THIVIKRAMAN GOMATHY Vs. KESAVAN NEELAKANTAN

JUDGEMENT

(1.) Defendants 1 to 6 in a suit for partition are the appellants. The plaint schedule properties originally belonged to Sreedharan Vaidhyan. Sreedharan Vaidhyan died intestate on 4-9-1986. Defendants 1 to 6 are his wife and children. At the time of the death of Sreedharan Vaidhyan his mother Parvathy was alive. Therefore, defendants 1 to 6 and Parvathy were the legal heirs of deceased Sreedharan Vaidhyan and as such Parvathy had 1/7 share in the property left behind by Sreedharan Vaidhyan. The plaintiff is one of the sons of Parvathy. He relied upon Ext. A1 gift deed alleged to have been executed in his favour by his mother Parvathy on 4-12-1986. Parvathy was aged 95 years on the date of Ext. A1. It is also the admitted fact that Parvathy was an illiterate woman. Even before execution of Ext. A1 gift deed a lawyer notice was sent to the first defendant claiming partition of the property. According to the defendants, it was actually sent by the plaintiff though Ext. A1 would show that it was sent by Smt Parvathy, Ext. A2 is that notice and postal receipt. The defendants contend that Ext. A1 is vitiated by fraud and undue influence and it is void and non est since Parvathy was illiterate and was not in a sound and disposing state of mind at the time of execution of Ext. A1 as she was suffering from serious physical and mental ailments. Ext. A3 is a document which was stated to have been executed by Parvathy as a correction deed. The plaintiff, relying upon Ext. A1 sued for partition contending that he is entitled to get 1/7 share over the property left behind by Sreedharan Vaidhyan. The appellants herein filed written statement inter alia contending that Ext. A1 is a void document having been executed without the free consent of the mother and as such it is a nonest factum and thus it is invalid and inoperative. Thus, they denied the plaintiff's entitlement to any share in the plaint schedule property. At the first instance, the suit was-dismissed. The plaintiff, thereupon filed appeal before the District Court. The appellate Court remanded the matter to the trial Court for fresh disposal. Earlier P.W. 1 alone was examined. After remand P.Ws 2 to 4 were also examined. Exts. A1 to A3 are the documents relied upon by the plaintiffs. The first defendant was examined as DW1.

(2.) The learned Sub Judge after thoroughly scrutinising the entire evidence found that Parvathy was aged 95 years at the time of execution of Ext. A1 and that she was not proved to be of sound and disposing state of mind. It was also found that P.W. 1 the son who is projecting Ext. A1 gift deed as a true and valid gift deed himself was the person who furnished the information and instructed P.W. 2 the scribe to prepare Ext. A1 and that he had an active role in bringing about Ext. A1. P.W. 3 who is the nephew of P.W. 1 is one of the attestors to Ext. A1. P.W. 4, another brother of P.W. 1 is a witness to Ext. A3 correction deed. Parvathy was not made a party to the suit. She was alive at the time of filing of the suit. Despite the contentions raised by the defendants that Parvathy was not in a sound and disposing state of mind and that she was incapable of giving free consent to execute Ext. A1 gift deed. She was not produced by the plaintiff before Court so as to enable the Court to ascertain her mental capacity to execute the document.

(3.) It was also found that the evidence given by P. Ws 2 to 4 was contradictory to the evidence given by P.W. 1 and that the witnesses, P.Ws. 2 to 4, gave evidence only as designed and dictated by P.W. 1. Thus, on a totality of the evidence and circumstances, the trial Court found that Ext. A1 is not proved to have been executed by Parvathy out of her free will and volition and as such it is invalid and inoperative.