Madras High Court
Shahida Begum vs Ramiza on 15 June, 2023
O.S.A.No.247 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.06.2023
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MR. JUSTICE C. KUMARAPPAN
O.S.A.No.247 of 2017
and
C.M.P.No.11011 of 2019
Shahida Begum ... Appellant
Vs.
1.Ramiza
2.M.A.Ajmal Sheriff
3.M.A.Afsar Sheriff
4.Dr.Althaf Sheriff
5.Ameen Sheriff ... Respondents
Original Side Appeal filed under Order XXXVI Rule 1 of Original
Side Rules r/w. Clause 15 of the Letters Patent against the judgment and
decree dated 16.03.2017 in C.S.No.228 of 2013 on the file of this Court.
For Appellant : Mr.S.Sudarshan
For R1 to R5 : Mr.S.Parthasarathy
Senior Counsel
for M/s.A.Govindasamy
Page 1 of 31
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JUDGMENT
(Judgment was delivered by S.S. SUNDAR, J.)
(1)Plaintiff in the suit in C.S.No.228 of 2013 on the file of this Court, is the
appellant in the above Original Side Appeal.
(2)The appellant as plaintiff filed the suit in C.S.No.228 of 2013 before this
Court for partition and separate possession of 7/72 share in all the suit
properties and for consequential reliefs. The suit is also to declare the
family settlement deed, dated 18.05.2005, bearing Document No.1854 of
2005 on the file of Sub-Registrar, Anna Nagar, Chennai, as null, void,
illegal and not binding on the plaintiff.
(3)The suit properties consist of two items. The first item is a vacant land
along with building to an extent of One Ground and 1270 sq.ft., situated
in Koyambedu Village, Saidapet Taluk, Chenglpet District. The second
item is also a plot in a sanctioned layout measuring an extent of 2
Grounds and 893 sq.ft. and an additional land measuring 1010 sq.ft. in
Koyambedu Village, Saidapet Taluk, Chengalpet District.
(4)It is the case of appellant/plaintiff in the plaint that the suit first item was
purchased by her father Late Sri M.A.Sheriff under a registered sale deed
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dated 06.02.1974 and the second item was purchased by him under a
registered sale deed dated 18.08.1978. It is the appellant's further case
that her father Late Sri M.A.Sheriff died on 10.07.2010 intestate, leaving
behind plaintiff and defendants as his legal heirs. The 1st defendant in the
suit is the appellant's mother and defendants 2 to 5 in the suit are
appellant's brothers.
(5)It is contended by the plaintiff that she is a co-owner of the suit properties
along with defendants 1 to 5 and that, as per the Mohammedan Law of
Succession, the plaintiff has 7/72 share in all the suit properties. It is the
case of appellant that defendants 2 to 5 were keeping her father with them
and that her father was dependent on the defendants 2 to 5 as he was not
keeping good health both physically and mentally because of his old age
and several other ailments. In the plaint, it is stated that defendants 2 to 5
had full control over her father Late Sri M.A.Sheriff and her mother 1st
defendant, and by taking undue advantage of such a position, defendants
2 to 5 were interfering in all the decisions of Late Sri M.A.Sheriff and
unduly influencing his mind to their advantage. Stating that defendants 1
to 5 were in fiduciary relationship with Late Sri M.A.Sheriff, it is
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contended by the appellant/plaintiff that defendants have influenced Late
Sri M.A.Sheriff and brought about a deed of family settlement dated
18.05.2005. It is contended that the deed of family settlement is not a
true and lawful document and it is void and not binding on the plaintiff
nor affects her legitimate share over the suit properties. If the document
as such is allowed to exist, it would be impossible for the plaintiff to enjoy
her share in the suit properties and therefore, it is stated by the appellant
that the settlement deed should be declared as null and void.
(6)The suit was resisted by defendants including the mother. The purchase
of suit properties by father is admitted. It is stated that father
Sri.M.A.Sheriff was a law graduate and was working as Manager of
Reserve Bank of India, Mumbai and retired from service on 28.02.1997.
It is also stated that father shifted to his native along with 1st defendant
and one of his sons, the 5th defendant in July 2008. It is the case of
defendants that Late Sri M.A.Sheriff was desirous of bequeathing the suit
properties to his four sons, namely, defendants 2 to 5, and executed a
registered Will on 31.08.1988, bequeathing the suit properties to
defendants 2 to 5. It is also stated that out of love and affection towards
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defendants, Late Sri M.A.Sheriff, while he was in sound disposing state
of mind, executed the settlement deed dated 18.05.2005 on his own
volition settling the properties in favour of his wife and four sons. It is
stated that the father, under the said settlement deed, conveyed his title in
favour of defendants 2 to 5 in respect of Item No.1, and settled 5/6 share
in respect of property mentioned as B-Schedule in the said deed in favour
of defendants. It is stated that 1/6 share in suit 2nd item was reatined for
himself. It is further stated that 1 st defendant executed a Settlement Deed
dated 03.09.2013 in respect of her 1/6th share in favour of defendants 2 to
5 in suit item 2. It is also stated in the written statement that the suit 1 st
item was exclusively given to the defendants 2 to 5. The defendants
further stated that they are in absolute possession and enjoyment of all the
suit properties. The allegations in the plaint that the defendants have
obtained the settlement deed by undue influence, is specifically denied by
the defendants. It is stated that father was never dependent on anybody
and that it was he who was maintaining the family. It is further stated
that as per the Settlement Deed the defendants 2 to 5 are in possession of
suit properties and that the plaintiff was aware of the Settlement even in
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2005.
(7)Learned Single Judge of this Court, considering the specific pleadings
raised by the parties, framed the following issues :
i. “Whether the plaintiff is entitled to 7/72 share in the suit
properties ?
ii. Whether the Will dated 31.08.1988 is valid and binding on the
plaintiff ?
iii. Whether Settlement Deed dated 18.05.2005 in Doc.No.1854 of
2005 in favour of the defendants is valid and binding on the
plaintiff ?
iv. Whether Settlement Deed dated 03.09.2013 executed by the
first defendant in favour of the defendants 2 to 5 is hit by
doctrine of lis pendens ?
v. Whether the plaintiff is entitled to the relief of permanent
injunction ?
vi. To what other reliefs the parties are entitled to ?”
(8)At the time of trial, plaintiff examined herself as P.W.1 and Exs.P1 to P4
were marked on the side of plaintiff. On the side of defendants, D.W.1
was examined and Exs.D1 to D7 were marked.
(9)Learned Single Judge specifically held that the burden lies on the plaintiff
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to prove that the Settlement Deed was not bad due to undue influence.
After considering the evidence of P.W.1, the learned Single Judge found
that the plaintiff got married while her father was in service and that after
the retirement of father, all are living in the same house. While accepting
the case of plaintiff that father and brothers of plaintiff were living
together in the same house, the learned Single Judge held that, at no
stretch of imagination, their joint living can lead to any presumption that
defendants 2 to 5 were in a position to dominate the will of the father who
was the head of the family. Relying upon oral and documentary evidence
and a few precedents, the learned Single Judge held that the defendants
have proved the settlement deed executed by father in favour of
defendants and subsequent settlement deed executed by mother in favour
of defendants 2 to 5. Since the defendants fairly conceded that father had
retained 1/6th share to himself during his lifetime, in suit 2 nd item, the
learned Single Judge held that plaintiff is entitled to 7/72 share out of 1/6th
share retained by her father in respect of suit 2 nd item. Therefore, the suit
was partly decreed granting a decree in favour of plaintiff in respect of
7/72nd share in 1/6th share retained by her father under Ex.D4. The suit in
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respect of the suit 1st item and in respect of 5/6th share in suit 2nd item was
dismissed. Aggrieved by the judgment and decree of the Trial Court
dismissing the suit in respect of item No.1 and 5/6th share in Item No.2,
the above appeal is preferred by the plaintiff.
(10)Learned counsel for the appellant/plaintiff submitted that the parties are
Muslims and therefore, all questions relating to intestate succession or
property inherited or obtained under gift should be considered on the
basis of Muslim Personal Law. Referring to Shariat Act, 1937 as
amended by Madras Act 18 of 1949, learned counsel for the appellant
submitted that the Court is bound to apply the provisions of Shariath Act
as amended by Madras Act 18 of 1949 to the suit filed by the
appellant/plaintiff. Learned counsel for the appellant submitted that the
Trial Court failed to apply the law without understanding or on a wrong
interpretation of Section 16 of Indian Contract Act. He further submitted
that the burden was wrongly placed on the plaintiff when it is for the
defendants to prove the genuineness of the Settlement Deed by showing
that Exs.D3 and D5 are not vitiated by undue influence as defined under
section 16 of the Indian Contract Act. Learned counsel then submitted
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that the Trial Court failed to consider the suspicious circumstances
regarding execution of Exs.D3 and D5 which have been brought out
during cross examination of DW1. Since the defendants have not
examined the attestor of Exs.D3 and D5, the Trial Court ought to have
drawn adverse inference since the best evidence available to prove the
genuineness of the Settlement Deed is not produced by defendants.
Learned counsel for the appellant further submitted that when a specific
plea of undue influence once has been raised by the appellant/plaintiff, the
learned Single Judge without considering the legal implication of Sections
68 and 70 of the Indian Evidence Act, has accepted the Settlement Deed.
He would also submit that there is no reason why the appellant/plaintiff
should be denied her legitimate share as a legitimate heir of her father and
therefore, the judgment of the learned Single Judge is vitiated.
(11)Learned counsel for the appellant relied upon a few judgments and
submitted that the gift under Mohammedan Law should satisfy three
ingredients namely, [1]declaration by the donor ; [2] acceptance by the
donee, expressed or implied ; and [3] delivery of possession. Though a
formal instrument is not required for a valid gift under Mohammedan
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Law, the gift in order to be valid and to be acted upon, should be proved
by [1]existence of a declaration of gift by a donor ; [2]acceptance of gift
by the donee ; and [3] delivery of possession. Learned counsel pointed
out that the defendants have not proved the necessary ingredients for a
valid gift.
(12) Per contra, the learned Senior counsel appearing for the respondents
submitted that the plea of undue influence has to be supported by
necessary evidence to show how the defendants were in a dominating
position to influence their father and there cannot be a presumption in
favour of appellant/plaintiff. Learned senior counsel further submitted
that the execution of the Settlement Deed under Ex.D5 dated 18.05.2005
and the Settlement Deed executed by the 1st defendant in favour of
defendants 2 to 5 under Ex.D6 dated 03.09.2013 are admitted. Referring
to the fact that father Late M.A.Sheriff had earlier executed a Will under
Ex.D4 dated 31.08.1988, learned Senior counsel submitted that since the
Will dated 31.08.1988 was not disputed and the subsequent Settlement
Deed under Ex.D5 dated 18.05.2005 was in tune with the Will executed
by Late M.A.Sheriff, the father on his own volition bequeathed the
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properties originally under the Will and the later in terms of the Settlement
Deed only to re-affirm the Will. Learned Senior counsel then submitted
that there is no pleading in the plaint challenging the validity of the
Settlement Deed on any other ground, except undue influence and
therefore, the plaintiff cannot develop now a new case on the ground that
the gift was not supported by acceptance or delivery of possession.
(13)This Court considered the submissions of the learned counsels on either
side and finds that the following points arise for determination in the
present Original Side Appeal:-
A) Whether the Settlement Deed under Ex.D5 dated 18.05.2005
executed by the father in favour of defendants 2 to 5 and the
Settlement Deed executed by the 1st defendant in favour of
defendants 2 to 5 under ExD6 dated 03.09.2013 are valid
and binding on the appellant/plaintiff?
B) Whether the documents namely Exs.D5 and D6 dated
18.05.2005 and 03.09.2013 are vitiated by undue influence?
C) Whether the appellant/plaintiff who has not challenged the
Settlement Deeds under Exs.D5 and D6 on any other ground
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except on the ground of undue influence, can plead that the
Settlement Deeds are invalid on the ground that the three
essential ingredients of a Gift Deed are not proved by
defendants 2 to 5?
POINT [B]:-
(14)Section 16 of the Contract Act, 1872, reads as follows:-
''16-Undue Influence:-
(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 a contract with a person
whose mental capacity is temporarily or permanently
affected by reason of age, illness, or mental or bodily
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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.
(15)When a plea of undue influence is raised challenging the Gift Deed, two
ingredients are to be satisfied. Firstly, it must be shown that the
relationship between the donor and donee was such that the donee was in
a position to dominate the will of the donor. Secondly, it should be shown
that the donee used his position to obtain an unfair advantage over the
donor. Sub-section [2] of Section 16 of the Indian Contract Act gives
some guidance when a person can be presumed to be in a position to
dominate the will of another. When a person holds a real or apparent
authority over the other or where he stand in a fiduciary relation to the
other or where a person makes a contract with the person whose mental
capacity is temporarily or permanently affected by the reason of age,
illness or mental or bodily distress, it may be presumed that such person
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is in a position to dominate the will of another. When such person who is
in a position to dominate the will of another enters into a contract with the
other and the contract or transaction on the face of it, appears to be
unconscionable, the burden of proving that the contract was not induced
by undue influence will be on the person who was in a position to
dominate the will of the other.
(16)The principle of undue influence has its origin relatable to doctrine of
equity. This principle was applied where a person is guilty of abuse, in
taking advantage of his position to influence another person to reap a
benefit to the detriment of the other. In other words, where a person who
acted in good faith is betrayed, the doctrine of undue influence is applied
to challenge a gift or transaction in the form of a contract by which the
person who was in a position to dominate the will of the other had derived
benefit. When a contract is unconscionable, then the burden of proving
that the transaction was not influenced by undue influence lies upon the
person who was in a position to dominate the will of the other. Therefore,
reading of Section 16 of the Contract Act indicates that existence of
fiduciary relationship is a necessary ingredient. However, there cannot be
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presumption of undue influence in the relationship of an adult male
member over his aged parents. Even the relationship between the
husband and wife may not give rise to the presumption of undue
influence. In the present case, it is admitted during evidence that the
father was in a sound disposing state of mind all through. It is admitted
in the course of evidence that the father late M.A.Sheriff was a Law
Graduate and was working as Manager of RBI in Mumbai. The plaintiff
was given in marriage when the plaintiff's father was in service. It is also
admitted that the father has conducted the marriage by meeting out all the
marriage expenses including jewels and sridhana by the father himself.
Ex.D1 is the general Power of Attorney Deed in the handwriting of father.
It is admitted by the plaintiff herself that the document-Ex.D1 is in the
handwriting of her father M.A.Sheriff. The father prepared the Power of
Attorney Deed referring to his own family Settlement Deed as a token of
his love and affection towards his sons. It is to be pointed out that the
said Power of Attorney Deed was prepared by him and sent it to one of
his sons so that he would appoint his brother to act as power agent to deal
with the properties on his behalf. This model general Power of Attorney
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shows the independent mind of the father and the legal knowledge he had
to do the work of an Advocate. It is admitted that the father executed a
registered Will on 31.08.1988 bequeathing item No.1 in favour of his four
sons jointly and absolutely. In the Will, he has given valid reasons, why
he has not given any share to his wife in favour of whom her father had
already executed a Gift Deed. It is also to be noted that the testator/father
has expressed his intention to give his wife the benefit of Provident Fund
and Gratuity etc., at the time of his retirement. Settlement Deed reflects
what he had intended to bequeath under the Will dated 31.08.1988 in
favour of his wife and sons.
(17)As admitted, the Settlement Deed executed by late M.A.Sheriff on
18.05.2005 shows that the father has settled the first item in the suit
schedule in favour of his sons absolutely and 5/6th share in favour of his
wife and sons in respect of the suit 2nd schedule. The mother, namely,
Mrs.M.A.Sheriff, executed a Settlement Deed on 03.09.2013 in favour of
her sons in respect of her 1/6th share.
(18)The Settlement Deed was executed by the father when he was in
Mumbai and it is admitted during his evidence that the father late
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M.A.Sheriff got employment for everyone in the family and his son and
wife were under his care and protection till his life time. The Settlement
Deed was executed when father was living with his wife and therefore,
this Court finds reasons to hold that father was always independent and in
a sound disposing state of mind with an absolute control over the entire
family. Drafting of general Power of Attorney by himself on behalf of one
of his sons would indicate that the father was active and capable of
drafting legal documents by himself. Hence, it cannot be presumed that
he could be subject to any influence by anyone of his family members
including his wife or children. Absolutely there is no evidence indicating
that the sons were in a position of active confidence so that undue
influence or good faith as contemplated under Section 111 of Evidence
Act can be inferred.
(19)The Hon'ble Supreme Court in the case of Afsan Sheikh and Another
Vs. Soleman Bibi and Others reported in 1976 [2] SCC 142 has 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
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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 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
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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
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
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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
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
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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”.
(20)From the above judgment of the Hon'ble Supreme Court, it is seen that
mere intimate relationship between two persons is not decisive and the
Court has to determine the question whether there is an undue influence
based on records. Further, there must be specific pleading of undue
influence as required under Order 6 Rule 4 of CPC. Pleadings should
contain material facts on the basis of which a claim is made. For a plea of
undue influence, there must be specific particulars constituting undue
influence. When the sons were living with the father and the family was
under the control of father, this Court cannot presume that the sons were
in a position to dominate the will of father. From evidence this Court
finds that the father was in a position to dominate the will of his wife and
children. Hence, it cannot be presumed that the sons who were in good
faith, obtained a Settlement Deed by undue influence without specific
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averments in the pleadings. In the instant case, the plea of undue
influence is raised merely by stating that the father and sons were jointly
living together. This cannot be entertained without specific allegations
that the sons were in a position to dominate the will of father and
exercised influence. Therefore, in the absence of proper pleadings and
evidence , this Court has no hesitation to hold that the Settlement Deeds
are not vitiated by undue influence. Hence, Point [B] is answered
against the appellant/plaintiff.
POINTS [A] & [C]:-
(21)From the recitals of the document Ex.D5 dated 18.05.2005, it is seen
that the father has made a declaration in an unambiguous language that
the settlor was prompted to execute the Settlement Deed out of natural
love and affection, the settlor had towards the settlees. In the Deed, it is
specifically mentioned that the settlor handed over physical possession of
all the scheduled mentioned properties to the settlees. The incidents of
transfer by way of settlement was also indicated in the document with
precision and the Settlement Deed was intended as a document conveying
interest in presenting in unambiguous terms. This Court has already seen
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that there is no specific pleading that there was no acceptance or delivery
of possession being handed over to defendants 2 to 5 pursuant to the
Settlement Deed. From the written statement and the evidence of DW1
through the proof affidavit it is seen that the defendants have pleaded and
gave evidence to the effect that the defendants became the absolute
owners and they are in possession and enjoyment of the properties except
1/6th share retained by the father in Item No.2. A specific plea regarding
physical possession as absolute owners of the suit property shows
acceptance especially when the document records possession. This Court
is unable to find any valid suggestion put to DW1 doubting acceptance or
delivery of possession as deposed by DW1. The entire evidence of DW1
speaks in support of a valid gift with all the ingredients required under the
Mohammedan Law. The mere fact that the father M.A.Sheriff was living
with his sons in the same residence at Maharashtra for a long time cannot
be considered as a strong circumstance to decide that the Settlement Deed
was executed by undue influence. From the general averments in the
plaint that the father was under the control of defendants 2 to 5, this
Court cannot presume that the settlor was not independent nor in a
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disposing state of mind. In this case, the Settlement Deed was executed
by father after recording several facts that would indicate that the father
had the intention to execute the Settlement Deed in faovur of his sons.
The reason for not providing any property in favour of plaintiff in the
Settlement Deed is also stated in the document. Further, it is also
admitted that the father died only on 10.07.2010 and therefore, the settlor
was hale and healthy when the Settlement Deed was executed. In the
light of the earlier Will and the admitted facts surrounding the execution
of the registered Settlement Deed, this Court is of the view that the
findings of the learned Single Judge are based on proper appreciation of
evidence.
(22)It is well settled that the appeal is not maintainable on a ground which is
not raised before the learned Single Judge. In the absence of a specific
plea questioning the settlement on the ground that it was not accepted or
that possession was not taken, this Court may not permit the
appellant/plaintiff to agitate any new ground which is not seen from the
pleadings. This Court has already found that there is a recital in the very
Settlement Deed to the effect that possession was handed over to the
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settlees. This recital normally indicate acceptance and delivery in the
absence of any evidence to the contrary. Though the actual physical
possession is imperative, the Court has recognised recitals in the
document as evidence of possession. The effect of recitals in the
document is the subject matter of consideration in several decisions. A
recital to the effect that the settlor made the settlee possessory of all the
properties given by the Deed and that the settlor had abandoned all
connections with the property as evidence of delivery of possession by the
Privy Council in the judgment in Sheik Muhammad Mumtaz Ahmed and
Others Vs. Zubaida Jan and Others reported in 1889 LR 16 IA 205 :
LLR 11 All 460 [PC].
(23)The learned counsel for the appellant/plaintiff relied upon the judgment
of Hon'ble Supreme Court in the case of Hafeeza Bibi and Others Vs.
Shaikh Farid and Others reported in 2011 [5] SC 654 for the
proposition that transaction of gift in a particular form is not necessary
but the three essential requisites are to be satisfied to constitute a valid
gift. It is also reiterated that three essential ingredients namely,
declaration of gift by donor, acceptance of gift by donee and delivery of
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possession should be proved though it is not essential that the gift should
be in writing. However, this Court is unable to find any support from the
said judgment in favour of appellant/plaintiff as this Court has factually
held that declaration, acceptance and delivery of possession in this case
can be inferred from the recitals in the Settlement Deed.
(24)Similarly, learned counsel for the appellant relied upon the judgment of
Bombay High Court in the case of Chaudhri Mehdi Hasan V.
Muhammad Hasan reported in 1906 [4] CLJ 295 and the judgment of
Hon'ble Supreme Court in the case of Rasheeda Khatoon Vs. Ashiq Ali
reported in 2014 [10] SCC 459 and a few more judgments. Having
regard to the factual findings in the present case that the three essential
ingredients of a Gift Deed is proved, this Court finds no assistance from
the judgments relied on by the learned counsel appearing for the appellant
to support his arguments.
(25)Learned counsel then placed reliance upon the judgment of the Hon'ble
Supreme Court in the case of Krishna Mohan Kul Vs. Pratima Maithy
and Others reported in 2004 [9] SCC 468 for the proposition that section
111 of Evidence Act applies equally to all persons standing in fiduciary
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O.S.A.No.247 of 2017
relationship with each other and section 111 can be applied in the case of
an old, illiterate, ailing person who is unable to apprehend the nature of
document or the contents thereof. It is further observed in the said
judgment that it should be established that there was no more physical act
of the executant involved but the mental act. The Hon'ble Supreme Court,
as a general principle, held that when fraud, misrepresentation or undue
influence is alleged by a party in a suit, normally the burden is on him to
prove such fraud or undue influence. When a person is in a fiduciary
relationship with another and the latter is in a position of active
confidence, it is held that the burden of proving the absence of fraud or
misrepresentation or undue influence is upon the person in the dominating
position to prove that there was a fair play in the transaction and that the
transaction is genuine and bona fide. The Hon'ble Supreme Court has
considered the case where the alleged Deed of Settlement was executed
when the donor was 106 years old and he was becoming lacklustre due to
old age apart from other ailments and mental shocks. Therefore, this
Court is unable to rely upon the judgment of the Hon'ble Supreme Court
in Krishna Mohan Kul's case [cited supra].
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O.S.A.No.247 of 2017
(26)Learned counsel for the appellant submitted that the Settlement Deed is
not proved by examining any one of the attesting witness as required
under Section 68 of the Evidence Act. The execution of the document,
namely, the Settlement Deed by the father is not in issue and there is no
specific pleading disputing the signature of executant in the document.
The only plea in the plaint is that the document was obtained by undue
influence. The document being a Settlement Deed and not a Will, does
not require to be proved by examining any of the attesting witness.
(27)Another judgment of the Hon'ble Supreme Court in the case of
K.Lakshmanan Vs. Tekkayil Padmini and Others reported in 2009 [1]
SCC 354, relied upon by the appellant has no application to the facts of
the present case.
(28)Having regard to the nature of pleadings and the evidence adduced, this
Court is convinced that the plaintiff/appellant has not come forward with a
specific plea questioning the legality of the Settlement Deed on the ground
that the defendants/respondents have not proved the ingredients of a Gift
Deed in Mohammedan Law.
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(29)Having regard to the recitals in the documents and the fact that
declaration, acceptance and delivery of possession can be inferred from
the document of Settlement Deed itself, this Court finds that the
Settlement Deed is proved to be valid and binding on the appellant /
plaintiff. This Court is fully convinced that the findings of learned Single
Judge are perfectly in order and warrant no interference.
(30)In view of the conclusions reached above, this Court finds no merit in
the Appeal. Hence, the Original Side Appeal stands dismissed and the
judgment and decree dated 16.03.2017 made in C.S.No.228 of 2013 by
the learned Single Judge is hereby confirmed. Having regard to the
relationship between parties, there shall be no order as to cost.
Consequently, connected miscellaneous petition is closed.
[SSSRJ] [CKJ]
15.06.2023
mkn/AP
Internet : Yes
Index : Yes / No
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O.S.A.No.247 of 2017
To
1.The Section Officer
VR Section, High Court,
Chennai.
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O.S.A.No.247 of 2017
S.S. SUNDAR, J.
and
C.KUMARAPPAN, J.
mkn/AP
O.S.A.No.247 of 2017
15.06.2023
https://www.mhc.tn.gov.in/judis
