Palanivelu and 2 others vs Sadasiva Padayachi (died) and 7 others

l. This appeal is directed against the judgment of the learned Additional Subordinate Judge in A.S.No.58 of-1983 in reversing that of the learned

District Munsif, Panruti in O.S.No.166 of 1982. The plaintiffs in the suit are the appellants in the above second appeal.

The suit was filed for declaration of title of the property in favour of the plaintiffs, for permanent injunction restraining defendants 1 to 3 from

interfering with the plaintiffs'' possession, to put the plaintiffs in possession of suit item No.4 free from obstructions of the first defendant, to put the

plaintiffs in possession of suit items 1 to 3 free from obstructions of defendants 1 to 3 and for future mesne profits.

According to the plaintiffs, the properties originally belonged to Muthu Padayachi, the maternal grand-father of the plaintiffs. He had only two

daughters namely 4th defendant and Rathinambal. The 4th defendant is the mother of the plaintiffs. He had no male issue and in fact both the 4th

defendant and her husband were staying only with Muthu Padayachi looking after him and his properties. Muthu Padayachi executed a Will on

2.4.1970 in a sound and disposing state of mind in favour of the plaintiffs and the 4th defendant and the said Will was duly executed and

registered. It is the last will and testament and Muthu Padayachi died in or about October, 1970. It was specifically recited in the Will that the 4th

defendant is to enjoy the properties without the power of making any alienation or encumbrance till her life time and after her life time, the plaintiffs

should take the properties absolutely. The 4th defendant had only limited interest for enjoying the property till her death. As per a deed of

surrender dated 3.4.1980, the 4th defendant had surrendered and relinquished whole of her rights and interest in the suit property in favour of the

plaintiffs and thus her life interest became terminated as and from 3.4.1980, and the plaintiffs have become absolutely entitled to the suit properties.

The plaintiffs further understood that defendants 1 and 2 on some misrepresentation had certain documents executed by the 4th defendant styled as

sale deeds in respect of the suit properties. The said documents are void and unenforceable and defendants 1 and 2 cannot claim any right tinder

the said documents. However, taking advantage of the said documents, the first defendant in or about 2nd week of June; 1979 unlawfully took

possession of suit item No.4. He is bound to surrender possession of the same. There were several fruit bearing trees in the suit items and the 3rd

defendant appeared to have taken a lease deed from the 2nd defendant in respect of suit items 1 to 3. It is not a valid document. However, taking

advantage of the void documents, defendants 1 to 3 are attempting to trespass into the property and to cut and remove live trees standing thereon.

Hence, the prayer for recovery of suit item No.4.

4 . In the written statement filed by defendants 1 and 2. It was contended that the alleged will executed by Muthu Padayachi was not valid and it

was not executed in a sound and disposing state of mind In 1970 Muthu Padayachi was totally blind and bed ridden with serious illness. He was

very old and was not conscious of his action and therefore the plaintiffs do not get any title to the suit properties under the alleged will. Even under

the alleged will the the mother of the plaintiff was given right to enjoy the properties till her life time. The allegations that defendants had colluded

with Vasudeva Padayachi and had taken fraudulent documents are false. The 1st defendant had purchased 10 cents out of 52 cents in Survey

No.271/2 and item No.4 under a registered sale deed dated 19.6.1978 (Ex.B.1). The 2nd defendant had purchased suit item No.1 and 0.10

cents out of 52 cents in Survey No.272/2 under a registered sale deed dated 4.1.1979 (Ex.B.3) from the same vendors as per the earlier sale

deed. Both the said deeds are fully supported by consideration and for purposes binding on the plaintiffs. Pursuant to the sale deeds, the

defendants have also taken possession of the properties.

The 4th defendant filed separate written statement The 4th defendant contended that she got the properties from Muthu Padayachi under a Will

executed by him on 2.4.1970. The said Will was executed by Muthu Padayachi in a sound and disposing state of mind and was duly attested and

registered. The 4th defendant was given the right to enjoy the usufruct and the produce of the properties only without the power of alienation. On

30.5.1973 the defendant executed a usufructuary mortgage in favour of the first defendant for Rs.1,000 and in fact the title of the 4th defendant

under the will is clearly and specifically recited. In spite of knowing the fact that the 4th defendant has no power of alienation the first defendant

pressed this defendant to repay the amount advanced by him and she paid the entire amount and got back the document with an endorsement of

discharge. She never intended or agreed to sell the suit properties to defendants 1 and 2 and there was no necessity to do so. In June, 1978, she

asked the 1st defendant to lend a loan of Rs.200 to buy ground- nut seeds and the 1st defendant wanted a simple mortgage deed to be executed

for which she agreed. Taking advantage of the fact that she was an illiterate and helpless woman, the 1st defendant had played a trick on this

defendant and got the document in the style of sale deed by fraud, in respect of the properties which were already mortgaged to him. This was

done with the help of the village Karnam who was his close friend. The document was not true or valid and not supported by consideration. She

did not intend to execute any sale deed in favour of the 1st defendant. The contents of the document was not read over to this defendant and she

had simply put her thumb impression thinking that the document was only a simple mortgage deed for a sum of Rs.200. She had already leased out

the produce of four jack trees in suit item No.l to the 2nd defendant for Rs.400. He wanted a registered sale deed to be executed by the this

defendant for which she had agreed. Taking advantage of the fact that this defendant was an illiterate woman, the 2nd defendant had taken a

document from this defendant as if it was a sale deed. The 2nd defendant had obtained the sale deed by fraud and the document was not true or

valid and was not supported by consideration. The value of the trees themselves are worth more than Rs.4,000 and this defendant did not intend to

execute any sale deed. The contents of the documents was also not read over to this defendant and she had put her thumb impression only on the

assumption that it was a lease deed. There was no necessity for her to sell item No.l and 10 cents in item No.2 for a sum of Rs.3,00. Moreover,

the 2nd defendant was an indebted person to the extent of Rs.1,000. On 3.4.1980 she had also executed a registered surrender deed in favour of

the plaintiffs, under which she had relinquished whole of her right and interest. The life interest of this defendant was terminated with the execution

of the said surrender deed. Defendants 1 and 2 are fully aware of the fact that she has no right or power to make any alienation of the suit

properties.

The trial Court on consideration of the evidence held that the Will executed by Muthu Padayachi was proved and valid and that the defendants

had failed establish that the 4th defendant had sold the property to them. The claim that the 4th defendant had validly surrendered her interest in the

property was also accepted by the trial Court and with the result, the suit was decreed as prayed for. The Appellate Court, though upheld the

execution of the Will in favour of the 4th defendant, however held that, the sales in favour of the defendants were for necessity and consideration

and hence valid and therefore, the defendants were entitled to enjoy the properties till the life time of the 4th defendant. The Appellate Court also

held that the surrender was invalid and the possession was with the defendants. With the result, the appeal was allowed to the extent of holding that

the defendants were entitled to hold the properties till the life time of the 4th defendant. Hence, the present second appeal by the plaintiffs.

At the time of admission of the second appeal, the following substantial questions of law have been framed for consideration.

Whether the surrender deed executed by the 4th defendant in favour of the plaintiffs effacing herself is not valid as per the dicta of the Supreme

Court in Natvarlal Punjabhai and Another Vs. Dadubhai Manubhai and Others, and Natvarlal v. Dadubhai, 1960 S.C. 1118

Whether defendants 1 and 2 have discharged their burden of proof in proving that the sale deeds in their favour are valid and duly executed?

Whether there is any real or valid deference between the rights of a holder of Limited Estate under a document as against 8 Limited Estate

Holder in law for the purpose of effecting a surrender in favour of the ultimate beneficiaries?

Mr. Yamunan, learned counsel for the appellants contends that the Appellate Court has totally ignored the main basis on which the sale deeds

have been obtained by defendants 1 and 2 which has been questioned by the plaintiffs as well as by 4th defendant. The question as to whether the

document was vitiated by fraud and misrepresentation said to have been played upon the 4th defendant, has not been properly'', considered by the

Appellate Court. He would further submit that there was no basis for the contention of the defendants that at any rate by virtue of Section 14(1) of

Hindu Succession Act the life interest vested with 4th defendant was ripened into an absolute interest and therefore the sale was valid. In this

context, the learned counsel submits that the very recital in the Will executed by Muthu Padayachi will show that 4th defendant was entitled only to

enjoy the income from the property and that the property as such was not bequeathed in favour of 4th defendant. The recitals "" "" clearly indicates

that it was only a limited interest which would be covered by Section 6(d) of Transfer of Property Act. In this context, the learned counsel relied

on a decision of the Privy Council reported in AIR 1939 157 (Privy Council) and the of the Division Bench of the Orissa High Court in Abhiram

Sabat and Others Vs. Shyamsundar Sabat and Others, . In those decisions, it was held that a mere right to appropriate profits from the property

over which life interest was granted, the interest held was only limited interest u/s 6(d) and therefore not transferable. The learned counsel further

contends that surrender by a widow was valid and enforceable. Reliance is placed on the judgment of the Supreme Court in Natvarlal Punjabhai

and Another Vs. Dadubhai Manubhai and Others, .

Mr. Subramanian, learned counsel for the respondents however contends that the Will admittedly having been executed by a blind person was

nor properly proved. He would further contend that there were no proper allegations of fraud or misrepresentation and there was no proper

compliance of Order 6 Rule 4 of Civil Procedure Code.

It was further submitted that the Appellate Court having held that the alienation by 4th defendant was valid and hence operative till the life time

of 4th defendant, and in as much as she has not been made as a party in the above second appeal, the said relief cannot be questioned since the

decree against 4th defendant has become final. Learned counsel also advanced his argument as regards the effect of Section 14 of Hindu

Succession Act and submitted that the right of the 4th defendant had ripened into an absolute right and hence-she has a valid right to transfer her

interest in the suit property. As regards bona fides of the transaction under Exs.B.l and B.3, he would submit that the registration itself was

sufficient proof of bona fides.

From the facts stated above, three main issues arises for consideration.

(1) The truth and validity of the Will of Muthu Padayachi in favour of 4th defendant.

(2) Whether the sale in favour of defendants 1 and 2 was valid and binding and whether the same would be operative till the life time of 4th

defendant? And

(3) Whether the surrender by 4th defendant in favour of the plaintiffs was true and binding?

Of these issues, in view of the concurrent findings rendered by both the Courts below, as regards the truth and validity of the Will executed in

favour of 4th defendant by Muthu Padayachi, there is very limited scope for the learned counsel for / the respondents to seek to set aside the

concurrent findings rendered by both the Courts below. Though as against the mere finding of fact, the defendants are not obliged to file any

appeal, yet in the present case, the rights of the defendants have been restricted by the Appellate Court only till the life of 4th defendant and the

said restriction is based on upholding the validity of the Will. Therefore it is not open to the defendants to question the finding as regards the validity

of the Will without at least a cross-objection. Even otherwise, I am inclined to consider the submissions made by the learned counsel for the

respondents in this context. According to the learned counsel for the respondents, having regard to the specific admission of the attestor/witness

that the testator was a blind person, the burden of proof was very heavy on the plaintiffs. I am unable to discredit the concurrent findings by both

the courts below, only on the ground that the testator did not have proper eye sight. Blind persons are not disabled from executing documents. The

Court is required only to strictly scrutinise the evidence as regards whether the testator was made aware of the contents of the document and had

signed it after duly understanding the nature of and the recitals in the document. In this case, there is ample evidence to show that the testator was

made aware of the contents of the documents and P.W.2 the Scribe has positively deposed that Muthu Padayachi had, affixed his thumb

impression only after the Will was read over to him. D.W.2 has also deposed that the documents was read over to Muthu Padayachi before he

signed the Will. He is a witness to the document. The Will is also registered. Therefore on due consideration of the evidence, both the Courts have

concurrently and rightly held that the Will was validly executed and no ground is made out for interference with the said issue.

Learned counsel for the respondents however relied on a judgment of this Court reported in Govindan Chettiar etc. v. Akilandam etc. & 24

others, 1997 (3) L. W 673. That was a case which was decided on the peculiar facts and circumstances of the case where the legatee herself took

active part in the execution of the Will and better evidence was held to be required regarding the execution. In that case, the attestors also did not

speak about the testator signing the document. In the present case, both the attestor as well as the Scribe have been examined and they have

spoken to the fact that the testator had signed the document in a sound and disposing state of mind after being informed about the contents of the

Will. Therefore, the facts of the case cited by the learned counsel for the respondents cannot apply to the present case.

On the issue of validity of the sale deeds alleged to have been executed in favour of defendants 1 and 2, according to the plaintiffs the said

documents had been obtained by misrepresentation and hence they are void and unenforceable. Even as stated earlier, according to 4th defendant

who is the executor of the documents, the sale deeds had been obtained fraudulently and taking advantage of herself being a illiterate person and

the thumb impression had been obtained front her on representation that one document was a mortgage deed and other one was a lease deed. She

had further stated that the value of the trees themselves were worth more than Rs.4,000 and there was absolutely no need for executing a sale

deed for a sum Rs.3,000. It was further stated that the 2nd defendant himself was an indebted person. In effect, her defence was that the entire

transaction and both sale deeds were vitiated by fraud and non-est factum. The question arises for consideration is as to whether the parties have

discharged their mutual burden of proof.

From the very nature of the pleadings of 4th defendant, it is seen that her defence is one of fraud and non-est factum. It is settled proposition of

law, that the principle relating to non-est factum which was made applicable to pardanashin'' ladies, was also made applicable to illiterate women,

vide judgment of the Division Bench of this court reported in Chidambaram Pillai and others v. Muthammal and another. 1993 (1) L.W. 466. The

said principle has been followed in a number of decisions of this Court. For instance, in the decision reported in Thirumalai Vadivu Ammal (died)

and 4 others Vs. Muthammal and another, . It is true that the said principle cannot be invoked in each and every case where the executant is an

illiterate person. It has to be first of all established that the executant was not only an illiterate person and also the circumstances should indicate

positively that he or she was made to believe that the nature and contents of the document were something different and that the signatory''s ""mind

did not accompany her signature"". In the present case, such initial burden on the part of the plaintiffs and 4th defendant are adequately discharged.

Not only 4th defendant had been examined as a witness, but the circumstances also indicate that the properties had been sold for a low sum for

which there need not have been a sale and that the very same property could have been mortgaged. In fact, D.W.3 being one of the purchasers

had stated that -4th defendant had earlier obtained loan from him and had executed mortgage of the property earlier for a sum of Rs.1,000. She

had subsequently paid the amount and discharged the mortgage within six months. Therefore, there was no necessity for 4th defendant to have sold

the property to meet the necessity of borrowing only Rs.200 as required by her. Therefore, the initial burden to establish non-est factum having

been satisfactorily discharged the entire burden of proving the validity of the transaction, shifts on to the purchasers. This issue was correctly

focused by the trial Court which took note of the fact that inspite of the specific plea of 4th defendant, no attempt was made by the defendants to

examine either the Scribe of both the documents or even any one of the attestors'' of Exs.B.l and B.3. No explanation has also been offered for not

examining any one of them. It is further more strange that the 2nd defendant who is the purchaser under Ex.B.3 had not even chosen to examine

himself as a witness in the face of specific plea of non-est factum. In this background it is rather unfortunate that the Appellate Court should have

thrown the burden wrongly on the plaintiffs and had observed that the plaintiffs had not examined the witnesses to the sale deeds. Even under

normal circumstances, when the validity or the truth of a document is questioned, the party to the document takes care to examine the witnesses or

the Scribe in order to prove the document. A fortiori, in a case where'' fraud and non-est factum is alleged, the burden is heavier only on the

person who wants to establish the validity of document and in the present case, the Appellate Court had chosen to throw the burden on the wrong

side. While considering the burden of proof in cases of non-est factum in Mst. Kharbuja Kuer Vs. Jangbahadur Rai, , the Supreme Court had

clearly laid down that the burden of proof was on the defendant who wanted to sustain the document. The same view was expressed by the

Division Bench in the earlier ruling cited above in Chidambram Pillai and others v. Muthamma and another, 1993(1) L.W 466.

To reiterate the nature of evidence adduced on the side of the defendants, in the present case, the purchaser of one item of the property under

Ex.E2 had not chosen to get into the witness box and neither the Scribe nor any one of the witnesses of both the documents had been examined.

No explanation had also been offered for the non examination. The only purchaser, the 1st defendant who chose to examine himself as a witness

had admitted that, he did not seek for any encumbrance certificate before the purchase. He has also admitted that 4th defendant was an illiterate

person. Therefore in the face of such dismal and unsatisfactory evidence on the side of defendants 1 and 2, the findings of the Appellate Court that

Exs.'' B.1 and B.3 are true and valid, cannot at all be sustained,

Learned counsel for the respondents further relied on the judgment of K. Sampath, I reported in Hameed Ghosh Beevi and another Vs. Abdul

Hayoom and another, . In that case, learned Judge held that, where it was alleged that the sale deed executed by ladies were believed by them to

be a mortgage deed, the defence witnesses had been examined establishing that the attesting witnesses had read over the documents and explained

the contents to the executants before executing them. Under those circumstances, the learned Judge held that the defendants have discharged their

burden of proof and the onus was on the executant. The facts of the said case cannot at all apply to the present case for the simple reason that

neither the attesting witnesses nor the Scribe of the documents Exs. B.1 and B.3 have been examined. There is also no evidence to the effect that

the documents were read over and explained to 4th defendant before she had affixed her thumb impression on the said documents. Therefore, I

am unable to sustain the findings of the Appellate Court upholding the transactions under Exs.B.l and B.3. Even if the said documents are to be

held only as voidable and not void, all the executants having challenged the transaction, the said transaction cannot bind the executants and have to

be declared as vitiated and set aside.

Learned counsel for the respondents also relied on some of the rulings of the Supreme Court and this Court contending that there was no

proper compliance of Order 6 Rule 4, namely, there were no sufficient pleading of fraud and misrepresentation. Relying on the judgment of the

Division Bench reported in K. Kanakarathnam Vs. A. Perumal and another, the learned counsel also contended that, findings of misrepresentation

and fraud cannot be interfered u/s 100, C.P.C. In the present case, I have already pointed out that the Appellate Court had completely cast the

burden of proof wrongly on the plaintiffs. The Appellate Court had also ignored the fact that in spite of the plea of fraud and non-est factum, the

defendants had not examined the Scribe or the witnesses to the documents. Therefore the said findings of the Appellate Court is not only vitiated

by illegality but also by perverse appreciation of the facts and evidence.

When once the transaction under Exs.B.l and B.3 are found to be vitiated due to fraud and non-est factum, the other issues do not arise for

consideration, such as, whether the 4th defendant had become the full owner of the property by virtue of Section 14(1) of Hindu Succession Act

and whether the surrender effected by her was operative or not. It is unnecessary to go into those issues.

The only point which requires further consideration as raised by the learned counsel for the respondents is that, 4th defendant ought to have

been impleaded as a party in the suit itself, but the plaintiffs did not implead her as a party. 4th defendant came on record at her own instance. It is

further stated that by virtue of the decree of the Appellate Court, there was a decree against 4th defendant and the 4th defendant not having been

made as a party to the second appeal, the said relief granted in favour of the defendants cannot be set aside. According to the learned counsel,

under Order 1, Rule 9 of Civil Procedure Code, the Court was bound to decide the controversy, insofar as the rights and interest of the parties

actually before the Court. In reply to this point, Mr. Yamunan contends that the First Appeal was filed only by defendants 1 and 2 without

impleading the 4th defendant and perusal of the judgment and decree of the Appellate Court would show that 4th defendant had not been made as

a respondent in the appeal, and it is only in the said circumstances, 4th defendant was not impleaded in the second appeal. I have perused the

records of the Appellate Court in this context and I find that though in the original grounds of appeal 4th defendant was not impleaded as a party,

in the amended appeal memo, 4th defendant has been impleaded as 4th respondent in the appeal. However, the office of the Appellate Court had

erroneously not taken notice of the same and in the judgment as well as in the decree, the 4th respondent has not been shown as a party.

Mr. Yamunan contends that even otherwise 4th defendant was not a necessary party. He relies on the judgment of the Supreme Court in

Radha Rani Bhargava Vs. Hanuman Prasad Bhargava, , wherein it was held that in a case of alienation by the Hindu widow without legal necessity,

neither the widow nor the heirs of the widow were necessary parties. It was held that an alienation without legal necessity was void beyond the

widow''s life time and the widow be generally added as a party to such a suit. She was only a proper party the heirs of the widow would not be

necessary parties to the suit.

I am inclined to hold that this controversy is immaterial. No relief has been claimed against 4th defendant in the suit nor was there any decree

against 4th defendant by the Appellate Court. All that the Appellate Court has held is that the decree granted in favour of the plaintiffs was not

executable during the life time of the 4th defendant. As such, the presence or absence of 4th defendant is really immaterial.

As a result of holding that the transaction under Exs. B.1 and B.3 are vitiated by fraud and non-est factum, the plaintiffs are entitled to succeed.

With the result, the appeal is allowed and the suit is decreed as prayed for. No costs.