M.K Gopalakrishnan & Ors. v. M.K Rajamma & Ors.

JUDGMENT

1. Defendants 1, 4 and 5 in O.S No. 78/1986 on the file of the Additional Sub Court, Alappuzha are the appellants in this second appeal. Pending this second appeal the 1 st defendnat who was the 1 st appellant died and defendants 4 and 5, who are his children and who are appellants 2 and 3 respectively, were recorded as his legal representatives.

2. The aforementioned suit instituted by the 1st respondent herein was one for a declaration of the plaintiff's title and possession over plaint schedule item No. 1, for setting aside the decrees passed in two earlier suits, for setting aside Ext. A3 settlement deed dated 22-8-1966 executed by the plaintiff's mother, for recovery of two items of properties with mesne profits and for partition and separate possession of the plaintiff's share in respect of two other items of the plaint schedule properties.

PLAINTIFF'S CASE IN THE PLEADINGS

3. The case of the plaintiff can be summarised as follows:—

The plaintiff and defendnts 1 to 3 are the children of late Kunjipillai Amma who died in the year 1973. Bhaskara Panicker, who was one of the sons of the said Kunjipillai Amma died unmarried on 23-12-1981. The plaintiff and defendants 1 to 3 are the legal heirs of Kunjipillai Amma and Bhaskara Panicker referred to above. Defendants 4 and 5 are the children of the 1 st defendant. The plaint schedule properties are portions of the properties settled in favour of Kunjipillai Amma as per Ext. A1 settlement deed dt. 11-3-1118 M.E executed by Kunju Charappan Thampan, the husband of Kunjipillai Amma. As per Ext. A2 setdement deed dt. 6-10-1958 Kilnjipillai Amma settled the plaint schedule properties in favour of her children. Item No. 1 of the plaint schedule property was thus settled in favour of the plaintiff. After settling various items of properties in favour of her children Kunjipillai Amma retained 7 items of properties with her and those properties are described in the F schedule to Ext. A2 settlemtn deed. In August 1966 Kunjipillai Amma requested the 1 st defendant, who was her eldest son, to prepare a setdemtn deed for distributing the properties retained by her undo Ext. A2 equally among her five children. However, the 1 st defendant prepared Ext. A3 settlement deed dt. 22-8-1966 violating the directions given by Kunjipillai Amma and taking to himself major share of the properties and allotting small portions of properties tothe 3rd defendant and deceased Bhaskara Panicker and leaving nothing to the plaintiff and the 2nd respondent. He had also fraudulently included in his share plaint schedule item No. 1 which was already settled in favour of the plaintiff under Ext. A2 settlement deed. Similarly, taking advantage of the mistake in the extent shown for the property allotted to the 3rd defendant as per the D schedule to Ext. A2 settlement deed wherein instead of 95 cents comprised in Sy. No. 20/5, 45 cents alone was show, the 1 st defendant fraudulently included the balance 50 cents to his share. Kunjipillai Amma was illiterate, old and sickly and believing her eldest son (1st defendant) that the settlement deed was prepared by him as directed by her, she signed Ext. A3 document and registered the same as document No. 4860/1966. Bhaskara Panicker and defendants 2 and 3 were ignorant about the fraudulent acts of the 1st defendant. The 1st defendant had also incorporated a recital in Ext. A3 enabling him to join as additional plaintiff in O.S No. 279/1963 before the Munsiff's Court Cherthala filed by Kunjipillai Amma in respect of item No. 2 of the A schedule of Ext. A3 corresponding to plaint schedule item No. 3. Thereafter, the 1 st defendant filed a petitin to get himself impleaded in the said suit. Then only Kunjipillai Amma came to know about the fraud practised by the 1st defendnat. Thereupon she executed Ext. A4 settlement deed dt. 22-8-1966 revoking Ext. A3 settlement deed and reserving plaint schedule item No. 3 to herself under F schedule thereto and alloting the remaining properties equally among her children. The plaint schedule item No. 2 was allotted to the plaintiff under the E schedule to Ext. A4 settlement deed. The impleading petition filed by the 1 st defendant in O.s No. 279/1963 referred to above was dismissed holding that his right was to file a separate suit. Accordingly, the 1 st defendant filed O.S No. 318/1969 before the Chethala Munsiff's Court for declaration of his right over the plaint schedule item No. 3 under Ext. A3 settlement deed and also to cancel Ext. A5 settlement deed subsequently executed by his mother. The plaintiff herein was the 5th defendant and Kunjipillai Amma was the 1 st defendant and defendants 2 and 3 herein were defendants 3 and 4 in O.S No. 318/1969. Deceased Bhaskara Panicker and the 3rd defendant herein had no notice in that suit. In order to avoid a contest by the plaintiff and the 3rd defendant herein, the 1st defendant herein executed Ext. AS release deed dt. 24-6-1970 in favour of the present plaintiff and Ext. B7 gift deed dt. 16-12-1970 in favour of the present 3rd defendant. As per Ext. AS release deed, the 1 st defendant herein surrendered to the plaintiff his rights over the plaint schedule item No. 1 which is 1 acre of paramba comprised in Sy. No. 19/1-A which had already been settled by the mother in favour of the plaintiff under the E schedule to Ext. A2 settlement deed and which was fraudulently included by the 1st defendant to his share in Ext. A3 settlement deed. As per Ext. B7 gift deed, the 1 st defendant transferred to the 3rd defendant his rights over 50 cents of land in Sy. No. 20/5 which was already allotted to the 3rd defendant as per the D schedule to Ext. A2 settlement deed and which had been fraudulently included in his share under Ext. A3 settlement deed. By practising fraud and misrepresentation the 1st defendant succeeded in getting joint statements filed by the plaintiff and the 3rd defendant to the effect that they do not press their contentions. Kunjipillai amma who was the 1st defendant in that suit alone contested the suit. But she was aged and was not possessed of sufficient funds. The 1 st defendant, therefore, managed to keep her aloof from the other children and he, accordingly obtained a decree declaring his right in respect of plaint schedule item No. 3 and cancelling Ext. A4 subsequent settlement deed executed by Kunjipillai Amma. Pending that suit Kunjipillai Amma also had filed a separate suit as O.S No. 554/1969 before the Munsiff's Court, Chethala for cancellation of Ext. A3 settlement deed. In view of the compromise entered into betwen the 1 st defendant herein adn the 3rd defendant herein in O.S No. 318/1969 was dismissed on 2-2-1972 as barred by res judicata. Kunjipillai Amma died thereafter in the year 1973 at the age of 84. With regard to plaint schedule item No. 1 which stood allotted to the plaintiff, the 1st defendant raised objections against the plaintiff enjoying the same necessitating the plaintiff to lodge a complaint before the Sub Divisional Magistrate. The proceedings before the Sub Divisional Magistrate were got compromised by the 1 st defendant setting up an agreement by the plaintiff herein to sell the said item to him for a sum of Rs. 20,000/-. Even assuming that the joint statement to that effect filed before the Sub Divisional Magistrate could be treated as an agreement enforceable in law, the two years stipulated therein expired on 10-1-1981. Long thereafter on 30-9-1981 the 1 st defendant issued a lawyer notice to the plaintiff demanding specific performance of the said joint statement. The plaintiff has sent a reply to the said notice. Thereafter defendants 4 and 5 who are the children of the 1st defendant filed O.s No. 488/1981 before the Munsiff's Court, Cherthala for an injunction. The said suit was subsequently re-numbered as O.S 77/1986 before the Sub Court, Alappuzha. It was while scrutinising the document for filing a written statement in that suit that the plaintiff came to know that the decrees in O.S Nos. 318 and 554 of 1969 were obtained by the 1st defendatn fraudulently. Those decrees are not binding upon the plaintiff since they are vitiated by fraud and misrepresenation. Hence the suit. The 6th defendant is an assignee from the 1 st defendant in respect of 40 cents of land comprised in Sy. No. 18/6.

4. Defendants 2 and 3 virtually supported the plaintiff.

PLEADINGS IN DEFENCE

5. The suit was resisted by defendants 1 and 6 who filed separate written statements. The 1st defendant opposed the suit claim contending inter alia as follows:—

The suit is not maintainable and is really a counter blast to O.S No. 79/1986 which is a suit for specific performance filed by this defendant against the plaintiff in respect of plaint schedule item No. 1. The execution of Ext. A3 settlement deed by Kunjipillai Amma is admitted. Bu the rest of the plaint averments are not correct. No fraud or misrepresentation was practised bythis defendant as alleged. Ext. A3 settlement deed was executed by Kunjipillai Amma voluntarily and with full knowledge about the allotment thereunder and the contents of the same. At that time she was quite healthy and was managing her own affiars it was consistent with the provisions in Ext. A3 settlement deed that this defendant filed a petition to implead him as additional plaintiff in O.S No. 279/1963. But it was the plaintiff and others who prevailed upon Kunjipillai Amma to resist the impleading petition. In fact, it is as a result of fraud and undue influence practised by the plaintiff and others upon Kunjipillai Amma that Ext. A4 settlement deed came to be executed. O.S No. 318/1969 filed by this defendant has been decreed after full contest and the fraud and misrepresentation alleged against this defendant are false. O.S No. 554/1969 was instituted by Kunjipillai Amma at the instance of the plaintiff and others. The plaintiff had agreed to sell the plaint schedule item No. 1 in favour of this defendant. The plaint allegations are made by way of defence to the suit O.S 79/1986 by this defendant against the plaintiff for specific performance of the agreement executed by her. The decrees passed in O.S 318/1969 and 554/1969 are valid and binding on the plaintiff and the other parties. The plaintiff is not entitled to get the decrees passed in the aforesaid suits set aside nor is Ext. A3 settlement deed executed by Kunjipillai Amma liable to be set aside. Ext. A21 sale deed dt. 8-1-1980 executed by this defendnat in favour of the 6th defendant in respect of 40 cents of land comprised in Sy. No. 18/6 is a valid document and the same cannot be ignored by the plaintiff. The plaintiff is not entitled to recover the said properly from the 6th defendant. None of the reliefs prayed for in the suit can be granted. The quantum of profits shown is exaggerated and excessive. The suit is liable to be dismissed with costs.

6. The 6th defendant who is an assignee from the 1st defendant in respect of 40 cents of land filed a written statement virtually in terms of the written statement filed by the 1st defendant and praying for a dismissal of the suit.

7. The trial court framed the following issues for trial:—

1. Whether Kunjipillai Amma was in sound state of mnd while executing document No. 4860 of 66?

2. Whether first defendant had played any fraud, coercion, undue influence on deceased Kunjipillai Amma to execute the document?

3. Whether the decree in O.S 318/69 and 554/69 are valid and binding on the plaintiff?

4. Whether the decrees in the above suits are liable to be set aside?

5. Wheher the plaintiff is entitled to the declaration of title and possession over item No. 1 of the plaint schedule?

6. Whether the document No. 45 dt. 8-1-1980 executed by 1 st defendant in favour of 6th defendant is valid and binding on the plaintiff?

7. Is the above document liable to be set aside for the reasons stated in the plaint?

8. Whether the settlement deed No. 5343 dt. 19-9-66 is valid and binding on plaintiff and defendants 1 to 3?

9. Is the plaintiff entitled to get partition of items 3 and 4? If so what is the quantum of share?

10. Is the plaintiff entitled to get mesne profits? If so, at what rate?

11. To what reliefs parties are entitled?”

THE TRIAL AND DISPOSAL

8. On the side of the plaintiff 5 witnesses were examined as PWs. 1 to 5 of whom P.W 1 is the plaintiff, PW. 3 is the 2nd defendant and PW 4 is the 3rd defendant. Exts. A1 to A36 were marked. On the side of the defendans two witnesses were examined and DWs. 1 and 2 of whom DW. 1 is the 1 st defendant. Exts. B1 to B17 were marked.

9. This suit was tried along with O.S No. 79/1986 filed by the 1st defendant herein seeking a decree for specific performance in respect of plaint schedule item No. 1 against the plaintiff. After joint trial, the trial court as per common judgment and decree dt. 12-4-1991 decreed O.S No. 78/1986 and dismissed O.S 79/1986. Aggrieved by the decree passed in O.S 79/1986, the 1 st defendant filed A.S No. 30/1992 before the District Court, Alappzha. Aggrieved by the decree passed in O.S No. 78/1986 (present suit), defendants 1, 4 and 5 filed A.S No. 31/1992 before the District Court, Alappuzha. The 6th defendant also filed an appeal as A.S No. 33/1992 against the decree passed in O.S No. 78/1986. All the three appeals were jointly heard and disposed of by the District Court, Alappuzha as per common judgment dt. 29-9-1994 by which all the appeals were dismised with costs. It is aggrieved by the judgment and decree passed in A.S No. 31/1992 which was against the decree passed in O.S No. 78/1986 that defendants 1, 4 and 5 have come up in second appeal.

SUBSTANTIAL QUESTIONS OF LAW

10. At the time of admitting this second appeal notice was ordered on the following substantial questions of law formulated in the appeal memorandum:—

I. Whether it is open to the plaintiff and defendants 2 and 3 to contend that Ext. A3 settlement deed is invalid and Ext. A4 is valid in the light of the decree and judgment in OS. 318 of 1969 which declared the title and possession of the 1 st defendant and set aside the subsequent settlement deed, Ext. A4 deceased Bhaskara Panicker and Kunjipillai Amma on the array of parties and in the light of the decree in OS 554 of 1969?

II. Is not the preent suit barred by res judicata by virtue of the decisions in OS 318 of 1969 and OS 554 of 1969 of the Cherthala Munsiff's Court?

III. Whether the plaintiff can claim title to or partition of plaint schedule items 2(a) to 2(d), 3 and 4(b) which were obtained by the 1 st defendant as per Ext. A3 settlement deed, the validity of which are upheld in OS 318/1969 and OS 554/1969?

IV. Whether the court below is justified in setting aside the decree and judgment in OS 318/1969 and OS 554/1969 without the plaintiff's pleading and proving any ground therefor?

V. Whether the court below is justified in setting aside the sale deed executed by the 1 st defendant in favour of the 6th defendant in respect of 40 centre in Sy. No. 18/6A. In any view the sale should not have been set aside in respect of the entire 40 cents, only 17 cents having been scheduled to the plaint?

11. I heard Sr. Adv. Sri. P.G Parameswara Panicker, learned counsel appearing for the appellants, and Dr. Krishna Pillai, learned counsel appearing for the plaintiff/contesting 1st respondent.

12. During the course of hearing the following substantial questions of law were also formulated as arising for considering in this appeal:—

VI. After executing a gift deed which has been acted upon, is it permissible for a donor to unilaterally cancel the same and execute another gift deed by merely reciting any of the vitiating grounds enumerated under Secs. 19 and 19-A of the Contract Act and without the intervention of the Court?

VII. Is not the present suit filed on 20-5-1982 so far as it relates to the prayer for setting aside Ext. A6 decree dt. 23-9-1971 and Ext. A18 decree dt. 2-12-1972 barred under Art. 59 of the Limitation Act, 1963, particularly when the plaintiff herein was a party to both Exts. A6 and A18 decrees?

RESPONDENTS' ARGUMENTS IN SUPPORT OF THE DECREE

13. Adv. Sri Krishna Pillai, the learned counsel appearing for the plaintiff/contesting 1st respondent, made the following submissions before me in support of the judgments and decrees passed by the courts below:—

Ext. A4 settlement deed was executed by Kunjipillai Amma after cancelling Ext. A3 settlement deed executed by her one month ago. There are intrinsic circumstances indicating that Ext. A3 settlement deed did not reflect her true intention and that it was brought about at the instance of the 1 st defendant by practicising fraud. The following are those circumstances:—

a) Ext. A3 settlement deed was presented for registration not by Kunjipillai Amma (the settler/mother), but by the 1st defendant although the settler had admitted the execution of the document before the Sub Registrar.

b) Even though the properties dealt with under Ext. A3 were the properties retained by the mother as the F schedule to Ext. A2, the prior title deed which is recited in Ext. A3 is not Ext. A2, but Ext. A1 which was still anterior. This deliberate suppression of Ext. A2 in Ext. A3 was ill-motivated.

c) There is an unusual recital in Ext. A3 settlement deed that the same has been brought into effect thereby indicating an antecedent gift This shows an anxiety that even if the gift deed is successfully challenged, the gift had already taken place prior to the execution of the document.

d) The consideration recited in Ext. A3 is the love and affection towards the donees thereunder who are the children of the donor (mother). But, admittedly, both the plaintiff and the 2nd defendant, who are also daughters of the settler, have been excluded from Ext. A3 and there is no recital that the settler (mother) has no subsisting love and affection towards the plaintiff and the 2nd defendant.

e) Item No. 1 of the A schedule to Ext. A3 includes 1 acre of property comprised in Sy. No. 19/1 A. In fact, this 1 acre of land already stood allotted to the plaintiff as per the E schedule to Ext. A2 settlement deed dt. 6-10-1958. After Ext. A2, the settler had no subsisting title over this item which was also allotted to the share of the 1st defendant under Ext. A3.

f) There is an unusual recital in Ext. A3 to the effect that if any property included in Ext. A1 remains undisposed of by the settler, it shall stand allotted to the 1 st defendant as per the A schedule thereto. In fact Ext. A2 is the settlement deed executed by the settler subsequent to Ext. A1 allotting various items of properties to all her children as per schedules A to E thereto and what she could have settled thereafter was only those properties which she had retained with her as per the F schedule to Ext. A2. It is in this context that the suppression of Ext. A2 in Ext. A3 assumes importance.

g) While about 6 acres of properties have been given to the 1st defendant under Ext. A3, what has been given to Bhaskara Panicker is only 53 cents and what has been given to the 3rd defendant herein is only 11 cents. Ext. A3 is thus grossly improvident and inequitable.

h) It is recited in Ext. A3 that the terms and conditions, rights and possession given thereunder shall not be questioned by anybody. This is also an unusually strange recital to be found in a settlement deed.

i) While under Ext. A4 subsequent settlement deed the settler (mother) had expressly reserved to herself a right of revocation, there is no such right reserved in Ext. A3 which merely directs the donees to maintain her.

j) Ext. A3 recites that since the properties settled thereunder are ancestral properties, the donees are forbidden from alienating the same and directs them to own and possess their respective shares.

k) Ext. A3 recites that if donees 2 and 3 (Bhaskara Panicker and the 3rd defendant herein) are desirous of substituting the properties given thereunder with any other properties, they should obtain the written consent of the 1 st defendant herein.

l) There is a restrain on the donees against alienation of the properties to third parties and cause damage to the properties. The document further recites that if any of the donees commits a breach of the above condition, it shall be open to the donees to mutually cancel the alienation.

m) Ext. A3 recites that the ancestral house in plaint schedule item No. 1 (which was really the property allotted to the plaintiff herein under the E schedule to Ext. A2) is to be renovated and is to be enjoyed by the 1 st defendant and his lineal descendants.

n) Ext. A3 recites that with regard to item No. 2 of A schedule therein (plaint schedule item No. 3), the 1st defendant should get himself impleaded in the redemption suit O.S 279/63 already instituted by the settler and pursue the same and obtain delivery of possession of the said property.

14. Exts. A25 to A32 are the various letters sent by the present 1st defendant either to the plaintiff or to her husband. In Ext. A25 letter one can infer an anxiety on the part of the 1st defendant to arrive at a settlement of the disputes. In Ext. A26 letter sent by the 1 st defendant to the plaintiff's husband, there is reference about the mother filing O.S No. 554/1969 questioning Ext. A3 settlement deed. In Ext. A29 letter sent by the Ist defendant to the plaintiff, there is a promise to bring the draft instrument which presumably preceded Ext. A5 release deed. In Ext. A30 letter sent by the 1 st defendant to the plaintiff on 18-6-1969 there is a statement that as they had discussed earlier, the release deed is to be executed on the 24th itself for which purpose the plaintiff is requested to go over to the 1st defendants's residence at Cherthala. Ext. A31 is the letter dt. 22-6-1970 sent by the 1st defendant to the plaintiff's husband requesting him to sent Rajamma (the plaintiff herein) for the purpose of getting the release deed executed. This letter indicates the anxiety on the part of the 1 st defendant to see that the matter was squared up between himself and the plaintiff. In Ext. A32 letter dt. 2-7-1970 sent by the 1st defendant to the plaintiff, he requests the plaintiff's husband to send a letter to the effect that the objection of the 5th defendant (the plaintiff herein) in the suit filed by him is withdrawn. The letter further makes a reference to the fat that the mother is very weak and is always lying down. It must be remembered that the plaintiff did not get any benefit from the 1st defendant by Ext. A5 release deed. This document was executed only to persuade her to withdraw her contentions in O.S No. 318/1969. The dominant motive behind Ext. A5 release deed was to silence the plaintiff herein from objecting to Ext. A3 settlement deed and pursuing her objections in O.S No. 318/1969. What is recited in Ext. A5 release deed is that the property was mistakenly conveyed under Ext. A3 and it is to rectify that mistake that the release deed it executed. If at all there was a mistake, it was not the 1 st defendant but the mother who had committed the same. Same is the position with regard to Ext. B7 gift deed as Well. If actually 95 cents comprised in Sy. No. 20/5 had already been settled in favour of the 3rd defendant herein (Thankamma) by the mother as per the D schedule to Ext. A2 settlement deed wherein the extent was mistakenly shown as only 45 cents, it was for the mother to rectify the mistake. But the 1 st defendant purported to correct the mistake in the extent of the property by reciting so in Ext. B7 gift deed. As a matter of fact, taking advantage of the mistake in the extent for the above item in Ext. A2 settlement deed, it was the 1st defendant who dishonestly got the balance extent of 50 cents allotted to his share under Ext. A3. When he realised that the 3rd defendant was questioning the said conduct of the 1 st defendant, he was executing Ext. B7 gift deed not only to satisfy the 3rd defendant, but also to ensure that she does not pursue her contest in O.S No. 318/1969. Thus it was with a view to put the present plaintiff and the 3rd defendant out of contest that these two documents were executed and Exts. A9 and A8 joint statements were filed in court. It is pertinent to remember that the 1 st defendant did not even intend to act on Ext. A5 release deed which was evidently executed only to superficially satisfy the plaintiff herein and persuade her to withdraw from the contest in O.S 318/1969. After Ext. A5 release deed when the present plaintiff began to exercise acts of possession over the property, the 1 st defendant resisted her necessitating her to move the Sub Divisional Magistrate. During the pendency of the proceedings before the Sub Divisional Magistrate, the 1 st defendant managed to settle the matter with the plaintiff by the plaintiff agreeing to sell the property to the 1 st defendant for a sum of Rs. 20000/- as evidenced by Ext. B6 compromise dt. 10-1-1971. Thereafter the 1 st defendant filed O.S 79/1986 for specific performance of the said agreement. This was the suit that was tried along with O.S 78/1986 O.S 79/86 was preceded by Ext. B16 lawyer notice dt. 13-9-1981 sent by the 1 st defendant. To the said notice the plaintiff herein had sent Ext. B17 reply refuting the demand for specific performance. Thereafter the 1 st defendant had set his own daughters viz. defendants 4 and 5 herein against the present plaintiff by causing a suit to be filed as O.S 488/81 before the Munsiff's Court, Cherthala (subsequently transferred and renumbered as O.S 77/86 before the Sub Court, Alappuzha) for injunction. Ext. A12 is the plaint in that suit and the present 1 st defendant was one of the defendants in that suit. His daughters were claiming title over the plaint schedule item No. 1 under Ext. A3 settlement deed. An interim order of injunction restraining the plaintiff herein from enjoying the property was obtained as per Ext. A14 order dt. 15-10-1981. On 17-10-1981 the present plaintiff received summons in that suit She filed her written statement (Ext. A15) in that suit on 24-11-1981. It was while collecting the papers and other connected records for preparing the written statement in O.S 77/86 that the plaintiff who is a teacher by profession and residing at Alappuzha, came to know that the decrees in O.S 318/69 and O.S 554/69 were obtained by the present 1 st defendant by practising fraud. That was the reason why when the 1 st defendant sought his impleadment in the suit O.S 279/63 (filed by the mother before the Munsiff's Court, Cherthala for redemption of the mortgage over plaint schedule item No. 3) on the strength of the recitals in Ext. A3, the mother resisted his application contending inter alia that Ext. A3 settlement deed was a fraudulent transaction. The court did not accede to the prayer of the present 1 st defendant to implead him as an additional plaintiff in that suit. Instead, the court impleaded him only as an additional defendant and relegated him to a separate suit. That is the reason why the present 1st defendant filed O.S 318/69 for enforcing his rights under Ext. A3 settlement deed and for setting aside Ext. A4 settlement deed. Subsequently the mother had also filed O.S 554/69 for setting aside Ext. A3 settlement deed on the ground of fraud and misrepresentation. As far as the mother was concerned Ext. A3 was non est factum, the same having been brought about by deceit and misrepresentation and therefore void for mistake. (Vide pages 446 and 447 of Kerr on the Law of Fraud and Mistake-Seventh Edition). As mentioned earlier, the 1 st defendant was virtually securing a decree in his favour after persuading the present plaintiff and the present 3rd defendant to fade out of contest. Although Ext. A6 decree shows that defendants 2 and 3 in O.S 318/69 (who are Bhaskara Panicker 2nd defendant examined as P.W 3 has deposed that she did not receive any summons in that suit and the same was the position regarding Bhaskara Panicker also. Hence Ext. A10 judgment and Ext. A6 decree in that suit obtained by practising fraud cannot bind the present plaintiff or her properties. Since the dismissal of O.S 554/69 filed by the mother as per Ext. A17 judgment and Ext. A18 decree was merely on the ground of res judicata in the light of Ext. A10 and Ext. A6 judgment and decree which were, in turn, founded on fraud, the subsequent judgment also cannot bind the plaintiff or her properties. A decree obtained by fraud cannot operate as res judicata. Fraud takes away the sanctity of any judicial act rendering it a nullity. (Vide S.P Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1). When once the above decrees are held to be not binding on the plaintiff, Ext. A3 settlement deed which was upheld in those decrees cannot have any effect. Likewise, Ext. A4 settlement deed which was ignored in those decrees will revive with its full vigor. By Ext. A4 settlement deed the mother was revoking Ext. A3 settlement deed on the ground of the fraud perpetrated by her son, the 1 st defendant herein. Under Sec. 126 of the Transfer of Property Act, 1882 (TP Act for short), the very same grounds which are available to a donor for revoking a gift. The only exception is that no gift can be revoked for want or failure of consideration. Under Sec. 19 of the Contract Act, an agreement which is vitiated on the ground of fraud or misrepresentation is voidable at the option of the person against whom such fraud or misrepresentation had been practised. Avoidance of such agreement by the person entitled to avoid the same can be made without approaching the civil court Sec. 66 of the Contract Act makes the position clear. Where the agreement has been brought about by fraud, it is void as against the person cheated or defrauded. When the contract which is voidable at the option of a party and such party elects to avoid it, the contract becomes void. Rescission of a contract need not be through court. It can be by any other mode (vide Official Receiver v. Jugal Kishore Lachhi Ram Jaina, AIR 1963 Allahabad 459 (FB)). It is open to avoid a contract by repudiating the same even in the written statement filed in a suit for enforcement of such contract (vide Gosto Behari Roy v. Ramesh Chandra Das, AIR 1978 Calcutta 235). In Mt. Akhtar Jahan Begam v. Hazari Lal, AIR 1927 Allahabad 693 in a suit filed for return of money based on a contract founded on fraud, the contract was held to be invalid even without a prayer for setting aside the contract It has been held in Santha v. Cherukutty, 1972 KLT 1051 that aid of the process ofthe court will not be necessary for a person to avoid the contract if he is the person at whose instance the contract can be avoided. The only exception to the above rule is when possession has been given to the transferee under the contract sought to be avoided. This position has been reiterated in Rajamma v. Biswajith, 2001 (3) KLT 726. In Narmadaben Maganlal Thakker v. Pranjivandas Munganlal Thakker, 1996 AIR SCW 4035 the Apex Court upheld the cancellation of a conditional gift deed under which no possession had passed and no acceptance of the gift had been made by the donee. Sec. 126 of the TP Act is to be read along with Sec. 5 of the Contract Act. The mother by opposing O.S 279/1963 was repudiating Ext. A3 settlement deed at the earliest opportunity. Thereafter she executed Ext. A4 settlement deed under which Ext. A3 was revoked. The contention raised in this appeal that the present suit was barred by limitation also cannot be countermanded. Paragraphs 14 to 16 of the present plaint will show that the plaintiff received summons in O.S 488/81 (O.S 77/86) on 22-10-1981. It was when she collected the materials for filing the written statement during the period between 22-10-1981 and 24-11-1981 that she came to know that Ext. A3 gift deed was the product of fraud practised by the 1st defendant on the mother and that the decrees in O.S 318/69 and 554/69 were also obtained by fraud. Hence the present suit filed on 20-12-1982 i.e within three years of the knowledge of the fraud, is not barred by limitation. The present second appeal is brred by the principles of res judicata. O.S 79/86 which was the suit filed by the present 1st defendant for specific performance of the alleged agreement for sale regarding plaint schedule item No. 1 was tried and disposed of along with O.S 78/86. There were common issues arising in both the suits. The trial court decreed O.S 78/86 filed by the present plaintiff, but dismissed O.S 79/86 filed by the present 1st defendant. The present 1st defendant had filed A.S 30/92 before the District Court, Alappuzha against the dismissal of O.S 79/86. That appeal was heard and disposed of along with A.S 31/92 and A.S 33/92 which were the appeals preferred by the 1st defendant and the 6th defendant respectively from the decree passed in O.S 78/86. All the three appeals were dismissed by the lower appellate court by the impugned common judgment. Against the dismissal of A.S 30/92 filed by the 1st defendant, he had filed a second appeal as S.A No. 732/95 before this Court. On 15-11-2002 the said second appeal was dismissed for default and the said dismissal has become final. Hence, by virtue of the decision rendered in Narayana Prabhu Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu, (1977) 2 SCC 181 : AIR. 1977 SC 1268, the dismissal of S.A No. 732/95 will operate as res judicata against the present second appeal. For this reason also, the decrees passed by the courts below do not call for any interference on this ground.

JUDICIAL EVALUATION

15. I am afraid that I find myself unable to agree with the above submissions.

THE FACTUAL MATRIX

16. The facts leading to the impugned judgments are the following:—

The suit O.S No. 78/1986 was initially filed before the Munsiff's Court, Cherthala on 20-5-1982 as O.S 132/82. It was subsequently transferred to the Additional Sub Court, Alappuzha were it was re-registered as O.S No. 78/1986. It was tried along with another suit O.S No. 79/1986. This second appeal arises from the suit O.S No. 78/86. The prayer in the said suit was:—

i. for declaration of plaintiff's title and possession over plaint schedule item-1.

ii. for setting aside the decrees in O.S No. 318 of 1969 and O.S 554 of 1969 of the Cherthala Munsiff's Court and Exhibit A-3 settlement deed dated 22-8-1966 executed by the mother of the plaintiff and defendants 1 to 3.

iii. for declaring that the subsequent settlement deed Ext. A4 dt. 19-9-1966 executed by the mother valid and binding on plaintiff and defendants 1 to 3.

iv. for allowing the plaintiff to recover properties described as item 2(a) to 2(d) of the plaint schedule with mesne profits.

v. for partition and separate possession of plaintiff's ¼th share in plaint items 3 and 4 with mesne profits (Bhaskara Panicker's property).

17. The plaint schedule contains 8 items of immovable properties which are described as items 1, 2(a), 2(b), 2(c), 2(d), 3, 4(a) and 4(b). They are detailed at the end of this paragraph. Before going into the rival contentions of the parties it may be useful to refer to the genealogy of the parties. One Kunjipillai Amma was the common ancestress who died in the year 1972. She had five children by name Gopalakrishnan, (Dl), Bhaskara Panicker who died unmarried and issueless, Naikutty (D2), Thankamma (D3) and Rajamma (plaintiff). The 1 st defendant Gopalakrishnan died pending the second appeal and defendants 4 and 5 who are his children were recorded as his legal representatives. Kunji Pillai Amma (mother) owned several items of properties. The plaint schedule properties and other items were obtained by her as per Ext. A1 gift deed dt. 11-3-1118 M.E corresponding to the year 1943 executed by her husband. Thereafter she executed Ext. A2 settlement deed dt. 6-10-1958 settling certain items of properties in favour of her five children. The properties described in schedules A to E of Ext. A2 settlement deed were set apart to the 1 st defendant (Gopalakrishnan), Bhaskara Panicker, 2nd defendant (Nanikutty Amma), 3rd defendant (Thankamma) and the plaintiff (Rajamma) respectively. The property set part to the 3rd defendant Thankamma under the D schedule to Ext. A2 settlement deed includes 45 cents of land in Sy. No. 20/5 at Pallippuram village in Cherthala taluk. Similarly, the property set apart to the plaintiff Rajamma under the E schedule to Ext. A2 settlement deed includes 1 acre of paramba out of 9.25 acres comprised in Sy. No. 19/1 A. The F schedule to Ext. A2 settlement deed contains 7 items of properties which were retained by Kunipillai Amma without settling the same in favour of any of her children. Item No. 1 of the F schedule to Ext. A2 settlement deed is Cherikkalpadathu Nilam having a total extent of 1.04 acres which is comprised of 40 cents in Sy. No. 18/6, 34 cents in Sy. No. 18/7B and 30 cents comprised in Sy. No. 18/8A. Item No. 2 of the F schedule referred to above is called Thekkechokkan Purayidam having an extent of 2.15 acres comprised in Sy. No. 22/8. Item No. 3 of the F Schedule is a nilam admeasuring 53 cents comprised in Sy. No. 23/7. Item No. 4 of the F schedule is a nilam nikathu having an extent of 11 cents comprised in Sy. No. 19/2. Item No. 5 of F schedule is Uppayil parambu having an extent of 92 cents comprised in Sy. No. 19/1 A. Item No. 6 of the F schedule is Kollalikan parambu having an extent of 1.20 acres comprised in Sy. No. 19.I.A. Item No. 7 of the F schedule is called Puthuvalapathivu having an extent of 11 cents comprised in Sy. No. 2/1 and this item lies contiguous to item No. 6 and the compact plot consisting of items 6 and 7 has a total are of 1.31 acres. On 22-8-1966 Kunjipilla Amma executed Ext. A3 settlement deed giving to the 1 st defendant (Gopalakrishnan), Bhaskara Panicker and the 3rd defendant (Thankamma) certain items of properties which she had retained to herself under the F schedule to Ext. A2 settlement deed. As per the A schedule to Ext. A3 settlement deed, she gave six items of properties to the 1 st defendant. Those six items are the following:—

Item No. 1-1.31 acres comprised in Sy. Nos. 19/1A and 2/1

Item No. 2-1 acre and 7½ cents comprised in Sy. No. 22/8.

(This item was stated to be outstanding on mortgage with a stranger and Ext. A3 contains a recital authorising the 1 st defendant to get himself impleaded in the redemption suit which the settler had already filed and to prosecute the same and obtain delivery of the property.)

Item No. 3-92 cents comprised in Sy. No. 19/1.

Item No. 4-44 cents of which 40 cents was shown as comprised in Sy. No. 18/6A and the remaining 4 cents was shown as comprised in Sy. No. 18/8.

(This 44 cents is what remains out of 1.04 acres shown as item No. 1 of the F schedule in Ext. A2 after the settler had sold 60 cents thereof as per Ext. B8 sale deed dt 20-6-1963.)

Item No. 5-50 cents comprised in Sy. No. 20/5.

(This was the balance extent remaining in that survey number after giving 45 cents to the 3rd defendant Thankamma as per the D schedule to Ext. A2 settlement deed dt. 6-10-1958).

Item No. 6-1 acres ofland comprised in Sy. No. 19/1A.

53 cents in Sy. No. 23/7 was settled by the mother in favour of Bhaskara Panicker as per the B schedule to Ext. A3.11 cents comprised in Sy. No. 19/2 was settled by the mother in favour of the 3rd defendant as per C schedule to Ext. A3. Consistent with the recitals in Ext. A3 regarding item No. 2 of the A schedule thereto, the 1st defendant filed an application for impleading him as an additional plaintiff in O.S No. 279/1963 which was a suit already filed by the mother for redemption of the mortgage under which the 1 acre and 70 cents was outstanding. However, the said application was opposed by the mother and the 1st defendant herein was impleaded in the redemption suit only as a defendant. He was directed by the court to get his title established in a separate suit. On the contention that Ext. A3 was a fraudulent document got executed by the 1 st defendant without giving expression to her desire, Kunjipillai Amma, the mother, executed Ext. A4 settlement deed dt. 19-9-1966 in supersession of Ext. A3 settlement deed. The only property set apart to the share of the 1 st defendant as per the A schedule to Ext. A4 settlement deed was the northern 59 cents out of 1.31 acres which comprised of 1.20 acres in Sy. No. 191 1 A/2 and 11 cents comprised in Sy. No. 2/1. As per the B schedule to Ext. A4 settlement deed, the mother gave 53 cents of property comprised in Sy. No. 23/7 and the western 10 cents out of the 44 cents comprised in Sy. Nos. 18/6A and 18/8 to Bhaskara Panicker. As per the C schedule to Ext. A4, the mother gave the southern 59 cents out of 1.31 acres comprised in Sy. Nos. 19/1A and 2/1 to the 2nd defendant herein viz. Nanikutty. As per the D schedule to Ext. A4 settlement deed, the mother gave five items of properties to the 3rd defendant herein viz. Thankamma. Item 1 of the aforesaid D schedule is the southern 6½ cents out of 13 cents comprised in Sy. Nos. 19/1A and 2/1 after carving out the northern 59 cents and southern 59 cents under schedules A and C of Ext. A4. Item No. 2 of D schedule was the southern 46 cents out of the 92 cents comprised in Sy. No. 19/1. Item No. 3 of D schedule was 11 cents comprised in Sy. No. 19/2. Item No. 4 of D schedule was 50 cents comprised in Sy. No. 20/5 and item No. 5 was eastern 17 cents out of the 44 cents comprised in Sy. Nos. 18/6 and 18/8. As per the E schedule to Ext. A4 settlement deed, the mother gave 4 items of properties to the plaintiff viz. Rajamma as mentioned hereinafter:—

Item No. 1 is the northern 6½ cents out of 13 cents in Sy. No. 19/1A and 2/1.

Item No. 2 of the E schedule is the northern 46 cents out of the 92 cents comprised in Sy. No. 19/1A and 2/1.

Item No. 3 of E schedule was 6 cents including a building comprised in Sy. No. 19/1A/2.

Item No. 4 is the western 17 cents out of the 44 cents comprised in Sy. Nos. 18/6A and 18/8.

18. As per the F schedule to Ext. A4 settlement deed, the mother retained with her 1 acre and 7½ cents comprised in Sy. No. 22/8. According to the 1st defendant, Ext. A3 settlement deed was executed by the mother giving full expression to her wishes and the daughters (i.e the present plaintiff and defendants 2 and 4) who did not relish the allotment of larger extent of properties to the 1st defendant were the real persons who were behind the opposition by the mother of his impleading petition in the redemption suit and also behind the subsequent execution by the mother of Ext. A4 settlement deed. O.S No. 318/1969 before the Munsiff's Court, Cherthala was a suit filed by the 1 st defendant herein for a declaration of his setting aside Ext. A4 settlement deed. The defendants in that suit were the mother, Bhaskara Panicker, the present 2nd defendant, the present 3rd defendant and the present plaintiff respectively. In that suit the mother contended that Ext. A3 settlement deed executed by her was a fraudulent transaction and she sought to sustain Ext. A4 settlement deed subsequently executed by her in supersession of Ext. A3 settlement deed. Ext. A7 is the written statement filed by the mother in that suit. The contention of the present 3rd defendant Thankamma in O.S No. 318/1969 was that even though the property comprised in Sy. No. 20/5 and allotted to her as item No. 4 of the D schedule to Ext. A2 settlement deed showed only an extent of 45 cents, actually the entire 95 cents comprised in that survey number had been given to her and that the 1 st defendant, taking advantage of the mistake in the extent shown in Ext. A2, had wrongly included the remaining 50 cents among the properties allotted to him as item No. 5 of the A schedule to Ext. A3 settlement deed. Ext. A36 is the written statement of the present 3rd defendant in that suit. Ext. A35(a) is the written statement filed in that suit by the present plaintiff. Her contention in O.S No. 318/1969 was that Ext. A3 settlement deed was got executed by the mother by the 1 st defendant by practising fraud and misrepresentation, that it was cancelled by the mother by executing Ext. A4 settlement deed and that 1 acre comprised in Sy. No. 19/1A given to her under Ext. A2 was wrongly included by the 1 st defendant to his share as item No. 6 of the A schedule to Ext. A3 settlement deed. Pending O.S No. 318/1969, the disputes of the present plaintiff and the present 3rd defendant as against the present 1 st defendant were settled by the 1 st defendant herein executing Ext. A5 release deed dt. 24-6-1970 in favour of the present plaintiff in respect of the 1 acre of property (plaint schedule item No. 1) and Ext. B7 gift deed dt. 16-12-1970 in favour of the present 3rd defendant in respect of the 50 cents claimed by her. Consequent on the aforesaid documents, Exts. A8 and A9 joint statements dt. 18-12-1970 were filed between the present 1st defendant and 3rd defendant and between the present plaintiff and the present 1 st defendant respectively to the effect that the present plaintiff and the present 3rd defendant who were respectively defendants 5 and 4 in O.S 318/69 were not respectively defendants 5 and 4 in O.S 318/69 were not pressing their contentions. Those joint statements were also signed by the respective Advocates appearing for the said parties. Pending O.S No. 318/1969, the mother filed O.S No. 554/1969 before the Munsiff's Court, Cherthala for setting aside Ext. A3 settlement deed and for upholding Ext. A4 subsequent settlement deed executed by her. O.S No. 318/1969 filed by the present 1 st defendant was decreed as prayed for declaring his title over the property therein given to him by the mother under Ext. A3 settlement deed and also setting aside Ext. A4 subsequent settlement deed executed by the mother. The contention of the mother who was the 1st defendant in O.S No. 318/1969 that Ext. A3 settlement deed executed by her was vitiated by fraud and misrepresentation was not accepted by the court. Exts. A10 and A6 are the judgment and decree in O.S No. 318/69. Subsequently, the Munisff's Court dismissed O.S No. 554/1969 filed by the mother inter alia holding that in the light of the findings in O.S No. 318/1969, the mother's contention that Ext. A3 settlement deed executed by her was vitiated by fraud practiced on her by the 1 st defendant herein was not acceptable. Ext. A17 is the judgment and Ext. A18 is the decree dt. 2-2-1972 in O.S No. 554/69. In both the aforementioned suits the mother had been examined as a witness. It was thereafter that on 20-5-1982 i.e about 10 years after the death of the mother, the present suit was filed inter alia for setting aside the aforementioned decrees and Ext. A3 settlement deed. The reliefs prayed for in the present suit have already been detailed at the beginning of this paragraph. The eight items of properties shown in the plaint schedule have been described as items 1, 2(a), 2(b), 2(c), 3, 4(a) and 4(b). They are as follows:—

Item I 1 acre in Sy. No. 19/1A (This is item No. 1 of the E schedule to Ext. A2.) Item 2(a) 6½ cents in Sy. No. 19/1 A/2 (This is a portion of item 1 of the A-Schedule to Ext. A3. This is also item 1 of the E schedule to Ext. A4) Item 2(b) Northern 46 cents in Sy. 19.IA/2 (This is item 2 of the E schedule to Ext. A4. This is also a portion of item 3 of Ext. A3). Item 2(c) 6 cents and a building in Sy. 19/1 A/2 (This is item 3 of E schedule of Ext. A4. This is also a portion of 1 acre described as Item No. 6 of the A schedule to Ext. A3). Item 2(d) Western 17 cents out of the 44 cents in Sy. 18/6A and 18/8A (This is item 4 of the E schedule to Ext. A4. This is also a portion of item 4 of A schedule to Ext. A3). Item 3 1 acre 7½ cents in Sy. No. 22/8. (This is item 2 of the A schedule to Ext. A3. This is also the property in the F schedule to Ext. A4). Item 4(a) 53 cents in Sy. No. 23/7. (This is the property in the B schedule to Ext. A3. This is also item 1 of the B schedule to Ext. A4). Item 4(b) Western 10 cents out of the 44 cents in Sy. No. 18/6A and 18/8 A. (This is item 2 of the B schedule to Ext. A4. This is also a portion of item 4 of the A schedule to Ext. A3).

WHAT IS A SETTLEMENT PEED?

19. Although Exts. A2, A3 and A4 are all settlement deeds styled as “dhananishchayadharam”, all those documents are transactions of gift falling under Sec. 122 of the Transfer of Property Act. The T.P Act does not define or specifically deal with “settlement deeds”. The said word is, however, defined under the Kerala Stamp Act to inter alia mean a non-testamentary disposition in writing of movable or immovable properties made for the purpose of distributing the property of the settler among his family members or those for whom he desires to provide or for the purpose of providing for some person dependent on him. (vide District Collector v. Shahul Hameed, 1991 (1) KLJ 530 and the judgment dt. 28-6-2006 by a Division Bench of this Court in A.S 589/1992). However, a gift envisaged by sec. 122 of the T.P Act is not restricted to members of the family of the settler or persons dependent on him. Ext. A3 settlement deed does not reserve in the settler/mother any right of revocation. Had there been any such right reserved and the deed was revoked in exercise of such right, then the position would have been different (Subbegowda (Dead) By Lr. v. Thimmegowda (Dead) By Lrs.., (2004) 9 SCC 734 : AIR 2004 SC 2428). In the case on hand. Ext. A3 is claimed to have been revoked by the settler on the ground of fraud and misrepresentation by executing Ext. A4 settlement deed. There cannot be any dispute, and indeed it was not disputed also before me, that the settlement deeds with which we are concerned in this litigation are gift deeds pure and simple falling under sec. 122 of the T.P Act.

THE “VOID-VOIDABLE” CONTROVERSY

20. The evidence in this case is to the effect that Ext. A3 gift deed executed by Kunjipillai Amma, the mother, was acted upon. In Ext. B10 interlocutory order in O.S 554/69 and in Ext. B11 appellate order, the possession of the properties with the 1st defendant pursuant to Ext. A3 settlement was recognised. The plaintiff examined as P.W 1 has also admitted that the donees under Ext. A4 subsequent settlement deed have not obtained possession of the properties settled thereunder (see P.W 1-page 11). Then the further question is whether a gift deed after its acceptance by the donees could be revoked by the donor on the plea of non est factum by executing another gift deed in which the earlier gift deed is cancelled on the ground of fraud and misrepresentation. It is true that sec. 126 of the T.P Act inter alia provides as follows:—

“A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.

Save as aforesaid, a gift cannot be revoked.”

21. This act of revocation of Ext. A3 settlement deed in the present case is claimed to have been exercised by the mother, not by approaching the civil court on the ground of fraud and misrepresentation, but by executing Ext. A4 settlement deed wherein after revoking Ext. A3 settlement deed on the ground of fraud and misrepresentation, the mother claims to have made a revised allotment of the properties in favour of all her five children including the 1st defendant herein. Hence, the first aspect to be considered is as to whether it is open to a doner after having executed a gift deed which was acted upon by the donees, to execute another gift deed cancelling the earlier gift deed on the ground of fraud and misrepresentation and altering the allotment of properties under the first mentioned gift deed.

22. The execution of Ext. A3 settlement deed by the mother is not disputed. Ext. A2 is a registered document. There is a presumption that a registered document has been validly executed and the onus of proof will be on those who want to offset the above presumption (vide para 27 of Prem Singh v. Birbal, 2006 (2) KLT 863 (SC). It is not the execution of the document that is assailed. What has been taken exception to is only the unequal distribution of the properties thereunder allegedly in disregard of the directions given by the mother. The healthy and sound disposing state of mind of the settler also could not be questioned since within one month of Ext. A3 she had executed Ext. A4 settlement deed and one year thereafter she had executed Ext. B13 settlement deed. But the courts below had approached Ext. A3 as if it were a will. Such an approach has been disapproved in M. Rangasamy v. Rengammal, (2003) 7 SCC 683 : AIR 2003 SC 3120. There is no case for the plaintiff that there was a fraudulent representation as regards the character of the document. Her only case is that there was a fraudulent representation as regards the contents of the document. If the fraudulent representation was with regard to the character of the document, then the document would be void and a suit for setting aside the document by recourse to Section 31 of the Specific Relief Act, 1963 would be unnecessary. (Vide Ningawwa v. Byrappa, AIR 1968 S.C 956). But where the fraudulent representation is with regard to the contents of the document, it is only voidable for which a suit for setting aside the document will have to be filed within 3 years as provided under Art. 59 of the Limitation Act, 1963. Even where the document is void, once a suit is filed for cancellation of the document, as in this case, it would be governed by Art. 59, which, if not attracted, the residuary Art 113 will apply, (see 2006 (2) KLT 863 (SC) supra).

23. The position regarding the need for setting aside of a voidable alienation can be best illustrated by taking the case of a Hindu minor. The case of a Hindu minor would be an extreme case as it pertains to the property of a person under disability. Sec. 11 of the Hindu Minority and Guardianship Act, 1956 (“HMG Act: for short) imposes a total ban on a de facto guardian of a Hindu minor to deal with the minor's property. The said provision reads as follows:—

De facto guardian not to deal with minor's property.

After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor.”

24. It is only the minor's natural guardian, if alive and not incapacitated, who can deal with the property of such minor. The question as to who is the natural guardian of the minor has to be decided with reference to sec. 6 of the HMG Act under which in the case of a legitimately born minor, ordinarily it is the father who is the natural guardian and the turn of the mother comes only after the father. In a case where the father of the minor is alive and not disqualified, it is incompetent for the mother to interpose herself as the guardian of the minor. Any alienation or disposal of the property of the minor by the mother acting as the guardian of the minor is unauthorised and totally devoid of any effect. Hence an alienation of the minor's property either by the mother or by a de facto guardian in contravention of sec. 11 of the HMG Act will have to be treated as void. This statement of the law in the decisions reported in Ayyappan v. Antony, 1978 KLT 534, Danayi Gurumurty v. Raghu Podhan, AIR 1967 Orissa 68, Devineni Suseela v. Sivaramaiah, 1976 (1) Andhra WR 423 and Chathu Chettiar v. Kanaran, 1963 KLT 888 stands approved by the decision of the Apex Court in Madhegowda v. Ankegowda, (2002) 1 SCC 178 : AIR 2002 SC 215. So, it is the natural guardian who is clothed with the power to deal with the property of such minor. Sec. 8 of the HMG Act sets out the power of the natural guardian of a Hindu minor. Such natural guardian, subject to the provisions of sec. 8, has the power to do all acts which are necessary or reasonable or proper for the benefit of the minor or his estate. The natural guardian, however, cannot, without the previous permission of the court, sell any part of the immovable property of the minor. Any disposal of immovable property which is not necessary or reasonable or proper for the benefit of the donor or is without the previous permission of the court is voidable at the instance of the minor. The provisions of sec. 8 are so devised as to protect the property of the minor completely even from the depredations of his parents (see Pannilal v. Rajender Singh, (1993) 4 SCC 38). Thus, the power of the natural guardian of a Hindu minor is hedged in by certain statutory limitations as stated in sec. 8 of the HMG Act and those limitations are incorporated therein for the protection and benefit of the minor. There was a sharp cleavage of judicial opinion on the question as to whether the alienation of the minor's property by the natural guardian without the previous permission by the natural guardian without the previous permission of the court under sec. 8(2) of the HMG Act is only voidable at the option of the minor or is void. There was also a divergence of judicial opinion on the question as to whether if such alienation was only voidable, then whether the minor could simply repudiate the transfer by some overt act without recourse to the civil court. But now, after the authoritative pronouncement of the Apex Court in Viswambhar v. Laxminarayan, (2001) 6 SCC 163 and Nangaliamma Bhavani Amma v. Gopalakrishnan Nair, (2004) 8 SCC 785 and that of a Full Bench of this Court in Ramadas Menon… v. Sreedevi…., 2004 (1) KLT 323, such an alienation by the natural guardian is only voidable at the option of the minor and this act of avoidance by the minor can only be by means of a regular suit for which the period of limitation is three years from the date on which the minor attains majority as provided under Art. 60 of the Limitation Act, 1963.

25. The provision in sec. 126 of the T.P Act enabling the revocation of a gift in the same manner in which a contract could be rescinded was made since the donor could not, but for the said provision, avoid the transfer by recourse to sec. 19 and 19-A of the Indian Contract Act, 1872. This is because those provisions of the Contract Act apply only to agreements. Reciprocity, which is the hallmark of an agreement, is absent in a gift. A gift is a gratuitous transfer which cannot be treated as an agreement for want of mutuality. That is presumably why an express provision was made in sec. 126 of the T.P Act. Therefore, even for revoking a gift, the provisions in the Contract Act pertaining to rescission of contracts will have to be resorted to. There cannot be the rescission of a contract by a unilateral act of repudiation or cancellation without the intervention of the court. The relevant Article governing suits for rescission of a contract is also Art. 59 Column 1 of which reads as follows:—

“to cancel or set aside an instrument or decree or for the rescission of a contract.”

26. Thus, in a case where, after the acceptance of the gift, if the donor wants to revoke the same by resorting to sec. 126 of the T.P Act, the donor will have to institute a suit for the same. However, if there is no acceptance of the gift, it may be permissible for the donor to cancel the gift or execute another gift deed before it is accepted by the donee.

RESJUDICATA AS A BAR TO THIS SECOND APPEAL

27. I will first consider the bar of resjudicata raised against a consideration of this second appeal on merits. It is the dismissal for default by this court on 15-11-02 of SA 732/95 filed by the present 1 st defendant against the decree dismissing OS 79/86 which is put forward as a bar to this second appeal on the ground of resjudicata. The suit OS 79/86 which was tried along with the present suit (OS 78/86) takes in only item No. 1 (1 acre in Sy. No. 19/1 A) of the plaint schedule in the present suit. If issued common to both the above suits had been tried and disposed of and if the decree in one of such suits had become final, then of course the findings on such common issues will operate as res judicata (see Janardanan Pillai v. Kochunaravani Amma, 1976 KLT 279 (PB) and Madhavi Amma Bhavani Amma v. Velu Pillai, AIR 1990 Ker. 144) But in the case on hand OS 78/86 (the suit from which this second appeal arises was for setting aside Ext. A3 settlement deed and also for setting aside the decrees in OS 318/69 and OS 554/69 and for other reliefs in respect of 8 items of immovable properties. OS 79/86 filed by the 1 st defendant herein was for specific performance of Ext. B6 agreement dt. 10-1-79 to sell the present plaint schedule item No. 1 against the present plaintiff. Apart from the fact that the cause of action for OS 79/86 was totally different from that of OS 78/86, the issues framed and decided were also not common. Under these circumstances I do not find any merit in the objection raised on the ground of resjudicata regarding the sustainability of this second appeal. The said objection is overruled.

WHETHER THE DECREE IN OS 318/69 AND OS 554/69 WERE OBTAINED BY FRAUD OR COLLUSION?

28. It is only if the plaintiff in the present suit is able to prove that the decrees in the previous suits viz. OS 318/69 and OS 554/69 were obtained by fraud or collusion for any of the reasons put forward by her that the court in the present suit would be entitled to go into the merits of the respective claims in the previous suits (vide Ram Chandra v. Firm Parbhu Lal, AIR 1927 Patna 183). In other words, if the plaintiff in the present suit fails to establish that the decrees in the previous two suits were secured by fraud or collusion as envisaged by sec. 44 of the Evidence Act, then it will be impermissible for the court in the present suit to consider the merits of the respective claims in the previous suits. Consequently, the decrees in those two previous suits will operate as resjudicata to the present suit precluding the court in the present suit from examining the merits of the claim in the earlier suits.

29. The scope of sec. 44 of the Evidence Act has been elucidated in a number of judicial pronouncements. Fraud, in order to avoid a judgment, must be extrinsic or collateral to the adjudication involved in the judgment and should not have been or deemed to have been dealt with by the court in the impugned judgment (see Subramaniam v. Nagaramma, 1962 KLJ 307 : AIR 1963 Ker. 26 and Weavers Mills Ltd. v. Balkis Ammal, AIR 1969 Mad. 462). Similarly, a contention that the claim urged by one of the parties was a false one or that he secured the decree by letting in false or perjured evidence, even if true, would not amount to fraud of the kind that would nullify the decree in the previous suit. The falsity or truth of the claim must be deemed to have been adjudicated by the court when it decreed the claim. Fraud affecting the validity of the decree must be actual positive fraud in the form of a mediated and intentional contrivance to keep the opposite party in ignorance of the real facts of the case (vide 1962 KLJ 307-supra). If the previous suit or other proceeding were started with the object of injuring the opponent, there may not be any collusion in securing the judgment, order or decree. In order to avoid a decree on the ground of fraud, the fraud must be extrinsic to the proceedings before court-Yohannan v. Harikrishnan Nair, AIR 1992 Ker. 49. If the second suit practically amounts to a re-hearing of the first, the second suit should not be heard (see Bhikaji v. Balvant, AIR 1927 Bomb. 510). In a suit to set aside a decree on the ground of fraud, it is open to the court to consider the question as to whether the claim of the plaintiff in the previous suit was true or false only if the plaintiff is able to show that there was non service of summons and the same is attributable to a fraud committed by the other party in the previous suit with the object of keeping the present plaintiff in ignorance of the suit and of preventing him from placing his case before the court (see Ramchandra v. Firm Prabhulal, AIR 1927 Patna 183). When the Court is asked to set aside a decree on the ground of fraud, the only issue for its decision is whether the decree was procured by fraud. For deciding that issue the court cannot sit in appeal over the impugned judgment or decree. An unsuccessful party also cannot be allowed to get round the rule of res judicata and prove that the judgment was wrong because the court came to a wrong conclusion on the evidence before it. For the purpose of Section 44 of the Evidence Act en ex-parte decree stands on the same footing as a decree in a defended suit. Mere non-service of summons does not constitute fraud. The decree will be set aside only if it is proved to have been obtained by fraudulent suppression of summons. In order to get rid of a former judgment it is not sufficient for a person to prove constructive fraud (not deliberate). He must prove actual positive fraud, a meditated or intentional contrivance to keep the parties and the court in ignorance of the real facts of the case and the obtained of that judgment by such contrivance. A prior judgment cannot be upset on a mere general allegation of fraud or collusion. It must be shown how, when, where and in what way the fraud was committed. A party alleging fraud is bound to establish it by cogent evidence. Mere suspicion cannot be accepted as proof.

30. Except for the ipsi dixit of the 2nd defendant Nanikkutty Amma examined as PW. 3 that no summons was served on her and her brother Bhaskara Panicker in the previous suit, there was absolutely no material placed before the court to show that they were not served in that suit. A perusal of Ext. A10 judgment and Ext. A6 decree shows that Bhaskara Panicker and Nanikkutty Amma who were respectively defendants 2 and 3 in that suit were ex parte which presupposes that they were duly served. There is a presumption under clause (e) of Section 114 of the Evidence Act that all judicial and official acts were duly performed. It was for the plaintiff in the present suit to show that as a matter of fact Bhaskara Panicker and Nanikkutty Amma were not served with summons in that suit and such non-service of summons was attributable to a fraudulent conduct of the present 1st defendant None of the above two children of Kunjipillai Amma had at any point of time raised a contention or filed petitions before court to avoid the decree in OS 318/69 on the ground that they were not duly served. The courts below were, therefore, egregiously in error in assuming that Bhaskara Pillai and Nanikkutty Amma were not duly served in OS 318/69.

31. Now coming to the execution of Ext. A5 release deed and Ext. B7 gift deed by the 1 st defendant in favour of the present plaintiff and the present 3rd defendant respectively and the consequential joint statements (Exts. A8 and A9) filed by the present plaintiff and the present 3rd defendant withdrawing their contentions in OS 318/69, 1 fail to see as to how the said circumstance would amount to a contrivance calculated to keep the present plaintiff and the present 3rd defendant in ignorance of the contentions in OS 318/69. Both of them knew that the 1st defendant was seeking to uphold Ext. A3 settlement deed. By no stretch of imagination could it be said that the present plaintiff and the 3rd defendant were kept in the dark about the scope and progression of OS 318/69. Both of them were represented by counsel and in Exts. A8 and A9 joint statements, both the plaintiff herein as well as the 3rd defendant herein and also their respective advocates had affixed their signatures. I fail to understand as to how or in what manner were the present plaintiff and the 3rd defendant kept away from the court so as to infer that the present 1st defendant was stealing a decree behind their back. The courts below were virtually swayed by the fact that the allotment under Ext. A3 was unequal and inequitable. When the fact remains that the 1 st defendant herein filed OS 318/69 with the definite object of getting Ext. A3 settlement deed upheld and Ext. A4 settlement deed invalidated and the opposite parties, as evidenced by Exts. A7, A35(a) and A36 written statements, were hotly contesting his claim, it cannot be said that the contestants did not know the nature and scope of the said litigation or that they were craftly disabled by the present 1 st defendant from contesting that suit. All that apart, there is no dispute that the settler/mother who was the 1 st defendant in OS 318/69 had fought the suit upto the last by even giving evidence as DW. 1, In spite of that in Ext. A10 judgment, the court was not inclined to accept the mother's contention that Ext. A3 settlement deed was brought about by fraud and misrepresentation. The court not only upheld Ext. A3 settlement deed, but set aside Ext. A4 subsequent settlement deed executed by the mother. Ext. A10 judgment and Ext. A6 decree have become final. I am, therefore, not inclined to accept the contention of the present plaintiff that the judgment and decree in OS 318/69 were obtained by fraud or collusion the said judgment and decree were passed after a full contest by the parties who were very much aware of the rival contentions. If so, the said judgment and decree are not liable to be ignored or set aside on the ground that they were secured by fraud or collusion.

32. In the case of OS 514/69 filed by the mother herself for setting aside Ext. A3 settlement deed for upholding Ext. A4 subsequent settlement deed, the same was also, after a contest, dismissed as per Ext. A17 judgment and Ext. A18 decree. It may be true that the court dismissed her suit inter alia holding that the decree passed in OS 318/69 was res judicata to the issue raised therein. It has already been held that the judgment and decree in OS 318/69 was not obtained by fraud or collusion. So it was binding on all fours on the parties thereto including the present plaintiff. If so, the dismissal of OS 354/69 was also binding on the parties thereto including the present plaintiff. She cannot get rid of the decrees in both the suits on all or any of the grounds alleged by her. Suffice it to say that there is absolutely no foundation in the pleadings also in support of the contention that the decrees passed in OS 318/69 and OS 554/69 were vitiated by fraud or collusion.

RES JUDICATA AS A BAR TO THE PRESENT SUIT

33. In the light of my findings that the judgments and decrees passed in OS 318/69 and OS 554/69 are not liable to be ignored or set aside on the ground of fraud or collusion, the findings rendered therein to the effect that Ext. A3 was a valid settlement executed by, the mother and that Ext. A4 subsequent settlement deed executed by the mother was invalid and inoperative will operate as res judicata to the present suit. It is impermissible for the plaintiff to re-agitate the very same questions in the present suit.

BAR OF LIMITATION TO THE PRESENT SUIT

34. Ext. A6 decree in O.S 318/69 which is requested to be set aside in the present suit was passed on 23-9-1971. Likewise, Ext. A18 decree in O.S 554/69 which is also requested to be set aside was passed on 2-2-1972. The plaintiff was a party in both the aforesaid suits. Ext. A3 settlement deed which is also sought to be set aside was executed by the mother on 22-8-1966. The present suit incorporating the above mentioned prayers was filed on 20-5-1982. Ext. A35(a) is the written statement in O.S 318/69 filed by the present plaintiff who was the 5th defendant in that suit. She is shown as aged 41 years and employed as a teacher in a High School at Alappuzha. The specific contention raised by her in the said written statement is that the settlement deed dt. 22-8-1966 (Ext. A3 herein) is void ab initio since it was one brought into existence by practicing fraud and misrepresentation on the mother and that in the subsequent settlement deed dt. 19-9-1996 (Ext. A4 herein). So, the plaintiff was very much aware of the contentions of the present 1 st defendant who was the plaintiff in O.S 318/69. Merely because the present plaintiff opted to withdraw her contentions consequent on Ext. A5 release deed executed by the 1st defendant herein, it does not follow that she was craftly kept out of contest. She cannot plead ignorance of what transpired in that litigation. This is particularly so when she was fully aware of the contentions of the plaintiff herein. It is significant to note that the mother was a contesting party throughout that litigation and she got worsted in that suit filed by the present 1 st defendant. There is no case that her mother was also kept away from contest. Apart from the fact that the plaintiff herself will be bound by the decree in O.S 318/69, since she is claiming her title under the mother, the decree passed in O.S 318/69 binds her on all fours. With regard to the other suit, namely O.S 554/69 filed by the mother, that was also dismissed after a contest and in that suit also the mother was examined as a witness. In the first place, as already discussed hereinbefore, there is no legally sustainable ground made out for avoiding the above decrees on the ground of fraud or collusion. Secondly, the explanation put forward in support of the inordinate delay in instituting the present suit is nothing but a pretence. When Ext. A3 settlement deed was upheld and Ext. A4 subsequent settlement deed was held to be invalid in two separate litigations with the plaintiff herein as well as the settler/mother on the party array, the plaintiff cannot be heard to say that she was innocently ignorant of what transpired. Her contention that it was while scrutinising the papers for preparing the written statement in O.S 488/81 (i.e O.S 77/86) that she came to know of the fraud is nothing but a cock and bull story invented to get over the inordinate and inexcusable delay. I am, therefore, of the view that the present suit filed long after the expiry of the 3 years' period prescribed under Art. 59 of the Limitation Act, 1963 was hopelessly time-barred. The statutory mandate under Sec. 3 of the Limitation Act is imperative in its sweep and application and courts are bound not been taken as a defence. It is, therefore, held that the present suit is barred by limitation.

SANS THE ABOVE LEGAL HURDLES. THE PLAINTIFF'S CASE EXAMINED ON MERITS

35. Even if the plaintiff were to surmount the aforementioned hurdles and seek a consideration of her case on the merits, I am afraid that plaintiff is still not entitled to succeed on the merits as well.

36. None of the circumstances highlighted on behalf of the contesting respondents is good enough or sufficient to hold that Ext. A3 settlement deed is vitiated by fraud or misrepresentation. Just because the first defendant, the eldest son, accompanied the mother and presented the document for registration, it does not mean that he was the executant or that he was playing a prominent role behind the execution and registration of the document. There is the statutory and registration of the document There is the statutory endorsement unmistakable recorded on Ext. A3 that the executant endorsement unmistakably recorded on Ext. A3 that the executant namely the mother admitted execution of the document. There was nothing strange or suspicious if the executant mother was helped by her eldest son who, on her own admission, was the person authorised to do the needful for the preparation of the instrument. Likewise, when Ext. A1 is admittedly the prior title deed of Knjipillai Amma, the settler, there was no necessity for her to refer to Ext. A2 settlement deed in Ext. A3 settlement deed for tracing her title to the properties. It is true that the properties dealt with under Ext. A3 are those which she had retained to herself as per ‘F’ sohedule of Ext. A2. But then, her title to those properties described in the ‘F’ schedule to Ext. A2 was indisputably Ext. A1 settlement deed executed by her husband in her favour. There is nothing in Ext. A3 to infer in anterior settlement of properties prior to the execution of Ext. A3. Similarly, just because two of the daughters were excluded from Ext. A3, the settlement thereunder does not become suspect. The courts below were approaching the document as if it was a testamentary disposition. Unequal or inequitable distribution of properties under a settlement deed which is a transfer inter vivos cannot by itself constituted a vitiating circumstance. I do not find anything strange or abnormal in the terms and the recitals in Ext. A3 since they only indicate the confidence reposed by the mother in the eldest son. Exts. A25 to A32 letters are all letters sent by the 1st defendant to the plaintiff will be complete only if the replies to those letters are also before Court. Secondly, far from evincing a prick of conscience or a guilty disposition, those letters sent by the first defendant to his sister and brother-in-law only reveal the disturbed mind of the brother over the conduct of close relatives in having prevailed upon the mother and poisoned her mind and an anxiety to see that the misunderstanding between close relations was removed once and for all.

37. While in contracts for sale, mortgage, lease, exchange etc. there is pecuniary consideration, there is no such consideration in the case of a gift. But the right of rescission on the part of the granted in the case of a gift is circumstanced by the same sort of circumstances such as fraud, mistake, coercion, undue influence, misrepresentation or the like as would operate to invalidate a contract. Except in the circumstances mentioned in S. 126 of the T.P Act, a gift cannot be revoked. Paragraph 2 of the said section shows that a gift may be revoked as if it were a contract but not on the ground of want or failure of consideration. In other words, a gift may be revoked in the same manner as a contract may be cancelled on the ground of fraud, mistake, coercion and undue influence, misrepresentation or a like reason. (See Behari Lall v. Sindhubala, AIR 1918 Calcutta 615). But, as already adverted to earlier, such cancellation can only be by recourse to a court of law unless the instrument is void ab initio in which case it does not require cancellation. The period of limitation for a suit for the above purpose is 3 years under Art. 59 of the Limitation Act. Even where notwithstanding the fact that the document is null and void, if the person entitled to treat the same as such, institutes a suit for setting aside the same, then by virtue of the residuary Article 113 of the Limitation Act, such suit will have to be instituted within 3 years.

38. When a gift of immovable property; has been accepted by the donees and they are in possession of the property, the fact that after making the gift the doners felt that it was a folly or imprudence or want of foresight on their part to Have executed the deed of gift will not clothe them with the power to revoke the gift. (Vide Vannathi Valappil Janaki v. Puthiya Purayil Paru, AIR 1986 Kerala 110). The donor's own folly is no ground for revocation of the gift. A valid gift accepted by the donees can, on no account, be revoked. But if the document is not complete until registration the doner can revoke it A reservation by the donor to himself the right of enjoyment during his life time of the usufructs or profits of property gifted without retaining any power of alienation over it does not in any way affect the validity of the gift (see 1969 KLT 415-Kelan v. Govindan). A gift subject to the condition that the donee shall maintain the donor cannot be revoked under Sec. 126 of the T.P Act for the failure of the done to maintain the donor AIR 1962 Orissa 130-Tila Bewa v. Mana Bewa. Thus after an anxious consideration of the facts and circumstances of the case, I have no hesitation to conclude that the plaintiff has miserably failed to make out any ground for ignoring Ext. A3 much less setting aside the same on the grounds alleged by her.

THE FINAL RELIEFS

39. What now survives for consideration is as to whether the plaintiff is entitled to any of the reliefs prayed for in the suit. As already noticed, the 1st defendant's suit, namely O.S 79/1986, for specific performance of Ext. B6 agreement in respect of plaint schedule item No. 1 stands dismissed and it has become final. This means that the plaintiff is, by virtue of Ext. A5 release deed, the absolute owner in respect of one acre of land comprised in Sy. No. 19/1A described as Item No. in the plaint schedule. If so, the 1 st prayer in the plaint with regard to the said item is only to be granted. Plaint schedule item No. 4(a) admeasuring 53 cents comprised in Sy. No. 23/7 was in item of property which was allotted to Bhaskara Panicker as per the B schedule to Ext. A3 settlement deed. Since as per the decrees passed in O.S 318/69 and 554/69 Ext. A3 settlement deed stands set aside, the allotment of the above 53 cents in favour of Bhaskara Panicker cannot be sustained. Admittedly, the said Bhaskara Panicker died unmarried and issueless. If so, the said 53 cents of land will devolve on the plaintiff and defendants 1 to 3. Hence, the plaintiff would be entitled to ¼ share over the said item with mesne profits. Thus the suit claim with regard to the said item also will have to be decreed. Accordingly, the suit O.S 78/86 will stand decreed in part in respect of plaint schedule item No. I declaring the title and possession of the plaintiff over the said item. A preliminary decree for partition of Plaint schedule item No. 4(a) is passed and the plaintiff shall be allotted ¼ share thereof with mesne profits the quantum of which and the person liable for the same shall be decided in the final decree proceedings. The costs in the suit shall come out of the estate. The suit claim with regard to the remaining plaint schedule items sill stand dismissed.

40. In the result this Second Appeal is allowed as above. However, in the circumstances of the case, there shall be no order as to costs in this appeal.