Madras High Court
Santha Bai vs Ponnamma And Gausalya Bai on 23 February, 2004
JUDGMENT S. Sardar Zacria Hussain, J.
1. The appellant is the defendant who lost the case before the first appellate Court. The respondents/plaintiffs, who are mother and daughter filed the suit O.S.No.205 of 1982 to set aside the gift deed dated 5.3.1982 executed by S. Subramania Konar, who is the husband of the first plaintiff and father of the second plaintiff in favour of the defendant, the appellant herein and as per which he conveyed the suit property to the defendant.
2. The parties are described as per their rankings in the suit.
3. The suit property originally belonged to Subramania Konar, son of Subramania Konar of Medayum Veedu, Thoppavilakom, Attoor village, who is the husband of the first plaintiff and the father of the second plaintiff. He was living in the house with his first wife the first plaintiff and the second plaintiff was living with her husband Sivathanu in Trivandrum, where he was employed. The defendant who belongs to scheduled caste is a native of Eraniel village and she settled in Venniyaravayalkarai near the suit property. She got mortgage of the suit property from Subramania Konar in 1959, which was assigned to one Yesudasan from whom the plaintiff got an assignment and came into possession on 1.9.1981. Subramania Konar got acquainted with the defendant and her parents and on such acquaintance, the defendant managed to purchase 10 cents of paddy field from him in 1981 and as such, there have been some contact between them. Subramania Konar was suffering from ailments for the last few years and he was treated by the second plaintiff in Trivandrum. He was physically and mentally not all right and using the same and by exercising undue influence and coercion, the defendant fraudulently got the gift deed dated 5.3.1982 executed in her favour in respect of the suit property. In the gift deed it is mentioned that the defendant is his daughter born through his second wife Nesam. In fact the husband of Nesam is alive and that marriage is subsisting. Further, as per recitals of the gift deed, the donor had no wife or children. The gift deed was registered in the house of the defendant, in which Subramania Konar had put his thumb impression only instead of signing. The attestors to the document are close associates of the defendant. The gift deed was not accepted by the defendant and it did not come into force. When Subramania Konar visited the defendant's house, fell ill and while he was semi-conscious, the gift deed was obtained. The defendant refused to send him to his house and he died on 13.3.1982. Subramania Konar was cremated by the plaintiffs in his house after some difficulty. Since the attempts to recover the suit property fails, the suit has been filed.
4. The defendant resisted the suit that Subramania Konar is also known as Subbiah Konar and the defendant is her daughter born through his second wife Nesam. Subramania Konar was not residing with the first plaintiff. First plaintiff was leading immoral and wayward life and as such, Subramania Konar deserted her even before the second plaintiff attain the age of five years. It is admitted that the second plaintiff is residing with her husband in Trivandrum. The defendant is not a native of Eraniel. She was born to Subramania Konar through his second wife Nesam at Venniyaravayalkara veedu in Attoor village. After deserting the first plaintiff, Subramania Konar married Nesam and was living as husband and wife in Venniyaravayalkarai and in fact the defendant was admitted in school by him. He adopted his alias name of Subbiah in the school register without making any change in the signatures since the second marriage was viewed with contempt by his relatives. Subramania Konar executed a mortgage to the defendant in 1959. The defendant's marriage was fixed and conducted by him. After the marriage on 20.4.1971, as a token of gift, he conveyed 40 cents of paddy land in survey number 3318 of Attoor village and when the defendant's children attained school going age, he conveyed the remaining 10 cents to the defendant without receiving any money. Subramania Konar was not treated in Trivandrum and he did not even admit the second plaintiff in school. Subramania Konar was getting treatment in Attoor under Doctor Albin and till his death he was in sound and disposing state of mind. During his last days Subramania Konar was attended to by this defendant and her mother and so he expressed his intention to execute the gift deed on 5.3.1982. Due to old age, his hands were shivering and since he could not go over to Sub Registrar's office, the gift deed was registered in the house by affixing his thumb impression. The gift deed was accepted by the defendant. The plaintiffs were aware of the gift deed even at the time of execution and deliberately kept quite till the death of Subramania Konar. After the death of Subramania Konar with the intention to impeach the gift deed they gave pressure to the neighbours to get his dead body after the defendant had performed his lost rites.
5. In the reply statement the averments set out in the written statement have been denied.
6. Before the trial Court, the second plaintiff examined herself as P.W.1 besides one Ponnian as P.W.2 and marked Exs.A-1 to A-11. To rebut such evidence, the defendant examined one Thankamony as D.W.1 and herself as D.W.2 besides one Lucas as D.W.3 and marked Exs.B-1 to B-6. In considering such evidence, the trial Court recording the finding that the gift deed Ex.B-1, copy of which has been marked as Ex.A-1 dated 5.3.1982, is not vitiated by undue influence, fraud and coercion as stated by the plaintiffs and that the gift deed was voluntarily executed by Subramania Konar and was acted upon by the defendant and further finding that Subramania Konar was in the sound and disposing state of mind when he executed the gift deed Ex.B-1 and in view of such findings, ultimately dismissed the suit. The judgment was challenged by the plaintiffs in A.S.No.23 of 1984 before the Sub court, Padmanabhapuram, in which the judgment of the trial Court has been set aside and the suit was decreed. Therefore, the defendant has filed this Second Appeal.
7. At the time of admission, the following substantial questions of law have been framed for consideration:-
(1) Whether the judgement of the lower appellate Court is correct in holding that the impugned gift deed came into existence as the result of the exercise of fraud, coercion and undue influence in the circumstances alleged by the plaintiffs?
(2) Whether the provision of Section 114 of the Evidence Act has been duly applied by the lower appellate Court in deciding the question relating to the validity of the gift deed?
8. In this Second Appeal, the learned counsel for the appellant/defendant contended that the first appellate Court has not considered properly the evidence adduced on either side, especially the evidence of D.W.3, the Sub Registrar before whom the gift deed Ex.B-1 was executed and registered in the house of the defendant and since Subramania Konar was weak due to old age and since his hands are shivering his thumb impression alone was obtained in the deed. Further, the learned counsel argued that the finding of the first appellate Court is incorrect that Ex.B-1 was not acted upon inasmuch as the second respondent/second plaintiff is in possession of the property. The learned counsel also relied on the following decisions:-
(1) R. Kumarasamy Kounder - vs. - V. Ezhumalai Kounder , in which this Court has observed in paragraph 16:-
"Since it is not an onerous gift, a very slight evidence is sufficient to prove acceptance. The circumstances themselves may speak of acceptance. Normally when a person gifts a property to another and it is not an onerous gift, one may expect the other to accept such gift when once it comes to his knowledge, since normally any person would be willing to promote his own interest. May be in particular cases, there would be peculiar circumstances which may show that the donee would not have accepted the gift. But they are rather an exception to the rule. It is only normal to assume that the donee would have accepted the gift. Mere silence may be indicative of acceptance, provided it is shown that the donee knew about the gift. For proving acceptance, there need not be any direct evidence. It can be express or implied. It can also be inferred from the facts and surrounding circumstances attending the transaction of gift. An acceptance can also be had before the registration of the document. It can be properly registered if it is accepted by the donee or on his behalf."
(2) J.Kuppuswami Mudali and others - vs. - Mahalingam , in which this Court has observed:-
"Transfer of Property Act, 1882, Section 123 - Property settled under Registered Settlement deed and settlee accepting transfer. Settlement deed is presumed to be acted upon once settlee accepts transfer and delivery of possession is not necessary. Settlement cannot be cancelled once deed of settlement is acted upon."
9. The learned counsel for the respondent/plaintiff mainly contended that inasmuch as the first appellate Court after considering the evidence has come to the conclusion that gift deed Ex.B-1 was brought out under threat, coercion and undue influence from the executant Subramania Konar by the defendant and as such, it is to be set aside, such finding of fact cannot be interfered with by this Court. On facts, the learned counsel also argued that inasmuch as it is claimed that the defendant is a daughter of Subramania Konar through his second wife Nesam and since admittedly, the Subramania Konar was in the house of the defendant during his last days, the gift deed Ex.B-1 was obtained in favour of the defendant in preference to the first plaintiff as wife and the daughter, the second plaintiff born to them. Therefore, according to the learned counsel, the gift deed Ex.B-1 is rightly set aside by the first appellate Court. Learned counsel also relied on the decision in the case of R. Ramachandran Ayyar - vs. - Ramalingam Chettiar reported in A.I.R. 1983 Supreme Court, 302, in which, the Supreme Court has ruled:-
"The High Court was not justified in interfering with the findings of fact recorded by the first appellate Court in favour of the appellants. There is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be. To enable the High Court to interfere under section 100(1)(c) of the Code of Civil Procedure there must be a substantial error or defect in the procedure which may possibly have produced error or defect in decision of the case upon the merits; it is not enough that there is an error or defect in the appreciation of evidence. Even where the appreciation of evidence made by the first appellate court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, it cannot be said to introduce a substantial error or defect in procedure. In the present case, the High Court was not entitled to interfere merely because judgment of the first appellate court was not as elaborate as that of the trial court or because some of the reasons given by the trial court had not been expressly reversed by the first appellate court. The questions which arose for decision were pure questions of fact and their decision depended upon the appreciation of the evidence and circumstances of the case. The findings on these questions given by the first appellate court were binding on the High court. The broad features of the evidence supported the conclusions of the first appellate court and it could not be contended that its finding was perverse or was not supported by any evidence."
10. The suit properties originally belonged to Subramania Konar of Thoppaivilagathu Veedu in Attoor village. The first plaintiff is his first wife and the second plaintiff is his daughter born to them. After marriage, the second plaintiff has been living with her husband at Trivandrum. Subramania Konar also had properties in Attoor village and near Vanniyaravayalkarai veedu, in the house, the defendant's mother Nesam who is harijan was residing. The defendant claims that she is the daughter of Subramania Konar born through her mother Nesam. The plaintiff denied that Nesam is the second wife of Subramania Konar and the defendant born through Nesam to Subramania Konar. According to the defendant, Subramania Konar left his matrimonial house since there was no love last between him and the first plaintiff, and he also deserted her, when the second plaintiff was 5 years old. Thereafter, according to the defendant, Subramania Konar has been living with her mother Nesam. According to the plaintiffs, Nesam is not the second wife of Subramania Konar and she is the wife of one Masilamani, who is alive and the marriage between them have been subsisting. To show that they also marked Ex.A-11 voters' list in which the address of Nesam is given as the wife of one Masilamani, as per Serial No.780 and the voters' list is of the year 1983 relating to Attoor Panchayat. Subramania Konar, who according to the defendant, is also known as Subbiah Konar, executed the settlement deed dated 5.3.1982 under Ex.B-1 settling the suit property to her. It appears Subramania Konar died one week latter on 13.3.1982. In the deed Ex.B-1, the defendant is described as a daughter of Subramania Konar through his second wife Nesam.
11. The gift deed Ex.B-1 is attacked by the plaintiffs that Subramania Konar was not in sound and disposing state of mind when it was executed and that undue influence and coercion was brought upon Subramania Konar to execute Ex.B-1. According to the plaintiffs, Subramania Konar was in the house of Nesam and that he was also in unconscious state, in that background, according to the plaintiffs, the deed Ex.B-1 came into existence. In the deed Ex.B-1, Subramania Konar, who is a signatory, had not signed, but only had affixed his left thumb impression and the deed Ex.B-1 was registered in the house of Nesam by D.W.3, Sub Registrar, who came along with witness to the deed, D.W.1, Thankamony and the writer of the document for the purpose of registering the said document. To show that the defendant is the daughter of Subramania Konar born through his second wife Nesam and that it is he who admitted the defendant in the school, Secondary School Leaving Certificate Ex.B-2 related to the defendant has been marked, in which, the name of the guardian is mentioned as Subbiah Konar.
12. Though in Ex.B-1, the defendant is described as his daughter born through his second wife Nesam, in the documents executed by him in favour of the defendant, she was not described as such. Subramania Konar executed the mortgage Ex.A-3 to the defendant who was minor on 26.11.1959 which was assigned to Yesudasan under Ex.A-4 dated 16.7.1981 who in turn assigned the same to the second plaintiff under Ex.A-5 on 1.9.1981. The deeds Exs.A-3 to A-5 related to the property of 8-1/4 cents. In the deed Ex.A-3, the defendant has not been mentioned as the daughter of Subramania Konar born through his second wife Nesam. Subramania Konar also executed sale deed Ex.A-6 dated 18.8.1981 in favour of the defendant, in which also, the defendant has not been described as a daughter of Subramania Konar. However, the fact remains that Subramania Konar executed gift deed Ex.B-1 on 5.3.1982 in favour of the defendant settling the suit property. As per Ex.A-1 copy of the deed Ex.B-1, it appears the plaintiffs applied for copy, which was furnished on 8.3.1982 itself. Subramania Konar died only on 13.3.1982 and in the house of Nesam and only after his death, the plaintiffs filed the suit on 31.3.1982.
13. As rightly observed by the trial Court, Subramania Konar is not available to speak under what circumstances Ex.B-1 came into existence. P.W.1, the second plaintiff has stated in her evidence that on coming to know that her father was unconscious in the house of the defendant, she went along with her husband to the said village and on coming to know that Ex.B-1 gift deed executed in favour of the defendant, they obtained copy on 8.3.1982 and they left immediately without even caring to meet her father who according to her was unwell. If really the deed Ex.B-1 came into existence by practising undue influence and coercion upon Subramania Konar, certainly the plaintiffs could have filed the suit very much earlier, in that they got the gift deed Ex.A-1 as early as on 8.3.1982, but they filed the suit only on 31.3.1982.
14. In fact, as rightly pointed out by the trial Court, there have been no specific pleading that Ex.B-1 was brought out by practising undue influence and coercion. In the plaint it is only stated that Subramania Konar was suffering from ailments for the last few years and in fact he was treated by the second plaintiff in Trivandrum. Though P.W.1, the second plaintiff and P.W.2 have stated in their evidence that Subramania Konar was not in sound and disposing state of mind before his death, on that aspect there is no satisfactory evidence.
15. In fact, prior to his death and prior to execution of the deed Ex.B-1 on 5.3.1982, Subramania Konar also executed the sale deed along with the second plaintiff under Ex.A-9 on 15.4.1980. Further, he also executed the sale deed in favour of the defendant under Ex.A-6 on 18.8.1981. Subramania Konar also taken care of his daughter, the second plaintiff and admittedly, he executed a settlement deed as per Ex.A-8 on 17.6.1961 at the time of her marriage reserving life interest for him. Even though life interest was reserved for him, he joined in the sale of such settlement property under Ex.A-9 on 15.4.1980 along with his daughter, the second plaintiff. In the deeds Exs.A-8 and A-9, the second plaintiff's mother Ponnamma, the first plaintiff, has not been described as the wife of Subramania Konar, though the second plaintiff is mentioned as his daughter, which would go to show that he was not living with his wife, the first plaintiff Ponnamma and deserted her. Therefore, since he was living with the defendant and her mother Nesam, Subramania Konar executed gift deed Ex.B-1 on 5.3.1982 out of his own free will. In the deed Ex.B-1, the age of the Subramania Konar was described as 79 years and the defendant is mentioned as the daughter of second wife Nesam. It is also recited in the deed Ex.B-1 that there is no male issue born to him and so he is living with the defendant and the second wife Nesam and therefore, due to his old age he executed the said deed out of love and affection. It is also recited in the deed that he already executed a settlement deed in favour of his daughter, the second plaintiff born to his first wife Ponnamma. These facts clinch the issue that Subramania Konar executed the gift deed Ex.B-1 in favour of the defendant when he was in sound and disposing state of mind.
16. As regards the execution of gift deed Ex.B-1 in favour of the defendant, D.W.1 has spoken to the fact that Subramania Konar in a sound and disposing state of mind executed the deed which was registered in the house of Nesam by the Sub Registrar, D.W.3. Subramania Konar had affixed his left thumb impression in the deed Ex.B-1 since due to old age his hands were shivering which fact is also mentioned in the deed Ex.B-1 itself and D.Ws.1 and 3 also stated so. It is the evidence of Dws.1 and 2 that after executing the deed Ex.B-1, it was entrusted to D.W.2 and as such, it is clear that Ex.B-1 was acted upon. The first appellate Court has not recorded proper finding that Ex.B-1 was executed by Subramania Konar when he was not in sound and disposing state of mind, in that the left thumb impression of Subramania Konar had been affixed in the deed Ex.B-1. Such affixing of thumb impression by Subramania Konar had been duly explained by D.Ws.1 to 3 that only due to his old age and his hands were shivering, Subramania Konar affixed his thumb impression. Since due to old age and he was weak, Ex.B-1 gift deed was registered in the house of his second wife Nesam by the Sub Registrar D.W.3.
17. Though P.Ws.1 and 2 have stated that they came to know that Subramania Konar was unconscious in the house of Nesam, no steps were taken by the plaintiffs to take him back to their house and no complaint was also made to the police station that Subramania Konar was detained in the house of the defendant and his absence also was not informed in the village to get back Subramania Konar to their house. Since there was no love last between Subramania Konar and the first plaintiff, he was residing with Nesam after marrying her and the defendant was also born to them.
18. The first appellate Court has not considered the factual aspects as stated above and the reasons of the trial Court which found that Ex.B-1 was executed by Subramania Konar out of love and affection to the defendant being his daughter born through his second wife Nesam and it resulted decreeing the suit reversing the judgment of the trial Court and as such, there have been substantial error committed by the first appellate Court. It follows the judgment of the first appellate Court is to be set aside.
19. In the result, the Second Appeal is allowed. The judgment of the first appellate Court made in A.S.No.23 of 1984 is set aside and the suit is dismissed. No costs.