PHILOMINA JOHNY Vs. POULINE THOBNAR FERNANDEZ

JUDGEMENT

(1.) Plaintiff in O.S.58/84 on the file of Sub Court, Kollam is the appellant. Respondents are the defendants. Appellant is the widow of deceased Johny, the brother of respondents 1 to 6. Their marriage was on 20.2.1974. Johny was then working in Abudabi. Johny admittedly died in an accident at Abudabi on 6.8.82. Plaint schedule property having an extent of ten cents admittedly originally belonged to Johny under Exts.A2 and A3 sale deeds dated 8.4.76 and 19.7.1979. Appellant filed the suit to set aside Ext.A5 registered sale deed executed by Johny in favour of his sister first defendant. Ext.A5 was executed on 15.7.81. As per Ext.A5, plaint schedule property was sold by Jonhy in favour of first defendant for a consideration of Rs. 15,000/-. Sale deed was sought to be set aside alleging that it was vitiated by fraud and undue influence. First respondent in her written statement disputed the allegations and contended that Ext.A5 was voluntarily executed by deceased Johny and it is a valid document.

(2.) Learned Munsiff framed the necessary issues. Apart from examining herself as PW3, appellant examined two witnesses and PW5, the Commissioner and PW4, the engineer. Respondents examined three witnesses including first defendant as DW3. Eleven exhibits were marked on the side of respondents and twenty five exhibits on the side of defendants, apart from Ext.X1,X2 and C1 to C3. Learned Munsiff on the evidence found that Ext.A5 sale deed is vitiated and set aside the sale. A decree for permanent prohibitory injunction was also granted. First defendant challenged the decree and judgment before District Court, Kollam in A.S.129/1989.

(3.) Learned Additional District Judge on re-appreciation evidence set aside the decree and judgment of the trial Court and holding that Ext.A5 is not a sham document and is not vitiated by either fraud or undue influence held that it cannot be set aside as sought for. Appeal was allowed and decree and judgment passed by the trial Court were set aside and the suit was dismissed. It is challenging the dismissal of the suit by allowing the appeal, plaintiff has preferred the second appeal.