Ramachandran vs Parukutty and Others

M.N. Krishnan, J.—This is an appeal preferred against the judgment and decree of the Subordinate Judge''s Court, Ottapallam in O.S. No. 100/1990. The suit is one for partition and the court below had decreed the suit. It is against that decision, the second defendant has come up in appeal.

The brief facts necessary for the disposal of the appeal are stated as follows:

The properties described in the plaint schedule i.e., 3 items were set apart in common to the plaintiff Devayani and her son Ayyappan as per a registered partition deed of the year 1981. It is the case of the first defendant that in between him and the mother, on 10.10.1983 there was a partition whereby items 1 and 3 were set apart to the share of the first defendant and item 2 was set apart to the share of the mother namely the plaintiff. The plaintiff''s mother would contend that she is an illiterate lady and the son wanted the mother to execute a document with respect to 20 cents of land for the purpose of constructing a house and by so misrepresenting, took her to the Registrar''s office, got her signature.

On the contra, the first defendant would contend that the mother had taken all steps for effecting the partition and partition deed was executed with her due knowledge and consent and thereby by virtue of the partition deed - Ext.B2 in 1983, he had been set apart items 1 and 3 and item 2 is given to the mother.

In the initial round of litigation, the court below passed a decree and the matter came up for consideration before this Court. This Court had set aside the judgment and decree, remanded the case with liberty to amend the plaint and to implead one Vasudevan and also to examine the attesting witness, Dasan - DW4. According to the first defendant, immediately after the partition deed - Ext.B2, item 1 had been transferred to his brother Ramachandran and in the year 1986, item 3 had been transferred to Vasudevan and thereby the said Ramachandran and Vasudevan are in possession of items 1 and 3 of the plaint schedule property and therefore, the plaintiff is not entitled to any relief. Questions were raised for the reason that as the properties were outstanding with others, unless it is brought back to the common hotch pot by recovery of possession, there cannot be an effective division. This was done on the basis of the decision of this Court reported in Sarojini Amma v. Pappi Amma 1973 KLT 148. So, the technical formalities of the prayer to set aside the document with recovery of possession had been incorporated and thus those defects stand cured.

Now the only point that survives for determination is whether Ext.B2 is vitiated for the circumstances mentioned in the plaint and whether it is liable to be set aside. It has to be remembered that three items of property were set in common for the plaintiff and the first defendant. The first defendant himself has admitted that it was so set apart with an intention to have equal right over the property. When Ext.B2 is executed, we find that one acre and 72 cents are set apart to the share of the first defendant and only 32 cents to the mother. In cross examination, the first defendant had admitted that "1983." But he would attempt to explain it by stating that there was an oral understanding that the house will be given to him subsequently. But except for his mere ipse dixit, no other evidence is available to substantiate that point. The law is very clear that when a pardanashin lady or an illiterate woman executes or is made to execute a document and there is inequitable distribution of the assets, the burden would fall squarely upon the person who claims advantage of that transaction similarly Section 111 of the Evidence Act deals with good faith. When there is a situation where acute confidence is taken and the person who gets the document executed is in a position to dominate the will of the other, the law says that burden is on the beneficiary to prove the truthfulness of the transaction. Now it can be seen that the mother, who is entitled to have half right over the property that too along with an unmarried son, is allotted a paltry extent of land which prima facie is absolutely inequitable. The mother would say that she was taken to the Registrar''s office with the impression that she has to execute a document for 20 cents of land in favour of the son. So, the mother who was staying with the son necessarily was a dependent and the son was in a capacity to dominate the Will of the mother.

I am very conscious about the fact that just because parents reside with the children, there is no presumption of law that children are able to dominate the Will of the other in all cases. But here is a case where the mother is a total dependant. She is an illiterate. She has no other place of residence. So taking stock of that situation, it can be safely held that position of the son was in an advantageous situation. It is in this situation we read the evidence of attesting witness DW4 and the identifying witness DW2.

The attesting witness''s evidence appears to be absolutely formal. He is residing hardly 20 metres away from the residence of DW1. He would say that both the mother and the son wanted him to be a witness. According to him, he had only gone to the scribe''s office and at that time besides him, only the plaintiff, defendants and the scribe were available. But the first defendant would say that over and above these persons, Sankaranarayanan as well as Raghavan were also available in the scribe''s office. It has also to be remembered that the document is written on a day and it is registered only on the second day. So, the question of loss of memory would not be there in such cases. The identifying witness Raghavan would say that he had gone to the Sub Registrar''s office. He would even appear to be more loyal than the king. He would say that the Sub Registrar read the entire document to the parties. Normally it is not done. Further, the role of an identifying witness in the registration of a document is to identify the persons and nothing else. So the evidence of DW1, DW2 and DW4 are conflicting in so many vital points. So, the trial court on an analysis had found that the document cannot be accepted. Further, if really this document had come into existence, certainly the first defendant would have been in a position to produce documents to prove the independent possession of 32 cents of land by the plaintiff. It is also not produced in this case. So, the inequitable distribution coupled with illiteracy as well as age of the person and the dependency factor all would point out that all is not well with the execution of Ext.B2 and therefore, the trial court was right in holding that Ext.B2 document is liable to be set aside and the property is to be divided.

By virtue of the subsequent development during the pendency of the appeal, the original plaintiff died. The original plaintiff had assigned her right in favour of supplemental plaintiffs 2 and 3. So the question of half right is not opened to succession for the reason that during her life time itself, it had been transferred in favour of plaintiffs 2 and 3.

Now about the equitable consideration. The first defendant had transferred his property to his brother Ramachandran who is also a son of the plaintiff. Therefore, as far as possible, it is desirable to allot the house to the second defendant, but I make it very clear that it is with valuation or in other words, as far as possible, the house shall be set apart to the share of Ramachandran. Similarly when the properties are divided, as a matter of fact on equity, the properties assigned be also set apart to the share of the first defendant so that transferees under him can have some equitable relief.

With these modifications, the judgment and decree of the trial court are confirmed and the appeal is disposed of directing the parties to bear their respective costs.