BALAN,A. Vs. THANKA

JUDGEMENT

(1.) THE plaintiffs are the appellants. Their suit was for declaration and consequential injunction. It is alleged that the plaint schedule property originally belonged to the first defendant. Ext.A10 settlement deed was executed by the first defendant on 16-2-1966 as per which she voluntarily, out of her free will and volition, gifted the plaint schedule properties in favour of Appunni the father of the first plaintiff and husband of the second plaintiff. A life interest was reserved in favour of the first defendant to take the usufructs from the said property. Except to the extent of her right to take usufructs in the said property, she had divested the title and possession in favour of Appunni as per the gift deed. The gift deed was accepted and acted upon by the donee. Certain items of properties were sold to 3rd parties by deceased Appunni and the donor Thanka. One such sale deed was executed in favour the first plaintiff. The donee Appunni looked after the donor Thanka. When Appunni became paralysed and was disabled, the first plaintiff started looking after the first defendant. Appunni was in possession of the property and was paying land revenue in respect of the same. In respect of one of the items Appunni and the first defendant jointly applied to the Land Tribunal for purchase of jenm right as O.A. 271/1971 and that petition was allowed. It is contended that the first defendant became very weak towards the middle of 1985 and when she was sick, defendants 2 and 3 made the first defendant to execute two documents exerting undue influence. It is alleged that the first defendant executed the document of cancellation of (Ext.A12) and another document purporting to be a gift deed in respect of the plaint schedule properties in favour of defendants 2 to 5. Those two documents are to be declared as null and void, the plaintiffs contended. The donee Appunni died on 13.10.1987.

(2.) A joint written statement was filed by the defendants contending that the document in question is not a gift deed and no gift deed was executed. The first defendant was made to believe that she was to execute a Will. The terms of Ext.A10 will reveal that it was intended to be executed as a Will and not as a gift. The first defendant was not aware of the fact that Appunni had also joined in the application for purchase of jenm right. It was further contended that the other defendants had not meddled with the plaint schedule property and that the case set up by the plaintiff that there was a settlement or the gift in favour of Appunni is not true.

(3.) THE trial Court after a detailed consideration of the evidence held that there was no valid gift in respect of the plaint schedule property in favour Appunni and so the plaintiffs cannot claim any right over the plaint schedule properties. It was also held that the first defendant was well competent to execute Ext. A12 cancellation deed and to execute another gift deed in favour of 2nd defendant and others. It was held by the trial court that there was no valid gift of the plaint schedule property in favour of Appunni and as such the plaintiffs who are claiming through Appunni cannot claim any right over the plaint schedule property. The trial court found that on a reading of the entire document, Ext.A10 cannot be found to be a gift deed. On the other hand, it was held that it spells out only as a Will and as such the cancellation deed executed by the first defendant is valid. Consequently, it was also held that the subsequent document executed by the first defendant is valid. The appellate Court concurred with the view taken by the trial Court.