Kerala High Court
Shebili Alias Mariyam vs P.J.Lilly, (Died) on 16 December, 2025
2025:KER:98552
RSA Nos.215 & 910 of 2011
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 16TH DAY OF DECEMBER 2025 / 25TH AGRAHAYANA,
1947
RSA NO. 910 OF 2011
AGAINST THE JUDGMENT AND DECREE DATED 30.07.2010 IN AS
NO.10 OF 2005 OF II ADDITIONAL DISTRICT COURT,PALAKKAD
ARISING OUT OF THE JUDGMENT AND DECREE DATED 27.10.2004 IN
OS NO.175 OF 2000 OF PRINCIPAL SUB COURT, PALAKKAD
APPELLANTS/APPELLANTS/DEFENDANTS 1 & 2:
1 SHEBILI ALIAS MARIYAM
AGED 36 YEARS
W/O.LATE M.V.MATHAI, MANAMKODE VEEDU, THRIKANAYAM
DESOM, ELANADU VILLAGE, THALAPPILLY TALUK,
THRISSUR DISTRICT.
2 GITHIN ,AGED 15 YEARS (MINOR)
RESIDING AT -DO-, REPRESENTED BY GUARDIAN MOTHER,
SHEBILI ALIAS MARIYAM.
BY ADVS.
SRI.B.KRISHNA MANI
SHRI.M.V.JOY
RESPONDENTS/RESPONDENTS 2 TO 9 IN APPEAL/LEGAL HEIRS OF THE
PLAINTIFFS/ADDITIONAL RESPONDENTS 8 TO 9/APPELLANTS 3 TO
6/DEFENDANTS 3 TO 6:
1 SARAMMA,W/O. LATE M.V. MATHAI,
MOOTHATTU HOUSE, MANIKKAYAPADAM, VADAKKANCHERY,
VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT-678
541.
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2
2 JAISON MATHAI
MOOTHATTU HOUSE, MANIKKAYAPADAM, VADAKKANCHERY,
VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT-678
541.
3 JACOB MATHEW, AGED 35 YEARS
MOOTHATTU HOUSE, MANIKKAYAPADAM, VADAKKANCHERY,
VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT-678
541.
4 JESSY, AGED 30 YEARS, D/O. LATE
M.V.MATHAI, MOOTHATTU HOUSE, MANIKKAYAPADAM,,
VADAKKANCHERY VILLAGE, ALATHUR TALUK,, PALAKKAD
DISTRICT-678 541.
5 JOLLY, AGED 30 YEARS
MOOTHATTU HOUSE, MANIKKAYAPADAM, VADAKKANCHERY,
VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT-678
541.
6 THE AUTHORIZED OFFICER
THE FEDERAL BANK LTD., REGIONAL OFFICE, THRISSUR-
680 584.
7 P.J.KUNJACHAN, AGED 59 YEARS, S/O. P.M.JOSEPH,
PUTHANPURAKKAL HOUSE, ERUKKUMUNCHIRA, KORECHIRA
P.O., KIZHAKKANCHERRY VILLAGE, ALATHUR-678 541.
8 K.D.PAUL AGED 39 YEARS S/O. DEVASSI
LANNADAN HOUSE, KORECHIRA P.O., KIZHAKKANCHERRY,
VILLAGE, ALATHUR, PALAKKAD-678 541.
9 M.P.VARGHESE AGED 72 YEARS
MANNAMKODE VEEDU, THRIKANAYAM DESOM, ELANADU,
VILLAGE, THALAPPILLIL TALUK, THRISSUR DISTRICT,
PIN-680 586.
10 SARAMMA, W/O. M.P.VARGHESE AGED 37 YRS
MANNAMKODE VEEDU, THRIKANAYAM DESOM, ELANADU,
VILLAGE, THALAPPILLIL TALUK, THRISSUR DISTRICT,
PIN-680 586.
11 PETER, AGED 40 YEARS S/O. M.P.VARGHESE
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RSA Nos.215 & 910 of 2011
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MANNAMKODE VEEDU, THRIKANAYAM DESOM, ELANADU,
VILLAGE, THALAPPILLIL TALUK, THRISSUR DISTRICT,
PIN-680 586.
12 PAUL, AGED 37 YEARS, S/O. M.P.VARGHESE
MANNAMKODE VEEDU, THRIKANAYAM DESOM, ELANADU,
VILLAGE, THALAPPILLIL TALUK, THRISSUR DISTRICT,
PIN-680 586.
BY ADVS.
SRI.LIJU. M.P FOR R7 & R8
SRI.SAJAN VARGHEESE K. FOR R7 & R8
SHRI.SUNU P.JOHN FOR R6
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 16.12.2025, ALONG WITH RSA.215/2011, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
2025:KER:98552
RSA Nos.215 & 910 of 2011
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 16TH DAY OF DECEMBER 2025 / 25TH AGRAHAYANA,
1947
RSA NO. 215 OF 2011
AGAINST THE JUDGMENT AND DECREE DATED 30.07.2010 IN AS
NO.9 OF 2005 OF II ADDITIONAL DISTRICT COURT,PALAKKAD ARISING
OUT OF THE JUDGMENT AND DECREE DATED 27.10.2004 IN OS NO.49
OF 1998 OF PRINCIPAL SUB COURT, PALAKKAD
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 SHEBILI ALIAS MARIYAM,
AGED 36 YEARS
W/O.LATE M.V.MATHAI, MANAMKODE VEEDU, THRIKANAYAM
DESOM, ELANADU VILLAGE, THALAPPILLY TALUK,
THRISSUR DISTRICT.
2 GITHIN, AGED 15 YEARS (MINOR)
RESIDING AT DO. REPRESENTED BY GUARDIAN, MOTHER
SHEBILI ALIAS MARIYAM.
BY ADV.B.KRISHNA MANI
RESPONDENTS/RESPONDENTS/DEFENDANTS 2 TO 12:
1 P.J.LILLY, (DIED)
D/O.ARAVANCHAL PLAVARA, PUTHENVEETTIL P.V.JOHN,
PLAVARA PUTHENVEETTIL HOUSE, PAYYANNUR VILLAGE,
PAYYANNUR TALUK,, KANNOOR DISTRICT-670
307.(ABATED)
(APPEAL AGAINST FIRST RESPONDENT IS STAND AS
DISMISSED AS ABATED AS PER ORDER DATED 02.07.2019
2025:KER:98552
RSA Nos.215 & 910 of 2011
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IN IA.2/2019.)
2 P.J.JOHN, S/O.PALAKKAMMATHATHIL JOHN
PALAKKAMATTATHU HOUSE, PANANCHERY VILLAGE,
PATTIKKAD DESOM, THRISSUR TALUK AND DISTRICT-680
652.
3 SUNIL, S/O.MANNARKUDIYIL POULOSE
MANNARKUDIYIL HOUSE, ORAVANTHUR DESOM,,
KIZHAKKANCHERRY AMSOM, ALATHUR TALUK,, PALAKKAD
DISTRICT-678 541.
4 JAISON MATHEW, S/O.KARIKUNNATH
MOOTHADAM M.V.MATHAI, KARIMKUNNATH HOUSE,,
KIZHAKKENCHERY AMSOM, ALATHUR TALUK,, PALAKKAD
DISTRICT-678 541.
5 SARAMMA, MOOTHATTU HOUSE
MANIKKYAPADA, VADAKKANCHERRY VILLAGE,, ALATHUR
TALUK, PALAKKAD DISTRICT-678 541.
6 JACOB MATHEW, AGED 35 YEARS
D/O.LATE M.V.MATHAI, MANIKKYAPADA, VADAKKANCHERRY
VILLAGE, ALATHUR TALUK,, PALAKKAD DISTRICT-678
541.
7 JESSY, D/O.LATE M.V.MATHAI
MANIKKYAPADA VADAKKANCHERRY VILLAGE, ALATHUR
TALUK, PALAKKAD DISTRICT-678 541.
8 JOLLY, D/O. LATE M.V.MATHAI
MANIKKYAPADA VADAKKANCHERRY VILLAGE,, ALATHUR
TALUK, PALAKKAD DISTRICT-678 541.
9 THE AUTHORIZED OFFICER
THE FEDERAL BANK LTD., REGIONAL OFFICE, THRISSUR-
680 584.
10 P.J.KUNJACHAN
AGED 59 YEARS, S/O.P.M.JOSEPH,, PUTHANPURAKKAL
HOUSE, ERUKKUMUNCHIRA,, KORECHIRA (PO),
KIZHAKKANCHERRY VILLAGE, ALATHUR-678 541.
11 K.D.PAUL, AGED 39 YEARS
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S/O.DEVASSI, KANNADAN HOUSE, KORECHIRA (PO),
KIZHAKKANCHERRY VILLAGE, ALATHUR, PALAKKAD-678
541.
BY ADVS.
SRI.LIJU. M.P FOR R10 & R11
SRI.SAJAN VARGHEESE K. FOR R10 & R11
SHRI.SUNU P.JOHN FOR R9
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 16.12.2025, ALONG WITH RSA.910/2011, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
2025:KER:98552
RSA Nos.215 & 910 of 2011
7
EASWARAN S., J.
------------------------------------
RSA Nos.215 and 910 of 2011
-------------------------------------
Dated this the 16th day of December, 2025
JUDGMENT
These appeals are directed against concurrent findings of the Principal Sub Court, Palakkad in OS Nos.49/1998 and 175/2000 and the Additional District Court-II, Palakkad in AS Nos.9/2005 and 10/2005. OS No.49/98 is a suit for declaration of title and recovery of possession with mesne profit. OS No.175/2000 is filed for injunction restraining the plaintiffs in the other suit from trespassing into the plaint schedule property and disturbing the peaceful possession and enjoyment of the plaintiff.
2. The brief facts necessary for the disposal of the appeals are as follows:
The 1st plaintiff in OS No.49/1998 (1st appellant herein) is the widow of late Mathai. Their marriage was solemnised on 25.5.1987 at St.George Jacobite Church, Thrikanaya, according to Christian Law.
2025:KER:98552 RSA Nos.215 & 910 of 2011 8 On 16.3.1988, the 2nd plaintiff in OS No.49/1998 (2nd appellant herein) was born and he was baptised in the St.George Jacobite Church, Thrikanaya. The 1st plaintiff's father, M.V.Varghese, had already assigned One Acre 50 Cents of property in the name of the 1st plaintiff. Late Mathai had physically tortured the 1st plaintiff which led to pouring of formic acid on the 1st plaintiff on 28.10.1991 and that she had to undergo treatment for burns. Later, CC No.83/92 was filed against Mathai and after trial, he was acquitted. Since Mathai neglected to maintain the plaintiffs in OS No.49/1998, they filed MC No.5/1994 before the Judicial First Class Magistrate's Court, Palakkad. Pending the said petition, Mathai died on 27.12.1997 and thereafter the case was dismissed on 24.1.1998. The deceased Mathai had obtained the plaint schedule property in a partition as per document No.151/1992. Later, Mathai was diagnosed with AIDS and he was in an advanced stage. Since the condition of Mathai was so degenerated physically and he became mentally weak, he was not in a position to use his own discretion and was completely under the control of defendants 1 to 3 and 5. Later, it appeared that late Mathai had executed a sale deed on 8.12.97 in favour of the 2nd defendant who had no legal relationship with Mathai. It is further contended that 2025:KER:98552 RSA Nos.215 & 910 of 2011 9 Mathai had married the 2nd defendant during the subsistence of the earlier marriage, and therefore, the same cannot be construed as one legally binding on the 1st plaintiff. Therefore, OS No.49/1998 is instituted. The defendants 1 and 3 to 5 filed a joint written statement denying the allegations. It was stated that since the 1st plaintiff/1st appellant herein had neglected late Mathai from 28.10.1991 onwards, late Mathai had to incur funds for his treatment and accordingly, his property was sold for the purpose of generating funds for his treatment. Even the institution of the criminal case against late Mathai was found to be false and later he was acquitted. Therefore, they prayed for dismissal of the suit. In the meantime, the property was sold to the 1st defendant in OS No.49/1998-plaintiff in OS No.175/2000. Since attempts were made by the appellants herein (plaintiffs in OS No.49/1998) to interfere with the right of the 1st defendant, OS No.175/2000 for injunction was filed by the 1st defendant in OS No.49/1998. On behalf of the plaintiffs, Exts.A1 & A2 documents were produced and PW1 and PW2 were examined. On behalf of the defendants, Ext.B1 was produced and DW1 to DW4 were examined. Exts.X1 to X4 are third party exhibits. Ext.C1 is the report of the advocate commissioner. The trial court on the basis of the oral 2025:KER:98552 RSA Nos.215 & 910 of 2011 10 and documentary evidence came to the conclusion that evidence of PW2 is not sufficient to hold that late Mathai did not have the mental capacity to execute the sale deed. The trial court further found that the conscious act of the 1st plaintiff in OS No.49 of 1998/1st appellant herein in neglecting to take care of her husband from 1991 onwards would show that late Mathai had no inclination towards the 1st plaintiff/1st appellant herein. Accordingly, finding that the sale deed in question is validly executed and that the 1st defendant in OS No.49/1998 is a bona fide purchaser, OS No.49/98 was dismissed and OS No.175/2000 was decreed. Aggrieved, the plaintiffs in OS No.49/1998 preferred AS Nos.9/2005 and 10/2005 before the Additional District Court-II, Palakkad and by judgment dated 30.7.2010, the appeals were dismissed and hence, the present second appeals.
3. Heard Sri.B.Krishna Mani, the learned counsel appearing for the appellants and Sri.Liju M.P appeared on behalf of Sri.Sajan Varghese, the learned counsel appearing for the respondents 10 & 11 in RSA No.215/2011 - respondents 7 & 8 in RSA No.910/2011.
4. The learned counsel appearing for the appellants vehemently contended that the findings of the courts below are 2025:KER:98552 RSA Nos.215 & 910 of 2011 11 unsustainable under law. The relationship between late Mathai and the 2nd defendant in OS No.49/1998 had no legal sanctity. When the plaintiffs in OS No.49/1998 are the legal heirs of deceased Mathai, there was no occasion for him to have excluded the legal heirs and sold the entire property. It has come out in evidence that late Mathai was suffering from AIDS and was in advanced condition at the time of execution of the sale deed. Therefore, it is clear that late Mathai did not have any proper mental state of affairs for executing the sale deed. Thus, the execution of the sale deed is vitiated by fraud and misrepresentation and undue influence. This crucial aspect has not been taken into consideration by the courts below. That apart, the sale deed having been executed for a nominal value is also an indicative factor that the execution is vitiated by fraud and undue influence. PW2, who has been examined, proved Ext.A1 and Exts.X1 series and it has come out in evidence that Mathai was treated in District Co-operative Hospital, Thrissur. Therefore, when late Mathai was treated for Psychosis, the execution of the sale deed is clearly vitiated by fraud and undue influence. Therefore, the learned counsel for the appellants requested this Court to have a re-look on the appreciation of the evidence by the courts below.
2025:KER:98552 RSA Nos.215 & 910 of 2011 12
5. Per contra, Sri.Liju M.P. appeared on behalf of Sri.Sajan Varghese, the learned counsel appearing for the respondents 10 & 11 in RSA No.215/2011 - respondents 7 & 8 in RSA No.910/2011, resisted the plea of the appellants and contended that the concurrent findings recorded by the courts below do not call for any interference by this Court in exercise of its powers under Section 100 of the Code of Civil Procedure, 1908. It is further pointed out that the evidence of PW2 is of no consequence inasmuch as he was not able to prove the mental state of affairs of the deceased Mathai.
6. I have considered the rival submissions raised across the bar, perused the judgments rendered by the courts below and the records of the case.
7. On consideration of the rival submissions raised across the bar, this Court is not persuaded to accept the submissions of the learned counsel appearing for the appellants. The circumstance which led to the execution of the sale deed is clearly found out by the trial court on appreciation of the evidence. Admittedly, the deceased Mathai was suffering from AIDS. He was admitted to the District Co- operative Hospital, Thrissur and he was discharged on 4.12.1997 referring to Christian Medical College Hospital, Vellore, for expert 2025:KER:98552 RSA Nos.215 & 910 of 2011 13 treatment. After the discharge, in order to undertake the expert treatment as suggested by the District Co-operative Hospital, Thrissur, necessarily, late Mathai had to incur funds. The appellants do not have a case that they have taken care of the deceased Mathai during his last stages. Necessarily, late Mathai had to incur expenses for the treatment. Therefore, it would have been only probable that he wanted to dispose of the properties. Accordingly, the sale deed was executed.
8. However, the learned Counsel Sri.B Krishna Mani contended that the sale deed does not reflect the true value and hence cannot be legally sustained. But then, the argument overlooks the fact that a sale deed cannot be held to be vitiated only on the ground of inadequacy of sale consideration because of the embargo under Section 54 of the Transfer of Property Act, 1882, Further, it has come out in evidence that a false case of an acid attack on the 1st plaintiff was lodged by her against the deceased Mathai in the year 1991 and later, late Mathai was acquitted of the charges. It is also an admitted case that a revision filed by the 1st plaintiff/1st appellant herein was dismissed by this Court. Therefore, it is evidently clear that they were not in good terms at the time of execution of the sale deed. Therefore, 2025:KER:98552 RSA Nos.215 & 910 of 2011 14 as a natural consequence, it is clear that late Mathai had no inclination towards the 1st plaintiff in OS No.49 of 1998/ 1st appellant herein and therefore, he had sought other alternatives to raise funds for the purpose of his treatment.
More pertinently, a registered sale deed carries a presumptive value regarding its execution. Though the presumption is rebuttable, in the present case, the quality of defence adduced by the plaintiffs in OS No.49 of 1998/appellants herein is not sufficient to hold that the said presumption has been successfully rebutted. The findings rendered by the courts below are purely on appreciation of the evidence adduced by the parties. Such appreciation does not appear to be vitiated by any perversity. In the above circumstances, this Court finds that no substantial question of law arises for consideration in the present appeals. Accordingly, the second appeals fail and the same are dismissed. No costs.
Sd/-
EASWARAN S. JUDGE jg