Kerala High Court
Philip Lukka vs Franciscan Association, Vazhappally ... on 2 January, 1986
Equivalent citations: AIR1987KER204, AIR 1987 KERALA 204
JUDGMENT Sukumaran, J.
1. This is a plaintiffs appeal. It is directed against the judgment of the Sub Court, Kottayam, by which that Court dismissed the suit. The main prayer in the suit was for setting aside a gift deed executed by the plaintiff on the ground of undue influence and fraud. The 1st defendant is the Franciscan Association, defendants 2 and 3 are respectively its President and Vice-President.
2. Some facts are not in dispute. The plaint schedule property has an extent of 3 acres and 89 cents. It is situate about 1 Km. from the Kottayam Medical College and in close proximity to the Amalagiri College. As such it is a very valuable item of property. The plaintiff obtained the property in a partition in his family evidenced by Ext. A1 dt. 27-8-1121 (9-4-1946). (According to the plaintiff, this is the only property owned by him, though a thandaper shows another property 1 acre 69 cents in his name). The plaintiff was a congenital invalid suffering from indifferent health throughout his life. Perhaps, this induced him to remain a bachelor throughout. He had all through a deep religious bend, with high regard for religious superiors and a deep sense of obedience to the priest-hood. He was God fearing in his habits and service minded always. Even while passing through agonising ailments, he felt service to others as the easy way to solace and relief. Conscious as he was about his supreme incapability to look after his mundane matters, he had left his property to be managed and maintained by his brother-in-law. He was having close contact with religious men, having been in the hospitals for treatment of his ailments and in the monesteries consistent with his religious life.
3. That on 27-1-1975, the gift deed of his property was executed, and registered in the Karukachal Sub Registry Office is not in controversy. As regards the property in question, the proper Sub Registry under the Registration Act is Ettumangor within a very short distance from the property and from the then residence of the plaintiff It was, however, registered at the Karukachal Sub Registry Office, a place far beyond Kottayam and Changanacherry on the southern side of Ettumanoor. The registration was effectuated in the Karukachal Sub Registry Office by adopting a device of including "improvement rights" over 25 cents of land comprised in survey No. 32/4/10 of Nedumkunnam village within the jurisdiction of that Sub Registry. Office.
4. Soon after the execution and registration of the document the plaintiff was in various institutions over which defendants had control or influence. He left the last of such institution, the Chethipuzha Hospital, on 28-8-1975. This litigation was launched soon thereafter. It commenced with a petition filed in forma pauperis by the present plaintiff on 27-9-1975. His eligibility to sue as an indigent person was contested by the defendants. The Court upheld that objection. Thereupon he paid the court-fee due and the suit was duly registered as such.
5. The plaint clearly averred that a priest by name Rev. Father Francis (who represents the 1st defendant-Franciscan Association) visited the plaintiff on 14-9-1974, when he was an in-patient in the St. Joseph Mission Hospital, Mannanam. The visit was with the 3rd defendant, Father of a highly placed Priest, Who knew intimately the approaches and attitudes of the plaintiff towards life, religion and the priesthood. Representation had been made to him about the Association's preparedness to look after him and his mother, on the property being gifted to the Association. The visit was repeated on 22-9-1974. It was represented to him that his brother-in-law was a consenting party to such an arrangement. He was, however, directed to keep the matter a secret. Other assurances had also been made in the event of the execution of the gift deed.
6. As to how the registration happened to be made at Karukachal, has been graphically and specifically detailed in the plaint. He was secretly taken by the 3rd defendant early morning on 27-1-1975 to Changanacherry. He was made to stay in the S. M. Boarding House there. The 3rd defendant had interdicted any communication of the object of the mission even to those who might meet him on the way. By about dusk, he was taken to the presence of the Arch Bishop, Changanacherry. Defendants 1 and 2 told him that all matters had been conveyed to the Arch Bishop and consequently the conversation between the plaintiff and the Arch Bishop was confined to an ordinary courtesy. In the next morning, defendants 1 and 2 took him in a car, to Karukachal and took him to a convent. From there he was taken to the Sub Registry Office and the document was got registered there without revealing its contents to him. When questioned about the necessity of registering the document, he was informed that the Sub Registrar's son was a former student of the S. H. High School and consequently it would be easier to have the registration in that Sub Registry Office. Apparently to make the story convincing, Fr. Mathew Njallathuweli was also there.
7. The plaintiff states that his chronically weak constitution and feable mind had been exploited by the 1st defendant-Priest who knew fully well the infirm mind who would readily respond to pressures and persuasions of the Priest. After the registration, he was made to stay in the S. H. Boarding House till 8th February. Thereafter, his residence has been shifted from place to place and ultimately on 9-6-1975, he was accommodated in a temporary shed very near to the property. He was not allowed free movement at that time and was not allowed even to visit his ailing mother aged 95. He was ultimately taken to a hospital at Chethippuzha and virtually abandoned there on 28-8-1975. He was then constrained to return home, in a desperate situation.
8. He stated that while under the control and confinement of the defendants, he had signed many blank papers on the representation that they were required in connection with various cases relating to the property. The document is vitiated by undue influence and fraud, inasmuch as his regard and devotion to the Priest had been taken undue advantage of, and that he had no opportunity to know the real contents of the documents. He had no opportunity of any consultation with his friends or relatives; and when he was reluctant to execute a document, he was persuaded to do so due to the influence and command of the 1st defendant-Priest who had overpowering effect particuicularly having regard to his infirm mind and week body at that time. (Though the plaint initially sought an injunction, it was amended in the light of subsequent events, enveloping a prayer for recovery.)
9. The defendants contended that the gift deed was voluntary and that it had not been vitiated by any fraud or undue influence. That the plaintiff had stayed in the St. Joseph's Hospital for treatment was, however, admitted. According to the defendants, the Sub Registry Office at Kerukashal was chosen at the desire of the plaintiff in order to keep the registration of the document as a guarded secret. The stay of the plaintiff in a room attached to the S.H. High School was also admitted. As regards the period subsequent to the registration, the continued stay of the plaintiff, in the S.H. High School and other institutions of the defendants and ultimately in the Chethippuzha Medical Mission Hospital was also admitted. According to the defendants, he was taken away on 28-8-1975 under the representation about the impending death of his aged mother. The written statement further proceeded to suggest that the litigation was inspired by his relatives esger to get at his property. The intermediate litigations centering round the property were also referred to, to suggest that he had contested them.
10. Four witnesses have been examined on the side of the plaintiff and three documents marked. P.W. 1 was the plaintiff himself. Fr. Mathew, teacher of the S.H. High School gave evidence as P.W. 2. P.W. 3 M.C. Thomas was closely connected with the management of the hospital, where the plaintiff was an in-patient for about a year prior to the execution of the gift deed. P.W. 4 is the Vicar of the St. Mary's Ferons Church, Athirampuzha. On the side of the defendants, there was only the oral evidence of D.W. 1, who was none other than the 1st defendant. Exts. Bl to B20 were produced as documentary evidence in the case. Most of them do not directly relate to the crucial question arising for decision in the case. As noted earlier, soon after the execution of the document, litigation had started in relation to the property, a suit for injunction and an application before the Land Tribunal both by the plaintiff's brother-in-law. The interim injunction sought for by him had been declined. The appeal from the interim order before the appellate Court was unsuccessful. The suit and the application before the Court and the Tribunal ultimately failed. Documents connected with this litigation are Ext. B14 dt.
18-3-1975 a written statement in D.A. No. 453 of 1975 before the Land Tribunal, Ext. B10 order dt. 9-5-1975 of the Land Tribunal declining interim injunction, Ext. B7 judgment dt. 29-9-1976 in C.M.A. No. 40 of 1975 which affirmed the dismissal of the injunction application before the Munsiffs Court, Ext. B8 decree dt. 10-12-1976 in D.S. No. 44 of 1975, Ext. B11 deposition of the present plaintiff dt. 22-6-1977 and Ext. B9 order of the Land Tribunal dt. 30-3-1978. The document relating to the registration of the society, payment of tax and land cess, are also not of any direct consequence. Ext. B5 letter dt. 19-12-1974, Ext. B2 dt. 24-1-1975 addressed by the plaintiff, Ext, B19 letter dt.13-2-1975 of the Arch Bishop to the plaintiff may have to be referred to in their proper context.
11. The Court below took the view that negotiations had started earlier, that the plaintiff wanted to live in a good atmosphere, and that he was all along willing to make a gift of the property. It further took the view that there was a discussion relating to the transaction with the Arch Bishop and therefore it was idle for the plaintiff to contend that he was not aware of the terms of the document. A later insertion of a sentence in the document (Ext. B1 is the copy and Ext. B1(a) the original) about the Arch Bishop being the patron of the institution, according to the Court below, afforded intrinsic evidence about the plaintiff being aware of the contents of the document. The subsequent conduct also, particularly the contention raised by him in the litigation before the Munsiffs Court and the Land Tribunal, according to the Court below, improbabilised the case of any fraud practised on him. A portion of the evidence of D.W. 1 regarding an access to the plaint schedule property was relied on to show that there must have been some consultation (the date of which was, even according to the Court below, not clear) between the plaintiff and Advocate Jose Philip. It was on the basis of the above discussion that the Court below dismissed the suit.
12. It was strongly contended before us that the approach of the Court below was fundamentally erroneous and that the appreciation of evidence was totally biassed and perverse. The burden of proof in a case like the present one, it was emphasised, had not been borne in mind by the Court below. It was further complained that the Court below was unduly harsh in not giving the plaintiff adequate opportunity to examine the Sub Registrar of the Karukachal Sub Registry Office and adduce other evidence.
13. We shall examine these contentions with particular reference to the evidence available in the case. We have necessarily to bear in mind the physical and mental condition of the plaintiff while evaluating the validity of the transaction. As stated earlier, there is abundance of evidence indicative of his ill-health which had been harassing him throughout his life. It was the consciousness of that tormenting factor that made him lead a bachelor's life. The management of his properties was in those circumstances necessarily left to be dealt with by his brother-in-law. Added to this is the fact that he was essentially immersed in religious activities and deeply subjected to religious devotion. These essential traits of the man had been spoken to by all the independent witnesses, P.Ws. 2 to 4. Even the 1st defendant, while giving evidence as D.W. 1, had to admit about his ill-health, about his religious bend of mind, and about his having been virtually in an exclusive atmosphere of hospitals and monesteries with constant attention of the priests. P.Ws. 2 to4 also speak to the frequent visits of defendants 1 and 3. According to P.W. 2, the plaintiff was a good man, having respect for the priest and suffering from asthmatic complaints. He refers to the visits made by the 1st defendant. P.W. 3 in particular speaks about the frequent visits of defendants 1 and 2, which according to him, were mostly during the nights. He confirms the fact that the plaintiff had high regard and respect for the priest. P.W. 4 Vicar also speaks about the plaintiff as unhealthy man not capable of looking after his affairs, and about his being a religious man. According to him, the plaintiff was almost leading an ascetic life. He speaks about the fickle and religious mind of the plaintiff and about the document having been registered without informing the members of his family. The 1st defendant does not give any helpful evidence about the plaintiff having had any effective opportunity to seek and obtain independent advice before he parted with such substantial and almost exclusive item of his worldly wealth. The advice, which according to D.W. 1, was available for the plaintiff was from none other than the lawyer of the 1st defendant. That is hardly an independent advice having regard to the circumstances of the case. An attempt to keep the transaction a guarded secret, has been clearly established in the case. In the background of a spiritual domination over the mind of the plaintiff, this is a serious and substantial vitiating factor. Added to this are the additional and weighty considerations of his life-long ill-health, lack of self will and manly capacity, and an almost blind religious devotional frame of mind.
14. When a gift is made in favour of a spiritual organisation in such circumstances, the Courts always used to expect a high degree of proof about the voluntary and genuine character of the transaction. That has been the case from the days of Allcard v. Skinner, (1887) 36 Ch D 145. As Lindley L.J. pointed out :
"The influence of one mind over another is very subtle, and of all influences religious influence is the most dangerous and the most powerful, and to counteract it Courts of equity have gone very far."
Not only the parties directly involved in the transaction but also purchasers with notice even for value, would have to face the serious and adverse consequences. Wilmot, C. J. observed in Maitland v. Irving, (1846) 15 Sim 437:
"Whoever receives (the gift) must take it tainted and infected with the undue influence and imposition of the person procuring the gift; his partitioning and cantoning it out amongst his relations and friends will not purify the gift, and protect it against the equity of the person imposed upon. Let the hand receiving it be ever so chaste, yet, if it comes through a corrupt polluted channel, the obligation of restitution will follow it."
The legal position is summed up in Chashire and Fifoot's Law of Contract, Ninth Edition, Pages 291 to 294. In somewhat similar circumstance the Allahabad High Court set aside the transfer of property by a disciple in favour of his spiritual teacher who was in a position to dominate his will particularly having regard to the mental weakness induced by smeking of hemp. (See Manu Singh v. Umadat Pande, ILR 12 All 523).
15. The cumulative effect of the evidence in the case is so formidable that a clear case of undue influence is established by the plaintiff. In any view of the matter, the circumstances are such that the burden of establishing the validity of the transaction was very heavy on the defendants, judged by the tests laid down by the Supreme Court in Afsar Shaikh v. Soieman Bibi, AIR 1976 SC 163. That burden has not been sustained at all.
16. We are inclined to believe P.W. 1 when he has stated that for a fairly long period preceding the execution of Ext. B1, he did not have any access to others including those related to him by blood and those who were friendly to him otherwise. The manner in which he had been excluded from contact with the public, his residence being virtually confined to hospitals, and other places over which the defendants had complete control, cannot also be lost sight of in that connection. From January 1975 to August 1975, he was virtually under the control of defendants and in an environment in which access to outside world was almost impossible. It is highly significant that with all his genuine religious devotion, the plaintiff started legal action within a month of his exit from the last of the places where he had such secluded residence.
17. The circumstances attendant on the registration of the document at Karukachal, would completely confirm our conviction about the document being vitiated by undue influence. No satisfactory explanation exists for attempting a registration at a far, far away place. The defence plea was that it was due to the plaintiffs anxiety to keep the information away from those related to him. In a sense, this only corroborates the plaintiff's version about the total lack of opportunity to discuss about the transaction with others and so obtain independent advice in the matter, P.W. 1 was categoric that it was not at his instance that the registration was fixed at Karukachal. He repudiated that he had signed any application for obtaining the verification certificate of the properties (from the Ettumanoor Sub Registry Office) to enable registration at Karukachal. The Court below quite unjustifiably turned down his request for summoning the Sub-Registrar to give evidence in the case. There is force in the complaint of the appellant-plaintiff that coercive steps to ensure attendance of the Sub-Registrar to give evidence in the case were unjustly left unpursued. D.W. 1 was pointedly questioned about the reason for registration of the document at Karukachal. He confessed that he did not know anything about the property described as item 2 referred to in the documents Exts. B1 and B1(a). When asked whether the recital about possession of item 2 having been handed over under the document was not a false one, he could only plead ignorance. It has to be remembered that it was D.W. 1 who represented the 1st defendant-Association in the registration formalities. The fact that item 2 in Ext. B1(a) was a non-existent and fictitious property had been clearly stated in the plaint. The false pretentions under which the plaintiff had been taken to Karukachal had been graphically described in the plaint. The wholly unsatisfactory evidence on the side of the evidence (sic) has to be evaluated in that background. We have no hesitation in holding that the registration at Karukachal was manipulated by the defendants, with a view to suppress the publicity of an unconscionable bargain in their favour, taking advantage of an infirm mind and a frail frame of a deeply religious man, who could be easily influenced by priests like D.W. 1.
18. The document Ext. B1(a), as presented, was initially signed by one person as K. C. Philip, (K. C. Philip is none other than the 2nd defendant, a prominent office bearer of the 1st defendant-Association) purporting to be as the person who admits the execution of the document. This is, however, later scored off. It is significant that this cancellation of the signature in Ext. B1(a) is not either initialled by the Sub-Registrar or referred to in any endorsement to that effect in the document itself. No responsible Sub-Registrar could deal with a solemn document in the manner as Ext. B1(a) had been dealt with. There is yet another feature revealed from Ext. B1(a). The stamp paper for the document was purchased only on 28-1-1975 from a stamp vendor in Karukachal. The document, according to the registration endorsement, is seen to have been presented at 2.10 p.m. This would suggest that the document had not been prepared either at Mannanan or at Ettunianoor. It will take considerable time for engrossing the document on the stamp paper and in its final form. The document has necessarily to await a verification report from the Ettunianoor Sub Registry Office so as to proceed with the registration. The arrangements for obtaining such verification are not clearly or cogently explained by D.W. 1. Those features also clearly establish that there was a concerted effort to obtain the property of the plaintiff, exercising undue influence on him, and keeping the transaction from the knowledge of others close to and interested in the plaintiff.
19. The document is liable to be set aside for yet another reason. The circumstances clearly make out that item 2 is a fictitious and non-existent property. The document is a fraud on the Registration Law. It is invalid also on the ground of offending Section 28 of the Registration Act. (See Harendra Lal Roy Chowdhuri v. Hari Dasi Debi, 41 Ind App 110 : (AIR 1914 PC 110), Other cases on the point have been collected at page 149 of Mulla on the Indian Registration Act, Eighth Edition by A. K. Sarkar.) A fictitious property was deliberately inserted in the document with a view to obtain registration in a sub-district where no part of the property actually transferred in fact existed.
20. The legal principles have not been correctly borne in mind by the Court below. It has not assessed or appreciated the evidence in the light of the correct legal principles applicable. This has vitiated the conclusion.
21. The Court below erred in attaching much significance to Ext. B5 letter dt. 14-9-1974. The fact that the plaintiff had written such a letter is only indicative of an inclination of the plaintiff to transfer the property to an institution, at a time when he was undergoing treatment in the St. Joseph's Mission Hospital, and after he had been met by the priest. That would not, however, make the transaction immune from a challenge on the ground of undue influence. Even if the fact that he had some talk with an advocate, Mr. P.D. Thommen (who was counsel of the 1st defendant-Association) or the fact that he had appeared before the Arch Bishop, Changanacherry, nor the fact that the Arch Bishop had sent him a letter Ext. B19, nor even the fact that he had given some signed papers to Sri. P. D. Thommen when his brother-in-law had instituted cases against him and the Association, would not substantially affect or alter the basic invalidity of the transaction evidenced by Ext. B1(a). The Court below has allowed itself to be swayed by considerations which are not directly relevant for the crucial question about the invalidity of the document. All those had happened at a time when he had no effective contact with outside world much less any substantial facility to obtain independent advice.
22. The Court below has given considerable importance on the statements contained in Ext. B2 letter written on 24-1-1975 as indicative of an intention on the part of the plaintiff to transfer his property and register the document. The extract as given by the Court below from that letter is not fully correct. In a sense, the statements therein only go to confirm the weakened mind and deteriorated health of the plaintiff. It refers to the Medical advice received by the plaintiff that further treatment was of no use. It also refers to the Friar having taken him (who was extremely exhausted) to the Church. It also refers to the 'agreement' of all the priests, the Friar, Father Paul and Father Johnson, and the fact that he had been in the Hospital at Mannanam for five months. His eagerness to reside in a better atmosphere is also indicated If at all, the letter is only indicative of his extremely delicate health condition, and the contacts he was having with the priests. Having regard to the entirety of the background and the attendant circumstances, we do not find his version in the witness box as unnatural or unbelievable. The Court below has referred to the journey of the plaintiff to Changanacherry on 24-1-1975 to suggest that the plaintiff was free agent. We have already held that the journey to Changanacherry and Karukachal had been designed to have the document executed and registered secretly and without publicity.
23. The Court below has misunderstood the evidence regarding the interview between the Arch Bishop and the plaintiff. P.W. 1 has clearly stated that he did not discuss the terms of the document with the Arch Bishop. The Arch Bishop has not been examined in the case. We have already taken the view that we have found P.W. 1 as a person whose testimony could be believed and acted upon. In that view of the matter, no significance can be attached to the alleged discussion about the terms of the document between the plaintiff and the Arch Bishop. Even if there had been such a discussion, that does not affect the question about the lack of independent advice as regards the plaintiff in relation to the, transaction. The subsequent insertion of a clause regarding the Arch Bishop being the patron, would not have any significant impact on the question about the lack of independent advice before the document was executed and registered.
24. The Court below relied much on the previous deposition given by the plaintiff before the Land Tribunal, Ext. B11. Even in that deposition he had clearly stated that he had given P.D. Thommen only blank papers signed by him. The Court below had omitted to consider the fact that P. D. Thommen was counsel for the 1st defendant-Association also. In any view of the matter, it has to be noted that all these affidavits relied on by the Court below in the proceedings in O.S. No. 44 of 1975 of the Munsiffs Court and O.A. No. 453 of 1975 of the Land Tribunal, Kottayam, were at a time when he had been still under the influence of the 1st defendant-Association. As noted earlier, till 25-8-1975, the plaintiff was in one institution or the other in which the 1st defendant had control or influence.
25. The Court below has relied on Ext. B20 letter dt. 14-8-1976. This letter has not been properly proved. It does not indicate to whom it has been addressed. It does not contain the signature of the plaintiff. The plaintiff repudiates the genuineness of that document. In these circumstances, the Court below was not at all justified in finding that it was written by the plaintiff. It is also significant that that document was showed into the Court only on 4-11-1978, though the present proceedings commenced way back in 1975.
26. The reference to a conversation between D.W. 1 and Jose Philip, is also totally irrelevant for the consideration of the question about the invalidity or otherwise of Ext. B1(a).
27. The manner in which the Court below reacted to the request of the plaintiff for examining the Sub Registrar (by declining such a prayer) and the way in which it had chosen to appreciate the evidence in the case, the manner in which it had proceeded to judgment without giving a fair or effective opportunity to the plaintiff to advance his arguments, leave the impression that the Court below was somehow eager to sustain the defence plea.
28. In the light of our discussion, we are clearly of the view that the plaintiff has successfully established the plaint claim about the invalidity of Exts. B1 and B1(a). In that view of the matter, we have no hesitation to decree the suit as prayed for.
29. Counsel for the respondents submitted that structures and buildings have been put up in the property. It is, however, vide it that the substantial construction activity was undertaken only after the institution of the present proceedings and with the full knowledge thereof. No equity can be claimed by the defendants in these circumstances.
30. We may also point out in this connection that having regard to the fact that the 1st defendant-Association was a service oriented organisation, we had suggested to the parties, and explored the possibility of, an amicable settlement of this litigation. No settlement could be reached, despite adjournments granted in that behalf. The plaintiff had appeared before this Court, and indicated his approach in the matter. Inasmuch as no settlement could be arrived at, we had to proceed with the case and deal with it uninfluenced by those developments.
31. In the result, we allow the appeal, set aside the judgment and decree of the Court below, and decree the suit as detailed below : The impugned gift deed (Exts. B1-B1(a)) dated 28-1-1975 is hereby set aside. The plaintiff will be entitled to recover the plaint schedules with mesne profits at the rate of Rs. 50/- per annum as fixed by the Court below. The plaintiff will be entitled to recover immediately the properties which are not built upon. As regards the properties over which defendants have put up structures, the defendants are allowed three months time to remove the same. The plaintiff will be entitled to his casts here and in the Court below.