Allowed

Vythala Amina Umma, v. Keezhattil Kandanthodi Asya

Kerala HC19 Jul 2024RSA/693/2013

Case brief

AI extract

What is this about?

Mother challenged a 1983 sale deed conveying her land to four daughters as fabricated; daughters sought injunction against a brother. Courts below had disbelieved her. The High Court accepted her evidence and the handwriting expert's report, held the defendants failed to prove due execution despite inadequate consideration and unexplained encumbrance.

What did the court decide?

Ext.B2 sale deed No.1052/83 declared null and void; O.S.226/2000 decreed (possession prayer declined); O.S.65/2000 dismissed; no costs.

Vythala Amina Umma, Vs Keezhattil Kandanthodi Asya — Property and Title | Kerala HC (2024)

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'CR'

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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 C.PRATHEEP KUMAR

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FRIDAY, THE 19^TH DAY OF JULY 2024 / 28TH ASHADHA, 1946

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RSA NO. 693 OF 2013

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AS NO.41 OF 2005 OF ADDITIONAL DISTRICT COURT-III,

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MANJERI

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OS NO.226 OF 2000 OF MUNSIFF COURT, MANJERI

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APPELLANT/APPELLANT:

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1 VYTHALA AMINA UMMA, (DIED)

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2 KANDANTHODI ABDURAHIMAN AGED 59 YEARS, S/O.KAMMUKUTTY HAJI, KANDANTHODICHOVVATH HOUSE, CHERUVAYOOR AMSOM, MAPRAM DESOM, P.O.EDAVANNAPPARA, VAZHAKKAD VILLAGE.

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BY ADVS. N.M.MADHU C.S.RAJANI

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 KEEZHATTIL KANDANTHODI ASYA AGED 66 YEARS, D/O.KANDANTHODI KAMMUKUTTY HAJI, MAVOOR AMSOM AND DESOM, KALPALLY P.O., MAVOOR, KOZHIKODE DISTRICT-673661.

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2 KEEZHATTIL KANDANTHODI NAFEESA,(DIED - LRS IMPLEADED)

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AGED 64 YEARS, D/O.KANDANTHODI KAMMUKUTTY HAJI, MAVOOR AMSOM, KALPALLY P.O., MAVOOR, KOZHIKODE DISTRICT-673661.

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3 KEEZHATTIL KANDANTHODI SUBAIDA,(DIED - LRS IMPLEADED)

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AGED 56 YEARS, D/O.KANDANTHODI KAMMUKUTTY HAJI, MAVOOR AMSOM DESOM, P.O., MAVOOR, KOZHIKODE DISTRICT-673661.

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RSA. Nos.693/2013 & 713/2013

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4 KEEZHATTIL KANDANTHODI JAMEELA AGED 48 YEARS, D/O.KANDANTHODI KAMMUKUTTY HAJI, KEEZHUPARAMBA AMSOM AND DESOM, P.O.KEEZHUPARAMBA, ERNAD TALUK-673639.

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5 KAKATT PARAMBIL IMBICHALI AGED 58 YEARS, S/O.AHAMMEDKUTTY, CHERUVAYOOR AMSOM AND DESOM, P.O.CHERUVAYOOR, ERANAD TALUK-673645.

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6 CHOLAKKAL MUHAMMED

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AGED 62 YEARS, S/O.ALAVIKUTTY, KARUMARAKKAD AMSOM, VAZHAKKAD DESOM, P.O.KARUMARAKKAD, ERNAD TALUK-673640.

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7 PULPARAMBIL AMINA AGED 52 YEARS, W/O.CHOLAKKAL ALAVIKUTTY, KARUMARAKKAD AMSOM, P.O.KARUMARAKKAD, ERNAD TALUK-673640.

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8 THAMPARA ACHUMMA

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AGED 83 YEARS, D/O.MOYINKUTTY, CHEACODE AMSOM AND DESOM, P.O.CHEACODE, ERNAD TALUK-673001.

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9 VASANTHAKUMARI BRAHMINI AMMA

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AGED 51 YEARS, D/O.EDATHARA NARAYANAN NAMBISSAN, CHERUVAYUR AMSOM, P.O.CHERUVAYOOR,ERNAD TALUK-673645.

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10 MADATHIPARA MOIDEEN, AGED 57 YEARS, S/O.MAYIN, CHERUVAYOOR AMSOM,MAPRAM DESOM, ERNAD TALUK, P.O.CHERUVAYOOR-673645.

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11 KANDANTHODI PARAMBIL AHAMMEDKUTTY,(DIED) (LRS IMPLEADED)

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AGED 73 YEARS, S/O.LATE KAMMUKUTTY HAJI, CHERUVAYOOR AMSOM, MAPRAM DESOM, VAZHAKKAD VILLAGE-673645.

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12 KANDANTHODI CHAKKUMKATTIL HASSAN AGED 67 YEARS, S/O.LATE KAMMUKUTTY HAJI, CHERUVAYOOR AMSOM, MAPRAM DESOM, VAZHAKKAD VILLAGE-673645.

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RSA. Nos.693/2013 & 713/2013

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13 KANDANTHODI MOHMOOD,

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S/O.LATE KAMMUKUTTY HAJI, CHERUVAYOOR AMSOM DESOM, P.O.CHERUVAYOOR, ERNAD TALUK-673645.

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ADDL.14 ABDUL AZEEZ P AGED 71 YEARS,S/O.SHAIK MUHAMMED HAJI, PUNNOTH HOUSE, KALPPALLY,MAVOOR P.O., KOZHIKODE DISTRICT-673 661.

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ADDL.15 MANSOOR ALI P., S/O.ABDUL AZEEZ P., PUNNOTH HOUSE, KALPALLY,MAVOOR P.O., KOZHIKODE DISTRICT-673 661.

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ADDL.16 MUHAMMED RAFI P. S/O.ABDUL AZEEZ P.,PUNNOTH HOUSE, KALPALLY,MAVOOR P.O.,KOZHIKODE DISTRICT-673 661.

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ADDL.17 JASEENA P, W/O.ABDUL JABBAR M.,MANATHANATH HOUSE,VAVOOR,CHEEKODE P.O.,MALAPPURAM-673 645.

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ADDL.18 NASEEMA P, W/O.ABDUL RAHIMAN C.,CHALIL HOUSE, KAYYELIKKUNNUMMAL,VEHIPOOR,THAMARASSERY P.O.,KOZHIKODE DISTRICT-673 573.

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(LEGAL HEIRS OF THE DECEASED 3RD RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 14 TO 18 AS PER ORDER DATED 26.08.2022 IN IA.1/2021 IN RSA.693/2013.)

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ADDL. 19 SARA, AGED 70 YEARS, W/O.LATE KANDANTHODI PARAMBIL AHAMMEDKUTTY,KANDAMTHODY PARAMBIL HOUSE, CHERUVAYOOR P.O.,VAZHAKKAD VIA, PANIKKARAPPURAYA MALAPPURAM DISTRICT-673 645.

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ADDL.20 NASEERA K.P., AGED 55 YEARS D/O.LATE KANDANTHODI PARAMBIL AHAMMEDKUTTY,KALATHIL HOUSE,CHERUVAYOOR P.O.,VAZHAKKAD VIA,ELAMARAM,MALAPPURAM DISTRICT-673 645.

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RSA. Nos.693/2013 & 713/2013

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ADDL.21 ABDUL JALEEL K.P., AGED 50 YEARS S/O.LATE KANDANTHODI PARAMBIL AHAMMEDKUTTY,AREEPPA KANDAMTHODY HOUSE,CHERUVAYOOR P.O.,VAZHAKKAD VIA, EDAVANNAPPARA,MALAPPURAM DISTRICT-673 645.

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ADDL.22 MYMOONA K.P.,AGED 52 YEARS D/O.LATE KANDANTHODI PARAMBIL AHAMMEDKUTTY,THONICHALIL HOUSE, CHERUVAYOOR P.O.,VAZHAKKAD VIA, VATTATHOOR,MALAPPURAM DISTRICT-673 645.

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ADDL.23 ABDUL MUNEER K.P.,AGED 47 YEARS S/O.LATE KANDANTHODI PARAMBIL AHAMMEDKUTTY,KANDAMTHODY PARAMBIL HOUSE,CHERUVAYOOR P.O.,VAZHAKKAD VIA, PANIKKARAPPURAYA,MALAPPURAM DISTRICT-673 645.

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ADDL.24 SAJIRA K.P., AGED 44 YEARS D/O.LATE KANDANTHODI PARAMBIL AHAMMEDKUTTY,VIRIPOYIL HOUSE,VELLIPARAMBIL P.O.,KOZHIKODE VIA,KOZHIKODE DISTRICT-673 008.

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ADDL.25 SAKEENA K.P., AGED 41 YEARS D/O.LATE KANDANTHODI PARAMBIL AHAMMEDKUTTY, NISAR MANZIL,KOTTAKKADAN HOUSE, UGRAPPURAM P.O.,AREEKODE VIA, MALAPPURAM DITRICT-673 505.

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ADDL.26 BABY SOUJATH K.P.,AGED 37 YEARS D/O.LATE KANDANTHODI PARAMBIL AHAMMEDKUTTY,PALLIPARAMBIL HOUSE, KIZHIPARAMBA P.O.,AREEKODE VIA, KUNIYIL,MALAPPURAM DITRICT-673 639.

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ADDL.27 NUSRIYA K.P., AGED 35 YEARS D/O.LATE KANDANTHODI PARAMBIL AHAMMEDKUTTY,AKKARAPPURATH HOUSE, MUTHALOOR P.O.,KONDOTTY VIA,NEERAD, MALAPPURAM DITRICT673 638.

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(LEGAL HEIRS OF THE DECEASED 11TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 19 TO 27 AS PER ORDER DATED 26.08.2022 IN IA./2021 IN RSA.693/2013.)

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RSA. Nos.693/2013 & 713/2013

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ADDL.28 SULAIKHA,AGED 48 YEARS, WIFE OF ABDUL KHADER, MALIYEKKAL HOUSE, CHERUVADI P.O., MAVOOR VIA,KOZHIKODE DISTRICT-673 661

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ADDL.29 HASEENA, AGED 44 YEARS, WIFE OF MUHAMMED, MARATTEERI HOUSE, MAVOOR P.O., KOZHIKODE DISTRICT -673 661.

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ADDL.30 SALIM, AGED 40 YEARS, SON OF PULLANDI ABDU RAHIMAN, EZHUNILATH HOUSE, MAVOOR P.O., KOZHIKODE DISTRICT-673 661

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ADDL.31 SHAMLABEE, AGED 38 YEARS, WIFE OF RASHEED, ANABASSERY HOUSE, MANASSERY P.O., KOZHIKODE DISTRICT -673 602.

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(LEGAL HEIRS OF THE DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 28 TO 31 AS PER ORDER DATED 07.02.2023 IN IA.1/2022.)

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BY ADVS.

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SRI.P.A.HARISH - R13 ADV.R.RAJESH KORMATH – R1 TO R4, R14 TO R18, R28 TO R31 K.M SATHYANATHA MENON- R19 TO R27

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD

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ON 04.07.2024, ALONG WITH RSA.713/2013, THE COURT ON 19.07.2024, DELIVERED THE FOLLOWING:

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RSA. Nos.693/2013 & 713/2013

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¶70

'CR'

¶71

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR

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FRIDAY, THE 19^TH DAY OF JULY 2024 / 28TH ASHADHA, 1946

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RSA NO. 713 OF 2013

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AS NO.42 OF 2005 OF ADDITIONAL DISTRICT COURT-III,

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MANJERI

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OS NO.65 OF 2000 OF MUNSIFF COURT, MANJERI

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APPELLANT/APPELLANT/DEFENDANT

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ABDURAHIMAN, AGED 53 YEARS,

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S/O. KEEZHATTIL KANDANTHODI KAMMUKUTTY HAJI CHERUVAYOOR AMSOM, P.O.CHERUVAYOOR, MAPRAM DESOM, MALAPPURAM DISTRICT.

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BY ADVS. SRI.N.M.MADHU SMT.C.S.RAJANI

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RESPONDENTS/RESPONDENTS/PLAINTIFFS

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1 ASYA, AGED 66 YEARS, D/O KEEZHATTIL KANDANTHODI KAMMUKUTTY HAJI,

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MAVOOR AMSOM, KALPALLY DESOM, KOZHIKODE TALUK-673001

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2 NAFEESA,(DIED)LHS IMPLEADED AGED 64 YEARS D/O. KEEZHATTIL KANDANTHODI KAMMUKUTTY HAJI MAVOOR AMSOM DSESOM, KOZHIKODE TALUK-673001.

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3 SUBAIDA,(DIED) (LHS IMPLEADED) AGED 56 YEARS, D/O.KEEZHATTIL KANDANTHODI KAMMUKUTTY HAJI MAVOOR AMSOM, KALPALLY DESOM, KOZHIKODE TALUK-673001

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RSA. Nos.693/2013 & 713/2013

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4 JAMEELA, AGED 48 YEARS D/O.KEEZHATTIL KANDANTHODI KAMMUKUTTY HAJI, KEEZHUPARAMBA AMSOM AND DESOM, ERNAD TALUK673001

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ADDL.5 ABDUL AZEEZ P.,AGED 71 YEARS S/O.SHAIK MUHAMMED HAJI,PUNNOTH HOUSE,KALPALLY,MAVOOR P.O.,KOZHIKODE DISTRICT673 661.

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ADDL.6 MANSOOR ALI P.,S/O.ABDUL AZEEZ P.,PUNNOTH HOUSE,KALPALLY,MAVOOR P.O.,KOZHIKODE DISTRICT673 661.

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ADDL.7 MUHAMMED RAFI P., S/O.ABDUL AZEEZ P.,PUNNOTH HOUSE,KALPALLY,MAVOOR P.O.,KOZHIKODE DISTRICT673 661.

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ADDL.8 JASEENA P., W/O.ABDUL JABBAR M.,MANATHANATH HOUSE,VAVOOR,CHEEKODE P.O.,MALAPPURAM-673 645.

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ADDL.9 NASEEMA P.,W/O.ABDUL RAHIMAN C.,CHALIL HOUSE,KAYYELIKKUNNUMMAL,VEHIPOOR,THAMARASSERY P.O.,KOZHIKODE DISTRICT-673 573.

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(LEGAL HEIRS OF THE DECEASED RESPONDENT 3 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 5 TO 9 AS PER THE ORDER DATED 26.08.2022 IN IA.1/2021 .)

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ADDL.10 SULAIKHA, AGED 48 YEARS W/O.ABDUL KHADER,MALIYEKKAL HOUSE,CHERUVADI P.O.,MAVOOR VIA,KOZHIKODE DISTRICT-673 661.

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ADDL.11 HASEENA, AGED 44 YEARS W/O.MUHAMMED,MARATTEERI HOUSE,MAVOOR P.O.,KOZHIKODE DISTRICT-673 661.

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ADDL.12 SALIM, AGED 40 YEARS SON OF PULLANDI ABDU RAHIMAN,EZHUNILATH HOUSE,MAVOOR P.O.,KOZHIKODE DISTRICT-673 661.

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RSA. Nos.693/2013 & 713/2013

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13 SHAMLABEE, AGED 38 YEARS W/O.RASHEED,ANABASSERY HOUSE,MANASSERY P.O.,KOZHIKODE DISTRICT-673 602.

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(THE LEGAL HEIRS OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDITIONAL R10 TO R13 AS PER ORDER DATED 07.02.2023 IN IA.1/2022.)

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BY ADV SRI.R.RAJESH KORMATH – R1 TO R13

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04.07.2024, ALONG WITH RSA.693/2013, THE COURT ON 19.07.2024, DELIVERED THE FOLLOWING:

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C.R.

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C.PRATHEEP KUMAR, J.

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R.S.A.Nos.693 & 713 of 2013

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-----------------------------------Dated : 19^th July, 2024

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JUDGMENT

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These Second Appeals are filed against the common judgment and decree in A.S.Nos.41/2005 and 42/2005 on the file of the Additional District Judge-III, Manjeri, dismissing those appeals and thereby confirming the judgment and decree of the Munsiff's Court, Manjeri dismissing O.S.226/2000 and 65/2000.

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The validity of Ext.B2 (same as Ext.A2) sale deed No.1052/83 of SRO Vazhakkad, allegedly executed by Amina Umma, the plaintiff in OS 226/2000 in favour of her four daughters is the subject matter in dispute in these appeals. O.S.65/2000 is a suit for injunction filed by the daughters against one of their 4 brothers, alleging that the defendant restrained them from constructing a building in the property, which they obtained as per Ext.B2 assignment deed. Thereafter, the mother filed O.S.226/2000 against the daughters as well as the assignees of the daughters, praying for a declaration that Ext.A2 assignment deed is void and also for recovery of possession of the said property from the defendants, on the strength of her title.

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The trial court tried both the suits together and decreed the suit filed by the daughters and dismissed the suit filed by the mother. The 1^st

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RSA 693 & 713 of 2013

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Appellate court confirmed the finding of the trial court. During the pendency of the 1^st appeal, the mother died and out of her four sons, the defendant in O.S.65/2000 was impleaded as additional 2^nd appellant and the other 3 sons were impleaded as additional respondents 11 to 13. Dissatisfied with the above judgment and decree of the 1^st Appellate Court, these Second Appeals were filed by the additional 2^nd appellant before the 1^st Appellate Court.

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At the time of admission, the following substantial questions of law were formulated :

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(i) When there is evidence to show that the executant is an illiterate, rustic old woman, is not the burden on the executees to prove that the impugned documents were duly executed by the lady after fully understanding the nature and character of documents ?

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(ii) Did the courts below go wrong in ignoring those vital aspects while appreciating the evidence ?

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Subsequently the following additional substantial questions of law were also formulated :

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(iii) Whether the trial court as well as the First Appellate Court are justified in disbelieving the evidence of PW1, in the light of the fact that she is an old and illiterate lady ?

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RSA 693 & 713 of 2013

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(iv) Whether the trial court and the First Appellate Court are justified in ignoring Exhibit A4 and disbelieving the evidence of PW2 ?

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After formulating the additional substantial questions of law, both sides were heard in detail.

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The trial court as well as the 1^st Appellate court disbelieved the evidence

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of the plaintiff as PW1 on the ground that she had deliberately given false evidence before the court regarding the manner in which she signs. It is true that at the time of evidence PW1 while denying the disputed signature in ExtB2, denied her signature in Ext.A1 power of attorney executed by her and claimed that she never used to affix signature in any documents, but only affix her thumb impression. However, from the available evidence it is revealed that she had executed certain documents even prior to Ext.B2, in which she had affixed her signature. However in the proof affidavit, her case is that, she has got specific signature of her own. It was in the above context, the trial court as well as the 1^st Appellate Court held that PW1 is not a reliable witness.

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The learned counsel for the defendants would argue that Amina Umma was a very old, illiterate and pardanashin lady and as such, merely on the basis of an incorrect answer given by her, her evidence in toto could not be discarded. He has also relied upon certain decisions in support of the

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RSA 693 & 713 of 2013

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above argument.

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In the decision in Sohrab v. The State of Madhya Pradesh, AIR 1972 SC 2020 relied upon by the learned counsel for the defendants, the Hon'ble Supreme Court held in paragraph 7 that :

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“.....This Court has held that falsus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered though where the substratum of the prosecution case, or a material part of the evidence, is disbelievable it will not be permissible for the Court to reconstruct a story of its own out of the rest.”

¶134

10. In Tungabai bhratar Purushottam Shamji Kumbhojkav v.

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Yeshvant Dinkar Jog and another, AIR (32) 1945 Privy Council 8, an illiterate wife happened to execute a mortgage deed to secure the loss of her husband. In the above factual situation, the Privy Council held that, in

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RSA 693 & 713 of 2013

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such circumstances, the presumption is that she was acting under the influence of her husband.

¶139

In the decision in Chainta Dasya v. Bhalku Das, AIR 1930 Cal. 591, the Calcutta High Court, after relying upon various decisions held that the rule applicable to pardanashin ladies on the ground of their ignorance and illiteracy cannot be restricted to a particular class of the community.

¶140

In the decision in Damodaran Nair v. Lakshmi Amma, 1987 (1) KLT, S.N. 46 (case No.62), a Single Bench of this Court held that in the case of a document executed by an illiterate person, the onus of proving that the document was properly explained and interpreted to the illiterate person affixing his mark so as to make him understand its true import is on the party relying on that document.

¶141

In the decision in Kartick Prasad Gorai and Ors. v. Neami Prasad

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Gorai and Ors., AIR 1998 Cal. 278, relied upon by the learned counsel for the plaintiff, the Calcutta High Court held that even in the case of an illiterate man, the fact that the contents of the deed was read over and explained to the executant must be proved by the person who wants to take advantage of such deeds.

¶143

In the decision in Poonath Devaki and Others v. Vayalveettil Balakrishnan and Others, 2011 KHC 563 , relied upon by the learned

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RSA 693 & 713 of 2013

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counsel for the plaintiff, a Single Bench of this Court held that :

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“.....When execution of the document is admitted and it is

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challenged as void or voidable on any vitiating circumstance, burden of proof is on the person who seeks to avoid the document. Here is a case where execution of document itself is denied and in that situation the burden of proof was on the contesting respondents who asserted that deceased defendant No.1 executed the document and wanted that document to remain. First Appellate Court went wrong in holding that the burden of proof is on the appellants.”

¶149

In a recent decision, the Orissa High Court in Babita alias Chhabina Pani v. Uma Satapathy and Others , 2018 KHC 4923, held that, in order to enforce a document executed by an old and illiterate lady belonging to a village, the vendee must prove that the document was read over and explained to her and that she knew the nature and character of the transaction while she became a willing party to the document and particularly that she was aware of the acreage involved in the transaction. More or less similar views were taken by the same court in Radhamani v. Braja Sundar Pattnaik, 2017 KHC 3431, in Umadevi v. Muhammad Abdul Latheef, 1994, KHC 1973 and in Chethan Charan Paritha v. Maheswar Paritha, 1991 KHC 2444.

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RSA 693 & 713 of 2013

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As regards documents obtained from pardanashim women, the Hon’ble Supreme Court in the decision in Mst.Kharbuja Kuer v.

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Jangbahadur Rai and Others, AIR 1963 SC 1203 held that:

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“… as regards documents taken from pardanashim

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women, the court has to ascertain that the party executing them has been a free agent and duly informed of what she was about. The reason for the rule is that the ordinary presumption that a person understands the document to which he has affixed his name does not apply in the case of a pardanashin woman.”

¶156

On the other hand, it was argued by the learned counsel for the defendants that since the document in question is a sale deed which never required any attestation and hence, non examination of any witnesses to prove its execution is not fatal. He has also relied upon the decision of the Hon'ble Supreme Court in Smt.Hans Raji v. Yosodanand, AIR 1996 SC 761 in support of the above argument.

¶157

Relying upon Order VI rule 4 CPC, the learned counsel for the defendants would argue that the party relying on any misrepresentation, fraud, breach of trust, wilful default or undue influence are bound to give full particulars about those grounds. It was further contended that in the instant case, no material particulars in that respect was pleaded in the plaint. He has also relied upon the decision of the Hon'ble Supreme Court

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RSA 693 & 713 of 2013

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in Bishundeo Narain and Another v. Seogeni Rai and Others, 1951 KHC 252 in support of the above argument. In the above decision in paragraph 25 the Apex Court held that :

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“......Now if there is one rule which is better established than

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any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice, however strong the language in which they are couched may be and the same applies to undue influence and coercion.”

¶163

Generally, in the case of a registered document, there is a presumption that it was validly executed, after complying all the legal formalities. In such circumstance, the burden is heavily upon the executant or the person challenging it’s legality to rebut the said presumption. At the same time, if the executant of the document is an illiterate person, or pardanashin lady, the burden is on the beneficiary to prove it’s due execution. While so, he has also to prove that the document was properly explained and interpreted to the illiterate person so as to make him understand its true import. Since the plaintiff in this case is an illiterate

¶164

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RSA 693 & 713 of 2013

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and pardanashin lady, the onus of proving that the document was duly executed by her after fully understanding the nature and character is on the defendants. It is to be held that, in this case the trial court as well as the 1^st Appellate court went wrong in ignoring those vital aspects while appreciating the evidence.

¶167

The fact that the plaintiff is an illiterate and pardanashin lady is not in dispute. It was in the above context, she had executed Ext.B1 (same as Ext.A1) power-of-attorney in favour of her husband, authorizing him to present documents executed by her, before the Sub Registry, for the purpose of registration. Even in Ext.B1, she had affixed her signature and not thumb impression. In addition to the same, in Ext.B7, X1 and X2 documents also, she had affixed her signature. Further, as I have already noted above, in the proof affidavit, she had categorically admitted that she has specific signature, though she is an illiterate lady. At the same time, during the cross-examination she had admitted that, she has memory loss, for the last four years (at the time of examination she was 78). She is not going to get any benefit, by denying a fact which she had specifically admitted in the proof affidavit. Therefore, the answer given by PW1 that she never used to affix her signature and that she only used to affix her thumb impression, though incorrect, cannot be with the ulterior motive to mislead the court. In the above circumstances, there is every reason to

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RSA 693 & 713 of 2013

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believe that the above incorrect answer given by PW1 was due to her memory loss, due to old age.

¶171

Now the most crucial question to be considered is whether Ext.B2 assignment deed was executed by Amina Umma, the plaintiff in OS 226/2000. The plaintiff as PW1 categorically deposed that she had never executed Ext.B2 sale deed in favour of her daughters. According to her, it was created by the defendants, after undue influencing their father. In order to substantiate the plaintiff’s case the learned counsel has relied upon some circumstances, which according to him are serious and sufficient enough to nonsuit the defendants.

¶172

The learned counsel would content that the sale consideration shown in Ext.B2 is grossly inadequate when compared to the total extent of property involved and it’s market value. The plaint schedule property involved in O.S.No.226/2000 consists of 3 items, viz. 65 cents comprised in Re-survey No.85/03, 1.40 acres comprised in Re-survey No.214/02 and another 2.34 acres comprised in Re-survey No.1/3 of Cheruvayoor amsom. Therefore, the total extent of the property covered by Ext.B2 is 4.39 acres (65 cents + 1.40 acres + 2.34 acres) and the consideration shown in Ext.B2 for the entire 4.39 acres is only Rs.10,000/-.

¶173

The specific case of the plaintiff is that the actual market value of the plaint schedule property is much higher than Rs.10,000/- shown in

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Ext.B2. The above contention of the plaintiff was in fact admitted by DW1, the husband of the 1^st defendant, during the cross-examination. According to DW1, though the sale consideration shown in Ext.B2 is only Rs.10,000/-, they have in fact paid a sum of Rs.57,000/- to the plaintiff. Further according to him, in Ext.B2 a lesser sale consideration was shown, as instructed by the document writer. He admitted that at the time of his examination in 2004, the said property had a market value of Rs.10,000/per cent.

¶177

However, it is interesting to note that in the pleadings the defendants have no case that they have paid a consideration of Rs.57,000/- to the plaintiff and also that the consideration shown in Ext.B2 is not the actual price paid to the plaintiff. Even in the proof affidavit of DW1 the defendants have no such case. Not even a suggestion was put to PW1 during her cross-examination that the actual consideration paid was more than what is shown in the document. Such a stand taken for the first time during the cross-examination of DW1 can only be an after thought to cover up the grossly inadequate consideration shown in Ext.B2. Usually, the consideration shown in a registered document has little relevance in considering it's validity. However, when the plaintiff has taken a contention that Ext.B2 is a fabricated document without supported by any consideration, the above inconsistent stand taken by the defendants with

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regard to the actual consideration paid, has much relevance. It is more relevant since, in addition to the interested oral testimony of DW1, there is absolutely no evidence to prove the payment of the consideration, as now claimed. Even DW1 has no case that he has seen the defendants paying the sale consideration to the plaintiff. In short, the defendants could not prove the payment of any consideration to the plaintiff.

¶181

In Ext.B2 sale deed, it is specifically stated that the schedule property is free from all encumbrances. However, at the time of evidence, it is revealed that the said property was already mortgaged by the plaintiff to Ernad Primary Co-operative Agricultural & Rural Development Bank. Exts.A3 and A5 are the documents issued from the said bank showing that the plaintiff had availed a total loan of Rs.22,830/- from the said Bank, after pledging 2.34 acres out of the plaint schedule property, even before the execution of Ext.B2. From Ext.A5, it can also be seen that the above liability was discharged by the plaintiff only on 10.7.1995, about 12 years after the execution of Ext.B2. With respect to the above encumbrance over the plaint schedule property and for not mentioning about the same in Ext.B2 sale deed, there is no explanation from the side of the defendants.

¶182

According to DW1, they were not aware of such an encumbrance and also that it was not disclosed by the plaintiff to them. The above liability of Rs.22,830/- was, admittedly, discharged by the plaintiff, in the

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year 1995. As argued by the learned counsel for the plaintiff, if the plaint schedule property was sold to the defendants in the year 1983 as per Ext.B2, there was no necessity for the plaintiff to repay the mortgage money of Rs.22,830/- on 10.7.1995, about 12 years after Ext.B2. If Ext.B2 is taken as a genuine document, then it is to be believed that Amina Umma assigned 4.39 acres of property to her daughters after receiving Rs.10,000/- and thereafter discharged a liability of Rs.22,830/- pending over the said property. If so, in that deal, Amina Umma had not only no benefit, but also a loss of Rs.12,830/- (22,830-10,000). It is, as if she had gifted the entire 4.39 acres to her daughters without receiving any consideration and further she paid to them Rs.12,830/- as gift. It is quite natural for a mother to gift properties and money to her daughters. Here the entire problem arose because, Ext.B2 is a pucca sale deed, and not a gift deed or settlement deed. No prudent person in similar circumstance would have executed a sale deed like Ext.B2, in favour of her daughters. Definitely, it is yet another strong suspicious circumstance against the case of the defendants.

¶186

As per Ext.B2, the entire 4.39 acres of property is seen assigned in the joint names of defendants 1 to 4, without demarcating the share of each of them separately. It is true that they are the four daughters of the plaintiff. However, all of them got married and settled at different places.

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Usually, four such persons need not purchase such a property in their joint names, if it was a genuine transaction. Even according to DW1, all the four daughters contributed the sale consideration equally. Further according to him, the property is being looked after by the husbands of all the four defendants, even though the properties are not yet partitioned among them. They have already assigned a major portion of the schedule property to defendants 6 to 10, as per Ext.B8 to B11 documents. Therefore, they have no intention to retain the said property in their joint names, for joint enjoyment. At the same time, so far defendants 1 to 4 have also not partitioned the plaint schedule properties by metes and bounds, among themselves. In the above circumstance, the reason why the plaint schedule properties were purchased in the joint names of defendants 1 to 4, was also raised as a suspicious circumstance, by the plaintiff. Since the defendants 1 to 4 are married and are residing at different places, they have a duty to offer at least some explanation for purchasing the above property in their joint names. In this case, no such explanation is forthcoming. Absence of such an explanation from the side of the defendants, in the facts of this case, is another suspicious circumstance, against the genuineness of Ext.B2.

¶190

Though the defendants have already assigned a major portion of the schedule property in favour of defendants 6 to 10 as per Ext.B8 to B11

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documents, they are not seriously contesting this case. Though before the trial court they have filed a written statement, nothing more was done on their behalf. In this second appeal also nobody appeared on their behalf. The above conduct of defendants 6 to 10 in not contesting these appeals is also highlighted by the learned counsel for the plaintiff to substantiate his contention that they are not interested in the outcome of this appeal.

¶194

As I have already noted above, the plaintiff as PW1 has categorically deposed that she had not assigned the plaint schedule property in favour of her daughters. Further according to her, she had permitted her son, the defendant in OS 65/2000, to construct a residential building in a portion of the plaint schedule property when he returned from abroad and agreed to assign that portion of the property in his favour, later on. According to her, when the defendant tried to construct a residential building as above, the defendants obstructed him claiming that she had executed Ext.B2 deed in their favour. It was thereafter she filed the suit OS 226/2000, challenging Ext.B2.

¶195

Since the plaintiff challenged the execution of Ext.B2 the disputed signatures in Ext.B2 was sent for examination by a handwriting expert namely PW2. After examination, he had filed Ext.A4 report. In Ext.A4 report, after examining the disputed signatures along with the admitted signatures, he reported that: “the questioned signatures in this case were

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carefully and thoroughly examined and compared with standard signatures in all aspects of handwriting identification and detection of forgery with necessary scientific aids by me. The opinion arrived at is: the person who wrote the blue enclosed standard signatures stamped and marked A1 to A5 most probably did not write the red enclosed questioned signatures similarly stamped and marked Q1 and Q6.”

¶199

It was further argued by the learned counsel for the defendants that report of the handwriting expert is also not an infallible one and as such, such evidence is to be relied with care and caution. In support of the above argument, he has relied upon the decision of the Hon'ble Supreme Court in Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023, KHC 6635 . In paragraph 65 of the above decision, the Apex Court concluded that :

¶200

“......The underlying principle deducible from the observations

¶201

extracted above is that though it is not impermissible to base a finding with regard to authorship of a document solely on the opinion of a handwriting expert but, as a rule of prudence, because of imperfect nature of the science of identification of handwriting and its accepted fallibility, such opinion has to be relied with caution and may be accepted if, on its own assessment, the Court is satisfied that the internal and external evidence relating to the document in question supports the

¶202

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opinion of the expert and it is safe to accept his opinion. “

¶205

It is true that during the cross-examination, PW2 admitted that he could not state with 100% certainty that the disputed signatures were not that of the plaintiff. During the cross-examination, after comparing the signatures of the plaintiff in Ext.B7, X1 and X2 with that of Ext.B1 and B2, he deposed that there is difference in the signatures of those documents. However, it is to be noted that Exts.B7, X1 and X2 were not confronted with PW1, when she was examined. Those documents were also not sent for examination along with Exts.B1 and B2. On a perusal of the signatures of the plaintiff in Exts.B7, X1 and X2, it can be seen that there is some difference in the signature of the plaintiff in those documents with that in Ext.B1. Since those documents were not confronted with PW1 when she was examined and they were not sent for expert examination along with Ext.B1, now there is no meaning in arguing that the signature of the plaintiff in Exts.B7, X1 and X2 are slightly different from that in Ext.B1.

¶206

Even according to PW2, due to lapse of time, there will be variations in signature and that illiteracy of a person also can form variations in his signature. In the above circumstance, considering the age and illiteracy of PW1, much importance cannot be given to the slight difference in her signatures in Exts.B7, X1 and X2 from that in Ext.B1.

¶207

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Though PW2, the handwriting expert was cross-examined in detail, nothing material could be brought out to discard his testimony. In the above circumstance, I do not find any valid grounds to disbelieve the evidence of PW2 that the disputed signatures of the plaintiff in Ext.B2 are different from the admitted signatures in Ext.B1 and his specific finding that the person who wrote the standard signatures must probably did not write the questioned signatures in Ext.B2.

¶210

In this context, it is also to be noted that none of the defendants 1

¶211

to 4 have entered the witness box to swear their case on oath and to offer themselves to be cross-examined by the plaintiff. Instead, the husband of the 1^st defendant was examined as DW1. It is true that as per Section 120 of the Indian Evidence Act, the husband of the 1^st defendant is a competent witness in this case. In the proof affidavit he claimed that the plaintiff affixed her signature in Ext.B2 after understanding it’s contents. At one stage of the cross-examination he claimed that he had seen the plaintiff affixing her signature in Ext.B2 sale deed. However, thereafter he turned around and stated that he has not seen the plaintiff affixing her signature in Ext.B2. Nobody else were examined by the defendants to prove the execution of Ext.B2. In the above circumstance, it can be safely concluded that the evidence of DW1 is not at all helpful for the defendants to prove the execution of Ext.B2. In the absence of any other evidence from the

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side of the defendants, it is to be held that the defendants could not adduce any positive evidence, to prove the due execution of Ext.B2, in the manner, a document executed by an illiterate lady is to be proved.

¶215

It was argued by the learned counsel for the defendants that the plaintiff has not specifically pleaded that her husband and his brother Jamalutty had any role along with defendants 1 to 4 in fabricating Ext.B2 document. As per the plaint, the defendants 1 to 4 had exerted undue influence upon their father and managed to obtain Ext.B2. It is true that Ext.B2 was produced before the Sub Registry for registration by the husband of the plaintiff and his brother Jamalutty, is a signatory to the said document. It is also true that in the plaint there is no specific allegations against the plaintiff's husband and his brother, in fabricating the above documents.

¶216

The defendants 1 to 4 filed O.S.65/2000 for injunction, on 29.2.2000. Immediately thereafter, the plaintiff's husband died. Her husband's brother Jamalutty, died before the death of her husband. The plaintiff filed O.S.226/2000 on 4.7.2000. At the time of evidence, the plaintiff as PW1 deposed that she was in good terms with her husband's brother Jamalutty, till his death. It is to be noted that, Ext.B2, the disputed document was executed in favour of the four daughters of the plaintiff and not in favour of any strangers. Considering the fact that the plaintiff is an old, illiterate

¶217

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and pardanashin lady and her husband and his brother died immediately before filing the present suit, absence of serious allegations against her husband and his brother in the fabrication of Ext.B2 cannot be given much importance. At the same time, the plaintiff has specifically pleaded that defendants 1 to 4 by exerting undue influence on the father managed to create Ext.B2 document and also that it was not executed by her. Therefore, it is to be held that, there is no merits in the contention that there is want of specific pleadings regarding the undue influence.

¶220

In the proof affidavit, the plaintiff has specifically stated that she never used to sign in any documents without getting it read over to her and understanding its contents. The above version in the proof affidavit was relied upon by the learned counsel for the defendants to contend that Ext.B2 was executed by the plaintiff after knowing its contents. However, it is to be noted that the plaintiff has no case that she signed in Ext.B2 document without knowing it’s contents. The specific case of the plaintiff is that she never executed such a document and that it was created by the defendants after undue influencing the father and as such, the above argument has no force.

¶221

At the final stage of the argument the learned counsel for the defendants argued that concurrent finding of facts by the trial court as well as the 1^st Appellate court can be interfered with in second appeal under

¶222

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S.100 CPC, only if it is perverse and that too, only after formulating substantial questions of law. In support of the above argument he has relied upon the decisions in Gurvachan Kaur and Others v. Salikram (Dead) Through LRs., (2010) 15 SCC 530, Ram Kumar Agarwal and Another v. Thawar Das (Dead) Through LRs., (1999) 7 SCC 303, and in Narayanan Rajendran and Another v. Lekshmy Sarojini and Others, (2009) 5 SCC 264.

¶225

However, the position is well settled that when the judgment of the final court of fact is based on mis-interpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence the High Court in second appeal is entitled to interfere with the judgment. ( Yadarao Dajiba Shravane (Dead) By Lrs. v. Nanilal Harakchand Shah (Dead ), 2002 (6) SCC 404). In this case the appellant/plaintiff has raised specific contention that the trial court as well as the 1^st Appellate court are not justified in ignoring the material evidence of PWs 1 and 2 and Ext.A4 report of the handwriting expert. In the above circumstance, the substantial questions of law formulated arose for consideration in this appeal.

¶226

The evidence of PW1 that she did not execute Ext.B2 sale deed in favour of the defendants is to be evaluated in the light of the evidence of PW2, the handwriting expert, Ext.A4 expert report and also the suspicious

¶227

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circumstances discussed above viz., grossly inadequate sale consideration shown in Ext.B2, failure to prove the payment of sale consideration, failure to prove the due execution of Ext.B2, non-mentioning of the encumbrance over the plaint schedule property in Ext.B2, purchase of the schedule property in the joint names of defendants 1 to 4, failure of the assignees of D1 to 4 to contest the case etc. When the evidence of PW1 is evaluated in the light of the above yardstick, I find no valid grounds to disbelieve her oral testimony. Therefore, the trial court as well as the 1^st Appellate court were not justified in disbelieving the evidence of PW1 and PW2 and discarding Ext.A4 report. The substantial questions of law are answered accordingly.

¶230

The trial court as well as the 1^st Appellate court dismissed O.S.226/2000 and decreed O.S.65/2000, after disbelieving the evidence of PWs 1 and 2 and discarding Exts.A4 report. In answer to substantial questions of law formulated, I have already found that the above findings of the trial court as well as the 1^st Appellate Court are not correct and also that the evidence of PWs 1 and 2 and Ext.A4 report are liable to be accepted. If so, from the evidence of PW1 and PW2 and from Ext.A4 report of the handwriting expert, it can be safely concluded that Ext.B2 sale deed was not executed by the plaintiff. In other words, Ext.B2 is a fabricated document not binding on the plaintiff and as such it is liable to be declared null and void.

¶231

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Consequently, the suit O.S.226/2000 filed for declaring the title of the plaintiff is liable to be decreed. However, since during the pendency of the appeal, the original plaintiff died and the defendants being legal representatives of deceased plaintiff and the persons claiming under them, the prayer for recovery possession is not liable to be granted. For the very same reasons, O.S.65/2000 filed by the defendants seeking injunction against the plaintiff is liable to be dismissed.

¶234

In the result, these appeals are allowed. The impugned judgment and

¶235

decree of the 1^st Appellate court confirming the judgment and decree of the trial court are set aside. O.S.226/2000 is decreed as follows:

¶236

It is declared that Ext.B2 sale deed No.1052/83 of SRO Vazhakkad is null and void. Forward an authenticated copy of the decree to the Sub Registry concerned, as required under Rule 185 of the Civil Rules of Practice, Kerala.

¶237

In the result, O.S.65/2000 is dismissed. Considering the close relationship between the parties, I order no costs.

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Sd/-

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C.Pratheep Kumar, Judge

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Mrcs/8.7.

Vythala Amina Umma, v. Keezhattil Kandanthodi Asya

Case brief

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Vythala Amina Umma, v. Keezhattil Kandanthodi Asya

Case brief

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