Gopidharan, Punnavila Veedu, Kidangil Herry, Kottarakkara Village, Kollam, Now Residing At Ram Nivas, Vettiilil, Edavattom, Vellimon P.O., Kundara, Kollam vs Jayakumar, Santhalayam, Puthuvalil, Pullikkada, Asramam Cherry, Kollam-691002 and Others

Honourable Mr. Justice, Thomas P. Joseph

Plaintiff in O.S No.322 of 1993 of the Additional Sub Court, Kollam is the appellant before me. He sued the deceased first defendant and defendants 2 and 3 for a declaration that settlement deed No.945 of 1993(Ext.A1is its copy) executed by the deceased first defendant in favour of defendants 2 and 3 is null and void and for injunction against defendants 2 and 3 creating documents and entering the plaint A schedule property. The trial court dismissed the suit. The First Additional District Court, Kollam, dismissed A.S 229 of 2006 arising from the dismissal of the suit. Hence this second appeal. Plaintiff is the son of the first defendant in his first wife. Plaint A schedule property belonged to the first defendant. According to the plaintiff, after the death of his mother(first wife of the first defendant) first defendant married the mother of the third defendant. It is claimed that the first defendant is not the father of the third defendant though, she was brought up by the first defendant. The second defendant is the husband of the third defendant. It is the case of the plaintiff that the first defendant had appropriated the assets of his first wife (mother of the plaintiff) during her life time to discharge the liability attached to the plaint A schedule and at that time there was an oral agreement to transfer the plaint A schedule to the plaintiff. The first defendant not only did not comply with that oral agreement, but transferred a portion of plaint A schedule to the defendants 2 and 3 as per the impugned settlement deed. Plaintiff contended that the said settlement deed is got executed by exercising undue influence on the first defendant who was suffering from amnesia.

Defendants (including the first defendant) claimed that the plaint A schedule absolutely belonged to the first defendant and that the plaintiff has no right, interest or possession of the said property. They denied that there was any oral agreement as pleaded by the plaintiff. They also denied that first defendant was suffering from amnesia or that the settlement deed was got executed under undue influence.

The trial court found against the plea of the plaintiff and dismissed the suit. The first appellate court has confirmed that.

It is argued by the learned counsel that the courts below have not considered the evidence of PW3, an Assistant of the first defendant who was an Advocate Clerk.

The courts below found from the evidence that the case of the appellant/plaintiff that the first defendant was suffering from amnesia is not proved. The courts below also found that the evidence let in by the plaintiff is not sufficient to show existence of the oral agreement pleaded by the plaintiff. The plea of undue influence was also found against. On the other hand, defendants adduced evidence to show that the first defendant was in possession and enjoyment of the plaint A schedule. They produced documents to show that defendants 1 to 3 are residing together in the house situated in the plaint A schedule while the plaintiff is residing elsewhere.

According to the trial court and as confirmed by the first appellate court, evidence let in by the plaintiff was insufficient in favour of existence of any oral evidence. The courts below also found that there is no evidence to show that the sale proceeds of the transaction covered by Ext.A2 was used to discharge liability of the first defendant attached to the plaint A schedule. The decision of the trial court as confirmed by the first appellate court is one of fact based on the evidence. I do not find any infirmity or perversity in the finding of the courts below so as to call for interference. As such, no substantial question of law is involved in this appeal.

The second appeal is dismissed.