Kerala High Court
E.E.Muhammed Ashraf vs P.K.Suhara on 19 October, 2020
Author: T.V.Anilkumar
Bench: T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
MONDAY, THE 19TH DAY OF OCTOBER 2020 / 27TH ASWINA, 1942
RFA.No.232 OF 2016
AGAINST THE JUDGMENT AND DECREE DATED 31-01-2015 IN O.S.NO.
102/2013 OF SUB COURT,KOCHI
APPELLANT/DEFENDANT:
E.E.MUHAMMED ASHRAF,
AGED 53, S/O.EBRAHIM, CC 20/633,
KOSHAMVELIPARAMBIL, PALLURUTHY VILLAGE, KOCHI.
BY ADV. SRI.G.KRISHNAKUMAR
RESPONDENT/PLAINTIFF:
P.K.SUHARA,
AGED 72, W/O.EBRAHIM, CC 20/633,
KOSHNAMVELIPARAMBIL, PALLURUTHY VILLAGE,
KOCHI-682 005.
BY ADVS. SRI.P.M.KUNJIMOIDEENKUTTY
SRI.LAL K.JOSEPH
SRI.A.A. ZIYAD RAHMAN
SRI.SHIROZ BAVA V.S.
SRI.JOSEPH KURIAN VALLAMATTAM
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
13-10-2020, THE COURT ON 19-10-2020 DELIVERED THE FOLLOWING:
R.F.A.No.232 of 2016
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Dated this the 19th day of October, 2020
J U D G M E N T
Decree obtained by the mother declaring Ext.A1 registered settlement deed dated 19.4.2011 taken in the name of her elder son as void in O.S.No.102/2013, is challenged in this appeal. The son was also permanently restrained from disturbing mother's possession as per the decree passed by the Sub Court, Kochi. Being aggrieved by the judgment and decree, the son has preferred this appeal.
2. The respondent's son is the eldest son in the family and on the date of Ext.A1 settlement deed, he along with his family were residing with her under the same roof. She is a widow aged 72 years. Respondent's case in the plaint is that in the month of April, 2011, the appellant approached her with a demand for raising some amount of loan by pledging the plaint property for discharging his R.F.A.No.232 of 2016 :-3-:
existing debt and raising funds for giving his young daughter in marriage. After getting a nod from her younger son, PW2, she agreed to pledge the land. She says that she was taken to two offices on 19.7.2011 where she signed a few papers in the presence of the appellant. According to her, she was not told by anybody that the document which she signed was a settlement deed. She executed the document believing that it was a mortgage deed intended to help the appellant for raising loan.
Only when she fell ill in 2012 and thought of sharing the property among all children equally, she understood that appellant had deceived her by nocking off her land. Therefore, she filed the present suit for declaring the settlement deed as void and for consequential injunction.
3. The appellant contested the suit pleading that the settlement deed was executed out of natural love and affection towards him since plaint R.F.A.No.232 of 2016 :-4-:
property was purchased years ago in the name of the respondent with his own funds. He said that after death of his father, he was looking after the whole family and had given his sisters in marriage and so in discharge of moral obligation, the mother settled the property in his sole name. He denied having had any existing debt or having decided to give Surumi, his daughter in marriage during the relevant period. He also contended that appellant signed the document after being aware of the contents and she herself arranged DW2, the document writer. According to him, the cause for institution of the suit is that after marriage of Surumi in 2012, the appellant out of her ego had a feeling that she was not given as much prominence in the marriage ceremony of Surumi as her mother-in-law. So she immediately left the house and joined PW2. It is also contended that suit was brought at the instigation of PW2.R.F.A.No.232 of 2016
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4. The court below raised issues and considered the main question as to whether Ext.A1 settlement deed was vitiated by fraud and misrepresentation. It examined the respondent and younger son as PW1 and PW2 respectively and admitted Exts.A1 and A2 in evidence. The appellant got examined as DW1 and tendered in evidence Ext.B1 which is the original of the impugned settlement deed. DWs.2 and 3 respectively are the document writer and one of the attestors in Ext.A1.
5. After discussing the evidence in detail, the court below held that Ext.A1 was vitiated by fraud and misrepresentation and therefore void. While granting the declaration, appellant was injuncted from disturbing respondent's possession and interests in the property. The court below found the respondent's case to be more probable and in that process, the evidence given by Dws.1 to 3 was wholly disbelieved.
R.F.A.No.232 of 2016
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6. I heard the learned counsel for the appellant and the learned counsel for the respondent.
7. The contention of the appellant is that the findings entered into by the court below are wrong and against evidence and facts. It is contended that respondent executed the impugned settlement deed voluntarily and out of her natural love and affection towards son. The impugned document has by all means the presumption of a registered document that it was executed in compliance with the legal formalities. The respondent understood the contents of the document and affixed the signature with the intention of settling the property in the name of the appellant. The learned counsel for the appellant submitted that the suit was brought at the instigation of PW2 who is also one of the attestors in the document and but for the respondent's ego with appellant's mother-in-law, R.F.A.No.232 of 2016 :-7-:
this suit would not have been instituted at all.
8. It was further submitted by the learned counsel for the appellant that only because the appellant was residing under the same roof, no inference of undue influence could be drawn and in this respect, a decision of the Honourable Supreme Court in Subhas Chandra Das Mushib v. Ganga Prosad Das Mushib & ors. (1967 KHC 591) was cited. The respondent counsel on the other hand sought to sustain each of the findings of the court below in the impugned judgment and contended that there are no legal reasons to interfere with the reasonable and balanced judgment passed by the court below.
9. The material question arising in this appeal is as to whether the finding of the court below that Ext.A1 is vitiated by fraud and misrepresentation was rendered on proper appreciation of evidence of facts as well as consideration of law.
R.F.A.No.232 of 2016
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10. The respondent/mother is a widow who lost her husband in her young age. Appellant is the eldest among her seven children. The plaint schedule property which extends to 1.82 Ares of land with a house is the sole asset of her on earth. The property was purchased in her name on 3.4.1985 under Ext.A2 sale deed.
11. The sole motivation, according to the appellant, for execution of Ext.A1 deed in his name by the mother, is that the property was purchased with his own funds and further after father's death, it was he who was maintaining the whole family and had given his sisters in marriage. In short, his contention is that mother had moral obligation to him and her natural love and affection for settling the property in his sole name.
12. The case based on moral obligation, however is not proved by any evidence. On the other hand, R.F.A.No.232 of 2016 :-9-:
there is no probability for this plea being true. In the written statement, he contended that he had spent the whole amount for purchase of property in the name of PW1. But from his own oral evidence it has come out, it was his father who paid Rs.2,000/- towards the value of the house building in the property. PW1 said that her ancestral funds which she possessed was utilised for the purchase. So long as Ext.A1 proceeds to say that mother paid the consideration, the case of the appellant to the contrary is not believable.
13. So also his case that he was looking after the family and had married away his sisters is also not proved. Nobody supported his case except himself with interested evidence. PW2, the younger brother and the mother denied appellant's contention in this respect in their evidence.
14. On the other hand, as rightly held by the court below, there is probability for the case of R.F.A.No.232 of 2016 :-10-:
the respondent that the appellant approached respondent demanding to pledge the land by executing a deed with a private bank since he was in need of money for discharging his debt during the relevant period and also wanted to raise funds for giving her young daughter Surumi in marriage.
15. The appellant denied having had any debt during the relevant period or any idea of giving the daughter in marriage in her young age in any near future. But his own written statement shows in paragraph 5 that immediately a few days after the execution of Ext.A1 in his name, he pledged the property with P.M.S.C.Bank, Palluruthy and obtained Rs.3 lakhs as loan and a part of the amount was used for discharging his existing debt and some part towards conducting marriage of her daughter at a later stage. The immediate pledging after execution of settlement deed shows that he had existing debts though he had discharged the R.F.A.No.232 of 2016 :-11-:
liability at a later point of time. This conduct of the appellant is in tune with the contention of the respondent that he approached her in the month of April demanding to pledge her land and execute a registered deed to enable him to raise fund for her daughter's marriage and clearing his existing liabilities.
16. It is very relevant to note that Ext.A1 did not contain any clause reserving life interest with the donor. This is quite suspicious since the aged woman had no other shelter than the house in the property. It is difficult to infer that the respondent would have settled the schedule property in the sole name of the appellant neglecting her other children for no good reason especially when the property was the sole asset of her on earth. The normal circumstance only suggests that she would only have consented for registration of a document for creating a mortgage with a view to R.F.A.No.232 of 2016 :-12-:
help the appellant.
17. The appellant's case that mother consulted all other children and final decision to settle the property was taken only thereafter. In one portion of his testimony he said that mother was wishing to settle the property to him about a year ago. This is proved to be rather improbable because PW2, the younger son said that mother had told him in April, 2011 that appellant wanted her to pledge plaint property for raising loan for him. There is complete corroboration as between the testimonies of PWs.1 and 2 in this respect. When their evidence and broader probabilities of the case are taken together, it is clear that respondent never intended to settle the property in the name of the appellant and on the other hand, what she intended was to mortgage the property to P.M.S.C.Bank, Palluruthy and help appellant by raising loan.
18. Going by the facts pleaded in the plaint, R.F.A.No.232 of 2016 :-13-:
what appears to be set up is not a case of undue influence and in my view, issue for consideration in the suit is slightly different. Undue influence is not a very significant issue in this case in as much as respondent has no case that she did not agree to execute any document. She consulted with PW2 and decision to execute the document as wished by her was conveyed to appellant. An issue on undue influence would have emerged, had she taken a stand that she had no desire or intention to execute any document whatsoever but she was taken for a ride. On facts, therefore, what is relevant is the issue whether any fraudulent misrepresentation practised on her and Ext.A1 is vitiated for that reason.
19. The evidence on record makes it very clear that she did not wish to execute any document other than a mortgage deed. When this is so clear, it goes without saying that there was attempt of misrepresentation on her. The probability in favour R.F.A.No.232 of 2016 :-14-:
of respondent's case cannot be rejected simply on the presumption that registered document was executed at Sub Registry after following all legal formalities and she admitted the execution only after realising the contents of the document. The presumption that attaches to a registered document is always rebuttable and in my view, broader probabilities of the case only favour respondent's case.
20. The learned counsel for the appellant submitted that for the mere reason that appellant stood in fiduciary relationship with the mother is no ground to infer that she took him into active confidence and acted without knowing the consequences of the transaction. This argument cannot be accepted ignoring the broader probability that she had no special reason to settle the property in the name of the appellant to the exclusion of other children especially when she is R.F.A.No.232 of 2016 :-15-:
an aged widow and the plaint property was her sole asset on earth.
21. As regards the question whether contents of the document were read over or explained in any manner to the respondent, there is serious doubt. PW2 son said that he signed some papers at his house itself believing that those papers were meant for pledging and raising loan from a private bank. He is not a literate person and he studied only upto 9th Standard. He did not follow respondent to the house of DW2, the document writer where he conducts the office also. PW1 made it clear that she alone was in the office of DW2 when she signed the document and PW2 did not follow her.
22. The learned counsel for the appellant submitted that respondent had the experience of pledging document on previous occasions and realising loan from P.M.S.C.Bank where she is a member. PW1 frankly admitted that she was a member R.F.A.No.232 of 2016 :-16-:
and explained her experience of pledging on a former occasion. According to her, a document was then registered before the Sub Registry. Same thing has happened now also and there is no difference and therefore the appellant's argument has no merit.
23. DW3 is an attestor to Ext.A1. He used to sign documents in Sub Registry as a stock witness and is a clerk in the office of DW2's father who is also a document writer. DW2 is a lawyer cum document writer. The court below did not attach any reliability to the evidence of DW3 since he is a person who used to appear as witness in all transactions and sign documents. Honesty of such a stock witness cannot be taken for granted. I do not find any reason to accept his evidence. DW2 being the document writer naturally sought to sustain execution of Ext.A1 explaining that he brought the contents of the document to the notice of the R.F.A.No.232 of 2016 :-17-:
executant. The court below took his evidence as mechanical as well as artificial. On reappreciation of his evidence, I do not have any reason to take a different view. Even assuming that PW1 arranged execution of document through DW2, the normal circumstances appearing in the case only show that she only decided to execute a mortgage deed rather than to settle the property in the name of appellant.
24. For all these reasons together I am satisfied that Ext.A1 was proved to have been brought into existence by fraud and misrepresentation. It is therefore not binding on the respondent. It is necessarily to be declared as void as held by the court below. The view taken by the court below is absolutely justifiable and the impugned judgment and decree do not call for any interference. They are confirmed and the appeal is liable to be dismissed.
R.F.A.No.232 of 2016
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In the result, appeal fails and it is dismissed.
All pending interlocutory applications are closed.
Sd/-
T.V.ANILKUMAR JUDGE ami/