Valsala. M., Geetha M. and Rani M. vs Jayarajan and Others

Thomas P. Joseph, J.—The second appeal is drawn from the judgment and decree of learned 2nd Additional Munsiff, Kozhikode in O.S No. 379 of 2006, confirmed by the learned 2nd Additional District Judge, Kozhikode in A.S. No. 124 of 2010. The suit property, it is not disputed originally belonged to one Madhavi Amma, the grandmother of appellants/plaintiffs and respondents 1 to 4/defendants 1 to 4 and the mother of deceased 5th defendant (she died pending of the suit) as per assignment deed No. 103 of 1964. On the death of said Madhavi Amma, the said property is devolved upon the deceased 5th defendant as her sole legal heir. According to the appellants, the deceased 5th defendant had various ailments and was admitted in the MIMS, Kozhikode on 03/11/2004. While so, respondents 1 to 3 got Ext. A1, assignment deed No. 281 of 2006 executed by the deceased 5th defendant. Appellants say that the said assignment deed is invalid since the deceased 5th defendant was not able to understand the consequence of her act on account of her ailments and since the document was got executed fraudulently. Appellants prayed for declaration and that Ext. A1, assignment deed is void and for injunction against respondents 1 to 3 alienating the property.

Respondents 1 and 2/defendant 1 and 2 contended that the deceased 5th defendant was residing with them. They denied the allegations regarding the nature of illness of the deceased 5th defendant. According to them income deceased 5th defendant was getting from her property was meagre, not sufficient for her treatment and hence she wanted to sell that property. Accordingly, she assigned the property to the respondents 1 to 3 as per Ex. A1, for consideration.

The 4th respondent/ the 4th defendant supported the appellants.

The deceased 5th defendant contended that she executed Ext. A1 on her own Will. She denied the allegation of her incapacity to execute the document. She denied that the document was got executed fraudulently. Respondents 1 to 3 had spent amounts for her treatment. She, on her own executed Ext. A1, Assignment Deed in favour of respondents 1 to 3.

Pending the suit the 5th defendant died. The trial court on evidence found against plea of the appellants and dismissed the suit. That was confirmed by the first appellate court. Hence this second appeal.

The learned counsel for the appellants has contend that the finding entered by the courts below as to the capacity of the deceased 5th defendant to execute the document and the validity of that document are erroneous. It is contended by the learned counsel that immediately after the deceased 5th defendant appeared in the case the appellants filed I,A.No.2888 of 2006 to record evidence of the 5th defendant. Though, no order was passed on that application, circumstances reveal that the respondents were reluctant to produce the 5th defendant in court. The learned counsel points out from the evidence of DW1 that according to him it was because the deceased 5th defendant was not interested in coming to the court that she did not appear and give evidence (as prayed for on I.A. No. 2888 of 2006. It is also pointed out by the learned counsel that Ext. B1 affidavit, allegedly of the deceased 5th defendant was sworn on 30/09/2006 but produced in the court only on 08/04/2008.

It is not as if Ext. B1 was rejected by the courts below. Ext. B1 is an affidavit (allegedly) sworn by the deceased 5th defendant and attested by a Notary Public. Its authenticity has to be presumed. The courts below only said that Ext. B1 being an affidavit cannot be taken as evidence (of the facts stated therein) in the trial of the case. But, Ext. B1, affidavit stands as sworn by the deceased 5th defendant before a Notary Public and attested by him. In other words, though Ext. B1 cannot be taken as evidence, fact remains that on 30/09/2006 the deceased 5th defendant was capable of swearing an affidavit. That indicates her mental capacity as on that day.

Even if Ext. B1 is kept apart, there is sufficient evidence to show that Ext. A1 was executed by the deceased 5th defendant on her own and that the allegation of fraud is not correct. The first and foremost testimony for that is the written statement filed by the deceased 5th defendant on her own, appearing through a lawyer and supporting due execution of Ext. A1. No doubt, she was not available for giving evidence. As the learned counsel has fairly conceded, the trial court had not passed any order on I.A. No. 2888 of 2006 requiring the deceased 5th defendant to appear in court to record her evidence. Therefore there is nothing wrong in the deceased 5th defendant not appearing in the court as requested in I.A. No. 2888 of 2006.

Exts. B2, B4 and B5 are documents executed by the deceased 5th defendant. If Ext. A1, the impugned document is dated 03/03/2006, Ext. B2 and B3 are dated 23/06/2006 and 28/08/2006 respectively. B4 and B5 are dated 30/08/2006. Both are registered instruments duly executed by the deceased 5th defendant. Therefore, it is clear that the deceased 5th defendant was sound, both in mind and body to execute Ext. A1 on 03/03/3006. It has also come in evidence that appellants and the 4th respondent executed Ext. B3 in acknowledgment of receipt of certain amount reserved to be paid to them. DW6 is an attester in Ext. B3 and has given evidence in support. It is relevant to remember that even PW1 is admitting his signature in Ext. B3 but, claiming that he signed on blank paper.

So far as medical evidence let in by the appellants is concerned, it is through PW2 and Exts. X1 and A5. That evidence only shows that the deceased 5th defendant was admitted in the hospital on 03/11/2004 and discharged on 12/11/2004 (While Ext. A1 was executed on 03/03/2006). The evidence of PW2 is that at the time of discharge, the sensorium of deceased 5th defendant was improved. He stated that long ailments can affect the faculties of brain but, the deceased 5th defendant could talk and understand things. It is also in evidence that at the time she was discharged from the hospital on 12.11.2004, she was conscious. The court below observed that the evidence of PW2 does not show that condition of the deceased 5th defendant was so bad as attempted to be depicted by the appellants and as spoken by PW1.

It is based on the above evidence that the courts below found in favour of due execution of Ext. A1. That is a finding of fact based on the evidence. The first appellate court also has confirmed that finding. On hearing the learned counsel and going through the judgments under challenge, I do not find any substantial question of law involved in the matter requiring its admission.

The second appeal is dismissed.