A sale deed remains valid unless convincingly proven otherwise, showing the burden is on the claimant to establish incapacitation of the parties involved.

JUDGMENT :

A. BADHARUDEEN, J.

Plaintiffs in O.S.No.385 of 2007 on the files of the 1^st Additional Sub Court, Kozhikode, who are aggrieved by the decree and judgment in the above suit dated 30.10.2010, have preferred this appeal.

Respondent is the sole defendant in the above suit.

2. Heard the learned counsel for the appellants. Even though notice was served upon the other side, there is no representation.

3. Parties in this appeal will be referred as ‘plaintiffs’ and `defendant’ hereafter for convenience.

4. Plaintiffs approached the trial court seeking partition of plaint B schedule property alleging that the property was originally owned by Janaki Amma, the mother of the plaintiffs and the defendant, and after her death on 06.12.2003, the same was devolved upon them.

Accordingly, the plaintiffs sought ¾ share over plaint B schedule property.

5. The sole defendant, a sibling of the plaintiffs, filed written statement contending that as on 16.11.1998, the defendant purchased plaint B schedule property from Janaki Amma, their mother, and thereafter he mutated the same and has been in possession and enjoyment of the same. Therefore, plaint B schedule item is not partible.

6. The trial court ventured the matter. PW1 and PW2 were examined and Ext.A1 was marked on the side of the plaintiffs. DW1 to DW3 were examined and Exts.B1 to B3 were marked on the side of the defendant. Finally, the trial court dismissed the suit.

7. While assailing the verdict, the learned counsel for the plaintiffs submitted that Janaki Amma was not in a physical or mental condition to execute Ext.B1, as alleged, and therefore Ext.B1 sale deed relied on by the defendant is a false and fraudulent document. Therefore Ext.B1 is to be held as a sham document. However, when the learned counsel for the defandant was asked to justify evidence to support his contention, he relied on the evidence of DW1 to DW3 in this regard. The questions arise for consideration are :

(i) Whether the trial court went wrong in holding that Ext.B1 sale deed conferred title to the defendant?

(ii)Whether the decree and judgment under challenge would require interference?

(iii) Reliefs and cost.

Points (i) to (iii)

8. In this matter when written statement was filed by the defendant asserting title over the entire plaint schedule property on the basis of Ext.B1 sale deed, the plaint was amended seeking the relief of cancellation of the same on the allegation that Janaki Amma lost her speaking capacity and she was not in a position to understand things 10 years prior to her death. The trial court analysed the question as to whether Janaki Amma was incapacitated to execute Ext.B1, as contended by the defendant, so as to cancel the same. The trial court relied on the evidence of PW1, the 3^rd plaintiff, during cross examination stating that Janaki Amma had executed a settlement deed in favour of the plaintiffs in the year 1994 and also evidence by DW1 which would show that Janaki Amma had executed sale deed in favour of the defendant on 09.01.1996 to negate the contention that Janaki Amma was incapacitated to execute a sale deed 10 years prior to her death. Thereby the trial court found that since Janaki Amma admittedly executed the settlement deed in favour of the plaintiffs in 1994, the incapacity as alleged to execute Ext.B1 in favour of the defendant could not be believed. That apart, DW2, the brother of Janaki Amma supported execution of Ext.B1 and also asserted that Janaki Amma had no physical or mental incapacity at the time of execution of Ext.B1. In addition to that, DW3, a witness to Ext.A1, was examined to prove Ext.B1 and his evidence is to the effect that Janaki Amma had no i