KOLLANCHIL PADINHAKKARA ABDULRAHIMAN Vs. KUNHIMOHAMAD
HIGH COURT OF KERALA
Kollanchil Padinhakkara Abdulrahiman
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GEORGE VADAKKEL, J. -
(1.) IN respect of the suit properties the plaintiff - - she was the sole plaintiff; plaintiffs Nos. 2 and 3, her husband and one of her two sisters, came in on her death as her legal representatives - - executed Ext. B -l gift deed on 30 -11 -1960 in favour of her deceased brother's children, defendants - Nos. 1 to 3, and got it registered on 4 -12 -1960. Thereafter on 10 -12 -1960 she executed Ext. A -10 cancellation deed, and on 21 -12 -1960 filed the suit out of which this appeal arises for cancellation of Ext. B -l sift deed. Pending trial of the suit she died issue -less on 2 -6 -1961. The 4th defendant is her other sister - She is neither contesting the suit nor seeking any relief in respect of the suit properties. The trial Court decreed the suit but the lower appellate Court reversed the same. Plaintiffs Nos. 2 and 3 have come up in appeal.
(2.) ADMITTEDLY , the plaintiff was not well at the time of the execution of Ext. B -l, and thereafter also. The evidence of P. W. 1, the son of the 3rd plaintiff is to the effect that she was suffering from rheumatism for five or six months previous to her death, and that she was bed -ridden. However, it is also borne out from P. W. 1's evidence that she was mentally and intellectually alert ('no defect with her brain') and that her eyesight and hearing capacity were good. He also says that she could not get up from her bed without the help and assistance of another. It is common case that she was at that time residing at Kottopadam. in a building suit Item No. 17 gifted to her her two sisters - - 3rd plaintiff and 4th defendant - - and P. W. 1 jointly by the mother of the first three persons aforementioned as per Ext. A -4 of 1943 and kept in common as per Ext. A -5 partition deed of the year 1947 - The suit properties Items Nos -. 1 to 16 are properties included in Ext. A -4 and allotted to the 1st plaintiff under Ext. A -5. Admittedly, she was removed to the contesting defendants Ambalakattu puthan Veedu about two miles away from Kottooadam house. According to the plaintiffs she was made to believe that she was being, taken to Kottakal for treatment whereas according to the defendants she was removed to their house' since there was no one tolook after and nurse her she having no children, and her husband being about 30 miles away at Cheruthuruthy in his own house, with his children by a former marriage. Whatever be the reason for taking her from Kottopadam house, and wherever was that (according to the plaintiffs on 2 -12 -1960 and according to the defendants much earlier) both sides are agreed that she was removed from Ambalakattu Puthen Veedu to P. W. 1's house about 10 miles away from Kottopadam house. This was on the 9th December according to the plaintiffs and on the 10th December according to the defendants. Ext. A -10 already referred to was executed thereafter.
Ext. B -l gift deed is attacked before me on three grounds: (1) that it is vitiated by undue influence; (2) that it is bad being gift of 'musha' (undivided part of a property capable of divisional; and (3) that it is invalid since it was not accompanied by delivery of possession.
(3.) I am afraid that I am not called upon, by the pleadings in this case, to examine the first point raised, for under Order VI, Rule 4 of the Code of Civil Procedure. 1908, it is incumbent on the party pleading undue influence to set out full particulars thereof. The Supreme Court emphasised the need for stating full particulars in such cases in Ladli Prasad v. Karnal Distillery Co. Ltd. AIR 1963 SC 1279 = ((1964) 1 SCR 270) and again in Subhas Chandra v. Ganga Pro -sad, AIR 1967 SC 878 = 1(1967} 1 SCWR 271). In the second case that Court said: - -
'Before, however, a Court is called upon to examine whether undue influence was exercised or not it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud.' and quoted in support thereof the following passage from the earlier case : - - 'A vague or general plea can never serve this purpose: the partv pelading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other.'
The averments regarding execution of Ext. B -l are contained in paragraphs 4 and 5 of the plaint. The case set out in these paragraphs is one of successive misrepresentations whereby the 1st plaintiff was made to believe that she was being taken to Kottakal and again, she was made to believe that she was executing only a document to raise funds for her treatment. She also says in that paragraph 4 that she executed Ext. B -l with -out knowing the real purport of it and its contents. There is no averment that the relationship between the 1st defendant (all the allegations are only against him) and the 1st plaintiff was such that the former was in a position to dominate the will of the latter, or in other words, that the former was in a position to influence the latter, and that the former taking advantage of that position used the same so as to render the influence he had over there 'undue'. There is also no issue raised on this point. No evidence is also forthcoming to substantiate such a case. The averments in the immediately preceding paragraph in the plaint, on the other hand lead me to infer that the 1st plaintiff was really on her guard, or at least, would have been on her guard.;
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