JUDGMENT
A. Ramamurthi, J.
1. The unsuccessful defendants in O.S. No. 609 of 1979 and the unsuccessful plaintiffs in O.S. No. 224 of 1980 on the file of District Munsif’s Court, Ambasamudram, have filed the Second Appeal Nos.2062 and 2063 of 1985 respectively.
2. The case in brief is as follows: The plaintiffs in O.S. No. 609 of 1979 filed a suit for partition and separate possession and enjoyment of their half share in the plaint schedule properties, which were intended for joint enjoyment by plaintiffs defendants 1 and 4. Till the lifetime of the 1st defendant. The schedule properties belonged to the 1st defendant and she executed a registered settlement deed on 23.1.1978 in favour of the plaintiffs and the 4th defendant. According to the document, the plaintiffs, and defendants 1 and 4 have joint life estate without any power for alienation. During the lifetime of the 1st defendant and after her death only the 4th defendant will have only life interest without any power of alienation. After the demise of the 4th defendant, the plaintiffs will have absolute right and ownership in the properties. The settlement deed has come into force. In pursuance of the settlement, the plaintiffs. Who are residing in Kattupulli Palla Street, shifted the residence to door No.57 of the schedule property. The 1st defendant has no right, whatsoever, to cancel the document. The 1st defendant had no power to cancel the same and it finds a place in the document itself. The 2nd defendant and her husband have sufficient property. Defendants 2 and 4 were married to one persons viz., Arumugham Pillai. He neglected the 4th defendant and she has been living with the 1st defendant for the past 20 years. The 2nd plaintiff was brought up by the 1st defendant and was given in marriage. Defendants 1 and 4 are living in the house bearing door No.58. The 2nd defendant is residing in her own house. The shop bearing door No.207 was let out to third party for rent. As the 2nd defendant was not given any property she approached the first defendant with pretention of affection and induced her to execute a cancellation of the original settlement deed. The cancellation deed is invalid under law. It will not affect the rights of the plaintiffs and the 4th defendant. It appears that the first defendant had executed a settlement deed in favour of defendants 2 and 3 subsequently and they were executed in fraudulent manner. The plaintiffs also sent a notice to the defendants. Hence, the suit.
3. The defendants resisted the suit, stating that the schedule property bearing house No.58 and shop No. 206 originally belonged to one Sankaralingam Pillai, husband of the 1st defendant. He executed a settlement deed in favour of the 1st defendant and she has no male issues. Defendants 2 to 4 are the daughters of the 1st defendant. She was having an intention to make settlement equally for the three daughters. Defendants 2 and 4 were maintaining her. The plaintiffs were living in door No.57 and paying a rent of Rs. 25. The 3rd defendant was living in door No.56 and paying a rent of Rs. 25. The 1st defendant has let out the three shops for rent and was collecting the same. The 1st plaintiff in collusion with his paternal uncle viz., Ramaiah Pillai, induced the 1st defendant to execute the alleged settlement deed in favour of the plaintiffs. They did not give any opportunity to the 1st defendant to consult her relations. They misrepresented that the properties are equally distributed among the three daughters. The settlement deed has not come into force and in fact, the original document is only with her. On coming to know that fraud has been played upon the 1st defendant, she cancelled the said document. The plaintiffs cannot take now shelter under the settlement deed. Subsequently, the 1st defendant executed three settlement deeds settling her properties equally among her three daughters. These documents have come into force. In fact, the 1st defendant is taking steps to cancel the settlement through the court also. Hence, the plaintiffs are not entitled to claim any relief on the basis of the settlement deed dated 23.1.1978.
4. Defendant 2 to 4 contended that the settlement deed dated 23.1.1978 was obtained by fraud, undue influence and misrepresentation by the plaintiffs. The 1st defendant on coming to know about the fraud, cancelled the same on 29.6.1978. The 1st defendant subsequently executed three settlement deeds in favour of three daughters on 11.6.1979 and they have come into force. The 3rd defendant is living in the house bearing door No.56 and the plaintiffs are occupying the house bearing door No.57 and paying Rs. 25 by way of rent. Defendants 1, 2 and 4 are residing in door No.58. The plaintiffs knew fully well about the cancellation deed and also the subsequent settlement deeds.
5. The defendants 1 to 4 in O.S. No. 609 of 1979 have filed the suit O.S. No. 224 of 1980 as plaintiffs to set aside the settlement deed dated 23.1.1978 and for consequential injunction. Similarly, the plaintiff in O.S. No. 609 of 1979 are the defendants in O.S. No. 224 of 1980. The plaintiffs in O.S. No. 224 of 1980 reiterated the very same allegations raised by them as defendants in O.S. No. 609 of 1979. Similarly, the defendants in O.S. No. 224 of 1980 reiterated the very same averments raised by them as plaintiffs in O.S. No. 609 of 1979. It is; therefore, unnecessary to reproduce the averments made by, the parties in O.S. No. 224 of 1980. The trial court framed four issues and one additional issue in O.S. No. 609 of 1979 and eight issues in O.S. No. 224 of 1980. The evidence was recorded in O.S. No. 609 of 1979 and the same was treated as evidence in the other suit also and a common judgment was pronounced by the trial court, Exs.A-1 to A-4 were marked on the side of the plaintiffs and P.Ws. 1 to 4 were examined. On the side of the defendants, Exs.B-1 to B-6 were marked and D.Ws. 1 and 2 were examined. The trial court dismissed O.S. No. 609 of 1979 and decreed the suit in O.S. No. 224 of 1980 and aggrieved against this A.S. 6 and 7 of 1982 were filed on the file of Sub Court, Tenkasi and a common judgment was also pronounced and both the appeals were allowed and the judgment and decree of the trial court were set side and O.S. No. 609 of 1979 was decreed and O.S. No. 224 of 1980 was dismissed. Aggrieved against this, the present two second appeals are filed by the aggrieved party.
6. The subject-matter pf dispute involved in both the appeals is one and the same. Similarly, the parties in both the suits are one and the same. The plaintiffs in one suit are the defendants in the other suit and similarly the defendants in one suit are the plaintiffs in the other suit, a common judgment was pronounced in the trial court as well as in the lower appellate court. Since common question of law is involved in both the appeals, a common judgment is pronounced in these two second appeals. The parties will be hereinafter referred to as they are described in O.S. No. 609 of 1979 to avoid confusion.
7. At the time of admission of these second appeals, the following substantial questions of law were framed.
(1) Whether the lower appellate court is right in holding that Ex.B-1 was true, when it is admitted by P.Ws.1 and 2 that Krishnammal was an old infirm, totally deaf and illiterate woman and that she did not have any independent advice and when the respondents did not discharge the burden of proving the execution of Ex.B-1 by Krishnammal voluntarily?
(2) Whether Ex.B-1 is a document testamentary on a proper construction, when there are no clauses conveying or vesting title in praesenti?
8. The points that arise for consideration in both the appeals are: (1) whether the plaintiffs in O.S. No. 609 of 1979 are entitled to partition and separate possession and enjoyment of their half share in the schedule properties? (2) Whether the settlement deed dated 23.1.1978 came into existence under the circumstances stated by the plaintiffs or under the circumstances stated by the defendants? (3) Whether the cancellation deed dated 29.6.1978 is true, valid and binding on the parties? (4) Whether the document dated 23.1.1978 is liable to be set aside? and (5) To what relief the parties are entitled to?
9. Points : The plaintiffs in O.S. No. 609 of 1989 filed suit for partition and separate possession and enjoyment of their half share in the properties. There is no dispute that the properties belonged to the first defendant and according to the plaintiffs, she executed a settlement deed under Ex.B-1. dated 23.1.1978 in favour of the plaintiffs as well as the 4th defendant to the effect that defendants 1 and 4 can enjoy the properties till their lifetime and thereafter, the plaintiffs can enjoy the properties absolutely, Ex.A-1 is a registration copy of Ex.B-1 Now, the defendants filed another suit in O.S. No. 224 of 1980 to cancel Ex.B-1 on the ground that the document was obtained under coercion and undue influence and, as such, it should be set aside. The defendants further contended that Ex.B-1 was cancelled by the 1st defendant under Ex.B-2, dated 29.6.1978. Subsequently, the 1st defendant has also executed three documents in favour of defendants 2 to 4. Settling the properties under Exs.B-4 to B-6, When the defendants have come forward with a specific stand that Ex.B-1
was obtained fraudulently under coercion and undue influence, the burden is only upon them. The nomenclature mentioned in the document may not be the criterion, but the intention of the parties can be gathered from the recitals in Ex.B-1.
10. Under Ex.B-2, it is stated as follows:
The number one relates to the 4th defendant and the number two relates to the plaintiffs. The entire reading of the document clearly established that apart from the three persons mentioned in the document the settlor also reserved the right to enjoy the same without any power of alienation. Only after the demise of settlor as well as the 4th defendant, the plaintiffs are entitled to absolute right in the properties. There is also another recital in the same document to the effect that the settlor has no right, whatsoever, cancel the document. The learned Counsel for the appellants pointed out that the 1st defendant was an aged lady and she was deaf at the relevant point of time and without any in independent advice from her relations, the document was taken under Ex.B-1 by the plaintiffs in connivance with the paternal uncle of P.W.2. The appellants further contended that in conspiracy with the paternal uncle one Ramaiah Pillai on misrepresentation that Ex.B-1 was prepared by giving her properties in equal share to each to her daughters and believing the same, the 1st defendant signed the document and she was not allowed to have any free independent advice from her relations. It was further stated that when she was in a confused state of mind, without reading over the document to her, Ex.B-1 was executed and registered and, as such, it is vitiated by fraud, misrepresentation and undue influence. It is seen from Ex.B-2, the cancellation deed, the recitals are completely different. While referring to Ex.B-1, it is stated that she executed the same believing the words that they would take care of her property and when she was in a confused state of mind, the document was taken from her, there is nothing in Ex.B-2 to show that it was executed under the circumstances now stated by her in the pleadings as well as evidence. No doubt, the original document Ex.B-1 was produced by D.W. 1 but as adverted to, even under Ex.B-1 she is also entitled to enjoy the property till her lifetime and, as such, the production of original by her will not affect the case of the parties.
11. The 2nd plaintiff was examined as P. W. 1 and the 1st plaintiff was examined as P.W.2 in the case. The 2nd plaintiff is the daughter of the 4th defendant. The 1st plaintiff is the husband of the 2nd plaintiff. They categorically stated about the execution of Ex.B-1 and, according to them, this document has come into existence in the normal circumstance and only on the instruction of the settlor, it was written. P.W.2 also stated that in pursuance of Ex.B-1 only, they are residing in a portion of the suit properties. P. W.3 admittedly is one of the attestors to Ex.B-1 and according to him, the document was read over to D.W.1, and it was executed by her voluntarily. P.W.4 is the scribe of Ex.B-1 and he also stated that the document was read over of D. W. 1. The oral evidence adduced on the side of the plaintiffs viz., P.Ws. 1 to 4 categorically stated Ex.B-1 was executed voluntarily by D.W.I and there is no coercion or undue influence.
12. D.W.I in the course of chief examination stated that the document was not read over to her and she wanted the document to be executed in favour of her three daughters. She further stated that she obtained a registration copy of the same and she had gone through the document. If really she had already gone through the document even as early as 1978, she would have cancelled the same immediately, but only after lapse of five months, Ex.B-2, the cancellation document was executed. The fact that D.W, 1 was deaf is practically conceded. But this does not mean that it can be concluded that Ex.B-1 was taken from her different circumstances, No doubt, P.W.1 stated that Ex.B-1 was not signed by D. W. 1 in his presence, but, however, he stated that the document was read over to her and he could not say whether it was understood by her. D.W.2 is also one of the attestors to Ex.B-1 and according to him, the document was not read over to anybody and the learned Counsel for the appellants mainly relied upon the testimony of D.W.2 and stated that the lower appellate court has not considered this evidence. When there is abundant evidence on the side of the plaintiffs to show that Ex.B-1 was executed under normal circumstance, the burden is only upon the defendants to prove otherwise. It appears that after the execution of Ex.B-1, the daughters of D.W.I had joined together and had managed to get the cancellation deed under Ex.B-2 and the subsequent documents under Exs.B-4 to B-6 in their favour. D.W.2 was working as a teacher and, as such, his testimony that without perusing the same, he signed the document was rightly rejected by the lower appellate court.
13. D.W.I stated that the settlees under Ex.B-1 promised to look after her and she believed their representation. But, however, subsequently she was not given any food and she was made to starve. She further stated that when she was in a confused state of mind, Ex.B-1 was taken from her. In my view, the reasons stated by D.W.I have been invented only for the purpose of this case. As adverted to, there is no recital in Ex.B-2 relating to the circumstances now pointed out by her. The very fact that the settlor, has also retained the right to enjoy the properties under Ex.B-1 is a strong circumstance to infer that it has come into existence under normal circumstance. If really there was any undue influence or coercion, it is not difficult for them to get absolute right in the properties even at the time of execution of Ex.B-1. The learned Counsel for the appellants further pointed out that no provision has been made for defendants 2 and 3 in Ex.B-1 and this can be considered as one of the circumstances against the plaintiffs. She has given properties to these daughters also and even under Ex.B-1, provision has been made for the 4th defendant, and, admittedly the 2nd plaintiff is only the grand daughter of D. W. 1 For all these reasons only, the lower appellate court rightly came to the conclusion that there was no undue influence or coercion in the execution of Ex.B-1. Apart from producing the original of Ex.B-1 there is no other material evidence on the side of the defendants to establish their contention.
14. It has been held in Subhas Chandra v. Ganga Prasad , that the court trying a case of undue influence must consider two things to start with. Namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor, and (2) has the donee used that position to obtain an unfair advantage over the donor? Upon the determination of these issues a third point emerges, which is that of the onus probadi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. Merely because the parties were nearly related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arise. This decision is applicable to the case on hand.
15. Reliance was also placed upon another decision of Apex Court in A.M. Pichamuthu v. B.T. Selvaraj , that where it is found from the evidence that the executant of settlement deed was a woman of character and strong will, merely because her niece, on whom property was settled, befriended her in time of need and took care of her personal comforts, it cannot be said that there was any undue influence or misrepresentation. The aforesaid decisions coupled with the evidence clearly established that there is no force in the theory of undue influence or coercion. The lower appellate court has correctly analysed the various contentions of the parties and came to the correct conclusion that the plaintiffs in O.S. No. 609 of 1979 are entitled to the relief as claimed by them and the document dated 23.1.1978, is not liable to be set aside and, as such, the suit filed by the defendants are liable to be dismissed. There is absolutely no legal infirmity in the judgment and decree of the lower appellate court and as there is no erroneous application of law, I am of the view that no interference is called for. 16. For the reasons stated above both the second appeals are dismissed and the judgment and decree of the lower appellate court are confirmed. However, there will be no order as to costs.