PATTETH BALAKRISHNAN Vs. RAMAN KANDIYIL MADHAVI

JUDGEMENT

(1.) This is an appeal by the defendant. Suit was one for cancellation of Ext. B1 dated 1.10.1981. Ext. A6 is the registration copy of Ext. B1. The court below has given all the facts in a very descriptive manner and I am only giving the necessary facts for the disposal of this appeal. The facts are these:

(2.) One Kunhirama Panicker was the brother of the plaintiff and one Kunhikumba. The properties of Kunhirama Panickcr were gifted to his two sister plaintiff and Kunhikumba by a deed of gift No. 2395 of 1946. A suit, O.S 162 of 1977 was instituted for partition of the properties obtained under the deed No. 2395 of 1946. This suit was instituted by the plaintiff. The suit was decreed and as a consequence, the properties gifted by Kunhirama Panicker were divided into two and Kunhikumba got the properties, which are the subject-matter of Ext.B 1. The entire property which Kunhikumba got was assigned to the defendant. Plaintiff says that the document requires to be cancelled because of the vitiating factors surrounding the document. She says that the document is executed by Kunhikumba not with her free Will. It was executed under undue influence, coercion and fraud. Kunhikumba died on 7.8.1981. Plaintiff is the only legal heir of Kunhikumba and so she instituted the suit.

(3.) Admittedly, the title that is claimed by the defendant is under Ext. B1. If the Ext. B1 is bad for any reason, the defendant cannot claim title to the property and if he has no title to the property, he cannot retain the property and so, the plaintiff is entitled to a decree for recovery of the property. Of course, the decree for recovery has to be preceded by a declaration that the document is bad.