Kerala High Court
Jayaraj vs Padmavathi Shetty on 12 February, 2026
R.S.A.No.1068 of 2012 1 2026:KER:13497
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 12TH DAY OF FEBRUARY 2026 / 23RD MAGHA, 1947
RSA NO. 1068 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 04.11.2010 IN A.S. NO.79
OF 2008 OF DISTRICT COURT, KASARAGOD ARISING OUT OF THE JUDGMENT AND
DECREE DATED 04.08.2008 IN O.S. NO.17 OF 2005 OF SUB COURT, KASARAGOD
APPELLANT(1ST APPELLANT/1ST DEFENDANT):
1 JAYARAJ
SON OF BABU SHETTY, RESIDING AT VANANDE HOUSE,
SHIRIYA VILLAGE, KASARAGOD TALUK P.O,
SHIRIYA 671321. (DIED LRS IMPLEADED).
ADDL.A2. SHARADA JAYARAJ SHETTY , AGED 65
W/O. LATE JAYARAJ SHETTY,
RESIDING AT VANANDE SHREE HOUSE, NEAR GHS SHIRIYA,
SHIRIYA VILLAGE AND POST, MANJESHWARAM TALUK,
KASARAGOD DISTRICT 671 321.
THE LEGAL REPRESENTATIVES OF DECEASED APPELLANT NO.1 IS
IMPLEADED AS ADDITIONAL APPELLANT NO.2 AS PER THE ORDER
DATED 11/11/2025 IN IA 1/2025.
BY ADVS.
SHRI.D.KRISHNA PRASAD
SRI.P.B.SUBRAMANYAN
SMT.SANTHA O.K.
SMT.S.SANTHY
SRI.SABU GEORGE
SRI.MANU VYASAN PETER
SMT.MEERA P.
RESPONDENTS/(RESPONDENTS & 2ND APPELLANT/1ST PLAINTIFF, SUPPLEMENTAL
3RD PLAINTIFF & 2ND DEFENDANT):
1 PADMAVATHI SHETTY (DIED LHRS IMPLEADED)
D/O LAXMI HENGSU AND W/O LATE KARIANNA SHETTY,
R.S.A.No.1068 of 2012 2 2026:KER:13497
RESIDING AT C/7 CLOVE GARDEN,
BALMATTA NEW ROAD, MANGALORE TALUK,
P.O. MANGALORE 575001, KARNATAKA STATE,
REPRESENTED BY HER POWER OF ATTORNEY HOLDER,
SADANANDA BHANDARY, S/O DESHINGA BHANDARY,
RESIDING AT C/7 CLOVE GARDEN, BALMATTA NEW ROAD,
MANGALORE TALUK, P.O MANGALORE 575001,
KARNATAKA STATE
2 SUCHETHA.S. BHANDAR4Y
D/O VIMALA SHETTY AND W/O SADANANDA BHANDARY,
RESIDING AT C/7 CLOVE GARDEN,
BALMATTA NEW ROAD, MANGALORE TALUK P.O,
MANGALORE 575001, KARNATAKA STATE
3 ANANDA SHETTY
S/O BABU SHETTY, RESIDING AT VANANDE HOUSE,
SHIRIYA VILLAGE, KASARAGOD TALUK,
P.O, SHIRIYA 671321
ADDL.R4 RAMESH KARIYANNA SHETTY ,
AGED 72 YEARS
S/O. LATE KARIYANNA YALLAPPA SHETTY,
RESIDING AT B.604 GORAI MATRU ASHISH CHS LTD.,
RSC 52 GORAI-2, OPPOSITE AJARA BANK,
BORIVALI WEST, S.O.MUMBAI, MAHARASHTRA 400092
ADDL.R5 VIJAYALAXMI KARUNAKARA SHETTY ,
AGED 70 YEARS
D/O. LATE KARIYANNA YALLAPA SHETTY, RESIDING AT C.104
VAIBHAV APARTMENTS, OLD PRABHADEVI ROAD, MUMBAI,
MAHARASHTRA 400025
ADDL.R6 NARESH KARIYANNA SHETTY
AGED 68 YEARS
S/O. LATE KARIYANNA YALLAPA SHETTY,
RESIDING AT D/6 HIGHWAY SOCIETY,
PLOT NO.46/47, KURLA EAST SHIVSHRUTI,
NEAR ST DEPOT, MUMBAI, MAHARASHTRA 400025
ADDL.R7 NIVEDITA JAGADEESH SHETTY
AGED 65 YEARS
D/O. LATE KARIYANNA YALLAPA SHETTY, RESIDING AT 903
SUMER TRINITY TOWER 2B, NEW PRABHADEVI ROAD, MUMBAI,
MAHARASHTRA 400025
ADDL.R8 KAVITA SHIVAPRASAD POONJA ,
AGED 62 YEARS
D/O. LATE KARIYANNA YALLAPA SHETTY,
R.S.A.No.1068 of 2012 3 2026:KER:13497
RESIDING AT 76/B/23 BRINDAVAN COMPLEX
NANDAGAON SOCIETY, THANE WEST, MUMBAI,
MAHARASHTRA 400601.
THE LEGAL HEIRS OF DECEASED R1 ARE IMPLEADED AS ADDL R4
TO R8 AS PER THE ORDER DATED 2/2/2026 IN IA 3/2025.
R2 & R4 BY ADVS. SRI.T.MADHU
SMT.C.R.SARADAMANI
SHRI.M.PRADEEP RAO
SHRI.RENJISH S. MENON
SMT.AVANTHIKA R.
SMT.ARUNIMA A.R.
SHRI.T.S.DAVIS
R3 BY ADVS. SRI.ANEESH JOSEPH
SMT.P.M.SHIJI
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
12.02.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A.No.1068 of 2012 4 2026:KER:13497
EASWARAN S., J.
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R.S.A. No.1068 of 2012
-------------------------------------
Dated this the 12th day of February, 2026
JUDGMENT
This appeal is preferred by the 1st defendant against the concurrent findings rendered by the Sub Court, Kasaragod, in O.S. No.17 of 2005, as affirmed by the District Court, Kasaragod, in A.S. No.79 of 2008.
2. The plaintiffs filed the aforesaid suit for a declaration and permanent prohibitory injunction that two deeds executed respectively by them on 19.3.2004 and 30.7.2014 be declared as void insofar as the rights are concerned. The plea raised in support of the claim in the suit was that the 2nd plaintiff who executed the registered assignment deed dated 19.3.2004 was suffering from bipolar disorder and was not in a mental capacity to understand the contents of the documents and further as far as the 1st plaintiff is concerned she was residing in Mumbai at the time of execution and had no occasion to come to Kasaragod and execute the document. Thus, insofar as the 1st plaintiff is concerned, the case of impersonation was set up. In support of the claim, the plaintiffs R.S.A.No.1068 of 2012 5 2026:KER:13497 took steps to send Ext.B2 document, which is the original of the release deed, for comparison of the thumb impression in the document with the admitted thumb impression. The admitted thumb impression was taken before the court, and the same was sent to the fingerprint expert, Finger Print Bureau, Thiruvananthapuram and, on comparison, it was found that the admitted thumb impression was not the same as the thumb impression found in Ext.B2 document. Insofar as the 2nd plaintiff is concerned, PW3, the doctor, was examined to prove that she was under treatment for bipolar disorder from 2002 to 2005. In addition to the oral testimony of PW3, Ext.A4 medical certificate was issued by PW3 along with Exts.A5 to A10 prescriptions. The defendants, on the other hand, though they had an opportunity to examine the scribe, attesting witness to the deeds as well as the Registrar who witnessed the registration of the Exts.B1 and B2 deed, did not take any steps to examine them. But then, the defendants examined DW2 and DW3, who, according to them, deposed that the 2nd plaintiff did not have any bipolar disorder as contended by her, and she was part of a certain organisation and had attended meetings and put her signature in the minutes book. Exts.X1 and X2 were summoned through DW2 and DW3 to prove the same. The trial court, on appreciation of the oral and documentary evidence adduced by R.S.A.No.1068 of 2012 6 2026:KER:13497 the plaintiffs and the defendants, concluded that inasmuch as the report of the finger print expert disclosed that the finger print affixed in Ext.B2 is not that of the first plaintiff and, based on the evidence of PW3, the doctor who treated the 2nd plaintiff, 2nd plaintiff was suffering from a bipolar disorder and therefore was not in proper mental capacity to understand the contents of Ext.B1 deed. Thus, the trial court concluded that the plaintiffs were entitled to succeed and accordingly decreed the suit, declaring that the registered assignment deeds dated 19.3.2004 and the release deed dated 30.7.2004 have no validity. Aggrieved, the defendants preferred appeal A.S. No.79 of 2009 before the District Court, Kasaragod and the first appellate court on re-appreciation of the evidence adduced by the parties came to the conclusion that the trial court correctly found in favour of the plaintiffs and accordingly dismissed the appeal and hence the present appeal.
3. Heard Sri. S.V Balakrishna Iyer, the learned Senior Counsel appearing for the appellant, assisted by Sri. P.B. Subramaniyan and Sri.T.Madhu, the learned counsel appearing for respondents 2 and 4.
4. The learned Senior Counsel appearing for the appellant raised the following submissions:
a. The finding of the trial court that the 2nd plaintiff R.S.A.No.1068 of 2012 7 2026:KER:13497 was suffering from bipolar disorder is solely based on evidence of PW3, which is not sufficient. No further evidence was adduced by the 2nd plaintiff to prove the said fact. When the evidence of PW3 is tested against the evidence of DW2 and DW3, and also in the light of Exts.X1 and X2 records, it is clearly established that the 2nd plaintiff was not suffering from any mental disorder as contended.
b. Even assuming for argument's sake, if she was having any mental disorder at the time of execution of the deed, the suit as regards the 2nd plaintiff cannot be sustained inasmuch as she was not represented by a next friend, and this aspect has been completely lost sight of by the trial court. c. It is further contended that the failure to examine the scribe and attesting witness will not prove fatal to the case because both Exts.B1 and B2 are registered documents which carry a presumption regarding its validity, and unless it is rebutted, the burden does not shift on the shoulders of the 1st defendant.
d. It is further pointed out that the plaintiffs had not discharged the initial burden of proving the validity of the R.S.A.No.1068 of 2012 8 2026:KER:13497 release deeds. That apart, it is pointed out that there was no prayer for cancellation of the deed and therefore, the mere declaration will not suffice, and the prayers are hit by the proviso under Section 34 of the Specific Relief Act, 1963.
5. Per contra, the learned counsel appearing on behalf of the respondents/plaintiffs contended that the findings rendered by the courts below are perfectly justified and do not call for any interference in exercise of the powers under Section 100 of the Code of Civil Procedure. The concurrent findings based on appreciation of evidence cannot be upsetted in a second appeal unless it is found that the findings are perverse in nature. It is thus prayed that the judgment of the courts below be sustained and the appeal be dismissed.
6. I have considered the rival submissions raised across the bar, perused the judgment of the courts below and is of the view that no substantial questions of law arise for consideration in the present appeal for the reason that the appellant miserably failed to discharge the burden of proving the validity of the assignment deed as well as the release deed.
7. It must be remembered that, as regards the 1st plaintiff is concerned, the validity of the release deed was set up on the ground of impersonation. The admitted fingerprint of the 1st plaintiff was taken R.S.A.No.1068 of 2012 9 2026:KER:13497 before the court and was sent to the fingerprint expert, and a report came in favour of the first plaintiff stating that the fingerprint does not match with the fingerprint in the registered document. If that be so, it was incumbent upon the 1st defendant to have examined the attesting witness, scribe, as well as the Registrar. The conscious failure on the part of the 1st defendant to examine these persons will lead to an irrebuttable presumption that the documents were not validly executed.
8. Though a faint argument was raised regarding the acceptability of the report of the Fingerprint Expert, the courts below have concurrently found the report to be acceptable; therefore, this Court finds no cogent reason to upset those findings.
9. Coming to the case of the assignment deed executed on 19.3.2004, the plaintiffs were successful in examining PW3, the doctor who treated the 2nd plaintiff for the bipolar disorder and Ext.A4 medical certificate and Exts.A5 to A10 prescriptions were produced by them. A cursory glance at the findings rendered by the courts below would show that, though PW3 was extensively cross-examined, nothing was brought to discredit the witness. At any rate, the trial court has found the acceptability of the evidence tendered by PW3. Though it may be possible for this Court to hold that the evidence of PW3 by itself will not be R.S.A.No.1068 of 2012 10 2026:KER:13497 sufficient for the plaintiffs to succeed, it must be remembered that, as against the evidence of PW3, no other clinching evidence has been adduced by the 1st defendant in order to disprove or contradict the evidence given by PW3.
10. In such circumstances, in the absence of any contra evidence, it is inevitable for this Court to hold that the findings rendered by the courts below based on the materials produced by the plaintiffs do not call for any interference in exercise of the powers under Section 100 of the Code of Civil Procedure.
11. Coming to the contention that the plaintiffs ought to have sought to set aside the deed, it has come out in evidence that, as regards Ext.B2 deed is concerned, it is vitiated by impersonation, and as far as Ext.B1 deed is concerned, the 2nd plaintiff was suffering from bipolar disorder at that point of time. Equally so, this Court does not find any force in the contention of the learned Senior Counsel for the appellant that the 2nd plaintiff was not represented by a next friend. In fact such an objection was not raised before the trial court and therefore, at this point of time, this Court is not prepared to accept the said contention and non-suit the plaintiffs on that ground, especially in the light of the overwhelming evidence adduced by the plaintiffs and also the failure of the 1st defendant R.S.A.No.1068 of 2012 11 2026:KER:13497 to discharge the burden through proper recourse of law.
In such circumstances, finding that no substantial questions of law arise for consideration, the appeal fails and the same is dismissed.
Sd/-
EASWARAN S. JUDGE NS