KRISHNAN NARAYANAN Vs. KUNCHALI UMMINI

JUDGEMENT

(1.) The suit giving rise to this appeal, was commenced by a child-less Ezhava widow. The suit was to set aside a deed of settlement executed by her deceased husband, one Kunjukunju, with respect to his separate and self acquired properties, and to recover the one-half share due to her under the Travancore Ezhava Act, III of 1100. The settlement deed purports to have been executed on 3.10.1111 and it was registered on the 16th of that month. The document is Ext. C1 in the case and under it the plaintiff gets nothing. No provision is made even for her maintenance. The bulk of the properties are given to the members of Kunjukunjus tarwad while 64 cents of wet lands are given to the 1st defendant in the suit who appears to be a natural son of Kunjukunju. The 2nd defendant is Kunjukunjus brother, 3rd defendant is their sister and defendants 4 to 9 are the children of the 3rd defendant. The 10th defendant is a distant nephew in whose favour the 2nd defendant transferred a portion of the property he obtained under the impugned settlement deed. There were three other defendants in the suit but we are not concerned with them in this appeal.

(2.) The plaintiffs case with reference to the settlement deed, is that it is a huge fraud. According to her, the document is a forgery and its registration a farce. She would also have it that in case the document is found to have been executed by her late husband, it must be held to be invalid as vitiated by coercion and undue influence. Kunjukunju died on 17.2.1122 and it would appear he was in failing health for at least 6 or 8 months preceding that event. The plaint averments would even go to the length of saying that for the said 6 or 8 months he was not in his senses and that, in any event, he was not of sound disposing mind or rather disqualified by his infirmities from understanding what he was doing. Defendants 2 to 4 were the main contesting defendants and they joined issue with the plaintiff on all relevant points raised by her attacking the validity of the settlement deed. Defendant 1 filed a written statement supporting the plaintiff but afterwards withdrew from contest. Defendant 13, from whom some chitty money was claimed, had also filed a written statement and he like the 1st defendant did not continue the contest till the end. The suit was filed before the District Munsiffs Court at Karunagappally on 4.8.1113 and the trial lasted very nearly eight years. The learned Munsiff who disposed of the suit declared the settlement deed Ext. C1 invalid and inoperative as against the plaintiff and passed a preliminary decree for partition of the plaintiffs one-half share by metes and bounds. The decree also awarded past and future mesne profits to the plaintiff. Defendants 2 to 4 have preferred this appeal against the learned Munsiffs judgment and decree.

(3.) The learned Munsiff has, if I may use a familiar expression, gone the whole hog of accepting the plaintiffs case in all its details. The evidence, the plaintiff let in the case, especially the oral evidence is not only voluminous but also conflicting and confusing. After a careful study of that evidence, I do not find my way to accept the Munsiffs finding that Kunjukunju was out of his senses for about 7 months prior to the date of his death nor am I in a position to accept that the document was not executed by Kunjukunju or that it has not been validly registered. The plaintiff made all sorts of wild allegations in her plaint and the learned Munsiff suspects every body; he suspects everything. Every one who took part in the transaction, not only the donees who derived benefit under the document, but all those who had anything to do with its preparation or execution and even the Sub-Registrar of the place who registered the document in due discharge of his official duties, are alike involved in general and indiscriminate suspicion. As I am, however on certain broad and admitted facts and circumstances of the case, compelled to take a view confirming the Munsiffs decision without at the same time concurring in the reasons on which the decision is founded, I think it unnecessary to discuss the evidence on which the Munsiff came to his conclusions on the matters mentioned above or to state my reasons for differing from him on those matters. It must at the same time be stated that aspect of the case on which I propose to dispose of this appeal finds mention in the Munsiffs judgment towards its concluding part. To me it looks clear on facts admitted or proved that the 2nd defendant was in a position to dominate the will of Kunjukunju and that he used that position to obtain an unfair advantage for himself and others in whom he felt interested. In other words, when full play is given to the provisions of S. 16 of the Contract Act to the facts and circumstances of the case, the Munsiffs decision declaring the settlement deed Ext. C1 invalid and inoperative and granting the plaintiff reliefs consequential thereto, has to be affirmed. To found a decision on that aspect one has not in my opinion, to go beyond the admissions made by defendants 2 to 4 in their written statement and the evidence these defendants have themselves adduced viz., the testimony of D.W. 1 (father of 10th defendant) and D.W. 2 (2nd defendant.)