Madras High Court
G.Devarajan vs C.Venkata Swamy on 2 November, 2022
AS.No.33/2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.11.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MRS. JUSTICE N.MALA
AS.No.33/2012
G.Devarajan .. Appellant /
1st Defendant
Vs.
1.C.Venkata Swamy
2.S.Srinivasan .. RR 1 & 2
/ Plaintiffs 2&3
3.The Sub Registrar
Periamet, Chennai. .. R3 / 2nd
Defendant
Prayer:- Appeal Suit filed under Section 96 of CPC against the judgment
and decree dated 01.08.2011 passed in OS.No.11063/2010 on the file of
the learned Additional District Judge, III Fast Track Court, Chennai.
For Appellant : M/s.R.V.Rukmani
For RR 1 & 2 : Mr.S.M.Deenadayalan
For R3 : No appearance
https://www.mhc.tn.gov.in/judis 1
AS.No.33/2012
JUDGMENT
[Judgment of the Court was delivered by S.S.SUNDAR, J.,]
(1) The 1st defendant in the suit in OS.No.11063/2010 on the file of the
Additional District Court [Fast Track Court-III], Chennai, is the
appellant in the above appeal.
(2) The suit in OS.No.11063/2010 is filed by one
Tmt.T.G.Ranganayakiammal, wife of late Thiru.T.K.Govindarajulu
Naidu [hereinafter referred to as Thiru.TKG] for a declaration that
the Settlement Deed dated 15.07.2002 executed by Thiru.TKG in
favour of the defendants registered as Document No.1395/2002
before the Sub Registrar, Periamet/3rd respondent herein is illegal,
void, sham and nominal and non-est in law and also for permanent
injunction restraining the defendants from interfering with her
peaceful possession and from registering any document pertaining
to the suit property.
(3) Brief facts that are necessary for the disposal of this Appeal are as
follows.
AS.No.33/2012
(4) It is not in dispute that the suit property namely an extent of 1221
sq.ft., comprised in S.No.212, in Chindadripet with a building
bearing Door No.38 in Balakrishna Pillai Street, Chindadripet, is
the absolute property of the husband of the plaintiff by name
Thiru.TKG. It is also not in dispute that the plaintiff is the wife of
late Thiru.TKG. The suit property was purchased by the mother of
Thiru.TKG by a registered Sale Deed dated 17.08.1961 and the
same was inherited by Thiru.TKG after the death of his mother on
18.07.1964.
(5) It is the case of the plaintiff that she and her husband late
Thiru.TKG were staying alone and they had no issues. It is the
specific case of the plaintiff that by frequently visiting the house,
the appellant/1st defendant gained sufficient influence over late
Thiru.TKG and made Thiru.TKG to execute a registered
Settlement Deed dated 15.07.2002 as Doc.No.1395/2002 in favour
of the appellant herein/1st defendant by undue influence. It is also
the case of the plaintiff that the 1st defendant was never the adopted
or foster son of Thiru.TKG as claimed by the 1 st defendant. It is
AS.No.33/2012
admitted that Thiru.TKG died on 24.11.2005 without any Will as
far as the suit property is concerned.
(6) In the plaint, it is also alleged that Thiru.TKG never informed her
about any Settlement Deed executed in favour of the 1st defendant
and therefore, the plaintiff also pleaded that the 1st defendant
himself had fraudulently fabricated the document taking advantage
of the fact that Thiru.TKG was very old, infirm and unstable for a
few years before his death. Stating that the plaintiff had cordial
relationship with her husband throughout their lifetime after the
marriage, it is contended by the plaintiff that the Settlement Deed is
unfair and could not have been executed by her husband in favour
of the appellant/1st defendant who is a stranger. In short, the
allegations are to the effect that the Settlement Deed is vitiated by
fraud, coercion and undue influence. The plaintiff also contended
that the Settlement Deed was never acted upon as it was never
intended by late Thiru.TKG.
(7) The said suit was contested by the appellant/1st defendant by filing
a written statement. It was contended by the appellant that the
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Settlement Deed in favour of the appellant was executed by late
Thiru.TKG and Thiru.TKG himself came to the Registrar Office in
person for that purpose. Even though the appellant admitted that
there was no adoption ceremony, it is contended that the appellant
was treated by Thiru.TKG as his foster son all along as he was
taking care of the daily needs of Thiru.TKG and meeting their
medical expenses of the old couple. In short, it is the specific case
of the appellant/1st defendant that the settlor and his wife were
under his care and custody till the settlor died on 24.11.2005. It is
in the stated circumstances, the appellant pleaded that Thiru.TKG
executed the Settlement Deed on his own volition without any
influence. The appellant specifically denied the allegations of
coercion, fraud and undue influence and submitted that the
Settlement Deed was fair in the sense that the settlor has given life
estate to the plaintiff to protect her interest till her life time and
gave the vested right only after the life time of both Thiru.TKG as
well as his wife/plaintiff.
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(8) During the pendency of the suit, the plaintiff Tmt.T.G.Ranganayaki
Ammal died and Tvl.Venakata Swamy and Srinivasan, were
brought on records as LRs of the deceased plaintiff Ranganayaki
Ammal.
(9) The Trial Court framed the following issues:-
(a) Whether the Settlement Deed dated 15.07.2002 executed by the
husband of the plaintiff in favour of the first defendant is valid and
binding on the plaintiff?
(b) Whether the Settlement Deed dated 15.07.2002 was contrary to the
provisions of the Hindu Adoption and Maintenance Act, 1956 and
the provisions of the Indian Stamp Act in the light of the admitted
claim of the 1st defendant that he was only a foster son and not an
adopted son?
(c) Whether a Foster son can be accorded the same status as that of an
adopted son under the Hindu Law?
(d) Whether the settlement was brought forth by undue influence,
coercion and fraud?
AS.No.33/2012
(e) Whether the plaintiff is entitled to a declaration that the Settlement
Deed is illegal, void, sham, nominal and non-est in law?
(f) Whether the plaintiff is entitled to injunctions as prayed for?
(g) To what other relief, the pl is entitled to, if any?
(10) Taking note of the fact that the Settlement Deed was attested only
by the wife of the appellant and various attending circumstances,
particularly the fact that the Settlement Deed was typed in English,
but signed by Thiru.TKG in Tamil, the Trial Court after finding
that there was no explanation from the appellant, held that the
appellant has not proved that the document-Settlement Deed which
was marked as Ex.B1 was executed by Thiru.TKG, knowing the
contents in the document. Since the appellant has not produced
any independent evidence to support his case that he was taking
care of Thiru.TKG and his wife as a foster son and about his own
credentials pleaded in the written statement, the Trial Court held
that the document-Ex.B1 was brought forth by undue influence.
(11) In view of the specific findings on the nature of settlement on
issues 1, 4 and 5 against defendant, the Trial Court accepted the
AS.No.33/2012
case of the plaintiff and ultimately held that the plaintiff is entitled
to the declaration that the Settlement Deed is void and non-est in
law.
(12) One of the issues framed by the Trial Court was whether the
Settlement Deed was contrary to the provisions of the Hindu
Adoption and Maintenance Act, 1956 and the provisions of the
Indian Stamp Act. Even though the issue is not necessary, the Trial
Court discussed in detail the facts and held that the defendant has
not proved by evidence, the relationship he had with the settlor and
the plaintiff.
(13) The Trial Court further held on the third issue that a foster son can
get the status of adopted son only if he proves that was treated as a
foster son and the Trial Court further held that the appellant had
neither proved that he is an adopted son nor a foster son. The Trial
Court made this observation ignoring that a foster son can never
enjoy the status of adopted son. The Trial Court also found that
the plaintiff was in possession of the suit property and that the
document-Ex.B1 being declared as void and invalid and held that
AS.No.33/2012
the plaintiff is entitled to the prayer of injunction as prayed for.
During the pendency of the suit, the plaintiff died. Hence, the legal
representatives, namely, respondents 1 and 2, were brought on
record as plaintiffs. Since the plaintiff had executed a Will, it is
held that they are entitled to the suit property upon proof of the
Will before the appropriate Forum. Aggrieved by the judgment
and decree of the Trial Court, the above appeal is preferred by the
1st defendant in the suit.
(14) The learned counsel appearing for the appellant vehemently argued
that the findings of the Trial Court are erroneous and unsustainable
and the Trial Court has not considered the well settled principles
on the question of burden of proof. It is contended by the learned
counsel that the Settlement Deed dated 15.07.2002 under Ex.B1
was executed without any undue influence, fraud or
misrepresentation and the plaintiff did not question the Settlement
Deed even though the settlor namely, Thiru.TKG was alive for
more than 3 years after the execution of Ex.B1-Settlement Deed. It
is contended that the Trial Court failed to consider the evidence in
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proper perspective particularly the fact the appellant performed the
last rites of Thiru.TKG upon his death and was always treated as
his foster son throughout. When the plaintiff herself admit in the
plaint that the last rights of Thiru.TKG was performed by the
appellant, it is contended by the learned counsel for the appellant
that the Trial Court ought to have concluded that the Settlement
Deed is quite natural and that it is not vitiated by fraued or coercion
or undue influence.
(15) Pointing out that there is no cogent evidence to prove undue
influence, learned counsel for the appellant relied upon several
judgments of the Hon'ble Supreme Court as well as this Court to
sustain her legal argument that the plea of undue influence is not
established by the plaintiff by adducing proper evidence. Since
burden of proof was wrongly shifted on the appellant, the learned
counsel submitted that the judgment of the Trial Court is vitiated.
(16) On the other hand, the learned counsel for the
respondents/plaintiffs relied upon his written arguments submitted
on behalf of the plaintiffs before the Trial Court and submitted that
AS.No.33/2012
the findings of the Trial Court are supported by reasons. He also
relied upon a few judgments of the Hon'ble Supreme Court to
sustain the findings and to oppose the plea that Ex.B1 is not
vitiated by undue influence.
(17) This Court considering the overall pleadings and evidence has
considered the following aspects of the case as borne out from
records.
(18) The plaintiff is the wife and only legal heir of the deceased
Thiru.TKG and they were living together in the same property
which is covered under the document – Ex.B1 [Settlement Deed].
In the course of evidence, the appellant admitted that he is not a
relative of Thiru.TKG. It is seen that there is no evidence adduced
on behalf of the appellant to prove the manner in which the
appellant had developed acquaintance with the family particularly
with Thiru.TKG. Therefore, the fact that the appellant is an utter
stranger to the family is not in dispute. The Settlement Deed which
is marked as Ex.B1 though reads as if the appellant is the foster son
of the settlor, no evidence is adduced to indicate that the settlor had
AS.No.33/2012
ever treated the appellant as his foster son or he had great love and
affection towards the appellant and desirous of making settlement
in his favour in respect of his valuable property. Though it is
contended that the Settlement Deed would come into effect after
the life time of the settlor as well as the plaintiff, there is no reason
why the settlor should exclude her beloved wife so that other heirs
of his wife will inherit the property. From the reading of the entire
evidence, this Court is unable to find any special reason for the
deceased Thiru.TKG to exclude all the heirs or to prefer the
appellant to anyone in the family who are close relatives.
(19) The appellant examined himself as DW1. On reading of the proof
affidavit filed by the appellant, the appellant has denied the
averments in the plaint parawise. However, he has not stated
anything with regard to the relationship he had with Thiru.TKG
and how he could gain acquaintance with Thiru.TKG. Strangely,
he has not produced any document or examined any independent
evidence to show that the appellant was treated as the foster son of
Thiru.TKG. Neither any independent witness was examined nor
AS.No.33/2012
any document was produced to prove the contention of the
appellant that he was spending for the daily needs of Thiru.TKG or
took care of the medical expenses of Thiru.TKG till his death.
Though the document was executed in the year 2002, the appellant
has not produced any document or examined any witness to
indicate that the plaintiff had knowledge about the Settlement
Deed. During cross-examination, the appellant admits that he has
no document to prove his contention that 80th birth anniversary was
celebrated at the expenses of the appellant and that it was the
appellant who performed the last rites of Thiru.TKG in his capacity
as foster son or as per wishes of settlor and his wife.
(20) The document Ex.B1 was typed in English. However, the executor
namely Thiru.TKG signed the documents in Tamil. It is not the
case of the appellant that Thiru.TKG was well versed in English
and no specific reason was given as to why the document was
typed in English. It appears that the advocate who has prepared the
document is not well versed with Tamil to prepare document and
hence, it is drafted in English. Even the appellant was not even in
AS.No.33/2012
a position to affirm whether the document was executed by
Thiru.TKG after consulting his wife, namely the plaintiff. The
appellant who claims to be the foster son of Thiru.TKG, during his
evidence has admitted that he does not know anything about the
family of Thiru.TKG or the plaintiff. Therefore, the evidence of
the DW1/appellant would amply establish the fact that Thiru.TKG
had no reason to treat the appellant as his foster son and to execute
a Settlement Deed in respect of a very valuable property of
Thiru.TKG without any influence.
(21) The plaintiff has specifically pleaded fraud and undue influence in
the plaint. Learned counsel appearing for the appellant relied upon
a judgment of the Hon'ble Supreme Court in Afsan Sheikh and
Another Vs. Soleman Bibi and Others reported in 1976 [2] SCC
142 wherein, it is held as follows:-
''14. The specific case set up in the plaint was
that the hiba-bil-ewaz in question was vitiated by
fraud and misrepresentation practised by Afsar
defendant. It was in that context it was stated in a
general way that the plaintiff was a simple, illiterate
man of 90 years, and had great confidence in Afsar,
and “the parties used to help each other in respective
cultivation”. Apart from this general and nebulous
AS.No.33/2012
allegation, no particulars of a plea of undue influence
were pleaded. Even the near relationship between the
plaintiff and Afsar was not disclosed. It was not
particularised how Afsar was in a position to
dominate the will of the plaintiff, in what manner he
exercised that influence, how the influence, if any,
used by Afsar over him was “undue”, and how and in
what circumstances the hiba-bil-ewaz was an
“unfair” or unconscionable transaction. In short, no
material particulars showing that the transaction was
vitiated by undue influence were pleaded. Rather,
somewhat inconsistently with a plea of undue
influence, it was alleged that the hiba was tainted by
fraud, misrepresentation and deceit practised by
Afsar.
15. While it is true that “undue influence”,
“fraud”, “misrepresentation” are cognate vices and
may, in part, overlap in some cases, they are in law
distinct categories, and are, in view of Order 6 Rule 4,
read with Order 6 Rule 2 of the Code of Civil
Procedure, required to be separately pleaded, with
specificity, particularity and precision. A general
allegation in the plaint, that the plaintiff was a simple
old man of ninety who had reposed great confidence
in the defendant, was much too insufficient to amount
AS.No.33/2012
to an averment of undue influence of which the High
Court could take notice, particularly when no issue
was claimed and no contention was raised on that
point at any stage in the trial court, or, in the first
round, even before the first appellate court.
16. The High Court has tried to spell out a plea
of undue influence by referring to para 7 of the
written statement in which the defendant inter alia
stated that he was looked after and brought up by the
plaintiff as his son and he became very much attached
to the plaintiff and since his infancy till the middle of
this year this defendant always lived with the plaintiff
and used to treat him as his father, helped him and
looked after all his affairs. This paragraph, according
to the learned Judge, contains a clear admission of
the intimate relationship between the two indicative of
the position of dominating the will of the plaintiff by
Defendant 1.
17.We are, with due respect, unable to
appreciate this antic construction put on the
defendant's pleading. All that has been said in the
written statement is that the relationship subsisting
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between the plaintiff and the defendant was marked by
love and affection, and was akin to that of father and
son. Normally, in such paternal relationship, the
father, and not the son, is in a position of dominating
influence. The defendants' pleading could not be
reasonably construed as an admission, direct or
inferential, of the fact that he was in a position to
dominate the will of the plaintiff. In spelling out a
plea of undue influence for the plaintiff by an
“inverted” construction of the defendants' pleading,
the High Court overlooked the principle conveyed by
the maxim secundum allegata et probata, that the
plaintiff could succeed only by what he had alleged
and proved. He could not be allowed to travel beyond
what was pleaded by him and put in issue. On his
failure to prove his case as alleged, the court could
not conjure up a new case for him by stretching his
pleading and reading into it something which was not
there, nor in issue, with the aid of an extraneous
document. Thus considered, the High Court was in
error when by its judgment, dated October 16, 1963,
it remanded the case to the first appellate court with a
direction to determine the question of undue influence
“on material, already on record”.
AS.No.33/2012
(22) Learned counsel also relied upon the judgment of the Hon'ble
Supreme Court in the case of Raja Ram Vs. Jai Prakash Singh
and Others reported in 2019 [8] SCC 701, wherein it is held that in
cases of fraud, undue influence and coercion, full particulars must
be set forth in pleadings and vague or general plea can never serve
this purpose. It is also held that party pleading must be required to
plead precise nature of influence exercised, manner of use of
influence. It is also reiterated that onus would shift on to defendant
only after plaintiff establishes a prima facie case. In this case, the
brother of plaintiff got a Sale Deed from father and the sale was
challenged on the ground of undue influence. The Hon'ble
Supreme Court observed that the pleading is not sufficient to
satisfy the requirements and that the initial burden is discharged.
(23) The learned counsel further relied upon a judgment of the Bombay
High Court in the case of Shrimati and Others Vs. Sudhakar
R.Bhatkar and Others, reported in AIR 1988 Bom 122, it is seen
that the Court has specifically pointed out that when the transaction
appears to be unconscionable, the burden of proving otherwise is
AS.No.33/2012
on the beneficiary of transaction. All the three judgments are
distinguishable on facts. In this case, there is specific pleading that
the plaintiff an utter stranger to the family, gained acquaintance
with the settlor and it is admitted by the 1st defendant that he was
helping the settlor in domestic needs. When the settlement is an
unnatural disposition, the burden lies on the 1st defendant/appellant
and he has failed to discharge his burden as found by this Court..
(24) The term 'undue influence' is defined under Section 16 of Indian
Contract Act, 1872. Section 16 reads as under:-
''16:-“Undue influence” defined.—(1) A contract is
said to be induced by “undue influence” where the
relations subsisting between the parties are such that
one of the parties is in a position to dominate the will
of the other and uses that position to obtain an unfair
advantage over the other.
(2) In particular and without prejudice to the
generality of the foregoing principle, a person is
deemed to be in a position to dominate the will of
another— (a) where he holds a real or apparent
authority over the other, or where he stands in a
fiduciary relation to the other; or (b) where he makes
AS.No.33/2012
a contract with a person whose mental capacity is
temporarily or permanently affected by reason of age,
illness, or mental or bodily distress. (3) Where a
person who is in a position to dominate the will of
another, enters into a contract with him, and the
transaction appears, on the face of it or on the
evidence adduced, to be unconscionable, the burden
of proving that such contract was not induced by
undue influence shall lie upon the person in a position
to dominate the will of the other.
(25) A consenting party to a transaction or a person claiming under him
may challenge the transaction if consent was not free because he
was exposed to some influence from the other party. When a plea
of undue influence is raised, two ingredients are to be satisfied.
Firstly, to show that the relationship between the donor and the
donee was such that the donee was in a position to dominate the
Will of the donor and secondly, to show that the donee used his
position to obtain an unfair advantage over the donor. Sub-section
[2] of Section 16 gives the test to derive whether a person was in a
position to dominate the will of another. Where a person hols a
AS.No.33/2012
real or apparent authority over the other or where he stand in a
fiduciary relation to the other or where the person makes a contract
with a person whose mental capacity is temporarily or permanently
affected by the reason of his age, illness or mental or bodily
distress, the Court can presum that one was in a position to
dominate the will of another. In a case where it is shown that a
person who is in a position to dominate the will of another enters
into a contract with the other and the transaction appears on the
face of it or one the evidence adduced to be unconscionable, the
burden of proving that such contract was not induced by undue
influence shall be upon the person who is in the position to
dominate the will of other.
(26) The possibility or probability of one party dominating the will of
the other may arise from the nature of relationship or even from a
helplessness or disability of the other party. In this case, the
appellant who is a stranger gain acquaintance with the husband of
plaintiff and the written statement clearly shows how the appellant
was attending to the daily needs. Even in the written statement, the
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appellant admits the settlor died due to brain tumour. From all the
facts and attending circumstances, this Court has no hesitation to
hold that the appellant was in a position to dominate the will of
settlor. Now, an unfair advantage by getting a Settlement Deed in
respect of a valuable property in Chennai is admitted. Therefore,
the exercise of undue influence can be presumed in view of the
unconscionable and an unfair transaction. The settlor executed the
Settlement Deed in favour of a stranger in preference to many of
his relatives. Section 16[3] prescribes a statutory presumption.
Hence, the burden lies on the appellant to rebut the presumption by
showing that the settlor had independent advice. In this case, the
plaintiff who is the wife has pleaded that she was not informed by
the settlor before or after settlement. Though the appellant has
pleaded that the plaintiff was very much present when the
Settlement Deed was executed and she accompanied her husband
to the Registrar's office, no independent witness was examined to
prove his case. The appellant though was in a position to rebut the
presumption, he has miserably failed. Hence, this Court is unable
AS.No.33/2012
to interfere with the findings of Trial Court.
(27) Hence, the Appeal Suit fails and the same is dismissed and the
judgment and decree dated 01.08.2011 passed in
OS.No.11063/2010 on the file of the learned Additional District
Judge, III Fast Track Court, Chennai, is confirmed. No costs.
[SSSRJ] [NMJ]
02.11.2022
AP
Internet : Yes
To
1.The Additional District Judge,
III Fast Track Court, Chennai
2.The Section Officer
VR Section, High Court,
Chennai.
AS.No.33/2012
S.S.SUNDAR, J.,
AND
N.MALA, J.,
AP
AS.No.33/2012
02.11.2022
https://www.mhc.tn.gov.in/judis 24
