 3 WHO ARE ALREADY IN THE PARTY ARRAY ARE THE LEGAL REPRESENTATIVES OF THE DECEASED R1, VIDE ORDER DATED 16/7/19 IN MEMO DATED 15/02/19.

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2 SUBRAMANYAN, AGED ABOUT 61 YEARS,S/O.LATE CHAKKAMADATHIL KITTUNNI,CHAKKAMADATHIL,VELLAPPAYA VILLAGE,

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R.F.A.No.72/2012

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VILLAGE,VELAPPAYA DESOM,THRISSUR TALUK, PIN 680596.

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3 KALLORA JAYAN. AGED ABOUT 55 YEARS,S/O. LATE CHAKKAMADATHIL KITTUNNI,CHAKKAMADATHIL, VELAPPAYA VILLAGE, VELAPPAYA DESOM,THRISSUR TALUK, PIN 680596.

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4 THRISSUR DISTRICT CO-OPERATIVE BANK LTD., MUNDUR BRANCH REPRESENTED BY ITS BRANCH MANAGER, PIN 680541

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R3 BY ADVS. SRI.N.M.MADHU SMT.C.DEVIKA RANI KAIMAL

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.F.A.No.72/2012

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Dated this the 12^th day of October,2020

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J U D G M E N T

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Plaintiffs' suit for partition claiming¹ /6^th share each in plaint schedule items was dismissed by the Sub Judge, Thrissur on 31.03.2011. Challenging the dismissal, this appeal is preferred by the plaintiffs.

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The plaint items belonged to Sri.Kittunni, who passed away on 28.06.2005 while he was 83 years. The appellants are the three daughters of his. Defendants 2 and 3 are his two sons. According to the appellants, the children of deceased Kittunni along with his widow, the first defendant inherited Sri.Kittunni and was entitled to¹ /6^th share each in the plaint items. Suit was allegedly filed when the third defendant, who is contesting party refused to accede to claim for partition. Appellants claimed share of mesne profits also in the suit.

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The second defendant remained ex parte. The

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first defendant, mother joined the third respondent. She later died during the pendency of this appeal and her legal representatives were recorded.

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R.F.A.No.72/2012

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The third defendant, who is the third respondent herein, in his written statement questioned the partibility of the properties and contended that Sri. Kittunni did not leave behind any property for being inherited by his legal heirs. He denied the contention of the appellants in the plaint that Kittunni was mentally and physically ill for years together till his death. It was stated that except for a few months immediately before his death, he was sound in body and mind for the rest of the period. He contended that plaint schedule items 1 and 2 were settled in his favour by the deceased father by virtue of Exts.B1 and B12 settlements dated 22.12.1998 and he became the absolute owner in possession of the properties. He also stated that he mortgaged one of the items in favour of the fourth defendant Co-operative bank.

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The fourth respondent Bank, however, did not contest the suit.

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The court below raised the issues as to the partibility of the plaint items and also considered the contention of the appellants that Exts.B2 and B12 settlement deeds in favour of the

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R.F.A.No.72/2012

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third respondent did not come out of free and voluntary execution of Sri.Kittunni.

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On the side of the appellants, the first plaintiff was examined as PW1 and an independent witness as PW2. On the side of the respondents, DWs 1 to 4 were examined and Ext.B1 to B12 were marked.

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On consideration of the entire evidence the court below held that Exts.B2 and B12 settlement deeds were accepted by the third respondent as donee and there were no circumstances to infer that those documents were obtained under any undue influence allegedly exerted on the deceased Kittunni. On these findings the plaint properties were found to be not partible and suit for partition was dismissed.

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The learned counsel for the appellants contended that deceased Kittunni was not in sound state of mind to execute Exts.B2 and B12 since he was suffering from Bronchial Asthma for pretty long years and there are enough suspicious circumstances to infer that the settlement deeds were taken under undue influence exerted on the settler.

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R.F.A.No.72/2012

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It is a fact that the documents were executed at the house situated in the plaint properties where the third respondent and the deceased were living together. It was submitted by the learned counsel that nothing out of the properties that belonged to Kittunni was given to any of the other children of the deceased. This is quite unusual and it is highly probable that as a person living along with Sri.Kittunni, third defendant exerted undue influence on him at a time when he was incapable of managing his affairs by himself as a sufferer from Bronchial Asthmatic disease. He relied on the testimony given by DW4, the Doctor and also Ext.B1 medical certificate to contend that Sri. Kittunni was undergoing treatment for a long period for Bronchial Asthma.

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The learned counsel for the respondent on the other hand, supported reasonings and findings of the court below and contended that the preponderance of the evidence on record is to the effect that the deceased Kittunni was in sound state of mind even at the advanced age of 83 though being treated for Bronchial Asthma. It is also submitted that the medical evidence tendered

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R.F.A.No.72/2012

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on the side of the appellants did not support their case in any manner at all.

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The medical evidence does not support the case of the appellants that Sri.Kittunni was not in sound state of mind and capable of entering into transactions relating to his properties. DW4 did not state that the mental condition of the patient was in such a manner as to render him not capable of understanding his own actions. DWs2 and 3, the attestors to the settlement deed testified that the executant was capable of understanding sufficiently and taking care of himself.

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It is true that as a person who was in active confidence of the donor, the third respondent owed a duty to establish the documents which benefited him were executed taken in good faith. In my opinion, on re-appreciating the evidence on record there is nothing to suggest that the execution of the documents was made by the executant under any undue influence. Even PW2, the independent witness was not in a position to support the case of the appellants that Sri.Kittunni was in unsound state of mind. The totality of evidence on record only indicates

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R.F.A.No.72/2012

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that, despite Sri. Kittunni being treated for Bronchial Asthma for pretty long period, it did not affect his capacity to understand things and judge the quality of actions and decisions taken during his life time.

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It is pertinent to note here that the appellants did not have a case in the plaint that the settlement deeds were taken by the third respondent putting their father under undue influence. The case of undue influence came for the first time only when the appellants tendered their oral evidence and it was not substantiated also by means of any satisfactory evidence. I have already held that Ext.B1 medical certificate does not support that the deceased was suffering from any weakness of mind. The argument of the learned counsel for the appellants referring to the indications and impact of Bronchial Asthma based on a medical text downloaded from Google and submitted before me cannot go to hold good in the light of the totality of evidence on record which only supported the case of the third respondent.

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The fact that other children were not given any inch of land from out of the assets of

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R.F.A.No.72/2012

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the deceased is no ground to hold that the settlement deeds were vitiated by undue influence. The father who could not be shown to the suffering from weakness of mind affecting his capacity to understand things or shown to be not capable of taking balanced decisions, cannot be faulted for not allowing a fair distribution of his assets. If at all Exts.B2 and B12 were vitiated for any reasons, the appellants should have sued for a decree setting aside these documents. The suit is filed only for mere partition in which no averment is also made alleging assailing the validity of the documents. To make matters worst, PW1 even conceded that she came to know of these documents immediately prior to the institution of the suit. Whereas the documents were executed in 1998, suit was filed after long eight years. Further, the death of the deceased was after two years of execution of the documents. When all these facts are taken together, there is nothing on record to hold that the findings entered into by the court below are wrong. I do not find any reason to interfere with impugned judgment dismissing suit.

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R.F.A.No.72/2012

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In the result, appeal fails and it is

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dismissed.

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All pending interlocutory applications will

stand closed.

Sd/-

T.V.ANILKUMAR,JUDGE

DST

//True copy/

P.A.To Judge

Sumathy v. Kalyani

Case brief

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Sumathy v. Kalyani

Case brief

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