Appellant is the absolute owner in the possession of the plaint A and B schedule properties having an extent of 4 acres 56 cents and 70 cents respectively. She derived the title to these properties as per a partition deed bearing No. 2007 of 1969 of Kothamangalam SRO and purchase certificates bearing Nos.2422 of 1976 of the Land Tribunal, Kothamangalam and 6578 of 1976 issued by the Special Tahsildar, Land Tribunal, Ernakulam. Appellant’s husband expired on 06.04.2016. She has a son, who is pursuing a legal profession. Respondent has married away and they are well settled in life.
Appellant stated, she has executed a registered Will in the year 2006, bequeathing certain properties belonging to her in the names of the respondents and her son. During 2016, the respondents approached the appellant many times requesting to settle the properties as per the terms of the bequest so that they could enjoy the properties in praesenti. As per the aforementioned Will, 1 acre 52 cents each, out of a total area of 4 acres 56 cents of land, was bequeathed to each respondent and her son. Appellant had no objection in executing a deed of settlement by the terms of the Will.
The Appellant was aged 82 years at the time of the institution of the suit. She, being aged and ailing, bonafide believed that the respondents would not betray her and therefore agreed to execute the settlement deed in tune with the Will. Without reading over the documents and without explaining the contents thereof, she was made to execute them by the respondents and their husbands. Later, she came to understand that more extent of properties had been included in the documents under challenge than agreed to and such items were included by practising deception, fraud and misrepresentation on her.
Whether the appellant is indigent or not?
Arguments by the Appellant
The learned counsel appeared for the appellant contended that item Nos.2 in Exts.A2 and A3 are lands not mutated. It is admitted by the respondents that only 3.62 acres are the extent of land mutated in the name of appellant and balance extent has not been mutated. It is also contended on behalf of the appellant that the entire property is now covered by the disputed documents, indicating that the appellant is out of possession of the same.
Arguments by the Respondent
The learned counsel appeared for the respondents contended that this argument is against her pleadings in the plaint. It is true, the appellant cannot be permitted to deviate from her pleadings in the plaint.
Learned counsel for the respondents placed reliance on two
Division Bench decisions in the case:
- Mini James v. T.I.Goerge and Others (2018 (5) KHC 744) and
- Palakkil Puthiyamaliyekkal Abdul Razak v.P.K.Saleem ( 2018 (5) KHC 336),
In the above two cases mentioned the provisions in Order XXXIII of the Code were interpreted to hold that suppression of real facts would entail disallowing the prayer of the applicant to sue as an indigent person.
The Court observed that the appellant failed to personally testify or adduce any evidence before the court to establish that omission to include all her properties in the application was a bona fide mistake.
The Court found that there was no reason to interfere in the impugned order and therefore dismissed the appeal and also dismissed all the interlocutory application.
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