SAVITHRI AMMAL Vs. PADMAVATHI AMMA

JUDGEMENT

(1.) DEFENDANTS l and 2 in O. S. No. 90 of 1979 of the Sub Court, Pathanamthitta are the appellants. In that suit the respondent sought a decree setting aside Ext. Al sale deed dated 8-12-1978, issue of permanent injunction against the defendants-the appellants herein, and recovery of possession from them of the suit property with mesne profits. The lower Court decreed the suit enabling the plaintiff respondent to recover possession from the appellants together with mesne profit at the rate of Rs. 1,500/- per annum till recovery. Hence this appeal. .

(2.) THE facts which are necessary to appreciate the rival contentions are the following. THE husband of the respondent, deceased Jayaram Pillai, got 11. 95 Acres of land in Sy. No. 906/1-7 of Kunnathur Village as per partition deed No. 60848 of 1123. He assigned 2. 25 acres out of that property under Ext. B2 document to the first defendant. 1. 41 Acres of to the West of that land is the Suit property. Sri. Jayaram Pillai died on 31-12-1976. His widow-the respondent and her minor child were in enjoyment of the suit property since then. THE first appellant's husband Gopalakrishna Pillai represented to the respondent that the Thandaper in respect of 2. 25 acres covered by Ext. B2 sale deed still remains in the name of the late husband of the respondent and it was necessary to have the thandaper transferred to the name of the first appellant by executing a document, for which purpose she was required to go to the Sub Registry Office, Pathanamthitta on 8-12-1978. Believing that representation to be true, the respondent/ plaintiff went with the first appellant and her husband and signed Ext. Al document which had already been prepared. She did not realise at that time that she was executing a sale deed in respect of the suit property. She was led to believe that the document which she was signing related to transfer of thandaper in respect of the property covered by Ext. B2. THEre was no consideration for the sale. THE respondent, after the death of her husband, was depending on the assistance of a few relatives, THE suit property was looked after on her behalf by her sister Smt. Kamalakshy Amma. When she sent to the suit property on 10-12-1978 to sell rubber sheets, the first appellant told her that Ext. Al was a sale deed and the respondent has no right in the suit property. THE respondent realised this position only at that time. She went to the office of the Sub Registrar at Pathanamthitta along with her sister immediately and obtained a copy of Ext. Al and found that it was a sale deed which she had executed on the basis of representation of the first appellant and her husband that it was a document intended only to transfer of thandaper in respect of the land covered by Ext. B2 into the name of the first appellant. THE suit was instituted on 5-1-1979. THE respondent pleaded that Ext. Al document in respect of the suit property was obtained on the basis of a fraudulent representation by exploiting her ignorance. It was, therefore that she sought a decree setting aside Ext. Al sale deed, and a permanent injunction and recovery of possession with mesne profits. On 14-12-1978 the first defendant sold the suit property along with 2. 25 acres covered by Ext. B1 document to the 2nd defendant. THE respondent/plaintiff filed I. A. 452/81 to implead the 2nd appellant as additional 2nd defendant. That application was allowed by order dated 9-1-1981.

(3.) THE trial court found that Ext. A1 document which was the same as Ext. B3, was obtained by fraud and mis-representation which the first defendant and her husband DW. 1 had practised on the respondent. THE court also found that if the first defendant was right in her case that what she obtained under Ext. B2 document was really 3. 66 acres, there was no need for her to obtain Ext. Al document. THE Court also relied heavily on a positive admission made by DW. 1 that his representation to the respondent was that the execution of Ext. A1 deed was required for the change of thandaper for the land already sold by her husband to the first defendant under Ext. B2 document. Reliance was also placed on the admission of DW. 1 that Ext. A1/b3 was executed only for the transfer of thandaper of the land covered by Ext. B2 sale deed. THE trial court found that on a reading of Ext. A1/b3 it was evident that it was not a deed for transfer of any thandaper Right, but a sale deed evidencing outright sale of 1. 41 acres of land and of the rights accrued to the respondent after the death of her husband. THE value of the sale as per Ext. A1 was only a paltry sum of Rs. 100/ -. THE trial court found that these circumstances showed that Ext. Al was obtained by fraud and mis-representation since the property measuring 1. 41 acres could not have been sold away for the meagre sum of Rs. 100/- as consideration. THE Court, therefore, held that Ext. Al was a fraudulent document and the same was liable to be set aside. On the other relevant issues the court found on the evidence of DW. 2 who was managing the properties that the mesne profit in respect of the suit property was Rs. 1,500/- per annum. It was, therefore, that the court ordered recovery of possession of the suit property with mesne profit at the rate of Rs. 1,500/- per annum from 10-12-1978 till recovery.