Arumugham Chettiar vs Ganapathi Chettiar and Others

Ramanujam, J.—The unsuccessful Plaintiff in Original Suit No. 106 of 1971 on the file of the Sub Court, Tiruchirapalli is the Appellant

herein.

He filed the suit for partition and separate possession of his alleged half-share in the suit items land 3 to 7 or in the alternative in items 1 to 6 and

for accounting from 27th December 19.70. His case as set out in the plaint was as follows: The Plaintiff is the younger brother of the first

Defendant and Defendants 2 and 3 are the sons of the first Defendant Fourth Defendant is an allience of the plaint it m 2 from the Plaintiff father.

Fifth and sixth Defendants are cultivating items 3 and respectively. The Plaintiff''s father died on 27th December 1970. I here was a partition

between the father of (SIC) Plaintiff the first Defendant and the Plaintiff on 26th February 1959 under which items 1 to 6 were given to the

Plaintiff''s father, Subramania Chettiar for the life with (SIC) remainder in equal moieties to Plaintiff on the one hand and Defendants 1 and 2 on the

other. The Plaintiff''s father, however, sold the second item on 1st June 1965 for a sum of Rs. 10,000 to the fourth Defendant but that sale is not

binding on the Plaintiff. In any event, the Plaintiff''s father having purchased plaint item 7 from the sale proceeds of plaint item 2 on 3rd February

1967, the said item 7 should be taken to (have been substituted for item 2. The Plaintiff''s father was ailing for two years before his death and he

was infirm both physically and mentally. Taking advantage of the physical and mental infirmity of the Plaintiffs father who was aged 75 and who

was living with the first Defendant, the first Defendant has managed to bring into existence two settlement deeds dated, 2nd March, 1970 and

22nd May 1970. The said settlement deeds are not true and genuine. Even if the settlement deeds are taken to be binding on the Plaintiff, who has

acquired vested remainder under the partition deed dated 26th February 1959, the Plaintiff is entitled ignore the said settlement deeds and claim his

half share therein. Under the two settlement deeds dated 2nd March 1970 and 22nd May 1970 the Plaintiff''s father has purported to settle the

plaint item 7 in favour of the first Defendant and the southern half of item 5 to Defendants 2 and 3. It is on these allegations the Plaintiff sought the

relief of allotment of his half share in the suit properties as indicated above.

The suit was resisted by Defendants 1 to 3 by raising common defense. They (SIC) that under the Petition deed, dated 25th February 1959 be

father was given absolute right with power of (SIC) in respective of the plaint items 1 to 6 and he has exercised (SIC) right during his life time by

executing a sale of one item and settlement deeds in respect of others. The (SIC) deeds dated 2nd March, 1970 and 22nd May 1970 are true,

valid and genuine and that the same bad been executed by the Plaintiff''s father voluntarily and without any undue influence. Since the Plaintiff''s

father had been given the absolute right in respect of the properties allotted to his share under the partition deed, dated 26tb February 1959, the

Plaintiff cannot question the alienation made by the father. The fourth Defendant allience of plaint item 2 resisted the suit contending that the

alienation was true and valid, that the Plaintiff was aware of the alienation in his favour and that he having failed to challenge the same is bound by

the same. Defendants and 6 who are the lessees of some items of the suit properties-remained expert. The fourth Defendant, who has filed a

written statement subsequently remained expert at the stage of the trial.

On the above pleadings the following issues came to be framed at the stage of the trial:

(1) Whether the Plaintiff''s father, Subramania Chettiar was given only life interest under the registered document, dated 26th February 1959 as set

up by the Plaintiff ?

(2) Whether the settlement deeds dated 2nd March 1970 and 22nd May 1970 are binding or the Plaintiff or (SIC) due to any of the reason

alleged in the plaint ?

(3) Whether Plaint item No. 7 is not self-acquisition of the Plaintiff''s father ? and

(4) Is the Plaintiff entitled to partition and accounting ?

The Court below, after analyzing the evidence, held that under the partition arrangement, exhibit A-1, dated 26th February 1959 the Plaintiff''s

father has been given absolute right in item 1 to 6 of the plaint schedule which had been shown as a schedules in exhibit A-1. partition deed. On the

second issue the Court below held that the settlement deeds exhibits B-5 and B-6 were true and genuine and that the same are not vitiated due to

any of the reasons alleged in the plaint. On the third issue the Court below held that the Plaintiff''s father had purchased plaint item 7 for Rs. 12,000

on 3rd March 1967 under exhibit B.4 and the said property is the absolute property of the Plaintiff''s father and that therefore, the settlement deed

exhibit B-5 executed by him covering those properties in favour of the first Defendant is valid and binding on the Plaintiff. The Court below also

held that the settlement deed exhibit B-6 under which some items have been given to Defendant 2 and 3 by the Plaintiff''s father are also valid and

binding on the Plaintiff. In view of the findings on the above issues, the Court below held on issue No. 4 that the Plaintiff is not entitled to the relief

of partition or for accounting. In this view the suit came to De dismissed.

ln this appeal the learned Counsel for the Appellant submits that the Court below is in error in holding that the Plaintiff''s father Subramania

Chettiar was the absolute owner of the properties allotted to him under exhibit A-1 that the Court below has not properly (SIC) the recitals in

exhibit A-1, that on a proper (SIC) of the recitals in exhibit A-1 it has to be held that the properties set out in Schedule A of exhibit A-1 were

given (SIC) Plaintiff''s father only for his life with a vested remainder for both the sons on the death of the Plaintiff''s father and that even assuming

than Subramania Chettiar was allotted items 1 to 6 of the (SIC) schedule absolutely under the partition deed exhibit A-1, the settlement deeds said

to have been executed by him are void and not binding on him as they have been executed while he was infirm both physically and mentally and

while he was living with the first Defendant under his dominating influence.

The Appellant-Plaintiff has examined himself as. P.W. 1 and three other witnesses as P.Ws. 2 to 4 who are the pangalies of his father to prove

that the ''Plaintiff''s father was bed-ridden for one yea. before his death on 27th December 1970. The first (SIC) has-examined himself as D.W. 1

apart from examining D. Ws. 2 to 5.D.W 2 is an attestor and identifying witness to exhibit B-5. settlement deed for plaint item 7 executed on 2nd

March 1970. He is the co-brother of the first Defendant. The other attestor to exhibit B-5 settlement deed is one Arumugam, a pangali of the

Plaintiff''s father. D.W. 3. is the scribe of exhibit B-5. settlement deed and D.W. 4 is the scribe of exhibit B-6 settlement deed. The settlement

deed exhibit B-6 has been registered at Trichy and exhibit B-5 settlement deed was executed at Musiri D.Ws. 2 and 3 have spoken to the due

execution and attestation of exhibit B-5 settlement. They have also deposed that exhibit B-5 settlement was voluntarily executed out of his own

free will by the Plaintiff father while be was in a sound and disposing state of mind with full knowledge of its contents. As already stated, D.W. 2 is

the attestor and identifying witness to exhibit B-5 settlement deed and he is the co-brother of the first Defendant. Similarly the executor of exhibit

B-6 has been duly spoken to by D.W. 4, the scribe. His has also deposed that exhibit B-6 settlement deed was executed by the Plaintiff''s father

of Jus own free will while be was in a sound and disposing state of mind. There is no medical evidence adduced by the Plaintiff to substantiate his

assertion that this father was infirm both physically and mentally at the time of the execution of exhibits B-5 and B-6 settlement deeds. in the ligbt of

the said oral evidence which is sufficient to prove the due execution of the settlement deeds by the Plaintiff''s father, the other question that remains

to be considered as regards the settlement deeds is whether they are vitiated by undue influence.

before dealing with the above question, we would like to dispose of the main question as to whether the A schedule properties allotted under

exhibit A-1 partition to the Plaintiff''s father are his absolute properties or whether the said properties have been given to the Plaintiff''s father to be

enjoyed during his lift time. Exhibit A-1 is the partition deed in which. A schedule property has been allotted to the Plaintiff''s father. Items 1 to of

the (SIC) properties have been included in the A schedule to exhibit A-1. That the Plaintiff items 1 to 6 have been allotted to the Plaintiff''s father in

the partition is not in dispute now. The question is whether be has got a life interest in these properties as alleged by the Plaintiff or whether he

takes the allotted properties absolutely. The operative portion of exhibit A-1 partition deed dealing with the allotment of properties says:

The above extract clearly indicates that A, B and C schedule properties allotted to the various sharers will be enjoyed by them absolutely from son

to grand-son with powers of alienation. Subsequently the document provides:

In the B and C Schedules which have been allotted to the first Defendant and the Plaintiff also contain a half-stare in the A schedule which may

come to them on the death of their father. Thus, if the recitals given in the schedules are alone to be taken into accounts then Subramania Chettiar

to whom A schedule properties have been allotted can be taken to be only a life estate holder with no absolute rights over the properties.

However, we are not inclined to proceed only on the basis of the recitals contained in the schedule. The reason for including half-share in the A

schedule properties in B and C. Schedules is given in the following passage occurring in paragraph 4 of the document:

According to the learned Counsel for the Appellant the expression occurring in the above extract would clearly indicate that Subramania Chettiar

has been given rights to enjoy the properties during his lifetime and he has no absolute right to alienate the properties. It is no doubt true that the

extract given above, if taken as the sole consideration, Subramania Chettiar can be taken to have only a life interest. But be above extract has to

be read along with the earlier operative portion in the document where all the sharers have been given an absolute right in the properties allotted to

each of them. The expression:

would indicate that the sharers are to take the properties allotted to them absolutely. It is well-established that, if there are two inconsistent

provisions in a document the earlier clause giving an absolute right has to prevail. It is also well-established that document should be read

homogeneously and the earlier clauses in the document should be given effect. If we consider the document exhibit A-1 in this light, the expression:

occurring in the last portion of the document can only, be taken as providing for devolution of interest if the properties are left by Subramania

Chettiar indisposed on his death. This is the view taken by the Court below and we do not see any reason for interfering with the said interpretation

which is consistent with various rules of interpretation of documents. The learned Counsel for the Appellant relies on the decision of this Court in

Govindaraja Pillai and Others Vs. Mangalam Pillai and Another, and Ramachandra Shenoy and Another Vs. Mrs. Hilda Brite and Others, in

support of his submission that the latter clause dealing with the devolution of interest after the death of the Plaintiff''s father should be taken to be a

gift over without diminution. The first case arose out of a pre-nuptial agreement wherein the wife died without any issue and so it was held that the

brother of the wife take absolutely the properties of the deceased after making a distinction between the repugnant provision and defeasance

clause. In the second case it Was held that the daughter gets only a life estate and on her death her sons take her properties absolutely The

decision in that case is based on the recitals in the document which came up for consideration in that case. The above decision may not, therefore,

be useful to the Appellant.

The learned Counsel for the Respondent, on the other band relies on the decision in Abdul Rahiman Sahib and Others Vs. Uthumansa Rowther

and Others, and Pugalumperumal Pillai Vs. Thangathammal, in suport of bis contention that once an absolute title has been granted that at right

cannot be curtailed by the subsequent defeasance clauses in the document. In the first case a Muslim father gave absolute gift to his two sons in the

earlier clause of the document, but in the latter clause purported to restrain the power of alienation and gave the same property to his grand-sons

absolutely . It was held that the latter clause is repugnant to the former and should not be given effect to treating the latter clause as only a pious

wish. In the second case, Govinda Menon J., speaking for the Bench held that a latter clause in a gift deed which is repugnant to the earlier creating

an absolute interest is void and unenforceable. We are on the view that in this case the subsequent clauses in exhibit A-1 which take away the

absolute right given to the Plaintiff''s father should be taken to be a defeasance clause use and, therefore, if should be taken to be only a pious wish.

The Subsequent clause can be taken to operate only in case where the Plaintiff''s fatter leaves the properties on his death without any alienation

during his life time and not otherwise.

This leads us to the next question as to whether the settlement deeds exhibits B-5 and B-6 have been brought about by the first Defendant by

exercising undue influence over the Plaintiff''s father. It is no doubt true that the Plaintiff''s father was 75 years old at the time of his death and that

even after the partition under exhibit A-1 he was living with the first Defendant and that the first Defendant was taking care of him. Merely because

the first Defendant was looking after his father in his old age it cannot betaken advantage of by Plaintiff to say that the fusty Defendant bad

dominating influence over his father. As a matter of fact after the partition under exhibit A-1, the Plaintiff''s father has chosen to sell item 2 of the

suit properties which has been allotted to him and later on chosen to purchase another item of property instead. This shows that the Plaintiff''s

father was in a position to attend to his own affairs without any help or advice from the first Defendant. Though in this case the Plaintiff has

attacked the validity of the setllement deeds exhibits B-5 and B-6 on the ground that they have been brought out by exercise of undue influence,

the sale of item 2 and the purchase of item 7 by the Plaintiff''s father has not been questioned as having been brought about by undue influence.

This would indicate that the Plaintiff''s father was in a position to manage his own affairs without reference to the first Defendant. Though it is

alleged that the Plaintiff''s father was infirm both physically and mentally, no evidence worth mentioning has been adduced. Therefore it has to be

assumed that the Plaintiff''s father was not mentally and physically infirm at the time when he executed the settlement deeds. From the fact that the

first Defendant is the son of the executants of the settlement deeds exhibits B-5 and B-6, it is not possible to infer that the first Defendant had a

dominating influence over his father. Even assuming that the first Defendant as the son was looking after his father and as such had some influence

over the father''s actions, it has not been shown to be an undue influence. It is true the settlement deeds exhibit B-5 has been executed in favour of

the first Defendant and exhibit B-6 bas been executed in favour of his sons, Defendants 2 and 3. But from that fact alone undue influence cannot be

inferred. It may be that the Plaintiff�s father who has been looked after by the first Defendant ever since the date of partition under exhibit A-1

had intended to give his absolute properties obtained on partition to him and his sons. As already stated, D. Ws. 2, 3 and 4have deposed that the

father Subramania Chettiar had executed the settlement deeds volurtarily of his own free will and accord and there was no compulsion or under

influence. Since the possibility of the Plaintiff'' father having executed the settlement deeds out of natural love and affection to the first Defendant

and his sons cannot be ruled on and as there is no evidence of the� Fust Defendant using undue influence, we have to uphold the validity of the

settlement deeds in this case.

The learned Counsel (SIC) Appellant refers to a Bench, decision of this Court in M.A. Abdul Malick Saheb Vs. T.P. Muhammad Yousuf

Sahib and Others, in support of his submission that on the facts of this case as resumption of undue influence arises and the (SIC) is on the first

Defendant to prove that the settler acted independently. In that case a child had executed a gift in favour of the parent. While dealing with the

question, of presumption of under influence the Court pointed out that the mere existence of fiduciary relation between the done and donor raises

the presumption of under influence and the court will hold the transaction to be bad unless the presumption is rebutted by cogent evidence adduced

by the done, that the transaction being in the nature of (SIC) from a child in favour of the parent the presumption of (SIC) influence arose and that

the special relationships like (SIC) and child, (SIC) and client doctor and patient, guardian and (SIC) adviser or (SIC) and parishioner (SIC)

classes because the law throws a mantle of (SIC) by raising a rebuttable presumption of (SIC) The facts of that case may not apply to the facts of

the case before us far here it is the father who had given his absolute to on of his sons (SIC) and his son''s sons. As already pointed. (SIC) the

settler was looked after by the first Defendant in his old age and the father in all probability might have liked to benefit the first Defendant by settling

his porpertier on him. In this view of the matter we do not see any justification for interfering with the conclusion arrived at by the Court below. The

appeal is, therefore, dismissed with costs.