GOPIDHARAN Vs. JAYAKUMAR

JUDGEMENT

(1.) PLAINTIFF in O.S No.322 of 1993 of the Additional Sub Court, Kollam is the appellant before me. He sued the deceased first defendant and defendants 2 and 3 for a declaration that settlement deed No.945 of 1993(Ext.A1is its copy) executed by the deceased first defendant in favour of defendants 2 and 3 is null and void and for injunction against defendants 2 and 3 creating documents and entering the plaint A schedule property. The trial court dismissed the suit. The First Additional District Court, Kollam, dismissed A.S 229 of 2006 arising from the dismissal of the suit. Hence this second appeal.

(2.) PLAINTIFF is the son of the first defendant in his first wife. Plaint A schedule property belonged to the first defendant. According to the plaintiff, after the death of his mother(first wife of the first defendant) first defendant married the mother of the third defendant. It is claimed that the first defendant is not the father of the third defendant though, she was brought up by the first defendant. The second defendant is the husband of the third defendant. It is the case of the plaintiff that the first defendant had appropriated the assets of his first wife (mother of the plaintiff) during her life time to discharge the liability attached to the plaint A schedule and at that time there was an oral agreement to transfer the plaint A schedule to the plaintiff. The first defendant not only did not comply with that oral agreement, but transferred a portion of plaint A schedule to the defendants 2 and 3 as per the impugned settlement deed. Plaintiff contended that the said settlement deed is got executed by exercising undue influence on the first defendant who was suffering from amnesia.

(3.) IT is argued by the learned counsel that the courts below have not considered the evidence of PW3, an Assistant of the first defendant who was an Advocate Clerk.