Kerala High Court
Against The Judgment & Decree Dated ... vs Suit
Author: K.Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 4TH DAY OF OCTOBER 2017/12TH ASWINA, 1939
SA.No. 86 of 2001 (B)
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AGAINST THE JUDGMENT & DECREE DATED 14-08-2000 IN AS 151/1995 of
ADDL.DISTRICT COURT, NORTH PARAVUR
AGAINST THE JUDGMENT & DECREE DATED 10-10-1994 IN OS 663/1991 of
PRINCIPAL SUB COURT,NORTH PARAVUR
APPELLANTS IN SA/APPELLANTS IN AS & DEFENDANTS 1,3,4&6 TO 15 IN THE
SUIT:
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*1. BHANUMATHY,W/O. SEKHARAN,
AGED 73 YEARS, KARIPPAI HOUSE,
PAZHAMPILLYTHURUTH KARA,
CHENNAMANGALAM VILLAGE,
PARUR TALUK. * DIED LRS IMPLEADED
*2. RETNABHAI,W/O. GANGADHARAN,
AGED 69 YEARS, SANKAR PHARMACY,
MANJUMMEL MURI, ELOOR VILLAGE. * DIED LRS IMPLEADED
3. RAJESWARI, W/O.VISWANATHAN,
AGED 66 YEARS, VALLETHUTHARA,
VAVAKKAD MURI,MOOTHAKUNNAM VILLAGE (DIED),
PARUR TALUK.
4. MOHANAN, S/O. KANAKABHAI,AGED 36 YEARS,
CHANDRASSERIL,MOOTHAKUNNAM KARA,
MOOTHAKUNNAM VILLAGE.
5. USHA, D/O.KANAKABHAI, AGED 34 YEARS,
CHANDRASSERIL,MOOTHAKUNNAM KARA,
MOOTHAKUNNAM VILLAGE, PARUR TALUK.
6. BINDHU, D/O. KANAKABHAI, AGED 34 YEARS,
CHANDRASSERIL,MOOTHAKUNNAM KARA,
MOOTHAKUNNAM VILLAGE, PARUR TALUK.
7. SHYAM,S/O. THANKAMMA, AGED 46 YEARS,
POOTHEZHATH,MACHAMTHURUTH KARA,
VADAKKEKKARA VILLAGE, PARUR TALUK.
8.* VENU, S/O. THANKAMMA, AGED 46 YEARS (DIED),
POOTHEZHATH,MACHAMTHURUTH KARA,
VADAKKEKKARA VILLAGE, PARUR TALUK.
*(LRS IMPLEADED AS ADDL.APPELLANTS 26 TO 29)
9. BABU,S/O. THANKAMMA, AGED 42 YEARS,
POOTHEZHATH,MACHAMTHURUTH KARA,
VADAKKEKKARA VILLAGE, PARUR TALUK.
10. MEERA, D/O. THANKAMMA, AGED 34 YEARS,
POOTHEZHATH,MACHAMTHURUTH KARA,
VADAKKEKKARA VILLAGE, PARUR TALUK.
11. JOTHI,D/O. THANKAMMA, AGED 40 YEARS,
POOTHEZHATH,MACHAMTHURUTH KARA,
VADAKKEKKARA VILLAGE, PARUR TALUK.
12.LEENA, D/O.THANKAMMA, AGED 32 YEARS,
POOTHEZHATH,MACHAMTHURUTH KARA,
VADAKKEKKARA VILLAGE, PARUR TALUK.
13. ANILKUMAR, S/O. THANKAMMA, AGED 36 YEARS,
POOTHEZHATH,MACHAMTHURUTH KARA,
VADAKKEKKARA VILLAGE, PARUR TALUK.
14.SATHISHKUMAR,S/O.VISWANATHAN,
VELLATTUTHRA, VAVAKKADU KARA,
MOOTHAKUNNAM VILLAGE, PARUR TALUK.
15. SURESH BABU,S/O.VISWANATHAN,
VELLATTUTHRA, VAVAKKADU KARA,
MOOTHAKUNNAM VILLAGE, PARUR TALUK.
ADDL.A16. P.S. BABY SAROJAM, AGED 64 YEARS,
KANAADI HOUSE, KOCHENGADI, VADAKKUMPUZHA P.O,
NORTH PARAVUR.
ADDL.A17.P.S. AMMINI, AGED 66 YEARS,
PAVOTHARA HOUSE, VAVAKKAD,
MOOTHAKUNNAM P.O.
ADDL.A18. P.S. VALSAN, AGED 62 YEARS,
PLASSERIL HOUSE, V.P. THURUTH,
CHENNAMANGALAM, PIN-683512, NORTH PARAVUR.
ADDL.A19. P.S. BABURAJ, AGED 52 YEARS, PLASSERIL HOUSE,
MADATHUMPADI P.O, PIN-680733, MALAA, THRISSUR.
ADDL.A20. P.S. RAGHU, AGED 59 YEARS,
PLASSERIL HOUSE, VAYALKARA, KUNNUKARA P.O, PIN 683514.
ADDL.A21. SHEEBA HARIDAS, AGED 50 YEARS, KAIMAPARAMBIL,
VADAKKUMPURAM P.O, PIN 683531, NORTH PARAVOOR.
ADDL.A22. P.S. SHAJITH, AGED 23 YEARS, S/O. SHAJI P.S,
PLASSERIL HOUSE, V.P. THURUTH, CHENNAMANGALAM,
NORTH PARAVUR, PIN - 683 512.
ADDL.A23. SMT.T.R. MANI, AGED 50 YEARS,
W/O. LATE P.S. SHAJI, PLASSERIL HOUSE,
V.P. THURUTH, CHENNAMANGALAM, NORTH PARAVUR, PIN 683 512.
ADDL.A24. K.G. SHEELA RAVI, D/O. RATNA BHAI,
AGED 57 YEARS, KATTUNGAL HOUSE,
MANNUMMAL P.O, ELOOR 683 501.
ADDL.A25. GANGADHARAN,AGED 79 YEARS,
SHANKER PHARMACY, MANNUMAL MURI, ELOOR VILLAGE.
LRS OF DECEASED 1ST APPELLANT ARE IMPLEADED AS ADDL.A16 TO A23
& LRS OF DECEASED 2ND APPELLANT ARE IMPLEADED AS ADDL.A24 & A25
AS PER ORDER DATED 30.11.2011 IN IA.NO.2939/11.
ADDL.A26. AISHA, W/O. LATE VENU, AGED 59,
RESIDING AT POOTHEZHATH, MACHAMTHURUTH KARA,
VADAKKEKARA VILLAGE, PARAVUR TALUK, PIN-683 522.
ADDL.A27. SURAJ P.V, S/O.LATE VENU, AGED 38,
RESIDING AT POOTHEZHATH, MACHAMTHURUTH KARA,
VADAKKEKARA VILLAGE, PARAVUR TALUK, PIN-683 522.
ADDL.A28. SUJITH P.V, S/O.LATE VENU, AGED 36,
RESIDING AT POOTHEZHATH, MACHAMTHURUTH KARA,
VADAKKEKARA VILLAGE, PARAVUR TALUK, PIN-683 522.
ADDL.A29. SUJA, D/O. LATE VENU, AGED 34,
RESIDING AT POOTHEZHATH, MACHAMTHURUTH KARA,
VADAKKEKARA VILLAGE, PARAVUR TALUK, PIN-683 522.
THE LRS OF DECEASED APPELLANT NO.8 ARE IMPLEADED AS ADDITIONAL
APPELLANTS 26 TO 29 AS PER ORDER DATED 14.1.2016 IN IA.931/16
BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.)
SRI.K.S.RAJESH
SRI.S.R.DAYANANDA PRABHU
SRI.P.B.KRISHNAN
SMT.GEETHA P.MENON
SRI.N.AJITH
SRI.P.M.NEELAKANDAN
SRI.P.B.SUBRAMANYAN
RESPONDENTS/ADDL.RESPONDENTS(4 TO 7 LRS OD DECEASED R1)/RESPONDENTS
IN AS/PLAINTIFF & 5TH DEFENDANT IN THE SUIT:
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1. RAJA RAJAN, S/O. AYYAPPAN, AGED 55 YEARS,
PARVASSERY, MACHAMTHURUTH KARA,
VADAKKEKARA VILLAGE, PARUR TALUK (DIED ON 11.11.2000)
*2. JAGADEESAN,S/O. AYYAPPAN, AGED 50 YEARS (DIED)
PARVASSERY, MACHAMTHURUTH KARA, VADAKKEKARA VILLAGE,
PARUR TALUK.
(*LRS IMPLEADED AS ADDL.R8 TO R11)
3. OMANA, W/O. VASU, ATHIYARATH,
VALIYAMPARAMBU KARA,
MALA VILLAGE,MUKUNDAPURAM TALUK.
ADDL.4 RATNAMMA, W/O. RAJA RAJAN,
PARVASSERY, MACHAMTHURUTH KARA
VADAKKEKARA VILLAGE, PARUR TALUK.
5. P.R.MURALI, S/O. RAJA RAJAN,
PARVASSERY, MACHAMTHURUTH KARA
VADAKKEKARA VILLAGE, PARUR TALUK.
6. REENA P.R,W/O. DOCTOR SOMON,
NARATTU HOUSE, NAYARAMBALAM,
PARUR TALUK.
7. P.R. SEEMA, W/O. SUDHI,
KALATHIL HOUSE, VARAPUZHA,
PARUR TALUK.
ADDITIONAL RESPONDENTS 8 TO 11:
8. KAUSALYA, W/O. LATE JAGADEESAN, RESIDING AT
PARVASSERY, MACHAMTHURUTH KARA, VADAKKEKARA VILLAGE,
PARUR TALUK, PIN-683 522.
9. SINCY, D/O. LATE JAGADEESAN, RESIDING AT
PARVASSERY, MACHAMTHURUTH KARA, VADAKKEKARA VILLAGE,
PARUR TALUK, PIN-683 522.
10. SEETHA, D/O. LATE JAGADEESAN, RESIDING AT
PARVASSERY, MACHAMTHURUTH KARA, VADAKKEKARA VILLAGE,
PARUR TALUK, PIN-683 522.
11. SAVITHA, D/O. LATE JAGADEESAN, RESIDING AT
PARVASSERY, MACHAMTHURUTH KARA, VADAKKEKARA VILLAGE,
PARUR TALUK, PIN-683 522.
THE LRS OF DECEASED RESPONDENT NO.2 ARE IMPLEADED AS
ADDITIONAL RESPONDENTS 8 TO 11 AS PER ORDER DATED 10.6.2016 IN
IA.2625/2016.
RADDL BY ADV. SRI.P.MOHANDAS (ERNAKULAM)
R4-R6 BY ADV. SRI.N.ASHOK KUMAR
R4-R6 BY ADV. SRI.K.J.MOHAMMED ANZAR
R4-R6 BY ADV. SMT.P.K.MINIMOLE
R8-R11 BY ADV. SRI.G.SREEKUMAR (CHELUR)
R8-R11 BY ADV. SRI.ANOOP.V.NAIR
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON
04-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.RAMAKRISHNAN, J.
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S.A.No.86 of 2001
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Dated this the 4th day of October, 2017
JUDGMENT
Defendants 1, 3, 4, 6 to 15 in OS.No.663/1991 on the file of the Principal Sub Court, North Paravur are the appellants herein. The suit was one filed by respondents 1 and 2 herein for declaration of their title over the plaint schedule properties and also for injunction restraining the defendants from trespassing into the properties and taking income from the property and committing act of waste in the property or interfering with the peaceful possession and enjoyment of the property by the plaintiffs with following allegations:
The plaintiffs and defendants 1 to 5 are brothers and sisters and defendants 6 to 8 are the children of another deceased sister of the plaintiffs and defendants 1 to . by name Kanakabai. The plaint schedule property along with the other properties were owned by the mother of the plaintiffs and defendants 1 to 5 and the said Kanakabai as per partition deed No.2614/63. Their mother intended to give the property to the plaintiffs and their brother Chandrabose alone. By exercising undue influence by defendants 1 to 5 and deceased Kanakabhai on their mother, had fraudulently got a settlement deed executed as document No.838/72 against the intention of their mother in respect of the plaint schedule S.A.No.86 of 2001 2 properties. Since it was obtained by undue influence, it was null and void and it has not come into effect. Even after the document, the property was continued to be in the possession of deceased Karthiayani, their mother. When she came to know about the fraudulent act of defendants 1 to 5 and Kanakabai, she had cancelled document No.838/72 and executed gift deed No.3098/83 in favour of the plaintiffs and their brother Chandrabose and they have accepted the gift and thereafter plaint A schedule property is possessed by the 1st plaintiff and B schedule property is possessed by the second plaintiff and they are in enjoyment of the same. The plaintiffs and their brother Chandrabose were not aware of the execution of the fraudulent document of the year 1972 at the instance of the defendants. When they got information about the document, they enquried about the same with the mother and she informed her that she had not executed any document on her free will and they got it executed fraudulently and so she cancelled the document and executed the gift deed of 1983. When the 1st plaintiff applied for mutation on the basis of 1983 gift deed, it was informed that mutation was effected on the basis of the document of the year 1972 and the application filed by the first plaintiff was rejected and it was communicated to him on 3.10.1991. According to the plaintiffs, the mutation effected on the basis of the fraudulent S.A.No.86 of 2001 3 document of 1972 is null and void and it will not affect the right of the plaintiffs over the property. The said document was executed at the time when the plaintiffs and their brother was not in station and it was also understood that while she was taken to Angamally in connection with her eye operation, she was made to sign the document from the car and thereafter she was taken to the hospital. The second plaintiff came to the hospital directly from Madras during operation of the mother. By virtue of 1983 document, plaintiffs alone are having right over the plaint schedule properties and except the plaintiffs, none had any right in the property. The defendants are trying to trespass into the properties. So they have no other right except to approach the court for declaration of their right and possession over the plaint schedule properties and also their right to get mutation effected in their favour and also for injunction restraining the defendants from taking income from the property or committing any act of waste or doing anything affecting the possession and enjoyment of the plaintiffs over the plaint schedule properties. Hence the suit.
2. Defendants 1, 2, 4 and 6 filed a joint written statement contending that the suit is not maintainable. They have no cause of action against the defendants. The second defendant filed OS.No.265/1990 before the Munsiff Court, Paravur in respect of the plaint schedule property and the plaintiffs and others filed S.A.No.86 of 2001 4 OS.No.323/1990 in respect of the same and in both the cases these defendants filed written statement stating that the property belonged to their mother Karthiayani and she executed a settlement deed on 24.3.1972 and defendants have obtained possession of the properties on the basis of the settlement deed and under the settlement deed the properties were alloted to the plaintiffs also and both the plaintiffs and the defendants have accepted the settlement deed and the defendants have not got executed any document by exercising undue influence or coercion on Karthiayani. The execution of the document was known to the plaintiffs and others. It is not correct to say that the document is void as it was obtained by fraudulent method. In fact, it was a valid document and since it was accepted, the beneficiaries under 1972 document have become owners of the property. In fact, gift deed No.3098/83 was fraudulently obtained by the plaintiffs by influencing their mother to deny the right in the property to the defendants. In fact after the execution of 1972 document, mutation was effected and revenue is being paid and the allegation that they came to know about the same only in 1983 and immediately when they asked the mother, she told that she did not execute any document voluntarily and it was obtained fraudulently and she cancelled and executed another gift deed in 1983 in favour of the plaintiffs and their brother Chandrabose etc S.A.No.86 of 2001 5 is not correct. The allegation that the document was got executed on the way to hospital in connection with eye operation is not correct. The allegation that the first plaintiff came to the hospital directly from Madras is also not correct. The plaintiffs have no right or possession over the plaint schedule property and they are not lying separately and they are not entitled to get mutation on the basis of 1983 document. As per settlement deed of 1972, plaintiffs 1 and 2 and Chandrabose were given 30 cents each and the defendants were given only 14 cents each and the parties are in possession of the properties subject to the life estate of Karthiayani. As per the document, 13 cents were kept in common and without disclosing these facts, the plaintiffs filed the suit. The plaintiffs are not entitled to get any relief. There is no cause of action for the plaintiffs to file the suit. So they prayed for dismissal of the suit.
3. The third defendant filed written statement adopting the contentions of defendants 1, 2, 4 and 6. Defendants 3, 6, 7 and 8 remained absent and set ex parte. The second defendant died during the pendency of the suit and additional defendants 9 to 15 were impleaded as per order in IA.No.6263/1993. They filed written statement adopting the contentions of defendants 1, 2, 4 and 5.
4. On the basis of the pleadings, following issues were S.A.No.86 of 2001 6 framed by the court below for consideration:
i. Is the suit is maintainable?
ii. Whether the document No.838/72 is vitiated by fraud and coercion?
iii. Whether the plaintiff has got any right upon the plaint schedule property?
iv. Whether the declaration prayed for is allowable? v.is the injunction prayed for allowable?
vi. Reliefs and costs?
5. Pws 1 to 5 were examined and Exts.A1 to A6 were marked on the side of the plaintiffs. The third defendant was examined as DW1 and Exts.B1 and B2 series were marked on their side. After considering the evidence on record, the trial court came to the conclusion that the allegation that Ext.B1 document was obtained by undue influence as alleged by the plaintiffs is not correct and on the basis of the evidence, the trial court came to the conclusion that the gift was not executed as contemplated under Section 123 of the Transfer of Property Act as it was not attested by two witnesses and the scribe was one of the witnesses who is not competent to attest and as such, the gift deed is not valid and it was admitted by the defendants that the mother was in possession of the property till her death and she was taking income and during her life time, the second plaintiff has S.A.No.86 of 2001 7 constructed a house in the property which was not objected by the defendants and it was done with their knowledge and all these things will go to show that the settlement deed of 1972 has not come into effect and the property is being enjoyed by deceased Karthiayani and as such, the gift deed of 1983 is valid and granted a declaration in favour of the plaintiffs and also injunction as prayed for and decreed the suit accordingly. Dissatisfied with the same, defendants 1, 3, 4 and 6 to 15 filed AS.No.151/1995 before the Additional District Court, North Paravur. During the pendency of the appeal, the third appellant in that case died and additional appellants 14 and 15 were impleaded as her legal heirs as per order in IA.No.748/1996. After hearing both sides, the Additional District Judge by the impugned judgment dismissed the appeal concurring with the finding of the court below. Dissatisfied with the same, the present second appeal has been filed.
6. During the pendency of the appeal, the first appellant died and additional appellants 16 to 23 were impleaded as her legal heirs and second appellant also died and additional appellants 24 and 25 were impleaded as her legal heirs. The 8th appellant died and additional appellants 26 to 29 were impleaded as his legal heirs as per order in IA.No.931/2015.
7. While admitting the appeal, this Court had accepted the substantial questions of law raised in the appeal memorandum as S.A.No.86 of 2001 8 the questions of law arise for consideration, which read as follows:
i. Whether the courts below were right in holding that Ext.B1 settlement deed is a gift deed?
ii. Whether on the facts and circumstances of the case, the courts below were justified in holding that Ext.B1 settlement deed is void on the ground that it was not properly attested by two witnesses?
iii. Whether the courts below were justified in setting aside Ext.B1 settlement without a prayer to that effect in the plaint?
iv. Whether the courts below were justified in holding that the settlement deed is not valid on the ground of want of proper attestation in the absence of proper pleadings or proof?
v. Whether the courts below were justified in treating Ext.B1 settlement deed as a gift deed when it is admitted by both sides that it is a settlement deed only?
vi. Having found that Ext.B1 settlement deed was not executed by the settler by undue influence and fraud committed by the defendants whether the courts below were justified in holding that Ext.B1 settlement deed is a gift deed and it must be attested by atleast two witnesses as per Section 123 of the Transfer of Property Act?
8. During the course of argument, this Court felt that some more substantial questions of law also arise for consideration and S.A.No.86 of 2001 9 additional questions of law were also raised.
i. Whether the courts below were justified in placing burden on the appellants to prove that Ext.B1 is a valid document?
ii. Whether the courts below were justified in holding that Ext.B1 is not a valid document especially when execution of this document was admitted in Ext.A1 gift deed by the settler?
iii. Whether the courts below were justified in holding that Ext.B1 was not accepted and not acted upon and as such Ext.A2 gift deed is valid?
iv. Whether the courts below were justified in decreeing the suit?
9. These aspects were also heard on both sides.
10. Heard Sri. S.V. Balakrishna Iyer, learned senior counsel appearing for the appellants and Sri. Sreekumar Chellur, learned counsel appearing for respondents 1 to 3 and Sri. Ashok Kumar, learned counsel appearing for respondents 4 to 8.
11. Learned senior counsel appearing for the appellants argued that the case of the plaintiffs in the plaint was that Ext.B1 document was got obtained by fraud by taking deceased Karthiayani to hospital and on the way, she was made to sign the document from the car. According to the plaintiffs, it was obtained by misrepresentation and fraud. When they came to know about the same, they asked about the same with the mother and at that S.A.No.86 of 2001 10 time, she told that it was not executed by her. She never intended to execute such a document. Later she cancelled the same and then executed Ext.A2 gift deed in favoaur of the plaintiffs and their brother Chandrabose. Further, according to them, Ext.B1 was not accepted and no mutation was effected and it was in the possession of their mother till Ext.A2 document was executed. When Pws 1 and 3 were examined, they had a different version about the same. The court below on appreciation of evidence, came to the conclusion that deceased Karthiayani was not a person of easily cheated or influenced and she was a strong lady and came to the conclusion that either Ext.A2 document or Ext.B1 document could have been obtained by misrepresentation or by fraud. So under such circumstances, the court below found that Ext.B1 was a valid document, then the below ought to have held that Ext.A2 was not valid and there was no necessity for the defendants to make any counter claim regarding the same. Further the court below has not considered the impact of Rule 6 of Kerala Document Writers' Licence Rules whereby the document writer is entitled to attest the document. Further if there is no bar for the document writer to attest a document and that will not invalidate the gift deed if the execution of the document is admitted by the executant in the subsequent document. So under such circumstances, the courts below were not justified in holding S.A.No.86 of 2001 11 that Ext.B1 was not valid and it is void for non compliance of Section 123 of the Transfer of Property Act. It is also brought out in evidence that mutation was effected and this fact was known to them long ago and without getting Ext.B1 declared void or set aside, Ext.A2 gift deed executed by deceased is without any legal effect. So by virtue of that document, they will not get any right. He had also argued that any restriction made under Sections 10 and 13 of the Transfer of Property Act regarding enjoyment of the property or mode of enjoyment cannot be said to be a void restriction making the document invalid. At the most, restriction alone can be said to be invalid and the document valid to the remaining extent. So, according to the learned senior counsel, the courts below were not justified in decreeing the suit.
12. On the other hand, Sri. Sreekumar Chellur, learned counsel appearing for respondents 1 and 2 argued that if it is found that it is not a genuine document, then the burden is on the defendants to prove that it is a genuine document by examining atleast one of the attesting witnesses. In this case, a reading of Ext.B1 will go to show that there is no possibility for the mother to execute such a document knowing the legal impact and as such, it cannot be said that it is a genuine document and in such circumstances, the burden is on the beneficiary to prove that it is a genuine document by examining the attesting witnesses, which S.A.No.86 of 2001 12 has not been done in this case. He had also argued that in the case of a gift, restriction can be made but in the case of a settlement, what is intended by the settler is to give the property in present and not to make any restriction of enjoyment of the property. By virtue of Ext.B1, the plaintiffs or their brother Chandrabose did not get any property and they are given only life interest after the death of their mother and after their death, it will go to their children and as such, there is no purpose in the settlement as intended by the deceased. Further, earlier a will was executed, whereby the properties were given to the male children alone. That shows that the deceased was having intention to give the properties only to the male children and when she came to know that fraudulent Ext.B1 document was obtained by the daughters, she cancelled the same by executing a gift deed in 1983 ie. Ext.A2 and it cannot be said to be an invalid document. Learned counsel appearing for respondents 4 to 8 argued that if a document writer has attested the document, it must be proved by the beneficiary of the document that he had the animus attesdanti to attest the document as a witness and without that it cannot be said that there is a valid attestation and thereby it is hit by Section 123 of the Transfer of Property Act as the gift deed has to be attested by at least two attesting witnesses and want of two attestors, the document is not valid. S.A.No.86 of 2001 13 Further, the evidence will go to show that she had given Ext.A4 affidavit and that will go to show that she never intended to execute Ext.B1 and it was fraudulently obtained and since she was no more, that can be used as her evidence to prove her intention. So according to the learned counsel, the concurrent finding of the courts below on this aspect do not call for any interference.
13. It is an admitted fact that the plaint schedule properties along with other properties belonged to late Karthiayani, the mother of the plaintiffs and defendants 1 to 5 and their deceased sister Kanakabai and brother Chandrabose, who is not a party to the proceedings. It is also an admitted fact that the property was alloted to her as aper partition deed No.2614/63. It will be seen from the pleadings that deceased Karthiayani earlier executed Ext.A1 will No.38/111/63 and later she had cancelled the same and executed Ext.B1 settlement deed No.838/72 dated 24.3.1972 by which she had settled the properties in favour of her three sons, the plaintiffs and Chandrabose, defendants 1 to 5 and late Kanakabai. It is also in a way admitted that mutation was effected on the basis of Ext.B1 settlement deed. The case of the plaintiffs in the plaint was that Ext.B1 settlement deed was as a result of fraudulent act committed by defendants 1 to 5 and Kanakabai while prevailing upon deceased Karthiayani their mother S.A.No.86 of 2001 14 and got it executed to the detriment of her intention of giving the entire property to the male children alone. It is also the case of the plaintiffs in the plaint that this was got executed while she was taken to Angamally hospital in connection with her eye operation while she was having poor eye sight and got it signed from the car in which she was taken to the hospital. It is alleged in the plaint that when the plaintiffs and Chandrabose came to know about the execution of the document during 1983, they asked about the same with their mother and she told that she never intended to execute such a document and it was got executed fraudulently by the daughters and at the request of the plaintiffs, Ext.A2 gift deed No.3098/1983 dated 10.6.1983 was executed by her cancelling Ext.B1 settlement deed. According to the plaintiffs, when they applied for mutation, it was rejected by Ext.A3 letter No.L.Dis.12/145/91dated 3.10.1991 of Deputy Tahsildar, Paravur. First plaintiff had constructed a house in the property and building tax was assessed in the name of the first plaintiff. So according to the plaintiffs, the defendants have no right over the same and they wanted declaration of their right in respect of plaint A and B schedule properties which were gifted as per Ext.A2 gift deed by their mother and for consequential injunction and getting the mutation done in their name. The case of the defendants was that Ext.B1 settlement deed was a valid one. It was not vitiated S.A.No.86 of 2001 15 by any fraud or misrepresentation as alleged. The settlement deed was accepted and it was known to the plaintiffs as well. But later they influenced the mother and got Ext.A2 gift deed which has no legal effect and the plaintiffs are not entitled to get any injunction or declaration as prayed for.
14. Before going into the facts of the case, let me consider the precedents relied on by both the counsel on this aspect.
15. In the decision reported in Afsar Shaik and another v. Soleman Bibi and others (AIR 1976 SC 163), it has been held that :
"Undue influence, fraud, misrepresentation are cognate vices and may, in part, overlap in some cases, they are in law distinguished categories, and are in view of Order 6, Rule 4 read with Order 6 Rule 2 of the Code of Civil Procedure required to be separately pleaded with specificity, particularity and precist. A general allegation in the plaint that the plaintiff was a simple old man of ninety who had reposed great confidence in the defendant was much too insufficient to amount to an averment of undue influence of which the High Court may take notice particularly when the issue was claimed and no contention was raised on that point at any stage in the trial court or in the first round even before the first appellate court".
16. In the decision reported in Union of India v. M/s. Chaturbhai M. Patel & Co. (AIR 1976 SC 712), it has been held that:
S.A.No.86 of 2001 16
"It is well settled that fraud like any other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt as per Lord Afkin in A.L.N.Narayanan Chettiyar v. Official Assignee, High Court Rangoon (AIR 1941 PC 93). However auspicious may be the circumstances, however strange the coincidences, and however grave the doubts, suspicion alone can never take the place of proof. In our normal life we are sometimes faced with unexplainable phenomenon and strange coincidences, for, as it is said, truth is stranger than fiction."
17. In the decision reported in Subhas Chandra Das Mushib v. Ganga Prosad Das Mushib and others (AIR 1967 SC
878), it has been held that:
"The Court trying a case of undue influence must consider two things to start with namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor, and (2) has the donee used that positin to obtain an unfair advantage over the donor? Upon the determination of these issues a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other.
Merely because the parties were nearly related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arise. Generally S.A.No.86 of 2001 17 speaking the relations of solicitor and client, trustee and cestui que trust, spiritual adviser and devotee, medical attendant and patient, parent and child are those in which such a presumption arises".
18. In the same decision it has been held that:
"When a plea of undue influence is raised, the Court must scrutinize pleadings to find out that a plea has been made out and that full particulars thereof have been given before examining whether undue influence was exercised or not".
19. In the decision reported in T. Tirupathi Mudali v. T. Lakshmana Mudali and another (AIR 1953 Madras 545), it has been held that:
"So long as the contemplated fraud is not carried out or at least there has been no substantial part performance of it, the grantor although in 'pari delicto' is entitled to invoke the assistance of a Court for the recovery of the properties he has parted with irrespective of the fact whether the frustration of the fraud was the result of the 'locus penitentiae' of the transferor or due to other causes".
20. In the same decision it has been further held that:
"A sale deed, executed with the object of defrauding creditors, whether real or sham has to be decided with reference to the document & the surrounding circumstances. The question depends on the 'animus transferendi' which parties had at the time they entered into the transaction.
S.A.No.86 of 2001 18
All transfers .intended to defraud creditors cannot be presumed sham".
21. In the decision reported in Ranganayakamma and another v. K.s. Prakash (D) by Lrs and others (2008 (15) SCC
673) it has been held that "in the absence of particulars of alleged fraud or misrepresentation being disclosed and in any suspicious circumstances have been made out, then the document cannot be set aside or cannot be cancelled".
22. It has been further held in the same decision that:
"When a document has been executed and if the party wants to assail the same, it must be set aside and if it is a case of setting aside document, normal time of limitation will run from the date of knowledge of execution of the document under Article 59 of the Limitation Act".
23. In the decision reported in Prem Singh & Others v. Birbal & Others (2006 SAR (Civil) 457), it has been held that "when a document was said to be executed fraudulently, then unless it is void ab initio, it has to be set aside on grounds known to law and that setting aside of document has to be filed within the time provided under Article 59 of the Limitation Act which provides for three years time. In the case of fraud, the time to file suit for declare the document void or voidable will start from the date of knowledge of the fraud".
24. In the decision reported in Kasireddy Ramayamma v. S.A.No.86 of 2001 19 Kasireddy Rama Rao (AIR 2000 AP 29), it has been held that "the validity of the settlement deed cannot be assailed on the plea of fraud of misrepresentation in a suit for partition filed by another party for which separate suit under Section 31 of the Specific Relief Act has to be filed"
25. In the decision reported in Kuttian Padmini v. Nelliyullaparambath Madhu and others (2014 (1) KLJ 816), it has been held that "where the legal possession and title of an immovable property is transferred to the donee under a gift deed detention of physical possession of the property by the donar who has life interest in the property cannot be viewed as circumstance to hold that there was no acceptance of gift. When the gift is not onerous and normal presumption is valid even the knowledge of the gift by the donee is sufficient to hold that there was acceptance.
26. It is further held in the same decision that when the gift deed reserves a life interest in the property right in favour of the donor and further stipulates that the donee shall pay the revenue charges of the property during her life time, absence of mutation in favour of the donee is not of much significance. When the donar continues in the physical possession of the property as stipulated in the gift deed, the delivery of possession is neither possible nor required to complete the gift. No expressed acceptance by the S.A.No.86 of 2001 20 donee is necessary for completing the gift in such cases.
27. So it is clear from the above decisions that in the case of gift or settlement with a right to take income from the property is reserved, it cannot be said that gift is not accepted. It is also clear from the above dictums that mere non mutation of the property in the name of the donee is not sufficient to hold that the gift was not accepted. Further in the case of fraud or misrepresentation, the nature of fraud played and the particulars of fraud played etc has to be pleaded and proved and mere vague allegation of fraud or misrepresentation or undue influence is not sufficient to set aside a document. Further in a case where a document has been executed if it is not void ab initio but it is only voidable at the option of the executant, then unless that document is set aside by filing a separate suit no relief can be claimed in respect of that document as that document will be deemed to be in existence in the eye of law. In such cases, the limitation for filing such suit is three years as provided under Article 59 of the Limitation Act from the date of knowledge of the fraud.
28. In the decision reported in Sarojini v. Retnamma (2015 (1) KLT 602), it has been held that:
"Right of immediate alienation or right of absolute enjoyment is not necessary in the case of a settlement deed. S.A.No.86 of 2001 21 Even a document which does not permit the donee to take possession of the properties immediately on its execution can be a settlement deed. Immediate divesting of settler's ownership in the property and vesting of it in the donee is the essential requirement of a settlement deed".
29. It is further held in the same decision that:
"If the document is void, it is not at all necessary for the aggrieved person to get a declaration that it is void and if the document is voidable, the document has to be set aside by the court and the cancellation deed and all the subsequent sale deeds are invalid".
30. In the decision reported in Gopalakrishnan v. Rajamma (2006 (4) KLT 377), it has been held that:
"The T.P. Act does not define or specifically deal with "settlement deeds". The said word is, however, defined under the Kerala Stamp Act to inter alia mean a non-testamentary disposition in writing of movable or immovable properties made for the purpose of distributing the property of the settler among his family members or those for whom he desires to provide or for the purpose of providing for some person dependent on him. However, a gift envisaged by Section 122 of the T.P.Act is not restricted to members of the family of the settler or persons dependent on him".
31. Further in the same decision, it has been held that:
"If the fraudulent representation was with regard to the character of the document, then the document would be void S.A.No.86 of 2001 22 and a suit for setting aside the document by recourse to Section 31 of the Specific Relief Act, 1963 would be unnecessary. But where the fraudulent representation is with regard to the contents of the document, it is only voidable for which a suit for setting aside the document will have to be filed within three years as provided under Article 59 of the Limitation Act, 1963. Even where the document is void, once a suit is filed for cancellation of the document, it would be governed by Article 59, which, if not attracted, the residuary Article 113 will apply".
32. Reliance was placed by this Court in the decisions reported in Ningawwa v. Byrappa (AIR 1968 SC 956) and M. Rangasamy v. Rengammal (AIR 2003 SC 3210). It has been further held that:
"There is a presumption that a registered document has been validly executed and the onus of proof will be on those who want to upset the above presumption relying on the decision reported in Premm Singh v. Birbal [2006 (2) KLT 863 (SC)].
33. In the same decision it has been held that "prior judgment cannot be upset on the general allegation of fraud or collusion. The party alleging fraud is bound to establish by cogent evidence. Mere suspicion cannot be accepted as proof".
34. In the decision reported in Renikuntla Rajamma (d) by Lrs. v. K. Sarwanamma (2014 (3) KLJ 522), it has been held that:
"Validity of gift deed is not affected merely because the S.A.No.86 of 2001 23 donor had reserved the right to enjoy the benefits arising out of the property during her life time. Once the donee accepts the gift, the right to use the property during the life time of the donor will not in any way affect the transfer of ownership of the property in favour of the donee. Gift of immovable property can be effected only by a registered instrument; but delivery of possession is not required for the validity of a gift".
35. In the decision reported in Namburi Basava Subramanian v. Alapatty Hymavathy and others (AIR 1996 SC 2220), it has been held that a deed creating right and interest in present in favour of the settlee regarding the properties mentioned therein with life estate for enjoyment during her life time, the settlee was to acquire absolute right to enjoyment on settler's demise. It is a deed of settlement and not a will and settlor cannot subsequently bequeath the property in favour of another. That was a case where a lady aged 78 years executed deed of settlement whereby bequeathing her interest in the property in favour of the settlee reserving right to take income from the properties and absolute right of enjoyment can be enured to the benefit of the settlee after the death of the settler. This document was considered by the Apex Court and held that it was not a will but a settlement.
36. In the decision reported in Bishundeo v. Seogeni Rai (AIR (38) 1951 SC 280), it has been held that:
S.A.No.86 of 2001 24
"Though pleas of undue influence & coercion may overlap in part in some cases they are separable categories in law & must be separately pleaded.
In cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars & 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, & the same applies to undue influence & coercion."
37. The same view has been reiterated in the decision reported in M/s. United India Insurance Co.Ltd v. Andrew Vivera & another (1989 (1) KLJ 614).
38. In the decision reported in Subbegowda (Dead) by LR v. Thimmegowda (Dead) by LRs (AIR 2004 SC 2428), it has been held that:
"Entrustment of suit property by settler to his adopted son for purpose of management qua a settlement deed. Adopted son and his natural father did not properly manage property to expectations of settler which was primary and essential consideration for execution of said deed.
Settlement deed does not amount to transferring property in favour of adopted son. Power of revocation of settlement of deed expressly reserved to himself by settler in deed itself. Invocation of revocation clause by settler and S.A.No.86 of 2001 25 cancellation of settlement deed by him is permissible".
39. That was a case where the settler had only permitted the adopted son settlee to collect income from the property and manage the property along with the settler and utilize the income alone. The right in the property was not divested. Further there was a revocation clause in the settlement itself permitting the settler to revoke the settlement if the conditions are not fulfilled. Right of sale of the property was also retained with the settler. So in such circumstances, it was held that there was no absolute divestation of right in the property and it was a conditional settlement, violation of which permits the settler to vary the same or cancell the same and thereafter when she executed a cancellation deed, that was challenged and court found that cancellation is valid and no right has been obtained by the settle as per the document.
40. In the decision reported in Saramma Ittoop and others v. Kunjamma Kuruvilla and others (2006(2) KLJ 836), the distinction between 'settlement' and 'gift' was considered and held that:
"A settlement can be revoked if the conditions stipulated therein are not fulfilled. A 'gift' can be suspended or revoked by the donor only if there is such an agreement between the donor and the donee that on the happening of any specified event which does not S.A.No.86 of 2001 26 depend n the Will of the donor a gift shall be suspended or revoked. A gift, which the parties agree shall be revocable wholly or in part at the mere Will of the donor, is void wholly or in part, as the case may be, as provided in Section 126 of the Transfer of Property Act". Under Article 31 of the Schedule to the Kerala Stamp Act, 'gift' is an instrument, "not being a settlement or will or transfer".
41. In the decision reported in Deputy Collector v. Shahul Hameed and another (1991 (1) KLJ 530) the distinction between the gift and settlement is stated thus. In other words, many settlement deeds may be gift deed but all the gift deeds not necessarily be settlement. Some documents may satisfy the requirements of both gift and settlement.
42. In the decision reported in Rangammal v.
Kuppuswami and another (2011 KHC 4510), it has been held that:
"Section 101 of the Indian Evidence Act, 1872 defines 'burden of proof' which clearly lays down that whosoever desires any court to give judgment as to any legal right or law dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. When a person after attaining majority, questions any sale of his property by his guardian during his minority, the burden lies on the person who uphold/asserts the purchase not only to show that the guardian had the power to S.A.No.86 of 2001 27 sell but further that the whole transaction was bona fide".
43. In the decision reported in Subhra Mukherjee v. Bharat Coaking Coal Ltd. (AIR 2000 SC 1203), it has been held that:
"Whether the document in question was genuine or sham or bogus, the party who alleged it to be bogus had to prove nothing until the party relying upon the document established its genuineness".
44. In the decision reported in Saramma Ittoop v. Kunjamma Kuruvilla ( ILR 2006 (3) Ker. 272), it has been held that:
"It is well-settled that in the matter of construction of a document, the recitals in the document and the terms of the document are of primary importance. If the intention is to be gathered for construction of the terms of a document, it must be gathered from the document itself. In Chunshun Jha v. Ebadat Ali (AIR 1954 SC 345), the Supreme Court held that:
"If the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended".
45. Further in the decision reported in Gilbert v. Vivekanandan (1988 (1) KLT 50) held that:
S.A.No.86 of 2001 28
"These decisions show that even when the parties, uninstructed in law, used language, the legal effect of which they did not intend or foresee, the nature of the transaction which they concluded must be determined with reference to the legal effect of the words used by them. It is not open to the court to ignore the legal effect of words which are express and clear, whatever be the consequences and whatever be the disadvantage or hardship that it might ultimately cause to one or more of the parties. The question is not what the parties had intended or meant, but what is the legal effect of the words which they used, which means, what a reasonable man reading the document would understand them to mean. It is only in the case of ambiguity in the language used by them is it permissible for the court to look at the surrounding circumstances to determine what the parties actually intended".
46. In the decision reported in S.R. Srinivasa and Others v. S. Padmavathamma (2010 (5) SCC 274), it has been held that:
"Examination of scribe of will who had not signed the will with intention to attest, held, not sufficient to satisfy the statutory requirement of examination of at least one attesting witness for proving the will".
47. In the same decision, it has been held that "the person relying on the execution of the genuineness of the will has to prove the same and also to remove all the suspicious circumstances surrounding the execution of the will to the satisfaction of the court. But that decision is not applicable in the S.A.No.86 of 2001 29 case of a gift as gift is a registered document, execution of which is admitted then there is a presumption regarding its genuineness and the vitiating circumstances has to be proved by the person who attacking the same".
48. In the decision reported in Kokilambal v. Raman [2005 (2) KLT 1007 (SC)], it has been held that:
"Testator executing settlement deed in favour of beneficiary reserving the right to enjoy property jointly during their life time and also to alienate the property jointly, does not make the beneficiary the absolute owner of the property. On the death of beneficiary, testator can transfer property by a fresh deed of settlement".
49. In the decision reported in Subhra Mukherjee and another v. Bharat Coaking Coal Ltd and others (2000 KHC 1049), it has been held that "where a transaction of sale of its immovable property by a company is alleged to be sham and collusive, held, the Court will be justified in piercing the veil of incorporation to ascertain the true nature of the transaction as to who were the real parties to the sale and whether it was genuine and bona fide".
50. That was a case where the company had sold the property and genuineness of transaction was under challenge and in such circumstances, the Apex Court has held that the court is entitled to lift the veil of incorporation to find out the genuineness S.A.No.86 of 2001 30 of the transaction and that decision is not applicable to the facts of this case.
51. It is clear from the above decisions that all settlement deeds are gift deeds but visa versa need not be necessarily the same. In a settlement deed, the settler distributes his property to his family members or dependents with or without conditions and if the conditions are not fulfilled and the right of revocation is mentioned in the document itself, then the settler is entitled to revoke the same. But in the case of a gift deed, the gift need not be in favour of the relatives alone. It is also a settled law that merely because right to take income during the lifetime was reserved in favour of the settler or donor alone is not sufficient to invalidate the gift or settlement. If right to take income is reserved during the life time of settler/donor, then delivery of possession of the property is not a condition precedent for accepting the gift. With this principles in mind the case in hand has to be considered.
52. The case of the plaintiffs in the plaint was that Ext.B1 document was executed by deceased Karthiayani on the basis of the fraud committed by defendants 1 to 5 and their deceased sister Kanakabhai while taking the mother to the hospital from a car. But at the time when the evidence was given, a different story was spoken to by Pws 1 and 3 and they have stated that S.A.No.86 of 2001 31 the document was executed at the time when deceased Karthiayani was taken to the house of the third defendant for the purpose of showing her newly constructed house. Further the evidence of Pws 1 and 3 will go to show that there is no consistency in the manner in which undue influence was said to be executed by the beneficiaries under the document. Further by virtue of Ext.B1, it cannot be said that it was absolutely given to the daughters alone. Merely because the property was not measured is not a ground to come to the conclusion that there was no settlement of specific properties in favour of the beneficiaries under the settlement deed. It will be seen from the settlement that immediate vesting of right was provided to the settlees and thereafter the manner in which the property has to be enjoyed has been mentioned. Right to take income was reserved in the mother. Merely because certain conditions were imposed as to how the property will have to be sold alone is not sufficient to come to the conclusion that the settlement is not valid. It is clear from the wordings of Ext.B1 that the settler does not want the property to be go out of the family members and if any one of the family members want to sell the property, it must be done with the consent of others, so that, other persons can purchase the same. So it cannot be said to be an invalid condition.
53. Further it was brought out in the evidence of Pws 1 and S.A.No.86 of 2001 32 3 that deceased Karthiayani was a stable woman and it is very difficult to cheat her or influence her. So under such circumstances, the courts below have concurrently found that the plaintiffs have failed to prove that Ext.B1 document was obtained by undue influence or by coercion or by misrepresentation or fraud as contended by the plaintiffs. The courts below also came to the conclusion that even at the time when Ext.A2 gift deed was executed, she was hail and healthy. But if Ext.B1 settlement deed was found to be valid, then Ext.A2 gift deed cannot be said to be valid as settler has no right to revoke the same unless the vitiating circumstances are made out. On the basis of evidence and also other circumstances mentioned in the lower court judgments, the courts below have rightly come to the conclusion that for at least two or three years prior to the date of death of the deceased, she was not having good memory power and so the court below was rightly rejected Ext.A4 affidavit said to have been executed by deceased Karthiayani showing the circumstances under which Ext.A2 gift deed was executed and rightly disbelieved the evidence of PW4, the counsel who attested the same as well. Further the evidence of Pws 1, 3 and 4 regarding the circumstances under which the counsel was brought to the house to get the affidavit prepared and attested also created some suspicion regarding the genuineness of Ext.A4 affidavit said to S.A.No.86 of 2001 33 have been sworn to by deceased Karthiayani. So under such circumstances, the courts below were perfectly justified in coming to the conclusion that Ext.B1 was not vitiated by undue influence or coercion or misrepresentation as contended by the plaintiffs.
54. Further in Ext.A2 gift deed, execution of Ext.B1 gift deed was mentioned. If it was specifically mentioned, then there is no necessity to prove the execution of the document as in the subsequent document, execution of that document was admitted by the executant herself. Further during the life time of the donor/settler, she did not choose to file a suit for setting aside Ext.X1 document which was executed in the year 1972. Further it will be seen from Ext.A3 document produced by the plaintiffs themselves that mutation was effected on the basis of Ext.B1 in the name of several persons. So that shows that the document was accepted by the beneficiaries and it cannot be said to be a sham or not a genuine document.
55. Further it will be seen from the evidence of Pws 1 and 3 that they came to know about the existence of Ext.B1 document even in the year 1983 and they made the mother to believe that they wanted a document to be obtained in their name. So they got Ext.A2 document executed. The fact that earlier will was got executed bequeathing the entire property in favour of the male children and subsequently when they came to know about the S.A.No.86 of 2001 34 existence of Ext.B1, Ext.A2 gift deed executed in favour of the sons alone will go to show that they were dominating the mother to get the document executed in their favour excluding the daughters. Further it will be seen from the evidence of Pws 1 and 3 that the wife of PW3 was there in the house along with the mother at the time when Ext.B1 document was executed. So under such circumstances, it cannot be said that there is no possibility for Pws 1 and 3 coming to know about the settlement executed in the year 1972 by the mother as contended by them.
56. The fact that the mother did not file a suit to cancell the document or set aside the document, itself will go to show that she was not interested in cancelling the document. If Ext.B1 document is a valid document, then subsequent execution of Ext.A2 document is not valid and it will not confer any right on the beneficiaries under that document and the person who obtained the right as per the previous document, need not sought a relief of setting aside the document subsequently executed as it is void ab initio and that will not affect the right of the person who obtained the property as per an earlier document. So the observations made by the court below that the defendants did not sought for any counter claim declaring Ext.A2 document as not valid document is not a ground to reject the defence taken by the defendants that Ext.A2 is not a valid document and on that S.A.No.86 of 2001 35 basis the plaintiffs cannot get any declaration of right over the property.
57. The trial court as well as the first appellate court came to the conclusion that scribe cannot be a valid attestor. There is no law which prevents the scribe being an attestor to a document. The only thing is whether from the circumstances it can be inferred that he had the intention to attest the same.
Rule 6 of the Kerala Document Writers' Licence Rule 1960 reads as follows:
"6. Non-testamentary documents [other than documents registrable in Book 4] are to be prepared by licensed persons only:-
(1) Every [such] non-testamentary document presented for registration shall be prepared by a document writer, licensed in this behalf, by the Licensing Authority:
Provided that no licence will be necessary in the case of a document writer who is an advocate or pleader practising before any court in the State.
(2) No [such] non-testamentary document shall be accepted for registration unless it is attested by the document writer and the scribe if any;
Provided that the provisions of this rule shall not apply to documents executed by or on behalf of or in favour of the Government of India, or Government of a State in India or local authorities and other bodies corporate, and institutions which may by notification in the gazette be S.A.No.86 of 2001 36 specified by the Government in this behalf".
58. It is clear from sub clause (2) of Rule 6 of the above Rules that no such non testamentary document shall be accepted for registration unless it is attested by the document writer and the scribe if any. So it is clear from this that the scribe can be an attesting witness in respect of a non testamentary document, but this will not apply to testamentary documents like will. Only in such cases it has to be proved that he has the animus to attest before relying on the attestation made by the scribe in a will. He was singed as witness No.2 and not as a document writer. So it cannot be said that there is no two witnesses as required under Section 123 of the Transfer of Property Act to make the document a valid document as observed by the trial court as well as the first appellate court. The dictum relied on by the trial court reported in M.L. Abdul Jababr Sahib v. H. Venkata Sastri and sons (AIR 1969 SC 1147) is not applicable to the facts of this case.
59. A reading of Ext.B1 will go to show that the settler or donor was perfectly aware of the consequences of the document as it is seen from the evidence of Pws 1 and 3 that she was a capable person of managing her own dealings. So under such circumstances, it cannot be said that Ext.B1 is not a genuine document or it is a void document as contended by the counsel for the respondents. So it is clear from the above discussions that S.A.No.86 of 2001 37 the concurrent findings of the trial court as well as the appellate court that Ext.B1 was not attested by two witnesses as required under Section 123 of the Transfer of Property Act appears to be unsustainable in law and so the concurrent finding of the court below that Ext.B1 is not a valid document in compliance under Section 123 of the Transfer of Property Act cannot be accepted and the same is perverse and the same is liable to be set aside. If that finding of the trial court is set aside, then by virtue of Ext.A2 the plaintiffs will not get any right in the plaint schedule property and thereby they are not entitled to get any declaration as prayed for and the courts below should not have granted declaration as well as injunction as claimed as well. Further it will be seen from the evidence that the house was constructed during the pendency of the suit and after the litigation was started and not immediately after 1983 when the settlement was effected. Ext.A6(a) do not relate to the building mentioned in Ext.A5 as the building numbers were different. Merely because the defendants did not object the plaintiffs constructing a house in the property covered by Ext.B1 document, it cannot be said that the house was constructed in the property belonging to or given to the defendants. No commission was taken out to find out as to whether the house constructed by the first plaintiff is in the property given to any of the defendants. So under such circumstances, the defendants did not object the S.A.No.86 of 2001 38 plaintiffs constructing the house will not ipso facto sufficient to come to the conclusion that the settlement deed Ext.B1 was not accepted by them.
So under such circumstances and also in view of the discussions made by this Court, the finding of the courts below that Ext.B1 is not valid and Ext.A2 is a valid document and the plaintiffs are entitled to get a declaration and injunction as prayed for are unsustainable in law and against the legal principles and the same are liable to be set aside and the appeal has to be allowed answering the substantial questions of law raised in favour of the appellants.
In the result, the appellants succeed and the appeal is allowed. The decree and judgment passed by the trial court and confirmed by the first appellant court are hereby set aside and suit OS.No.663/1991 on the file of the Principal Sub Court, North Paravur is dismissed. Considering the circumstances of the case, parties are directed to bear their respective costs in the appeal.
Registry is directed to send the records to the court below at the earliest.
Sd/-
K.RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge S.A.No.86 of 2001 39 K.RAMAKRISHNAN, J.
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S.A.No.86 of 2001....................................
4th day of October, 2017 JUDGMENT