Kerala High Court
George P.John vs Alex P.John on 5 March, 2020
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941
RSA.No.236 OF 2008
AGAINST THE JUDGMENT AND DECREE IN AS 19/2006 DATED 23-10-2007 OF
ADDITIONAL DISTRICT COURT, PATHANAMTHITTA
AGAINST THE JUDGMENT AND DECREE IN OS 368/2001 DATED 30.11.2005
OF MUNSIFF COURT, PATHANAMTHITTA
APPELLANT/APPELLANT/DEFENDANT:
GEORGE P.JOHN, S/O.LATE P.G.JOHN,
RETIRED ENGINEER, RESIDING AT VALIYATHUNDIYIL HOUSE,
VANCHITHARA MURI, KOZHENCHERRY VILLAGE & TALUK,
PATHANAMTHITTA DISTRICT.
BY ADVS.
SRI.N.N.SUGUNAPALAN (SR.)
SRI.S.SUJIN
RESPONDENT/RESPONDENT/PLAINTIFF:
ALEX P.JOHN, S/O.LATE P.G.JOHN, RESIDING AT
VALIYATHUNDIYIL HOUSE, T.C.111/2516(1), T.K.DIVAKARAN
ROAD, MARAPPALAM GARDENS, H.LANE,, PATTOM,
THIRUVANANTHAPURAM - 1, REPRESENTED BY HIS WIFE AND
POWER OF ATTORNEY HOLDER SHIRLY ALEX, RESIDING AT
DO. DO. DO.
BY ADVS. SRI.T.KRISHNANUNNI (SR.)
SRI.JENNIS STEPHEN
SRI.SANTHOSH MATHEW
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05-03-
2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA.No.236 OF 2008
2
"CR"
JUDGMENT
After suffering successive discomfiture from the Trial Court and the First Appellate Court, the appellant -- who is the defendant in OS No.368/2001 on the files of the Munsiff's Court, Pathanamthitta -- has filed this appeal.
2. The appellant and the respondent are siblings and the bone of contention between them are certain properties owned by their late father, Sri.P.G.John.
3. The appellant claims that the properties of late P.G.John had been gifted to him on 19.10.2000 and therefore, that he is its exclusive owner; while the respondent, who is the younger brother of the appellant, alleges that the said Gift Deed -- the original of which has been marked and placed on record as Ext.B2 -- is a void document, created exerting undue influence over late P.G.John; with an alternative plea that late P.G.John did not sign the said document but that it was created by forging his signature.
4. The Trial Court decreed the suit, setting aside Ext.B2; which was, thereafter, confirmed by the Additional District Judge, Pathanamthitta in AS No.19/2006, filed by the appellant herein.
RSA.No.236 OF 2008 3
5. It is thus that the appellant has approached this Court.
6. I have heard Sri.N.N.Sugunapalan, learned Senior Counsel, instructed by Sri.S.Sujin appearing for the appellant and Sri.T.Krishnanunni, learned Senior Counsel instructed by Sri.Arun Thomas appearing for the respondent.
7. Before I proceed to analyse and assess the contentions of the parties and the submissions of the learned Senior Counsel, I deem it apposite that I record a few essential and undisputed facts.
8. The appellant -- who is the defendant in the suit -- and the respondent -- who is the plaintiff in the suit -- are the children of late P.G.John and late Saramma. It is conceded by the parties that when their parents were alive, they had executed a joint Will, which is marked in evidence as Ext.A5, on 18.02.1987 and registered on 26.03.1987 as document No.III/34 of the Kozhanchery SRO. It is also conceded by the parties that late P.G.John was the owner of 49 cents of land in Sy.No.179/13 of the Mallappuzhassery Village, as also 31 cents of land in Sy.No.278/14 of the Kozhanchery Village which houses a building. They further agree that another 46.5 cents of land, out of a larger extent of 93 cents in Sy.No.279/12/82 of RSA.No.236 OF 2008 4 Kozhanchery Village was also owned by late P.G.John; while its balance of 46.5 cents had been acquired in the name of late Saramma, their mother.
9. There is no dispute between the parties that, as per Ext.A5 Joint Will, late P.G.John bequeathed his 49 cents of land in Sy.No.179/13 of the Mallappuzhassery Village and 15.5 cents out of 46.5 cents owned by him in Sy.No.278/14 of the Kozhanchery Village in favour of the respondent herein; while his remaining properties, namely, 31 cents in Sy.No.278/14 of the Kozhanchery Village and 31.5 cents in Sy.No.279/12/82 of the Kozhanchery village were left to the appellant. As regards their mother's property is concerned, it is admitted by the parties that she bequeathed her entire 46.5 cents in Sy.No.279/12/82 of the Kozhanchery Village to the appellant herein. That said, however, Ext.A5 contains a provision that though the respective bequests will take effect immediately on the death of the executors, the surviving among them will be entitled to use the properties until their lifetimes and to obtain and enjoy the usufructs there-from.
10. The aspects of controversy in this case arose much later after Ext.A5 had been executed by the parents of the parties, to which I will presently advert; but suffice to say, they RSA.No.236 OF 2008 5 are the causes which constrained the respondent/plaintiff to have filed the suit.
11. For the sake of convenience I will, hereinafter, refer to the parties as they are ranked in the Trial Court.
12. The plaintiff filed the suit alleging that his mother Smt.Saramma died on 14.02.1990; while Sri.P.G.John died on 19.04.2001; and thus asserting that the bequests as per Ext.B2 took effect from such dates. He then says that late P.G.John was not possessed of full cognitive faculty and physical capacity from the year 1988 and that he was living with the plaintiff's family at Thiruvananthapuram. He submits that in September 2000, on account of the sentimental desire expressed by his father, the plaintiff's wife accompanied him to his ancestral home in Kozhanchery, so as to enable him to live there for a few days. He says that he was abroad at that time and that it was later informed to him, by certain people living in the neighbourhood of his ancestral property, that the defendant took late P.G.John with him to Ernakulam on 25.09.2000 and alleges that he was, thereafter, in his virtual captivity.
13. As per the plaint averments, since the plaintiff's family was not offered any access to late P.G.John by the RSA.No.236 OF 2008 6 defendant, the plaintiff's wife was forced to approach the Director General of Police, Thiruvananthapuram, seeking assistance, which is evidenced by Ext.A8 receipt; and that on the instructions of the said Officer, the Commissioner of Police, Ernakulam, offered her protection, thus enabling her to meet late P.G.John in the presence of certain Police Officers on 06.10.2000. The plaintiff alleges that, though late P.G.John wanted to convey some message, the defendant did not permit him to do so; and that his wife found late P.G.John to be very weak.
14. The further averments in the plaint assert that the plaintiff's wife and children went to see late P.G.John on 14.10.2000 but that they were again stopped by the defendant and that the plaintiff later came to know that his father was admitted in a hospital in February 2001. According to him, he rushed from Bahrain, where he was employed at that time, to meet his father but that the defendant threatened and abused him in the presence of their father; and that after late P.G.John was discharged from the hospital, he again went to see him in the apartment of the defendant, to find him lying on the floor; but prevented by the defendant from offering any assistance.
15. The plaintiff, thereafter, alleges that on 13.03.2001, RSA.No.236 OF 2008 7 when he went to the Village Office to pay the land tax on the property that had been bequeathed to him under the aforementioned Ext.A5 joint Will, he was informed that a Gift Deed had been executed by late P.G.John in favour of the defendant, gifting all his properties to him. He says that it was only then he realised why the defendant kept their father under custody without allowing anyone to have contact with him; and that it was obvious that he wanted his father to die as soon as possible, so that the plaintiff would not get the time to have the Gift Deed annuled during his lifetime.
16. The plaintiff further avers in the plaint that he, therefore, filed O.P.No.9566/2001 before this Court seeking the issuance of a writ of habeas corpus, so as to free his father from the captivity of the defendant; and that a police officer had been deputed by this Court to accompany his wife to meet his father, when it was seen that he was tied to a chair and that he was suffering from acute memory lapses and physical ailments. The plaintiff states that, however, pending the said petition, his father died and that the said case was consequently closed, but asserts that the report of the police officer deputed by this Court would clearly establish the afore.
17. The plaintiff thus predicates that Ext.B2 Gift Deed is RSA.No.236 OF 2008 8 a forged document, which was not signed by his father; and alternatively that even if it was signed by him, it was done on account of undue influence and coercion by the defendant, since late P.G.John would not have executed the same knowing well that by doing so, his entire property, as also that of his late wife, would end up exclusively with the defendant, without any part of it going to the plaintiff. The plaintiff further maintains that his father would not have executed Ext.B2 Gift Deed in favour of the defendant also for the reason that he was not fond of him since, as is evidenced from Ext.A6 complaint preferred by him before the District Collector earlier, he had been earlier threatened by the defendant using his gun.
18. The plaintiff thus prayed that Ext.B2 Gift Deed be set aside and his title over the plaint schedule properties and buildings on the strength of Ext.A5 Will be declared; and he be consequently allowed to recover possession of the same.
17. The defendant, in refutation, filed a written statement denying all the allegations of the plaintiff and asserting that Ext.B2 Gift Deed was executed by his father with full volition and because of his love and affection towards him, since he was the only person who took care of him during his old age. He denies that he had ever threatened his father RSA.No.236 OF 2008 9 or that he had taken him forcibly to his house at Ernakulam. He further stated that he had spent large amounts of money for the treatment of his father and that it was in such circumstances that Ext.B2 Gift Deed had been executed by him in his favour.
18. Sri.N.N.Sugunapalan, learned Senior Counsel appearing on behalf of the appellant, began his submissions by saying that he was assailing the impugned judgment and decree of the Trial Court, as also the judgment of the First Appellate Court, primarily on the contention that the findings therein regarding undue influence exerted by his client in the execution of Ext.B2 - Gift Deed is not supported, in any manner, by the ingredients of Section 16 of the Indian Contract Act. The learned Senior Counsel contended, relying on Jamila Begum v. Shami Mohd. and another [2019 (2) SCC 727] and Subhas Chandra Das Mushib v. Ganga Prosad Das Mushib and others [AIR 1967 SCC 878], that when a plea of undue influence is projected seeking invalidation of a document, it is necessary that the Court must scrutinize the pleadings carefully to find out if the necessary legal ingredients had been made out, before concluding on it. The learned Senior Counsel further submitted that this is RSA.No.236 OF 2008 10 absolutely crucial because, it is necessary for the plaintiff to have specified the facts that foundationalises the assertion of undue influence and that merely because the parties are related to each other or because the executant was old or of a weak character, no automatic presumption of undue influence can arise.
19. Sri.N.N.Sugunapalan added to his afore submissions by saying that a document can be set aside on the ground of exertion of undue influence only if it is established, through specific averments and pleadings, that one of the parties was in a position to dominate the will of the other and that he has used such position to obtain an unfair advantage over the other. He contends that, therefore, this Court is obligated to consider whether there are sufficient pleadings and materials on record to demonstrate that the relationship between the donor and donee is of such nature that the latter is in a position to dominate the will of the former or that the donee has used that position to obtain an unfair advantage over the donor.
20. The learned Senior Counsel then asserted that, in the case at hand, there are no pleadings at all to show that any such undue influence has been exerted by his client over his RSA.No.236 OF 2008 11 father while the Gift Deed had been executed and that the Courts below have unfortunately lost track of the three cardinal principles as enunciated by the Hon'ble Supreme Court in the afore two citations, which had approvingly relied on an earlier privy counsel judgment in Raghunath Prasad v. Sarju Prasad and Others [AIR 1924 PC 60], in concluding that Exhibit B2 Gift Deed is vitiated by undue influence and fraud. The learned Senior Counsel, therefore, prays that this appeal be allowed.
21. Before, I proceed, I must record that, as has been indited in the order dated 04.02.2020, the afore specific assertions of Sri.N.N.Sugunapalan, learned Senior Counsel, had been noticed by me at the time this appeal was admitted and therefore, the following questions of law had been framed for consideration:
"a) Whether the Trial Court and the Lower Appellate Court were justified in decreeing the suit and confirming it respectively, without the ingredients of Section 16 of the Indian Contract Act being specifically pleaded and established?
b) Whether the Trial Court was justified in having decreed the suit without framing an issue under Order XIV Rule 1 of the Code of Civil Procedure, as to whether the ingredients under Section 16 of the Contract act had been attracted in this case?"
22. It is thus ineluctable that what has been called upon RSA.No.236 OF 2008 12 by the appellant for this Court's evaluation is whether, in the alleged absence of ingredients of Section 16 of the Indian Contract Act having been specifically asserted in the plaint and other pleadings and in the absence of a specific issue having been framed by the Trial Court on this aspect, the Trial Court and the First Appellate Court could have found Ext.B2 to be unworthy on account of the fact that it had been obtained through undue influence.
23. That said, Sri.T.Krishnanunni, learned Senior Counsel appearing on behalf of the respondents, submits that for answering the two questions of law as afore, it will be merely sufficient that the averments in the plaint are examined. He says that after his client had narrated the relevant facts in the plaint, which have already been seen by this Court above, he had specified the circumstances which compelled him to approach the Trial Court against Ext.B2 in paragraph No.13 thereof, as under:
"13. It is most respectfully submitted that the Gift Deed No.997/2000 dated 19.10.2000 is invalid and does not convey any right in the scheduled properties to the Defendant for the following among other reasons.
a) The document was not voluntarily executed by the father on his own free will and volition.
b) The relationship of the father with the Defendant was so strained that he (father) would not have executed the document willingly and knowing RSA.No.236 OF 2008 13 its contents.
c) The effect of the document, if it is allowed to stand, is to give the entire properties of both the father and mother of the parties to the Defendant.
The father would have never done such an unjust act knowingly.
d) The father was old, sick and senile at the time when the document was brought into existence. He was incapable of forming any rational opinion on matters affecting his interests and so would not have signed or consented to the document. It is certain that he had never known the contents of the document.
e) The document was stealthily executed and furtively kept.
f) The subsequent conduct of the Defendant proves that the document was brought into existence by fraudulent means.
g) The fact that Sri.Thomas Abraham Chelikuzhiyil, Kozhencherry who was an avowed enemy of the father figures as an identifying witness in the document conclusively proves that the document was fraudulently brought into existence with his connivance and collusion.
h) The signatures appearing in the document purporting to the those of the father bear no similarity with his real signature, a fact which conclusively proves that those signatures are forged.
i) The father was weak both in body and mind and the Defendant was in a position to dominate his will. The father was at the relevant time incapable of resisting any commands of the Defendant. He was afraid of the Defendant.
j) The document (gift deed) was brought in to existence at a time when the father was in the custody of the Defendant. The document was brought into existence by the Defendant by exerting undue influence and coercion on the father John.
k) Defendant's own son is an identifying witness in the document.
l) The document (gift deed No.997 of 2000 of the Kozhencherry Sub Registrar's office) is not attested."
24. Sri.T.Krishnanunni then predicates that the above RSA.No.236 OF 2008 14 enumerated circumstances and facts cover the gamut of the ingredients of Section 16; and then impelled his alternative contention that Ext.B2 - Gift Deed was also a void document, since it had not been signed by late Sri.P.G.John.
25. After asserting as afore, Sri.T.Krishnanunni, learned senior counsel urged a further submission, which appears to have been not specifically argued before the Trial Court or the First Appellate Court, but which he says would still deserve the attention of this Court under Section 103 of the Code of Civil Procedure (CPC). The learned senior counsel says that Ext.A5 Joint Will, executed by late P.G.John and his wife late Saramma, is effectively in the nature of a family settlement, under which their properties have been evenly distributed to their two sons, to be enjoyed by them after their lifetimes; and therefore, that it acquires the attribute of a document which is irrevocable by one of them after the lifetime of the other. The learned senior counsel says that he is making this submission on the strength of the judgment of this Court in Meenakshikutty and Ors. v. Nirmala and Ors. [RSA No.1063/2014], wherein a similar question was considered by another learned Judge and answered to the affirmative.
26. Sri.T.Krishnanunni then went on to submit that in the RSA.No.236 OF 2008 15 present case, this is more so because late Saramma -- the mother of the parties -- must have agreed to bequeath all her properties in favour of the defendant only because she was made to understand and given the firm impression that commensurate properties of her husband - late P.G.John - would stand bequeathed in the name of the plaintiff. He further asserted that even if it is assumed that late P.G.John had subsequently executed Ext.B2 Gift Deed, it cannot obtain support in law because, through it, what has been effectively done was to intervene with the intentions of late Saramma, which she had expressed unequivocally through Ext.A5 Joint Will; and consequently, that the said Gift Deed - which operates virtually as a revocation of the Will by late P.G.John - cannot be countenanced.
27. When I assess the afore submissions and the evidence on record, it is first necessary that I understand how undue influence has been specifically defined under the Indian Contract Act. This concept has been defined in Section 16 of the said Act, which, for ease of reference, is reproduced as under:
"(1) A contract is said to be induced by "undue influence" where the relations subsisting between the parties are such that one of the parties is in a position RSA.No.236 OF 2008 16 to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another -
(a) where he hold a real or apparent authority over the other, or where a stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.
Nothing in this sub-section shall affect the provisions of Section 111 of the Indian Evidence Act, 1872.(1 of 1872)."
28. It is inevitable from the afore Section that a person is deemed to be in a position to dominate the will of another, when he makes a contract with the latter whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress. It is perspicuous, therefore, that when a document is executed by a person, who is suffering from such mental incapacity - whether temporary or permanent - on account of old age, illness or mental or bodily distress, then even if the execution of the document is admitted, it would still be construed to be one created under RSA.No.236 OF 2008 17 undue influence, since the law would deem it to have been created without full volition, but solely on account of the domination by the beneficiary.
29. When one evaluates this case, the evidence on record limpidly shows that late P.G.John was of fairly advanced age of nearly 84 years at the time of his death and that he had been suffering from certain physical ailments much prior. It is the specific assertion of the plaintiff that late P.G.John had been suffering from senility from the year 2008 and that he was taken away from his ancestral home ― where he had been allowed to reside temporarily on account of sentimental reasons ― by the defendant to his house in Ernakulam, where he was kept under captivity. The attendant circumstances, including the fact that the wife of the plaintiff had approached the Commissioner of Police, as is manifest through Ext.A9; and that she had gained access to him only in the presence of Police Officers thereafter, would show, to some extent, the kind of rift that had developed between the siblings.
30. Added to the above is the report that had been filed by a Police Officer before this Court in O.P.No.9566/2001 ― which was a petition filed by the plaintiff seeking the issuance of a writ of Habeas Corpus on the allegation that his father RSA.No.236 OF 2008 18 was being kept under captivity of the defendant ― wherein, the said Officer, who has also been examined as PW12, has stated that late P.G.John was not mentally coherent enough and that he was not able to explain his ailments or the medicines that he was being administered. The statement also says that late P.G.John was found tied to a chair and that this appears to have been done by the Home Nurse, who had been employed by the defendants for his care, who explained that without being so, late P.G.John would roam out of the room unattended. These factors go some way to show that though late P.G.John may not have been under captivity ― which is also indicated in the report of the Police Officer to the effect that late P.G.John himself told him that he was not under detention, which fact is also stated to have been affirmed by the neighbours of the defendant ― his cognitive faculties was not at a satisfactory level and that he was not fully conscious of his conduct or his action.
31. My view as above is bolstered by another specific reason. Even though, through Ext.A5 Joint Will, certain portions of the properties of late P.G.John had also been bequeathed to the defendant, it is pertinent that in Ext.B2 Gift Deed, the same property has been included therein, showing it RSA.No.236 OF 2008 19 also to have been gifted to the defendant, but without any reference to the Joint Will; and this certainly causes a legitimate suspicion that either late P.G.John did not understand what he was executing or that the said document had not been executed by him, as has been asserted by the defendant.
32. That having been said, it is without doubt that, through the combined effect of Ext.B2 Gift Deed and Ext.A5 Joint Will, the entire properties of both the father and mother would reach only the defendant, with the plaintiff being left with nothing at all. Therefore, the transaction through Ext.B2 Gift Deed certainly appears to be, at least prima facie, unconscionable; and consequently, the burden of establishing that it was not executed through undue influence would certainly shift to the shoulders of the defendant, under the provisions of Section 16(3) of the Indian Contract Act. Since Sri.N.N.Sugunapalan, learned senior counsel appearing for the defendant also expressly concedes that on the death of late Saramma, her properties stood bequeathed in the name of his client and that all the properties of the father mentioned in Ext.A5 Joint Will are included in Ext.B2 Gift Deed, it is needless to say that the defendant ought to have proved, RSA.No.236 OF 2008 20 through cogent and reliable method, that though the transaction may appear ex facie unconscionable, it was not on account of undue influence. I find substantial force in the submissions of Sri.T.Krishnanunni, learned senior counsel for the respondent on this aspect and I, therefore, went on to analyse the evidence on record to see whether this burden has been discharged by the defendant.
33. The available evidence, as I have seen above, is clear to the extent that Ext.B2 was allegedly executed by late P.G.John while he was in the residence of the defendant and the circumstances relating to his ailments and treatment would indicate, to some extent, that he was not enjoying full cognitive faculties. The evidence of PW12 - Police Officer with respect to the statement filed by him before this Court in O.P.No.9566/2001 is that when he saw late P.G.John on 20.10.2000, which was few months before Ext.B2 Gift Deed was executed, he did not appear to in full charge of his mental capabilities. It is also on record that P.G.John died on 19.04.2001 and that the aforementioned Original Petition was closed consequent to it, in the second or third week of March 2001. Further, as per Ext.A20, which is admitted to be a letter dated 20.04.1998 issued by late P.G.John to the Sub Treasury RSA.No.236 OF 2008 21 Officer with respect to his pension, he says that he is not keeping well and that he is unable to travel, thus requesting that such amount be credited to his bank account.
34. The sum total of all the afore factual factors certainly demonstrate that late P.G.John was not enjoying the best of health, both physically and mentally, at the time when Ext.B2 Gift Deed had been executed; and therefore, it was certainly incumbent upon the defendant to establish that it had not been obtained through undue influence, particularly because he says that he was in charge of his father at the relevant time in his own residence.
35. All the above apart, the evidence of DW2, PW7 and PW9 also throw great amount of suspicion on the execution of Ext.B2. This is because DW2, who is stated to be the cousin of the parties herein, testified that he took late P.G.John to the scribe who wrote Ext.B2 Gift Deed on 15.10.2001 and that late P.G.John thereafter instructed him to create the said Deed. However, PW7, who is the scribe who concededly wrote Ext.B2 Gift Deed, as also PW9, who is his son and a witness to the said Deed, both deposed that the stamp papers for the said document were purchased on 11.10.2001 and thereafter written on 13.10.2001, showing the date as 19.10.2001. RSA.No.236 OF 2008 22 Obviously, therefore, the evidence of DW2 ― that he took late P.G.John to the scribe only on 15.10.2001 to have the document written ― cannot be believed, since the scribe and the witness to the document say completely to the contrary. Axiomatically, the version of the defendant that late P.G.John himself went to PW3 - the scribe on 15.10.2001 to have the document prepared, which was later executed on stamp papers, leading to its registration at the Sub Registrar office, certainly appears to be suspicious and improbable going by the evidence of DW2.
36. To add to the above, I notice that the Trial Court has also examined Ext.B2 Gift Deed under Section 73 of the Evidence Act to hold that the signatures of late P.G.John on it differs considerably with each other and that the signatures appearing on the reverse pages ― which were allegedly subscribed in front of the Sub Registrar ― also do not have any resemblance to each other. I have, therefore, also carefully examined Ext.B2 and I see that the signatures on the facing pages of the document, which are stated to have been put by late P.G.John at the time when the document was executed, are not merely different from each other but also vary substantially from the admitted signatures available in Ext.A5 RSA.No.236 OF 2008 23 Joint Will; but pertinently, the signatures in the Will are similar to the signatures available on the reverse side of Ext.B2 Gift Deed, which late P.G.John is sated to have made in front of the Sub Registrar. These aspects, therefore, guide me to the impression that even if late P.G.John had been taken to the Sub Registrar's Office, which appears to be more or less possible going by the evidence of PW8 - Sub Registrar, it is rendered suspicious whether he had executed the document knowing it to be a Gift Deed in favour of the defendant and whether he knew the contents of what was being registered before the Sub Registrar.
37. I am persuaded to this opinion also on account of the testimony of the Sub Registrar, recorded as PW8, wherein she is unable to say whether the person in front of her was late P.G.John but she says that the said person was identified by a certain Advocate Sri.Thomas Abraham, though then conceding that the endorsements made initially on Ext.B2 Gift Deed was to the effect that the person identifying the executant was George P.John - the appellant herein, which endorsement has been then scored off; and she explains this by saying that she first wrote so on account of an inadvertent mistake. The further evidence of PW8 would also render it inescapable that RSA.No.236 OF 2008 24 she either did not remember or aware as to what exactly transpired on the day when Ext.B2 was registered before her; and she solely says that she was under the impression that the person in front of her, identified by the identifying witness, was late P.G.John.
38. The afore factors certainly cast a cloud on the validity of Ext.B2 document and I am fully convinced that the averments in the plaint, extracted in para 23 supra, establishes the necessary and essential ingredients required to invoke Section 16 of the Contract Act; and further that the issues raised by the Trial Court based on such pleadings, the first of which is whether Ext.B2 Gift Deed is valid in law, sufficiently notifies the parties that an adjudication under this Section is imperative. I, consequently, answer the questions of law raised in this appeal in favour of the defendant.
39. My afore conclusions though would conclude this appeal, I must also advert to the further submissions of Sri.Krishnanunni, learned senior counsel for the defendant that Ext.A5 Joint Will can only be construed as one which is not capable of being revoked by late P.G.John, through Ext.B2 Gift Deed. I propose to deal with this contention, as one which is adjunct and adscititious to the afore recorded ones, under RSA.No.236 OF 2008 25 Section 103 of the Code of Civil Procedure, it being one in law and though not raised specifically before the Trial Court or the First Appellate Court.
40. As rightly argued by Sri.T.Krishnanunni, there is no doubt that late Saramma ― the mother of the parties ― had executed the Joint Will bequeathing her entire property in favour of the defendant under the legitimate expectation that substantial portions of the properties of the father ― late P.G.John ― would go to the plaintiff. I am certain that had there been no deeply thought of and contemplated agreement between late Saramma and late P.G.John with respect to their properties, the former would not have executed Ext.A5 Joint Will in the manner it has now been done, since the said Will also says specifically that the arrangement therein is designed to ensure that their children live in peace and harmony after their respective lifetimes. The parents irrefragably wanted to divide their properties equitably to their two sons, without one feeling aggrieved that the other had a better deal and this is explicitly manifest from the Will, which jointly allots their properties in such manner.
41. Indubitably, therefore, the bequest by Smt.Saramma exclusively in favour of one of her sons was intrinsically RSA.No.236 OF 2008 26 connected to the bequest by late P.G.John to the other son; and this Court would be, therefore, fully justified in holding that there would have been no such bequest by her, had there been any change of mind from late P.G.John during her lifetime. Irrefutably, therefore, late P.G.John ― even if it is assumed that he had executed Ext.B2 Gift Deed with full volition ― could not have, in any manner, intervened or interfered with the bequest of his wife late Saramma or her wishes, by resiling from his bequest, which would certainly have the effect of rendering the Joint Will unconscionable for her, since her property has been allotted to one of her sons alone, which she never intended without her husband's properties going to the other.
42. In this perspective, I certainly find favour with the judgment of this Court in Meenakshikutty (supra), wherein similar circumstances were noticed, leading to certain specific conclusions therein, which deserves a complete reading, for which purpose I extract it as under:
"The said intention of the testators is evident from the recital in Ext.A1 Will that the arrangement contained therein has been made with a view to enable the children of the testators to enjoy their properties with unity after their death. In other words, the testators never contemplated to exclude any of their children from inheriting their property. As noted above, the plots bequeathed to some of the legatees were portions of the property held exclusively by the RSA.No.236 OF 2008 27 father of the plaintiffs, the plots bequeathed to some others were portions of the suit property as also portions of the property held by the father of the plaintiffs and the plots bequeathed to the rest were portions of the suit property. As such, if the authority of the mother of the plaintiffs to revoke the Will is conceded after the death of the father, the children of the testators who have obtained portions of the suit property will not be able to claim ownership over the properties given to them as per the Will. As indicated above, since the testators never contemplated to exclude any of their children from inheriting their properties after their death at the time of execution of Ext.A1 Will, it can be safely concluded that there was an implied contract between the testators that one among them will not revoke the will after the death of the other. The question whether there was an implied agreement not to cancel or revoke the Will can also be resolved by finding an answer to the question as to whether the father of the plaintiff would have made a Will of this nature in respect of his properties had he contemplated a situation where the mother cancels the Will in so far as it relates to her rights over the properties after his death. Since the father never wanted to exclude any of his children from inheriting his properties, there is no difficulty in holding that the father would not have made a Will of this nature without there being an agreement with the mother that either of them would not revoke the Will after the death of the other. Any other interpretation of Ext.A1 Will would be highly inequitable and would work out serious injustice to the parties. As noted above, the contention raised by the learned counsel for the respondents is that Ext.A1 being a joint Will, the same cannot be revoked by one among the testators in relation to his/her property. True, a joint Will is a single testamentary instrument consisting or containing the Wills of two or more persons and jointly executed by them and as such there is no impediment in law for one of the testators to cancel the Will in so far as it relates to his/her property. A close reading of Ext.A1 Will does not indicate that there is mutuality in the Will. But the same clearly presupposes the union of minds between the husband and wife and a mutual exchange of ideas between them. When a document rests on a bilateral agreement entered into by the husband and wife which is founded upon mutual RSA.No.236 OF 2008 28 consideration and mutual trust and confidence, it cannot be contended that one among them can frustrate and defeat the very object and purpose of the document. I have therefore no hesitation to hold that the mother of the plaintiffs was not competent to revoke Ext.A1 Will and the plaintiffs are therefore not entitled to any relief in the suit."
43. I also see that a similar view had been taken by the Madras High Court in Kuppuswami Raja and Ors. v. Perumal Raja and Ors. [AIR 1964 Mad.291], which is discernible from paragraphs 33 and 34 thereof, which reads as under:
"33. The document, Ex.A.I, clearly presupposes the union of minds of the two brothers and a mutual exchange of ideas between them. At the outset it must be noticed that the Will deals with the testator's ancestral properties as well as their self-acquired properties. The main scheme of the arrangement as envisaged under the Will is that all their properties without any distinction are pooled together and dealt with as one integral whole, each relinquishing his own separate rights thereunder (including the right of survivorship) with the idea that they should enjoy the same till his lifetime. On the death of one of the brothers, his widow can take only the particular property which has been set apart for her maintenance and she cannot claim any share in her husband's properties either under the Hindu Women's Right to Property Act in regard to joint family properties or as a heir tinder the Hindu Law in regard to the self-acquired properties. The surviving brother is entitled to take all the properties except to the extent of the provision for maintenance in favour of the widow as aforesaid 'Besides these, there are other provisions containing bequests in favour of the nephews of the obstators for performance of their obsequies and funeral ceremonies as well as for the performance of certain religious and charitable trusts in all of which the testators (as they themselves unambiguously declared in the Will) were RSA.No.236 OF 2008 29 jointly interested to make a provision of that kind.
34. We are clearly of the opinion that Ex.A-I rests upon a bilateral agreement entered into between the brothers founded upon by mutual consideration and mutual trust and confidence. It is impossible to effectuate and carry out their scheme if after the death of one, the survivor were to possess an unilateral and unqualified power to revoke or cancel or modify that arrangement. Such a power, if upheld, would completely frustrate and defeat the very object and purpose for which both the brothers executed the Will. The position, however, will be different if both the brothers together desired to modify or cancel the will during their lifetime. There is nothing strange in such a course as they are the owners of the properties and it is upto them to cancel or modify the arrangement which they have made in regard to their own properties."
44. I am fully in affirmation with the above holdings of the Hon'ble High Court of Madras and am firmly convinced that late P.G.John ― even if taken that he voluntarily executed Ext.B2 Gift Deed ― could not have done so, since he was bound by Ext.A5 Joint Will, from which he could not resile after his wife - late Saramma - had attained eternal rest.
45. In the conspectus of the above, I am left with no doubt that the Trial Court and the First Appellate Court have assessed the factual and legal circumstances and factors involved in this case correctly; and consequently, this Court finds no reason to interfere with the impugned judgments, particularly because the ingredients relating to Section 16 of the Contract Act, as per the questions of law framed herein, RSA.No.236 OF 2008 30 have been fully satisfied by the plaintiff.
Resultantly, this appeal will stand dismissed; but in the nature of the circumstances and facts noticed, I deem it appropriate not to make any order as to costs and to direct the parties to suffer their respective costs.
Sd/- DEVAN RAMACHANDRAN
Stu/RR/RP JUDGE