Pattu Ammal alias Krishnammal vs Balasekar and 2 others

Jagadeesan, J.—The third defendant in O.S. No. 90/72 on the file of the Sub-Court, Cuddalore is the appellant herein. The plaintiff, the first

respondent herein, filed the said suit for declaration of his title to the suit property and for recovery of possession. The case of the plaintiff is that his

father Marimuthu Banal is the son of the first defendant. The second defendant is another son. and the defendants 3 and 4 are the daughters of first

defendant. The plaintiff''s father was employed in the French Army Service and he has been sending amounts to his mother, the Mrs. defendant

herein since the plaintiff was residing with the first defendant and out of the funds the first defendant purchased the suit property on 5.12.1958

under Ex. B-3, the registration copy of the same has been marked as Ex. A-19 from one Kothandarama Chettiar. On the very next day i.e., on

6.12.1958 the first defendant executed a registered settlement deed Ex. B-4 (Ex. A-20 is the registration copy) in favour of both son Marimuthu

Bal, and grandson the plaintiff. Under the said settlement deed, the father of the plaintiff was given the life estate and thereafter the plaintiff an

absolute estate, The father of the plaintiff died in the year 1969. At that time, the plaintiff was a minor and he attained majority on 17.7.1969.

Thereafter since the attitude of the first defendant towards the plaintiff had totally changed, the plaintiff demanded the first defendant to hand over

possession of the suit property and there were exchange of notices. The first defendant denied the execution of any settlement deed and hence the

suit has been filed. The defendants 2 to -1 have been impleaded as parties to the proceeding, as they are in occupation of the suit house. The first

defendant, the grand-mother of the plaintiff filed the written statement which was adopted by the other defendants. In the written statement, the first

defendant contended, that the suit house belongs to her absolutely and that the case of the plaintiff that the sale consideration was paid by his

father, is not true and that she agreed to execute the settlement deed in favour of her children and the plaintiff''s father got the signature of the first

defendant in the settlement deed, representing that the settlement deed is in favour of all the children and in fact she bonafidely believed the

representation of her son Thangavelu as correct and executed the deed and she was under the impression that the settlement deed was written

according to her wishes. But only later she suspected and took the registration copy of the document and found that it was not written as directed

and according to her wishes. So she executed the revocation deed on 23.11.1961 under Ex. B-5, revoking the earlier settlement deed dated

6.12.1958. Her son Thangavelu (father of the plaintiff) handed over the original settlement deed to her as early as 1959 and since the settlement

deed was not acted upon the same cannot be enforced. Further the said settlement deed is vitiated by fraud, undue influence and

misrepresentation. The plaintiff has no right to the suit property.

On the basis of the above pleadings, the trial Court framed as many as seven issues and ultimately dismissed the suit finding that the sale

consideration for Ex. B-3 was paid only by the first defendant and the plaintiff had miserably failed to establish his case that the sale consideration

has been paid from out of the funds provided by his father. In respect of the settlement deed Ex. B-4 is concerned, the trial Court has found that

the settlement deed is true but not valid, since the same was brought about by fraud and misrepresentation.

The plaintiff preferred an appeal A.S. No. 241/75 on the file of the District Court, South Arcot, Cuddalore. The lower Appellate Court had

reversed the judgment of the trial Court and decreed the suit by its judgment and decree dated 7.4.80. Aggrieved by the same, the present Second

Appeal has been filed by the third defendant alone.

The learned counsel for the appellant contended that the plaintiffs case that the suit property was purchased on 5.12.1958 by the first defendant

and on the very next day the settlement deed was executed, cannot be accepted for the simple reason, there is no necessity to get the sale deed in

favour of the first defendant and immediately thereafter to execute the settlement deed in favour of the father of the plaintiff and the plaintiff. Instead

of that, the sale deed itself could have been obtained in favour of either the plaintiff''s father or the plaintiff. There is absolutely no reason as to why

the sale deed was got executed in favour of the first defendant. By virtue of the Prohibition of the Binami Transactions (Prohibition) Act, it is not

open to the plaintiff to claim that the property was purchased in the name of the first defendant, only from out of the funds provided by the father of

the plaintiff. Further as the first defendant was aged, she believed the version of her son and executed the settlement deed only under the pretext

that the settlement deed is in favour of all the children. As fraud has been played by the father of the plaintiff and she had believed the

misrepresentation, the settlement deed is vitiated. The plaintiff cannot claim any right under the said document.

On the contrary, the learned counsel for the respondents contended that the case of fraud, as pleaded by the first defendant, has not been

established by any evidence. The lower Appellate Court has rightly relied upon the evidence of the witness P.W. 2, wherein he had stated that

before ever the 1st defendant signed the document, the recitals were read over and explained to her and came to the conclusion that the first

defendant had executed the document only after fully knowing the recitals herein. The said finding being question of fact, the second appeal is liable

to be dismissed.

I carefully considered the contention of both the counsel. The main contention of the counsel for the appellant is that the first defendant

purchased the property under Ex. B-3 on 5.12.1958 and immediately on the very next day the first defendant executed the settlement deed under

Ex. B-4 in favour of the plaintiff''s father for his life and thereafter the plaintiff for an absolute estate. The plaintiff has not given any reason as to why

the property was purchased in the name of the first defendant, when the consideration is said to have been paid by the father of the plaintiff.

Instead of taking the sale deed in favour of the first defendant, straightway the purchase could have been in favour of either the plaintiff''s father or

the plaintiff. Hence the theory of benami also was not established.

It is seen that the plaintiffs specific case is that his father was sending money for the maintenance of the plaintiff who was staying with the first

defendant. From out of the amounts sent by the plaintiff''s father, the suit property had been purchased by the plaintiff and the same was settled in

favour of the plaintiff''s father and the plaintiff. The recital in Ex. B-4 the settlement deed is clear in terms that the first defendant purchased the

property from out of the savings made by the first defendant, out of the amount sent by the Plaintiff''s father towards the Plaintiff''s maintenance.

The recital in the deed is as follows:

As pointed out by the lower Appellate Court, irrespective of the passing of the consideration for the purchase of the property, the matter can be

disposed of on the question of whether the settlement deed is valid or not. But since both the Courts below have elaborately considered the

question as to who has paid the sale consideration under Ex. B-3 incidentally that question can also be dealt with here.

Apart from the recitals in Ex. B-4 referred to above, P.W. 1, the step mother of the plaintiff has categorically stated in her evidence that her

husband was in the military service in France and as such a portion of his salary has been paid to the members of his family at India ;and since the

plaintiff was residing with his grand mother, the first defendant, a portion of the salary of the plaintiffs father was paid to the first defendant and from

out of the said sum. the property has been purchased. When prima facie it is established even from the recital of Ex. P-4 that the sale consideration

has been paid from out of the amount received on behalf of the plaintiff''s father or paid by him, then the burden shifts on the first defendant to

establish that she had source to purchase the property. Since the lower Appellate Court had elaborately discussed on this aspect and found that

the defendant had no source to purchase the property then it has to be concluded that the first defendant had purchased the property only from out

of the amounts received by her either from the plaintiffs father or on behalf of the plaintiff. In fact the lower Appellate Court has discussed in

paragraph 7 of the judgment regarding the first defendant''s claim with regard to the source of income and found that the same had not been

established. The first defendant has claimed that she derived income from three sources; one is toddy shop, second is a small portion of the land

and the third is mango garden. In her evidence, she had admitted that the toddy shop had been closed immediately after her husband''s death.

which is long prior to the purchase of the suit property. So far as the land is Concerned, she had deposed that the land is under usufructuary

mortgage and she is not enjoying the same. Hence she cannot derive any income. The only remaining source, the mango garden is concerned, it is

admitted that it is in the Government poramboke land and she is entitled only to take the yield but she has not given any detail with regard to the

number of trees and the income derived therefrom. Hence the lower Appellate Court rightly came to the conclusion that the first defendant has not

established her source of income for purchase and P.W. 1''s evidence along with recitals in Ex. P-4 establishes that the suit property has been

purchased from the amount provided by the plaintiff''s father. As stated already, this is not a material issue, since it is the case of the 1st defendant

that, a fraud has been committed by the plaintiff''s father and she had executed the settlement deed under misrepresentation. Hence it is to be seen

whether the settlement deed has been executed by the first defendant only under fraud and misrepresentation of the plaintiffs father.

The counsel for the appellant contended that though normally the burden is on the person who put forth the plea of fraud and misrepresentation

so far as the transaction relating to an illiterate woman is concerned, the burden is on the other side to establish that the illiterate woman had

executed the settlement deed out of her own volition without any influence and she has also got other source of advice. The learned counsel for the

appellant relied upon several judgments. It is unnecessary to repeat the same except to refer three cases. In the judgment reported in K.Varadhan

V.Pattammal (Died) and four others (1992-2-L. W. 209) it has been held as follows:

Courts in India have on the rule of evidence enshrined in Ss. 101 and 102 in Chapter VII of the Evidence Act, particularly in cases of women in

India who in some parts and some communities are pardanashin and in most parts of the country illiterate, for the reason that they transact their

business generally through male folk only, men always dominated women, and women lived a life dominated by man, this being the curse that

always surrounded womenfolk even though law recognised their independent rights, they failed invariably in exercising such rights, accepted that

onus lies upon the defendant to show that there has been no fraud, undue influence or coercion in the transaction. One could easily, since the

plaintiff alleged misrepresentation and fraud, ask her to prove the misrepresentation and fraud. But not in a case where she being an illiterate and

unaware of the contents signed the document. Unless fully and faithfully informed about the contents, she cannot be asked to bring evidence to

prove her case.

In the judgment reported in Rankanidhi Sahu v. Nandakishore Sahu (AIR 1990 Orissa 64) it has been held as follows:

Law is well settled that the principles which govern proof of execution of documents taken from paradanashin woman are equally applicable to

documents taken from illiterate woman. (AIR 1983 Orissa 172). Brundaban Misra v. Iswar Swain. Further in a case of execution of a document

by an illiterate Paradanashin woman, burden is heavy on the person getting advantage under the document to establish that the contents of the

document were read over and explained to her, she understood them, she had independent advice at the relevant time and that the execution of the

document was not only a physical act, but also a mental act.

Yet another judgment is that of my learned brother Justice Raju reported in Dharman v. Marimuthu (1996 - 2 - L.W. 600). In this judgment,

the learned Judge had elaborately discussed the matter in detail by referring a number of judgments and ultimately concluded that the burden of

proving that the transaction was not induced by undue influence was considered uniformly to rest with the beneficiary under the document. But

ultimately the particular or given case has to be decided only on the basis of the evidence available on record. The relevant portion of the judgment

is as follows:-

The various decisions referred to above would go to show that if on the face of the document the nature of the transaction covered by the

document appears to be either unconscionable or unnatural one, the burden of proving that the transaction was not induced by undue influence was

considered uniformly to rest with the beneficiary under the document. That apart, the various decisions noticed also point out sufficiently indicating

as to what type of circumstances present in a particular or given case could be taken to provide the necessary indicia or test to form an opinion

about the unnatural or unconscionable character of the transaction.

Ultimately the learned Judge proceeded on the basis of the facts of the case and found that the gift deed is vitiated. The primary question to be

considered is whether the settlement deed was executed without any undue influence. In fact my learned brother Justice Raju himself has pointed

out in the judgment 1996 (2) L.W.600 the circumstances that have to be taken into consideration to decide the aspects, as follows:

Though normally, the Court does not concern itself with a man making even an improvident gift or effecting a disposition of the property in a way

that no right-minded person would be disposed to do so, such factors or circumstances appended with the execution of a gift may furnish a clue or

serve as a pointer to the fact that the donor either did not intend it or that it was an unconscionable and unnatural transaction and in such

circumstances the beneficiary under such transaction is bound in law to clear such suspicions or explain about the existence of some valid or other

reasons for such circumstances, the Apex Court also on more than one occasion observed, that if the transaction appears to be unconscionable,

then the burden of proving that the contract was not induced by undue influence lies heavily upon the beneficiary under the document, who was in a

position to dominate the will of the other.

Now the case has to be considered on the basis of the above principles.

As already pointed out, irrespective of the passing of the consideration for the purchase of the property, if the plaintiff disproved the case of the

first defendant that the settlement deed was executed only on misrepresentation and fraud played by the plaintiff''s father, then the plaintiff is entitled

for the relief sought for. To consider this, it is necessary to see the averment in the written statement. In the written statement filed by the first

defendant, adopted by the other defendants, she has stated that the first defendant has got seven children viz., Marimuthu Paul alias Thangavel

Nadar, Muthunarayana Nadar, Masilamani Nadar and four daughters and that the first defendant agreed to execute the settlement deed in favour

of her children and that the plaintiff''s father agreed to that course and believing the representation of the plaintiff''s father, the first defendant

executed the document on 6-12-1958 purporting to be a settlement deed in favour of all her children. Further the first defendant did not have any

independent advice and the document was not read over to her. The plaintiff had examined P.W. 2, the scribe of the document. In his evidence

P.W. 2 has stated that the document was read over to the first defendant and only after knowing the recitals in the said settlement deed she affixed

her signature. His evidence is as follows:

There is absolutely no cross-examination on this aspect. Hence P.W. 2''s evidence in chief-examination stands unchallenged. Apart from this, the

first defendant has denied the execution of the settlement deed itself saying that she has no intention to settle the property Matter in favour of her

daughters or sons. She also says that she has not cancelled any settlement deed. On the basis of this part of the evidence, it would be clear that the

first defendant has no intention to execute any settlement deed either in favour of her sons or daughters. If that be so, the request alleged to have

been made by her to the plaintiff''s father that the settlement deed should be in favour of all the children cannot be true. Equally, the alleged

representation of the first plaintiff''s father that the settlement deed is in favour of all the children also cannot be true. Further in the written statement

it is stated that all the defendants are residing together in the suit property and they have been always living together. Even in the evidence P.W. 1

had admitted that at the time of execution of Ex. B-3 the sale deed, all the three sons were with her. If that be so, the next day when the settlement

deed was executed all the sons must have been present. In fact one of her sons Masilamani, the second defendant attested the settlement deed. If

really the first defendant had executed the settlement deed on the basis of the misrepresentation made by the plaintiffs father, the second defendant,

one of her sons, who is all along with her, would have not only informed her about the same, but also refused to attest the Ex. B-4. The conduct of

the second defendant also can be taken into consideration. Though he has adopted the written statement filed by the mother, he had not chosen to

get into the box to speak about the misrepresentation or the fraud played on the first defendant, especially when he is an attestor to the settlement

deed. Equally, except the appellant, the other daughter of the first defendant, the fourth defendant in the suit as well as the second defendant did

not choose to challenge the decree of the lower Appellate Court. When it is admitted that the settlement deed was executed at the time when all

the defendants were residing together, it is highly improbable to say that the first defendant did not have any independent advice and she has

executed the settlement deed only on the basis of the misrepresentation of the plaintiffs father. The evidence of P.W. 2 alongwith the evidence of

D.W.1 clearly reveal that there was no misrepresentation by the plaintiffs father to the first defendant and Ex. B-4, the settlement deed had been

executed only on her volition.

When it is admitted in the written statement that immediately after the execution of the settlement deed, the original document has been handed

over to the first defendant. If really the plaintiff''s father had got the document on misrepresentation, he would not have handed over the document

to the first defendant, apprehending that she may seek for verification of the recitals with the other members of the family who are residing there.

The lower Appellate Court has elaborately discussed the tax receipts and the other documents produced by the plaintiff to establish that the

settlement deed had been acted upon and there is no document to establish that the first defendant still retained the title. When once the settlement

deed had been acted upon, the cancellation deed cannot have any effect. In view of the elaborate discussion of the lower Appellate Court, it is not

necessary for me to repeat the same. The lower Appellate Court has considered the entire evidence on record and factually found that the

settlement deed executed by the first defendant was not due to the misrepresentation or fraud of the plaintiffs father. Since the finding of the lower

Appellate Court is a question of fact, no interference is called for. Accordingly the Second Appeal is dismissed. However, taking into

consideration of the relationship of the parties, there will be no order as to costs.