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Judgment
Thomas P. Joseph, J.—Plaintiff in O.S. No. 52 of 2002 of the court of learned Munsiff, Changanacherry sought to set aside Exts.A4 to A6, settlement deeds executed by his father, the late Velayudhan Achary on 28.07.2001 and registered on 10.08.2001 in favour of respondents 2, 4 and 5, daughters of the said Velayudhan Achary and prayed for a decree for prohibitory injunction against the respondents trespassing into the suit property. Learned Munsiff dismissed the suit which the learned Additional Sub Judge, Kottayam confirmed in A.S. No. 16 of 2009. It is not disputed that the suit property belonged to the late Velayudhan Achary as per Ext.A1, partition deed. While so, he executed Exts.A4 to A6 in favour of respondents 2, 4 and 5. According to the appellant, he spent money for the marriage of respondents 2, 4 and 5 and then it was agreed that respondents 2, 4 and 5 would not claim any share in the family property and that the entire property would be given to the appellant, being the only son of the late Velayudhan Achary. Exhibits A4 to A6 are attacked as vitiated by undue influence, coercion and mental incapacity of the late Velayudhan Achary to execute the said documents.
Respondents denied the allegations and contended that there was no such agreement as pleaded by the appellant. Respondents 2, 4 and 5, were sent in marriage by the late Velayudhan Achary. They claimed that the late Velayudhan Achary was competent and capable of executing Exts.A4 to A6 and hence those documents are valid. They claimed to be in possession of the property pursuant to Exts.A4 to A6.
It is argued by the learned counsel that there is sufficient evidence to show that the late Velayudhan Achary was not having sound disposing state of mind at the time Exts.A4 to A6 were executed. It is further contended that it is under suspicious and doubtful circumstances that the documents were allegedly executed. The learned counsel submitted that the documents were executed at the residence of D.W2 but he was not able to give satisfactory explanation for the circumstances in which the documents were executed at his residence. Learned counsel also invited my attention to the evidence of D.W3 to contend that the late Velayudhan Achary was not having sound disposing state of mind. Further reliance is placed on the evidence of PWs.2 and 3 who claim to have treated Velayudhan Achary and issued Ext.A10 and A11 series.
Exhibits A4 to A6 were executed on 28.07.2001 and registered on 10.08.2001. By Ext.A4, the late Velayudhan Achary settled 5.5 cents in favour of the 2nd respondent; by Ext.A5, 7 cents in favour of the 4th respondent and by Ext.A6, 10.5 cents was settled in favour of the 5th respondent.
Exhibit B1 is the copy of assignment deed executed by the late Velayudhan Achary in favour of the appellant on 05.06.2001. Appellant when examined as P.W.1 stated that on 05.06.2001 when the late Velayudhan Achary executed Ext.B1, he was capable of executing Ext.B1 and had sound disposing state of mind. Now the contention is that on 28.07.2001 when Exts.A4 to A6 were executed and on 10.08.2001 when those documents were registered, the late Velayudhan Achary was not having the sound disposing state of mind he had on 05.06.2001 when Ext.B1 was executed.
P.Ws2 and 3 claim to have treated Velayudhan Achary. P.W.2 is a specialist in Neurology. He treated Velayudhan Achary for diabetics and hypertension. He claims to have seen the late Velayudhan Achary, last in January, 2001. He was not able to say whether Velayudhan Achary was mentally weak when he last saw him (in January, 2001). Thus the evidence of P.W2 is absolutely not sufficient to warrant the conclusion that at the time of execution of Exts.A4 to A6, the late Velayudhan Achary was not having sound disposing state of mind.
P.W3 is another Medical Officer who claims to have treated Velayudhan Achary. He stated that Velayudhan Achary was semi conscious when he treated him. In Ext.A11(b), certificate dated 10.06.2003 (issued by P.W.3 after the suit), it is stated that the patient was seen semi conscious on 09.08.2001 (execution of Exts.A4 to A6 was on 28.07.2001 and its registration was on 10.08.2001). P.W.3 is not an expert in Neurology. P.W.3 says that Velayudhan Achary was brought to him by his son (appellant). He had seen the prescriptions issued by the Neurologist who had earlier treated Velayudhan Achary (obviously it must be Ext.A10 series concerning which P.W.2 has given evidence that the illness was diabetics and hypertension).
It is relevant to note the evidence of P.W.4 examined by the appellant to prove the mental incapacity of the late Velayudhan Achary. P.W.4 states that in January, 2002 (Exts.A4 to A6 were executed on 28.07.2001 and registered on 10.08.2001) he had asked the late Velayudhan Achary as to why he did not do as stated earlier (giving the property to the appellant). Then, Velayudhan Achary replied to P.W4 that it happened so.
If this version of P.W.4 were correct, I am inclined to think that in January, 2002 the late Velayudhan Achary was capable of understanding things and giving rational answers to the questions put by P.W4. It is difficult to think that if this was the condition of the late Velayudhan Achary in January, 2002 and there was nothing wrong with his mental capacity when he executed Ext.B1 in favour of the appellant on 05.06.2001, in the meantime on 28.07.2001 and 10.08.2001 when Exts.A4 to A6 were executed and registered, Velayudhan Achary lost his mental capacity to do so.
The evidence let in by Pws.2 and 3 would only show that the late Velayudhan Achary was weak on account of paralysis. I must notice that what is required for execution of the document is not sound physical health but sound mind.
The evidence let in by the appellant is not only insufficient to show that the late Velayudhan Achary was not having sound disposing state of mind at the time Exts.A4 to A6 were executed, but also show that immediately before and even after Exts.A4 to A6, he was having that sound disposing state of mind.
So far as the alleged undue influence is concerned what is available is only the interested version of the appellant. I must also notice that what the law frowns upon is not ''influence'' but ''undue influence''. That Velayudhan Achary executed Exts.A4 to A6 in favour of respondents 2, 4 and 5 (his daughters) after he executed Ext.B1 in favour of the appellant would show that he wanted to dispose of his property to his children. Respondents in the course of the trial suggested that appellant had ill-treated Velayudhan Achary and that also was a reason for his executing Ext.A4 to A6. At any rate the folly if any committed by the Velayudhan Achary is no ground to attack Exts.A4 to A6. In the circumstances the courts below are justified in upholding the validity of Ext.A4 to A6. On hearing the learned counsel and going through the judgments under challenge I do not find any substantial question of law involved in this appeal requiring a decision by this Court.
The Second Appeal is dismissed.
All pending Interlocutory Applications will stand dismissed.