Thrasia vs Varkey Mathai and Others

Govinda Pillai, J.—Plaintiff 1 is the Appellant her father was one Auguathy Davasia who died on 4-7-1112. Defendants 1 and 3 are the children of Davasia''a brother. Defendant 2 is the wife of Defendant 1 and Defendant 4 the wife Defendant 3, Plaintiff 1''s husband is Plaintiff 2. On 14-11-1111, Augusthy Devasia executed'' a sale deed Ex. 1 in favour of Defendants 2 and 4 for all his properties for a total consideration of Rs. 1430. The same day Defendant 6 purporting to take these properties on lease executed by Ex. c lease deed in favour of Defendants 2 and 4. Plaintiff 1 stated that these two documents were invalid. She was the only child of Devasia so that if he left his properties she was his sole heir. The sale deed Ex. I was obtained by Defendants 1 and 2 by fraud, undue influence and misrepresentation. There was no consideration for the sale deed. The deceased Devasia owed money to Plaintiff 2''s father who was obliged to file a suit in O. S. 664 of 1111 of the Kottayam Munsiff''s Court for the money due to him. He had obtained an attachment before judgment of some of the plaint properties. This had infuriated Devasia. Taking advantage of this position, Defendants 1 and 3 stepped forward and arranged for the conduct of that case against the Plaintiff''s father-in-law and thereafter they prevailed upon Davasia to execute the plaint sale deed. It had also been stated in the plaint that Devasia being addicted to drink was given good food and liquor so as to induce him to execute the plaint sale deed. They were therefore stated to have dominated over the will of Devasia who was physically and mentally weak due to tuberculosis he was suffering from. Though the sale deed was executed, the properties still remained in the possession of Devasia till his death and so it had not come into effect. On these allegations the suit was instituted to set aside Exs. I and c and to recover possession of the properties from the Defendants with mesne profits.

Defendants 2, 3 and 4 filed a joint written statement. They denied all the plaint allegations and contended that Ex. I was not liable to be set aside for any of the reasons mentioned in the plaint, that it was executed by Devasia knowing fully well what he was doing, that no undue influence, or fraud or misrepresentation was practised on him for the purpose of obtaining Ex. I that at the time of the sale deed Devasia owed money to several persons so that to relieve himself of his creditors he had executed the sale deed and that Plaintiff 1 was not entitled to impeach the same. The Plaintiffs filed a replication reaffirming the plaint allegations.

The trial Court found that Ex. I was fully supported by consideration and necessity, that it was a valid document, that the Plaintiffs had not made out the case of fraud, misrepresentation and undue influence alleged in the plaint, that the sale-deed and lease deed bad both cow into operation and that both these documents were not liable to be set aside. In Ex. I sale dead Rs. 950 bad been reserved to be paid to plaintiff 1 and another its 160 to be paid to her when she got a child. Though Plaintiff 1 had not given birth to a child at the time the case was pending in the trial Court, the Defendants expressed their willingness to pay the Plaintiff the chid sum of its too are so while dismissing the Plaintiff''s suit to set aside Exs, i and 0, a decree was given Plaintiff 1 to realise Rs. 600 with interest at per cent, from the date of the lower Court decree from Defendants 2, 8 and 4, The Plaintiffs were directed to pay the costs of Defendants 2 and 4. The suit had been filed in forma pauperis and so direction was given for the State to realise he court fees due from the amount decreed to Plaintiff l. This appeal also was filed in forma pauperis and as such, court-fee is due to the state on account of the institution fees in this Court also.

The Appellant''s learned Advocate pressed is to hold that Ex. I was brought into existence in account of the undue influence exercised by Defendants 1 and 3 over the deceased Augusthy Devasia Defendant 3 is an Advocate and it was the argument that since he was the educated and well placed member of the family it was easy for him to exercise soma influence over Augusthy Davasia. Davasia was living at Athirampuzha 7 miles a way from Kottayam where Defendant 3 was having his practice. They were not living together. Defendant 9 as D. W. 1 had denied categorically all the allegations against him. In dealing with the cases of undue influence, the Court has to consider, as pointed out in Allcard v. Skinner (1887) 36 Ch D. 145 four different questions connected with each other, namely (i) whether a transaction is righteous transaction, i.e., whether it is a thing which a right minded person might be expected to do; (ii) whether it was improvident, that is to say, whether it shows so much improvidence as to suggest the idea that the executant was not master of himself and not in a state of mind to weigh what he was doing; (iii) whether it was a matter which required legal advice; and (iv) whether the intention of executing the document originated with the executant or with the executee, These were ''the identical considerations which weighed with this Court while deciding the case in Narayanan v. Umrnini 1949 T.C.L.R. 172. The law on the subject had been elaborately discussed there. The evidence in this case has to be appreciated with reference to the general principles mentioned above.

Exhibit I was on 14-11-1111 and Devasia died more than 7 months after that. He had not done anything to indicate that the document same into existence under circumstances now alleged by the Plaintiff. Money was due to Plaintiff 1''s father-in-law. He had filed a suit and obtained an attachment before judgment of some of Devasia''s properties. Exhibit N is copy of the Kychit prepared by the Amin after effecting the attachment. It was prepared on 12-10-1111 that is just a month before the date of the plaint sale-deed. It was admitted by Plaintiff 1 as P. W. 4 that at the time that suit was filed Devasia was contemplating to sell his properties. The Plaintiff did not say that this contemplated sale was because of any machinations of the Defendants. The very idea to dispose of the properties of would indicate that Devasia was a man of at least average intelligence and understanding so that he could not be characterised to be a mentally weak person. Though Plaintiff 1 would say that for about 2 years before his death Devasia was not moving about freely, he had admitted that for the purpose of the case filed by her father-in law Devas''a had gone to Kottayam at least on three or four occasions. He could not, therefore, have been physically weak. It was stated that he was Buffering from consumption. The Plaintiff had not let in the best evidence to show that Devasia was suffering from tuberculosis or that persons suffering from tuberculosis would be mentally and physically weak. To the suit filed by Plaintiff 1''s father-in-law Devasia bad filed Ex. iv written statement on 26-10-1111. It was stated there that the suit was filed in order to get at all his properties as he had an only child who had been married to the son of the Plaintiff in that case. The evidence and circumstances in this case are not in any way sufficient to indicate that all or any one of the Defendants were in a position to dominate over the will of the deceased Devasia at the time when Ex. I was executed.

Exhibit l sale deed after its execution was presented for registration by Defendant 4 before the Sub-Registrar, Kottayam, It is true that the properties were lying within the jurisdiction of the Sub-Registry Office at Ettumanur. The Defendants stated that since Defendants 3 and 4 were in Kottayam, the document was got registered there for the convenience of the parties. As is the usual practice some imaginary properties in Kottayam were included in the 6 sale deed. This would not in any way invalidate Ex. 1. Vide the Full Bench ruling in Anthrayos Kathanar v. Itty 32 T.L.R. 258. The sale deed was for Rs. 1430 and it consisted of five recitals. By the last two recitals Rs. 500 were left with the vendees for being paid to Plaintiff 1 and for which as agreed to by Defendants 2 to 4, a decree had been passed by the Court below. The second recital was a each payment of Rs. 30 before the Sub-Registrar, The Sub Registrar had certified to the passing of consideration to this extent. The first recital is a sum of Rs. 200 said to have been received by Devasia from the Defendants on prior occasions. A sum of Rs. 700 had been reserved with the vendees for being paid to Devasia on his receipt when he demanded the same for the purpose of discharging his debts. As regards the prior payments there is the evidence of Defendant 3 as D. W. 1 besides the recital in the document itself. The Plaintiff would have no right to the plaint schedule properties during the lifetime of Devasia so that her right to question the sale deed would not stand on a footing higher than that of Devasia himself. If Devasia had filed the suit to avoid this document, the burden of proving that he did not receive this Rs. 200 would have been on him particularly when it was seen that the document had been executed and handed over to the vendee for presentation before the Sub-Registrar. There is no evidence on the side of the Plaintiff to show that this recital could not be true. At any rate there is the positive evidence of Defendant 3 that money had been paid to Devasia before the sale deed was executed. We believe him on this point.

Then there is only the recital relating to Rs. 700 reserved for the creditors. The defendants had produced a receipt Ex. II purporting to have been executed by Devasia on 14-5-1112 acknowledging the receipt of the whole of this amount. It is true that in the written statement of Defendants 2 to 4 they had referred to the existence of such a receipt. But as was expected of them particularly when one of them was an Advocate this receipt had not been produced in court. Subsequently, the Plaintiff put in a petition requesting the court to pass an order to direct the Defendants to produce this. Though the written statement had been filed on 1-8-1114, this receipt Ex. II saw the light of day only on 16-12-1110. This long delay in the production of the receipt is highly suspicious. Exhibit II purports to be in the handwriting of Devasia. We have no other records in the handwriting of Devasia to make a comparison. At any rate we find that the alleged signature of Devasia in Ex. II does not at all compare favourably with his signatures in the sale deed EX. I. We do not therefore think it proper to act on Ex. II and we ignore the same. In spite of this there is some evidence in the case to show that the Defendants had discharged the debts of the deceased Devasia. It had been admitted by the Plaintiff that her father had several debts evidenced by hypothecation bonds and promissory notes. She even mentioned some of them in the cross examination though she was not in a position to give details about the same. There were at any rate promissory note debts to her father-in-law copies of these notes were produced as Exs. L and M in this case. The suit filed on the same had been decreed and Defendant 3 swore that in execution of that decree the plaint properties were brought to sale and he saved them by depositing the decree amount. That amount was certainly due as a debt from Devasia. Then there were Exs. III and IV hypothecation debts charged on the plaint properties: The Defendants are in possession of those original documents with the endorsement that those debts were discharged. Exhibit III (a) endorsement shows that the Defendants paid Rs. 260 to discharge Ex. Ill debt. Exhibit iv (a) is the endorsement acknowledging receipt of Rs. 40 in satisfaction of the debt. These admitted debts themselves would come to about Rs. 600 and the vendees were obliged to pay the same. Defendant 3 stated that there were other debts and he had discharged all of them. It could not, therefore, be stated that this was a false recital. It would, therefore, be seen that the recitals of considerations were all true and binding on Devasia. This would indicate the bona fide nature of Ex. I sale deed.

The evidence in the case showed that even after Ex. i, Devaria was living in the house in plaint item 2 till his death. It was argued that in spite of the sale deed possession of the properties was retained with Devasia, The Defendants stated that Devasia was allowed to live in the house, that be was, however, not enjoying the properties and that there were certain catch crops which Devasia was permitted to collect. The Defendants also swore that Devasia was really ill only for 2 months before his death and that they were looking after him while in this house spending the necessary amounts for his maintenance and treatment Plaintiff 1 as P. W. 4 stated that till Tnularn 1112 herself and her husband Plaintiff 2 were living in this house with Devasia, that they came to know of this Ex. I sale deed then, that Plaintiff 2 thereafter went to live in his house, that in Dhanu 1112 she was also taken away by force while she was returning from the Church on a Sunday and that at the time of Devasia''s death herself and her husband were not present by his side. Plaintiff l had also admitted that the feeling between her father and father-in-law had became estranged when the latter filed the suit and effected an attachment before judgment. It would appear that Devasia really got angry then so that be executed the sale deed in order to discharge all his debts and to see that his properties did not go to a stranger though that stranger was his daughter''s father-in-law. He wanted to make some provision for his daughter and so he had reserved a good portion of the sale consideration for the purpose. If the properties were left as they were there would be a scramble among the creditors so that nothing would be left for his daughter. With this object in view be might have executed the sale deed to Defendants 2 and 4. Being the paternal uncle of Defendants 1 and 3 he was allowed to reside in the house, but this does not mem that he was enjoying the properties after the sale. We take it that EX.I sale had come into operation. The plaintiffs had miserably failed in substantiating any of their contentions and we are of the view that the lower court acted rightly in dismissing the Plaintiff''s suit.

The parties are close relations. The Defendant did not act properly in the production of Ex. II in court. We have also serious doubt about the genuineness of that receipt. The proper order relating to costs would be to deny the same to all the parties throughout. In the result we confirm the decree of the lower Court dismissing the Plaintiff''s suit, but we direct the parties to suffer their costs throughout.

A copy of this Court decree also will be forwarded to the State Authorities for realisa ca of the court-fees due from the Appellant.