Thursday, 2 July 2020

Whether a deaf and dumb person can file suit through next friend?

 Similarly, in Raveendran v. Sobhana (2008 (1) KLT
488), a Bench of this court considered the question whether a
deaf and dumb person can be said to be a person suffering from

mental infirmity. It was held that “mental infirmity is not mental
disorder. It is not mental illness or unsoundness of mind or
insanity. It only indicates the weakness of intellect and in the
particular context of Order 32 Rule 15, weakness of intellect to
the extent of making a person incapable of protecting his
interest in the litigation. Thus a person who is not of unsound
mind may, yet be a person who is mentally infirm, thus entitling
him to the protection under Order 32 Rule 15. Idiocy or
unsoundness of mind indicates an abnormal state of mind,
whereas mental infirmity only indicates weakness of mental
strength. The scope of enquiry under Order 32 Rule 15 is the
assessment of the capability of a person either of unsound mind,
or suffering from any mental infirmity deafness or dumbness as
to whether such defects are infirmity or weaknesses would
render a person incapable of communicating his views, wishes or
thoughts. Thus, the legal position is that mental infirmity in the
context of Order 32 Rule 15 is not mental disorder, insanity or
mental illness. Weakness of mind due to any reason, making a
person incapable of protecting his interests, is sufficient to unfold
the protective umbrella under Order 32 Rule 15. Such infirmity
can also be caused by physical defects like deafness or
dumbness, whereby a person is made incapable of

communicating his wishes, views or thoughts to others who are
not acquainted with him”.
21. Sri. Alias M. Cherian contended vehemently, that, the
enquiry contemplated under Order 32 Rule 15 was not carried
out by the trial court and the omission has vitiated the entire
proceedings before trial court and the impugned judgment as
well. According to him, failure of the trial court to adjudicate
upon the capability of the plaintiff to protect her interests has
resulted in a serious error in the procedure adopted. The counsel
referred us to several decisions of this Court, including
Rasheeda v. Nazeer (2011 (3) KLT 218), Balakrishnan v.
Kalliyani (1957 KLT 268), Cleetus v. South Indian Bank (2007
(3) KLT 868) and canvassed that it is obligatory on the part of the
court to conduct a judicial enquiry as to the capacity of the
plaintiff, especially since grant of such a permission to the next
friend to institute a suit would certainly affect the civil rights of
the plaintiff.
22. Even though the aforesaid submissions were impressive
on first blush, on going through the records we find that factually
there is a difference in this case on a few material circumstances.
These material differences persuade us to first appreciate on the
happenings in the court below, instead of applying the decisions

relied on by Adv.Sri.Alias M.Cherian. Records reveal that a
separate application was filed by the next friend, who is none
other than plaintiff’s own daughter, as I.A. No. 995 of 2011, on
the date of filing of the suit itself, seeking permission to institute
the suit, through a next friend. The said application was allowed
after taking a composite statement for appointment of a next
friend as well as for permission to sue as an indigent person. The said order was never challenged by the defendants. Accepting
that I.A. No.995 of 2011 was allowed at the numbering stage,
when the defendants were yet to appear, still, the need for
appointment of a trained interpreter for helping the plaintiff to
give evidence as PW1, that too in the presence of the 1st
defendant, was felt and understood by the court and the same
was also not objected to by the defendants. Further, at the time
of trial, the plaintiff while being examined as PW1 deposed
through the interpreter, that, she has instituted the suit and also
produced Ext.A3 to prove that she is deaf and dumb and there
was no cross-examination even on that aspect. Plaintiff’s
ratification before the court during her deposition, regarding the
filing of the suit, renders all technical objections relating to the
defects of appointment of a next friend and of the next friend’s
eligibility to institute the suit, otiose. In such circumstances, we
reject the arguments of the appellant against the appointment of
a next friend and hold that the appointment of a next friend in
the facts and circumstances of the case was proper.

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
 MR.JUSTICE S.V.BHATTI
&
 MR. JUSTICE BECHU KURIAN THOMAS

R.F.A (INDIGENT) No.306 OF 2019

MARY Vs  LEELAMMA


Dated this the 30th day of June, 2020
Bechu Kurian Thomas , J.

Total deprivation, through a partition deed and a release
deed, of the property of a deaf and dumb sister forced her to
approach the Court to restore her rights in her property and
claim partition. Suit having been decreed, the eldest sister – the
beneficiary under the two documents, has come up in appeal.
2. Mary, Leelamma and Aani are sisters. Mary is the eldest
and Aani, the youngest. Admittedly, Leelamma, the second
amongst the sisters, is a deaf and dumb person. She is also
illiterate. Mary claims to have brought up Leelamma under her
care and custody, conducted her marriage and that of her
daughter too. Leelamma’s conjugal life with her husband did not
last long as she came back along with her daughter to Mary’s
care, on account of difference of opinion with her husband. Even
after the death of their mother, Leelamma continued to live with
Mary.
3. On 9-3-2011, Leelamma through her daughter Manju, as

next friend, filed a suit as an indigent person before the Munsiff
Court, Muvattupuzha, which was later transferred and renumbered
as O.S. No.17 of 2015 on the files of the Subordinate
Judge, Muvattupuzha. Alleging that the partition deed (Ext.A1)
and the release deed (Ext.A2) executed on 5-1-2011 and
10-1-2011 respectively, were on account of fraud and undue
influence exerted over the plaintiff, she sought for setting aside
those two documents and for a declaration that the said deeds
shall not affect the plaintiff’s right over her properties. For easier
reference, the parties are referred to in this judgment, as they
were arrayed in the trial court.
4. Ext.A1 is a partition deed, partitioning the 65 cents of
property between the three sisters. As per the said deed, the
properties left behind by their mother, having an extent of 65
Cents, was divided as two schedules - A and B. 1st defendant-
Mary was allotted A schedule, comprising 60 cents, while B
schedule, comprising just 5 cents, was allotted to the share of
both plaintiff and the 1st defendant. Aani, the youngest sister
and 2nd defendant, recited in the document that she is
relinquishing her share in the properties. Thus, in short, when
plaintiff received 2.5 cents of property under Ext.A1, the 1st
defendant received 62.5 cents of property. Ext.A2 is a release

deed executed within 5 days of execution of Ext.A1. Through that
document, plaintiff is purported to have released her entire rights
in the above referred 2.5 cents of property in favour of Mary.
Thus Mary, the 1st defendant, became the absolute owner of the
entire 65 cents.
5. When plaintiff’s daughter visited her during the last
week of January 2011, plaintiff conveyed through gestures, that
she had been taken to some place to give her signature and that
her thumb impression was also taken. On enquiry, plaintiff’s
daughter understood that Ext.A1 and A2 were created and that
all rights in the property had been released by the plaintiff in
favour of the 1st defendant, without even receiving any
consideration. Plaintiff thus alleged that, Exts.A1 and A2 were
created by undue influence, fraudulently, dishonestly and
without her knowledge or consent.
6. The defendants filed separate written statements and
controverted all allegations in the plaint. The 1st defendant
questioned the right of the next friend to file the suit and also
denied the incapacity of the plaintiff as far as her ability to
comprehend and do things by herself was concerned and also
denied the allegation of fraud, cheating and undue influence
exerted by the defendants over the plaintiff. On the contrary, the

1st defendant stated that plaintiff and her daughter were looked
after by the 1st defendant and her husband and they even got
plaintiff's daughter married off. 1st defendant pleaded that
plaintiff had agreed to execute the partition deed and that the
documents were executed with full knowledge and consent of the
plaintiff and also that she had received consideration for
releasing her half right over the schedule property as per Ext.A2.
The 2nd defendant, adopted the contentions in the written
statement of the 1st defendant and further stated that the
impugned documents were validly executed and that they are
binding on the plaintiff.
7. In order to prove the plaint averments, plaintiff examined
herself, through an interpreter appointed by the court, as PW1.
She further examined the Sub-Registrar who registered the
impugned document as PW2 and also her daughter – the next
friend as PW3 and marked Ext.A1 to Ext.A6. The defendants
examined the 1st defendant as DW1 and marked Ext. B1 to
Ext.B8. The 2nd defendant did not mount the witness box.
8. The learned Subordinate Judge, after a detailed
consideration of the facts and circumstances arising in the case,
decreed the suit by declaring that the documents Exts.A1 and A2
are null and void with respect to the share of the plaintiff and

also directed the property to be divided into three, by metes and
bounds, and declared that the plaintiff is entitled to get one third
share. 1st defendant has come up in appeal.
9. We heard the learned counsel for the appellant Sri Alias
M. Cherian and also Smt. Manju, who is the next friend of the
plaintiff and her daughter, who argued in person.
10. Sri. Alias M. Cherian, learned counsel, assiduously
argued that appointment of a next friend in the circumstances of
the case was clearly illegal in as much as plaintiff was neither of
unsound mind, nor had any infirmity of mind entitling her to be
represented by a next friend. He submitted further that failure of
the trial court to raise a plea as regards the competence of the
next friend has rendered the judgment perverse. The learned
counsel further argued that the plaint lacks in specific pleading
regarding the allegation of fraud and undue influence. He also
pointed out that the documents were executed undoubtedly for
consideration and also that there was nothing wrong in execution
of the said documents.
11. Smt. Manju submitted that the plaintiff is wholly
incapable of taking care of herself and does not have even the
capacity to comprehend things either in part or in full, which
necessitated the appointment of the next friend on an

application submitted. It was pointed out that since the plaintiff
herself was examined as a witness, the contentions regarding the
irregularity in the appointment of the next friend has no legs to
stand. She also pointed out that the plaintiff has been deprived
of all property by the documents impugned in the suit and albeit
the availability of many relatives, including plaintiff’s own
daughter, none of them were made witnesses to the
transaction/deed all of which cast doubts on the veracity of the
documents. The partition is unconscionable and was executed
without free consent after exerting undue influence and by
playing fraud.
12. In view of the aforesaid facts and arguments raised, the
following points arose for determination in this appeal.
(1) Whether appointment of a next friend for the plaintiff
was proper in the facts and circumstances of the case?
(2) Whether Ext.A1 and Ext.A2 documents are null and void
on account of undue influence or fraud or both?
(3) Whether plaint schedule property is liable to be
partitioned, if so to what extent?
(4) Whether the trial court judgment is liable to be affirmed,
modified or reversed?
(5) Who shall bear the costs?
Point No.1
13. Order 32 of the Code of Civil Procedure 1908 deals with

Suits by or Against Minors and Persons of Unsound Mind.
Appointment of a next friend for a person with unsound mind is
dealt with in Order 32 Rule 15 of the Code Of Civil Procedure
1908 and the same is extracted as below:
“O.32 R.15. Rules 1 to 14, (except rule 2-A) to
apply to persons of unsound mind.- Rules 1 to 14
(except Rule 2-A) shall, so far as may be, apply to
persons adjudged, before or during the pendency of
the suit, to be of unsound mind and shall also apply to
persons who, though not so adjudged, are found by
the Court on enquiry to be incapable, by reason of any
mental infirmity, of protecting their interest when
suing or being sued.”
14. Though the heading of the section mentions only
persons of unsound mind, a reading of the above extracted
provision will show that it deals also with persons of mental
infirmity, who are, by the said reason, incapable of protecting
their interests, except with the assistance of a next friend, when
suing or being sued. Legislature has used two terms in the same
provision – ‘unsound mind’ and ‘mental infirmity’. Certainly, both
are not intended to cover the same situation. This is all the more
so since, the word mental infirmity was not part of the statutory
provisions in Section 463 of the Civil Procedure Code of 1882, but
was inserted in the corresponding provision of Order 32 Rule 15
of C.P.C 1908.
15. While interpreting a statutory provision, Courts start
with the presumption that every portion of a statute has some
purpose and also that the presence of each word in a provision,
is necessary to effectuate that purpose. Legislature does not use
words in surplusage and every word in a statute must be given
due meaning and application. It is also not a sound principle of
construction of statutes to brush aside words in a statute as
being inapposite surplusage. Reference can usefully be made to
J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. State of
UP (AIR 1961 SC 1170), Aswini Kumar Ghose & Another v.
Arabinda Bose & Another (AIR 1952 SC 369). Viewed in the
above perspective and the principles of interpretation, we have
no doubt that, the word 'mental infirmity' has been used in Order
32 Rule 15 C.P.C., to convey a meaning, which is wider and which
would encompass something more than what the word
'unsoundness of mind' would cover.
16. The term 'mental infirmity' has not been defined in the
C.P.C, 1908. In the context in which the term is used in Order 32
Rule 15 C.P.C., it is capable of taking a meaning different from
that of unsoundness of mind. What would that meaning be?
17. Cognitive skills are used to comprehend, process,

remember, and apply incoming information to create an external
reaction. The cognitive skills are the core skills a person’s brain
uses to think, read, learn, remember, reason, and even pay
attention. The cognitive functions enable us to orient ourselves in
the world, making us aware of the various dangers and rewards,
assimilate the main sources of pleasure and pain, and are also
the means by which we receive information from others. An
infirmity in the cognitive faculty which impairs the skills of
perception, discernment, comprehension and thought, will
necessarily have an impact on the mind. A hearing impaired
person becomes dumb on account of the impairment of his skills of perception, discernment, comprehension thought and
response. Living as a deaf and dumb person, has a debilitating
effect on the mental faculties of comprehension, thought,
communication and even response. These faculties when
affected will have an effect on the person's capacity to protect
his civil rights. In the matter of communicating his views about
his civil rights, a deaf and dumb person will be weak. If the
impairment of hearing is to such an extent that it is almost
difficult to communicate with that person, or even comprehend
any reply given by him, except by understanding the signs by
which one communicates with him, then there arises a weakness of the mind. This weakness, akin to an infirmity, makes it almost impossible for any person, other than those intimately acquainted with that person or a trained interpreter, either to reach his mind or to interpret it. When the infirmity of hearing is to such an extent that no one, other than those closely
associated with that person or an interpreter alone is able to
communicate and reach that person’s mind, then, that infirmity
could be regarded as a mental infirmity for the purpose of Order 32 Rule 15 of the C.P.C. Such a person though not mentallyunsound, is, for the purpose of Order 32 Rule 15 of the Code of Civil Procedure, 1908, a person who is mentally infirm.
18. We are fortified in the above conclusion by three
decisions of different High Courts, including one of Kerala High
Court. In Nanak Chand and Ors. v. Banarsi Das and Ors.
(126 Ind.Cas. 579 = AIR 1930 Lah. 425), while dealing with the
case of a deaf and dumb person under Order 32 Rule 15, it was
held that “it is only by means of signs that one can communicate
with him and his replies can be given only by means of signs,
and it further appears that only a few persons who know him
intimately are capable of making him understand by signs what
they desire to convey to him or to follow his replies given in a
similar manner. Under the circumstances, I should say that it is

almost impossible for any person not intimately acquainted with
him either to reach his mind or to interpret it. No definition of the
expression ‘mental infirmity is to be found in any of the books on
the subject dealing with mentally defective persons, nor did the
counsel on either side refer to any authorities on the subject; the
case, therefore, is one of first impression, and after giving the
matter my careful consideration I am of the opinion that Rule 15,
Order 32, is intended to cover the case of persons like Dina Nath
who are absolutely deaf and dumb and on that account are
incapable of receiving any communications or of communicating
their wishes or thoughts to others.”
19. In In Re: Periaswami Goundan (AIR 1954 Madras
810) the Madras High Court, considering the difference in the
wording of the Civil Procedure Code, 1882 and that in Code of
Civil Procedure, 1908, wherein the word mental infirmity was
added apart from unsoundness of mind held that the scope of
the rule had been enlarged and that it covers case of persons
incapacitated from protecting the interest by reason of him being
a deaf mute also.
20. Similarly, in Raveendran v. Sobhana (2008 (1) KLT
488), a Bench of this court considered the question whether a
deaf and dumb person can be said to be a person suffering from

mental infirmity. It was held that “mental infirmity is not mental
disorder. It is not mental illness or unsoundness of mind or
insanity. It only indicates the weakness of intellect and in the
particular context of Order 32 Rule 15, weakness of intellect to
the extent of making a person incapable of protecting his
interest in the litigation. Thus a person who is not of unsound
mind may, yet be a person who is mentally infirm, thus entitling
him to the protection under Order 32 Rule 15. Idiocy or
unsoundness of mind indicates an abnormal state of mind,
whereas mental infirmity only indicates weakness of mental
strength. The scope of enquiry under Order 32 Rule 15 is the
assessment of the capability of a person either of unsound mind,
or suffering from any mental infirmity deafness or dumbness as
to whether such defects are infirmity or weaknesses would
render a person incapable of communicating his views, wishes or
thoughts. Thus, the legal position is that mental infirmity in the
context of Order 32 Rule 15 is not mental disorder, insanity or
mental illness. Weakness of mind due to any reason, making a
person incapable of protecting his interests, is sufficient to unfold
the protective umbrella under Order 32 Rule 15. Such infirmity
can also be caused by physical defects like deafness or
dumbness, whereby a person is made incapable of

communicating his wishes, views or thoughts to others who are
not acquainted with him”.
21. Sri. Alias M. Cherian contended vehemently, that, the
enquiry contemplated under Order 32 Rule 15 was not carried
out by the trial court and the omission has vitiated the entire
proceedings before trial court and the impugned judgment as
well. According to him, failure of the trial court to adjudicate
upon the capability of the plaintiff to protect her interests has
resulted in a serious error in the procedure adopted. The counsel
referred us to several decisions of this Court, including
Rasheeda v. Nazeer (2011 (3) KLT 218), Balakrishnan v.
Kalliyani (1957 KLT 268), Cleetus v. South Indian Bank (2007
(3) KLT 868) and canvassed that it is obligatory on the part of the
court to conduct a judicial enquiry as to the capacity of the
plaintiff, especially since grant of such a permission to the next
friend to institute a suit would certainly affect the civil rights of
the plaintiff.
22. Even though the aforesaid submissions were impressive
on first blush, on going through the records we find that factually
there is a difference in this case on a few material circumstances.
These material differences persuade us to first appreciate on the
happenings in the court below, instead of applying the decisions

relied on by Adv.Sri.Alias M.Cherian. Records reveal that a
separate application was filed by the next friend, who is none
other than plaintiff’s own daughter, as I.A. No. 995 of 2011, on
the date of filing of the suit itself, seeking permission to institute
the suit, through a next friend. The said application was allowed
after taking a composite statement for appointment of a next
friend as well as for permission to sue as an indigent person. The said order was never challenged by the defendants. Accepting
that I.A. No.995 of 2011 was allowed at the numbering stage,
when the defendants were yet to appear, still, the need for
appointment of a trained interpreter for helping the plaintiff to
give evidence as PW1, that too in the presence of the 1st
defendant, was felt and understood by the court and the same
was also not objected to by the defendants. Further, at the time
of trial, the plaintiff while being examined as PW1 deposed
through the interpreter, that, she has instituted the suit and also
produced Ext.A3 to prove that she is deaf and dumb and there
was no cross-examination even on that aspect. Plaintiff’s
ratification before the court during her deposition, regarding the
filing of the suit, renders all technical objections relating to the
defects of appointment of a next friend and of the next friend’s
eligibility to institute the suit, otiose. In such circumstances, we
reject the arguments of the appellant against the appointment of
a next friend and hold that the appointment of a next friend in
the facts and circumstances of the case was proper.
Point No.2
23. The learned counsel for the appellant urged that the
burden of proof as regards undue influence and fraud is entirely
upon the plaintiff under Sections 101 and 102 read with Section
111 of the Evidence Act and specific pleading is essential, which
is lacking in the pleadings. It was also argued that the essential
elements of undue influence or fraud have not been proved and
the suit ought to have been dismissed.
24. There is no dispute with the proposition that the
burden of proof in respect of the plea of fraud, undue influence or
coercion is upon the person who alleges the same. The initial
burden can be discharged only by putting forth the necessary
plea in the pleadings and thereafter by adducing evidence in
accordance with law. Order 6 Rule 4 of the Code of Civil
Procedure, 1908 specifies that the party relying upon fraud,
undue influence and other category of cases mentioned therein,
must specify particulars in the pleading. The allegations must be
fully stated, so that, the issues of fraud and undue influence can
be decided on the particulars pleaded and evidence adduced by

such party. There cannot be any departure from what has been
ordained under Order 6 Rule 4 C.P.C. and full particulars must be
laid down in the pleadings itself. The cognate vices mentioned in
Order 6 Rule 4 C.P.C. must be separately pleaded with
specificity, particularity and precision. A general or vague
allegation is not sufficient to build up a case of fraud or undue
influence. The intention underlying Order 6 Rule 4 C.P.C. is that
the opposite party is to be put on sufficient notice as to the case
which he is called upon to meet. The aforesaid propositions were
laid down by the Supreme Court in Bishundeo Narain and
Another v. Seogeni Rai and Others (AIR 1951 SC 280), Afsar
Sheikh and Another v. Soleman Bibi and Others (1976) 2
SCC 142) and General Manager, Electrical Rengali Hydro
Electric Project, Orissa and Others. v. Sri. Giridhari Sahu
and Others (2019) 10 SCC 695).
25. A reading of the plaint makes it clear that there are
specific pleadings relating to fraud and undue influence and the
same are not vague at all. In paragraph 5 of the plaint, it is
mentioned that the defendants and their immediate relatives had
taken the plaintiff to someplace twice and without realising the
significance of her acts, the plaintiff, without her consent, was
forced to sign and put thumb impression, under their insistence.

It was also stated that two documents were created for the
selfish interests of the 1st defendant by exploiting the incapacity
of the plaintiff to decipher things, and by cheating and
committing breach of trust, with the fraudulent intention of
personal aggrandizement of the 1st defendant. It was also
averred that the plaintiff does not have the capacity or
knowledge or capability to give any instructions for preparation
of documents of title and had in fact never given any such
instructions and nor had she obtained any consideration for
releasing her rights, nor has she released such rights in her
property. The plaint also contained averments that the
defendants and their immediate relatives have all conspired
together to create and register the two documents and plaintiff
had never given any such instructions to any person and no one
had ever enquired with the plaintiff about giving any such
instructions and even the Sub Registrar had not sought for the
consent of the plaintiff before the signature was obtained. The
pleadings, narrated above clearly make out a case of fraud and
undue influence and hence the contention of the appellant that
the plaint lacks the necessary pleading is without any basis and
accordingly rejected.
26. The next question we are confronted with is, whether

the document Exts.A1 and A2 ought to be declared null and void.
For this purpose, it is necessary to extract provisions of Section
10 of the Indian Contract Act, 1872, hereinafter referred to as
'Contract Act' for short, which reads as follows;
“10. What agreements are contracts.- “All
agreements are contracts if they are made by the free
consent of parties competent to contract, for a lawful
consideration and with a lawful object, and are not
hereby expressly declared to be void.
Nothing herein contained shall affect any law in force
in India and not hereby expressly repealed, by which
any contract is required to be made in writing or in the
presence of witnesses, or any law relating to the
registration of documents.”
27. Free consent, competency to contract, lawful
consideration, lawful object and agreement not declared to be
void, are the main ingredients for a valid contract. It is a
consensual act and the parties are free to settle any terms as
they please. If both parties have consented to the agreement,
still, consent of one of them may not be said to be free if the
same had been obtained by coercion, undue influence or even
fraud. This is evident from Section 13 and Section 14 of the
Contract Act, which defines 'consent', and 'free consent'.
28. In order to ascertain whether consent for partition and
for the release deed have been obtained by undue influence or

fraud played by the defendants upon the plaintiff, it is apposite
to comprehend the meaning of the two terms. 'Undue influence'
is defined in Section 16 while Section 17 defines 'fraud' and both
sections are extracted as below;
“S.16. Undue influence defined- (1) A contract is
said to be induced by 'undue influence' where the
relations subsisting between the parties are such that
one of the parties is in a position to dominate the will of
the other and uses that position to obtain an unfair
advantage over the other.
2. xxxx xxxx xxxx xxxx
3. Where a person who is in a position to dominate the
will of another, enters into a contract with him, and the
transaction appears, on the face of it or on the evidence
adduced, to be unconscionable, the burden of proving
that such contract was not induced by undue influence
shall be upon the person in a position to dominate the
will of the other.
Nothing in this section shall affect the provisions
of section 111 of the Indian Evidence Act, 1872 (1 of
1872).
S.17. Fraud defined - 'Fraud' means and includes any
of the following acts committed by a party to a contract,
or with his connivance, or by his agent, with intent to
deceive another party thereto or his agent, or to induce
him to enter into the contract:
(1) the suggestion, as a fact, of that which is not true,
by one who does not believe it to be true;

(2) the active concealment of a fact by one having
knowledge or belief of the fact;
(3) a promise made without any intention of performing
it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares
to be fraudulent.
Explanation xxxx xxxx”
29. Undue influence is not always capable of direct proof
and must depend on conclusions drawn from the nature of
transaction, the relation of parties and the attendant
circumstances. No single circumstance is conclusive to accept or
refuse the presence of undue influence. It is a cumulative effect
of all the circumstances that result in a transaction being vitiated
on the ground of undue influence. The doctrine of undue
influence under the common law was evolved by the courts in
England for granting protection against transactions procured by
the exercise of insidious forms of influence, spiritual and
temporal. The doctrine applies to acts of bounty as well as to
other transactions in which one party by exercising his position of
dominance obtains an unfair advantage over another. The Indian
enactment is founded substantially on the rules of English
common law. The concept behind Section 16 of the Contract Act
is that, a person who is in a position to dominate the will of
another, by reason of his authority or fiduciary relation over the

other, or on account of mental or bodily distress, uses that
position to create an unfair advantage over the other in a
contract, then, such a contract will not be one regarded as
having been entered into with free consent. In the matter of
proof of undue influence, a statutory presumption is created,
whereby, the transaction appears to be unconscionable, the
burden to prove that there was no undue influence shall be upon
the party who was in a position to dominate the will of the other.
30. It has been expounded that there are three stages
which the Courts must identify and consider while dealing with a
case of undue influence. First thing to be considered is, whether
the plaintiff or the party seeking relief on the ground of undue
influence has proved that the relationship between the parties to
each other are such that one is in a position to dominate the will
of the other. Up to this point 'influence' alone is made out. Once
that position is substantiated, the second stage has reached
namely, the issue whether the transaction has been induced by
undue influence. That is to say, it is not sufficient for the person
seeking the relief to show that the relationship of the parties
have been such that one naturally relied upon the other for
advice and the other was in the position to dominate the will of
the first in giving it. More than mere influence must be proved so
as to render influence in the language of the law, 'undue'. Upon
a determination of the issue at the second stage, a third point
emerges, which is of the onus probandi. If the transaction
appears to be unconscionable, then the burden of proving that it
was not induced by undue influence lie upon the person who was
in a position to dominate the will of the other. Error is almost sure
to arise if the order of these propositions are changed. The
unconscionableness of the bargain is not the first thing to be
considered. The first thing to be considered is whether the
relation of the parties, was such as to put one in a position to
dominate the will of the other. The above three stages principle
was expounded by the Privy Council in Raghunath Prasad v.
Sarju Prasad and Ors. (AIR 1924 PC 60), and followed by the
Supreme Court in Afsar Sheikh and Another v. Soleman Bibi
and Others (1976) 2 SCC 142) and Joseph John Peter Sandy
801).
31. The very case of the 1st defendant was that PW1 was all
along looked after by 1st defendant and her husband. PW1 also
deposed that she is scared of 1st defendant and also that she is
deaf and dumb and even illiterate. PW3 deposed that having no
other way they had to reside with the 1st defendant and her

husband, under the dictates of the 1st defendant. There was
absolutely no cross-examination on this facet of their evidence.
Thus, it can be held that the plaintiff has proved that the
relationship between the parties to each other was such that 1st
defendant was in a position to dominate the will of the plaintiff.
32. Regarding the second point, in her deposition, PW1 had
specifically stated that she is illiterate and cannot read or write
and that she had not agreed to give her rights in her property to
any person and that on the first occasion she was taken to a
place under the guise of taking photographs and a fat person
forcibly took her thumb impression, while on the second
occasion she was taken to someplace under the guise of
checking her blood. She had no idea that any contract was
entered into, and on both occasions no amounts were given to
her. She further deposed that she wants her property, which
belonged to her mother who had told her to construct a house in
the property she gets. During cross-examination, PW1 deposed
that even after returning from the place, none had informed
anything to her. PW3, who is the next friend and the daughter of
PW1 in her proof affidavit, stated that though her mother's family
had more than three and a half acres of property, the 1st
defendant's husband had managed to convert all of it as his own

under some pretext or the other, and also that after the plaintiff
conveyed through gestures and facial expressions that
signatures and thumb impressions had been obtained twice after
taking her to someplace, PW3 carried out enquiries and came
across Exts.A1 and A2. She also stated that plaintiff had utmost
faith in the defendants and never imagined that they would ever
exploit the plaintiff, who is deaf and dumb. Even though both the
above witnesses were cross-examined seriously, nothing was
brought out to contradict the statements in chief-examination.
PW2, who was the Sub-Registrar at the time of registration of
Ext.A1 and A2, deposed that he does not remember as to
whether he had explained anything to the parties to the
document or as to whether the plaintiff was a disabled person or
as to whether anyone had informed him that one of the parties to
the document was a disabled person. The non-disclosure of the
disability of plaintiff as deaf and dumb in Ext.A1 and Ext.A2
would certainly go a long way in appreciating the alleged free
consent given by PW1 for execution and registration of Ext.A1
and Ext.A2. The method and extent of verification by the Sub-
Registrar would have been definitely different, had this stark
truth been brought on the documents executed as Ext.A1 and
Ext.A2. Had it been informed, he says that the procedure for that

purpose would have been adopted and he would have explained
to such persons the details of the transaction. The evidence
indicates the use of the influence unduly.
33. Under Ext.A1 partition deed, 62.5 cents of property is
allotted to the share of 1st defendant, while only 2.5 cents of
property is allotted to the share of the plaintiff towards her
admitted 1/3rd share which would otherwise be equivalent to
21.66 cents of property. Five days later, even that 2.5 cents of
property is released in favour of the 1st defendant, leaving the
plaintiff with no property. Apparently, the transaction is ex facie
unconscionable and no reasons are recited in the documents to
explain this unconscionable nature of the transactions. The 1st
defendant failed in discharging her burden or onus in any
manner. The only contention raised is that, plaintiff and her
daughter were looked after by the 1st defendant and hence the
properties were given to her. Taking care of ones own sister is a
gratuitous or magnanimous act for which it cannot be believed
that the entire property will be given away. The defendants have
miserably failed in proving good faith in the transaction and on
the other hand, it is proved that the documents Exts.A1 and A2
have been executed exploiting the position of dominance which
the 1st defendant wielded over the plaintiff. The Plaintiff's

daughter was also not taken into confidence by making her a
witness to Ext.A1 or Ext.A2, which only adds to the doubts in the
mind of this Court on the free consent and fair procedure
followed either at execution or during registration of Ext.A1 and
Ext.A2. In such circumstances, we are of the firm view that the
transactions in Ext.A1 and Ext.A2 relating to the share right of
the plaintiff are void on the principle of undue influence.
34. Adverting to the allegation of fraud, the evidence
clearly shows that the defendants had clearly concealed from the
plaintiff the fact that Ext.A1 deprives her of her property and that
while putting her thumb impression and signature, she was
actually executing a partition deed. She has deposed that she
was taken to someplace under the guise of taking her blood
sample. Ext.A1 and Ext.A2 do not mention anywhere, either in
the recitals or even in the Preamble that one of the parties to the
document is a deaf and dumb person. The recitals in Ext.A1 will
go to show that the property is divided into two schedules and
that 'A' schedule was allotted to the plaintiff and 'B' schedule
allotted to the plaintiff, as well as the 1st defendant. It recites
that the 2nd defendant has relinquished her rights in the property.
The manner in which the division of property is recited in Ext.A1,
creates an impression in the mind of the court that it was written

in a shrewd manner so that at first glance or on a quick look one
would not be able to fathom the inequitable partition between
the plaintiff and 1st defendant. Nowhere does the document
recite as to why more than 95% of the property (62.5 cents out
of a total of 65 cents) left behind by mother of the parties to the
document has been allotted to the share of the 1st defendant,
while the plaintiff is left with a meagre 4% (2.5 cents). Even the
2.5 cents allotted to the plaintiff was released in favour of the 1st
defendant, within a period of five days of execution of Ext.A1.
Though the document mentions payment of Rs.2.5 lakhs as
consideration for the said transaction, it has come out in
evidence that no such payment was received by the plaintiff.
Thus, the entire property of 65 cents have, by Exts. A1 and A2,
become the absolute property of the 1st defendant, that too
without payment of consideration or legal consent. Fraud is
evident in the transaction and it has been deployed to exploit a
hapless lady of her properties.
35. In this context, reference to Section 34 of the Indian
Registration Act, 1908 and the Rules made thereunder may be
apposite. Under Section 34(3) of the Indian Registration Act,
Registering Officer is bound to enquire whether the document
was executed by the person whom it purports to have been

executed and also satisfy himself as to the identity of the
persons appearing before him and also as to whether they have
executed the document. Under Rule 71 of Registration Rules
(Kerala), it is provided that “A document executed by a Person
who is unable to read shall be read out and, if necessary
explained to him. A document written in a language not
understood by the executing party shall, in like manner, be
interpreted to him. When a party to be examined is deaf, dumb
or blind recourse must be had to the means by which he makes
himself understood.” Nowhere in Ext.A1 or Ext.A2 has it been
mentioned that one of the parties to the document is deaf and
dumb. Had it been so mentioned, the Sub-Registrar would have
read out and explained the contents of the document to such
party. This court finds that the failure to inform the Sub-
Registrar about the deafness and dumbness of one of the parties
to the document was a deft method in playing fraud.
36. Ext.A1 and Ext.A2, to the extent it has interfered with
the rights of the plaintiff's share in the said property is vitiated by
undue influence and fraud. We concur with the findings of the
learned Subordinate Judge that Ext.A1 and Ext.A2 have been
executed as against the plaintiff through undue influence and
fraud and the same is null and void as against the plaintiff.

Point Nos.3 to 5
37. In view of our findings in point No.2 above, the plaint
schedule property is liable to be partitioned. Even though the
trial court observed that as far as the share of the 2nd defendant
is concerned, Ext.A1 document is valid, towards the concluding
paragraphs, there is an observation that DW1 is entitled to get
her one share from the plaint schedule property. The said finding
needs appropriate modification by this Court. Since the 2nd
defendant had relinquished her share in the property in favour of
the 1st defendant, and even confirmed it in her written statement
in this case, the 1st defendant will be entitled to get 2/3rd share,
while plaintiff will be entitled to get 1/3rd share in the entire
scheduled property.
38. In the above circumstances we do not find any reason
to interfere with the judgment of the Subordinate Judges Court,
Muvattupuzha in O.S No. 17 of 2015, as regards the share of the
plaintiff is concerned. As far as the share of the 1st defendant is
concerned, we modify the judgment and declare that she is
entitled to 2/3rd share in the plaint schedule property, and hold
that the 2nd defendant is not entitled to any share. The 1st
defendant shall bear the costs of the appeal also. The copy of the
decree and judgment shall be forwarded to the District Collector

concerned for realisation of court fee from the 1st defendant in
the suit, as well as in appeal.
The appeal is allowed in part.
Sd/-
S.V.BHATTI
JUDGE
Sd/-
BECHU KURIAN THOMAS
JUDGE

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