{"id":226971,"date":"1977-03-04T00:00:00","date_gmt":"1977-03-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-saraswathi-ammal-vs-lakshmi-ammal-alias-lakshmi-on-4-march-1977"},"modified":"2018-09-09T00:52:28","modified_gmt":"2018-09-08T19:22:28","slug":"p-saraswathi-ammal-vs-lakshmi-ammal-alias-lakshmi-on-4-march-1977","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-saraswathi-ammal-vs-lakshmi-ammal-alias-lakshmi-on-4-march-1977","title":{"rendered":"P. Saraswathi Ammal vs Lakshmi Ammal Alias Lakshmi … on 4 March, 1977"},"content":{"rendered":"
Madras High Court<\/div>\n
P. Saraswathi Ammal vs Lakshmi Ammal Alias Lakshmi … on 4 March, 1977<\/div>\n
Equivalent citations: AIR 1978 Mad 361<\/div>\n
Author: R Rao<\/div>\n
Bench: R Rao, R Pandian<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 Ramaprasada    Rao,    J. <\/p>\n
 1. These two  appeals   arise  out    of    the   common judgment rendered by the  learned  Subordinate   Judge  of   Coimbatore   in  O.   S. No.  114 of 1970 on  his  file.    S. P. Veerbadra   Chettiar,   the    common    ancestor, died on 22-2-1951 leaving behind him. his wife,   the   second   defendant   and   three daughters.    Maragathammal, is his eldest daughter, who is not a party to this litigation, who married an advocate by name P.    Rajappan.    The   first   defendant    P. Saraswathi Ammal   married   the brother of P. Rajappan and he is Dr. Punnaivanam, Rajappan was examined as D. W.  7 in the case. The plaintiff Latchmi Ammal alias    Lakshmi    Kantam,    is    the    third daughter.    Veerabadra     Chettiar’s     wife Nagalakshrni Ammal, is   the    mother   of the   plaintiff,    the    first   defendant    and Maragathammal and is the second defendant in   the suit.    The plaintiff came   to Court to set aside the sale deed Ex. B-2 dated 29-6-1964  executed by her   mother (second defendant) and herself in respect of the suit properties which sale was in favour of her own sister, the first defendant.     Veerabadra  Chettiar   left    a    will Ex.   B-6 dated   22-1-1950.    He left considerable properties.   Under the said will, a life-estate was created in favour of the second defendant and a vested remainder was    created    in    favour    of    his    three daughters in equal moieties.   The second defendant was also  given the power to distribute the properties equally amongst her    children.    A    family    arrangement (which was  styled   as   a   partition deed) was entered   into under   Ex.  B-7   dated 27-2-1952.    In that partition deed the second  defendant  retained   for    herself   a life estate in  all the immovable properties and acting as the mother and natural guardian of the first defendant, and   the plaintiff, she  partitioned the  suit properties   equally  amongst    her   children.     To this   deed   Maragathammal    was   also   a party.    There   were no  disputes between the mother and her daughters till about 1964 when it became necessary for   the mother to   perform the marriage   of   the plaintiff.    The plaintiff’s  case is that the two sons-in-law (the husband of Maragathammal and the husband of the first defendant)    engrafted    themselves    in    the family  and   were   completely   influencing the  affairs of the   family.     The  plaintiff would touch upon the bickerings in   the family about  the sharing of the  properties   and  would   allege  that  her    mother always made out   that   she  would   have her  marriage   duly   performed   with   the funds left   by Veerabadra Chettiar without recourse  to  the properties which the plaintiff   should  ultimately    take   as   the remainderman and she also made it open that in   case  she  were to die  before the marriage of the plaintiff, the elder sister will arrange to   perform the marriage  of the plaintiff with such funds.    She would also  vaguely  allege   that  the  2nd  defendant   did  not  give  out   existence  of  the will   Ex.   B-6  and  attacks   the   partition deed     as    an    unfair    transaction.     Her specific   case   is  that  she   was   only   five years old at the time of her father’s death, and therefore,   she  was completely under the   influence    of    her   mother   and   her sisters     and    her    brothers-in-law.    She would   say  that   she   was   inexperienced and  unaccustomed to   the   ways   of   the world  and she was   completely  a tool in their hands and it was in this atmosphere that   she   had  to  accept   the   brother   of D.  W.   7   as her husband.    The  marriage was   performed   on    10-6-1965.     But   on 29-6-1964 her mother   and   her   brothers-in-law  dominated  her,    exercised    undue influence  and coerced   her to be  a party to   a   so-called sale deed  Ex.   B-2 dated 29-6-1964, the contents of which and purport of which  she   could   not understand till   1969,   when   she   came  to know   that it was a pucca sale of one of her properties allotted to  her  in  the partition deed Ex.  B-7 and that  she  was  unjustly   deprived of the same.    She  complains  that Ex. B-2 is a sham sale and that the properties   which   were   worth   more    than Rs.   40,000\/-    were   sold    for    a    sum   of Rs. 10,000\/- and this ridiculous low price said   to   have been  paid   as consideration by  the  first  defendant   for  the   purchase of the suit properties is by itself an indication  that the plaintiff was unduly   influenced  by   her mother   and   sisters   in
\nthe transaction.    There was no need   to sell the properties  at all,  as the family was possessed of  considerable sums and in fact, the   money   left   by   Veerbadra Chettiar as   also   the   income   from   the properties   would  be    sufficient   to    celebrate her marriage without recourse to a sale of the suit properties as was done. She pleads  ignorance about the sale and asserts that she is entitled to ignore the document.     In those   circumstances,   she filed the present suit for a cancellation of the  sale   deed Ex.  B-2.    Her alternative case is that if the   Court comes  to   the conclusion  that  any   amount   was   justifiably   paid  under Ex.   B-2 that  amount should be treated as a debt and the debt should be   deemed to   have been   wiped out on account of the first defendant as purchaser being in possession of the properties  from 29-6-1964.    In this sense the plaintiff claims that  she   would   be   entitled to redeem the property without any further   payments.     Ex.   A-1   dated   9-8-1969 is the suit notice and Ex. A-2 dated 20-8-1969  is  the  reply.    Not  being satisfied with the reply given by defendants 1 and 2, as according to the plaintiff it contains   false   allegations,  the  present   suit was filed.\n<\/p>\n
2. The first defendant’s case is that Veerabadra Chettiar executed a will Ex. B-6. In answering the vague allegations that there was no will of Veerabadra Chettiar, the first defendant would refer to certain proceedings initiated by her mother to obtain a succession certificate from the court of the District Munsif, Coimbatore (O. P. No. 37 of 1951 on the file of that court) to collect some outstandings due to the estate of her husband. In those proceedings, the will was produced and therefore, the story that there was no will of Veerabadra Chettiar as exhibited under Ex. B-6 is a fanciful one. She refers to the partition deed Ex. B-7 under which her mother retained a life estate in the properties and divided the vested interests among her three daughters to be taken by them absolutely after her lifetime. She effected such a partition at the instance of the well-wishers of the family and in order to give effect to the desire and wishes of her husband. As per the above document, the plaintiff obtained a vested interest in the suit properties and a half share in a property in the Variety Hall Road. She claims that the mother treated the plaintiff well and educated her in a convent and that she finally appeared for the Pre-University Examination also in a college, shows that she could never have been coerced into accepting the transactions relating to the suit properties, as she was able to form her own judgment in such matters. There were no misunderstandings and the marriage was brought about with the consent of the plaintiff and that the plaintiff knowing fully well that it would be advantageous to sell the suit properties, she willingly executed the sale deed which was duly attested by respectable people and registered openly in the office of the concerned Sub-Registrar. According to this defendant, the price of Rs. 10,000\/- was fair and that there was no need to indulge in any unfair transaction against the plaintiff in the year 1964.\n<\/p>\n
3.   The    second    defendant   practically adopts the statement of  the first defendant and adds that she was never under the   influence of her  daughters    or   her sons-in-law and denies that her husband ever left any cash from and out of which she  could   perform  the   marriage  of   the plaintiff.    Her case  is  that she had   to celebrate    the    marriage    of    her    first daughter and  that of the  plaintiff   only with the monies borrowed and with the money realised by   the   sale    of   certain shares  and   properties.    It   was   in   that connection she had to sell the suit properties in order to perform the plaintiff’s marriage.     The plaintiff is   an   educated girl,  who could form her own judgment and   she having willingly joined   as    an executant  in the   sale deed, she   cannot complain about it.    She also added that the plaintiff is not entitled to claim possession  of  the properties   as   she is  only entitled to  a vested remainder after  her life.    The case that the  price paid is low is incorrect  because what was sold   included her life interest  in  the properties and it was never made out that the sale was for a low price or for an unjust consideration.    She would   also   plead   that the suit is barred by limitation and denies that  the plaintiff came to know  of the sale deed only in February 1969 and this allegation   was made   only to   avoid   the bar under the law of limitation.\n<\/p>\n
4. On the above pleadings, the following issues were framed;\n<\/p>\n
1. Whether the sale deed dated 29-6-1964 was executed on account of undue influence ?\n<\/p>\n
2. Whether late S. P. Veerabadra Chettiar executed a will on 22-1-1950 in respect of his properties ?\n<\/p>\n
3. Whether the sale deed dated 29-6-1964 was executed by the plaintiff in pursuance of her right title conferred by fine said will and, the deed of partition dated 27-2-1952?\n<\/p>\n
4. Whether the suit is not correctly valued for purposes of court-fees and jurisdiction ?\n<\/p>\n
5. Whether the plaintiff is entitled to possession of the properties ?\n<\/p>\n
6. Whether the plaintiff is entitled to any and if so what mesne profits ?\n<\/p>\n
7. Whether the plaintiff is entitled to a decree for redemption as an alternative relief ?\n<\/p>\n
8. To what relief is the plaintiff entitled.\n<\/p>\n
5. Additional issues framed as per order in I. A. No. 177 of 1971 dated 12-3-1971.\n<\/p>\n
  1. Whether the suit is barred by limitation as contended by the defendants ?\n<\/p>\n
6.   The   trial  court held that Ex. B-2 is vitiated because the plaintiff should be deemed to have been unduly influenced to be a party to the transaction and that such    influence   was   exercised   by   her mother, her sister and   her    brothers-in-law.    It  however,  finds that Ex. B-6   is genuine and finds that the story of the plaintiff that there was no will of Veerbadra  Chettiar is false.    On the ground that the document could be avoided by the   plaintiff,   the  trial   Court   held    that Ex. B-2 is not binding upon the plaintiff, but dismissed the suit on the ground that she  cannot  get   any of the   reliefs  asked for in the plaint.    It  negatived  the relief for redemption claimed  as an alternative relief by the plaintiff, as that contention was   not even seriously   pursued   during trial.    In   fact,  it  held   almost   all  other issues   against   the   plaintiff.    The  plaintiff appeals in A. S. No. 102 of 1973 complaining that though the lower Court dismissed the suit in view of the  peculiar situation    in    which    the    plaintiff    was placed it  ought to have incorporated   its finding that the sale under Ex. B-2 stands cancelled in   the   decree    and   that   not having   been  done, she is prejudiced by it.    A.  S.  No.  84 of   1972 is  by the first defendant against the judgment and decree of the court below,   which set aside the sale in her  favour of the suit properties under Ex.  B-2.\n<\/p>\n
7. The case of the learned Advocate General appearing for the appellant in A. S. No. 84 of 1972 is that no particulars of undue influence are given either in the plaint or in the course of her examination in the witness box and that there is absolutely no evidence to show that the plaintiff was under the dominating influence of her mother or her sister or her brothers-in-law and the very fact that the plaintiff set up an alternative case such as the existence of another will and to treat the consideration paid as a loan and enable her to redeem the properties and having ultimately accepted in this Court that Exs. B-6 and B-7 are genuine documents, the plaintiff’s case is rippling with inconsistencies and, therefore, the finding of the court below that Ex. B-2 is vitiated is absolutely baseless. Lastly, the learned Advocate General contends that the suit is barred by limitation.\n<\/p>\n
8. On the other hand, Mr. Thiagarajan, learned counsel appearing for the first respondent would strenuously contend relying upon a catena of decisions that Ex. B-2 is an unenforceable instrument. After having referred to the oral evidence in this case, he would mainly rely upon the alleged inexperience of the plaintiff and her young age besides the alleged low price paid for the (fair) price and would attempt to sustain the finding of the court below that the properties were sold for a song.\n<\/p>\n
9. The plaintiff obviously came to Court with an inconsistent plea and contradictory stories. She would pretend that there was another will executed by Veerabadra Chettiar. She would try to sustain it in the trial Court, but would not even argue or refer to it in this Court and would accept Exs. B-6 and B-7 as valid instruments under which she obtained a title to the suit properties. Apart from this, her vehement case in the court below was that Ex, B-6 was not the will of her father and, therefore, Ex. B-7 is not supportable at all. But in the appeal, there is no whisper about such a challenge as against Ex. B-6 and Ex. B-7.\n<\/p>\n
10. Civil Courts trying domestic litigations like the one under consideration ought to be very slow in accepting the case of a litigant, who is prepared to change his stand like a chameleon and bolster up theories according to convenience. It is fundamental that in a case where a plaintiff abandons her case at any stage of the conduct of her own suit and practically accepts the opponent’s case, since it is more convenient and suitable to her then it would be unjust and indeed unusual to allow the plaintiff to choose a different plane of action and practically claim the relief on the facts pleaded and proved by the opponent. She cannot approbate and reprobate and compel the Court to accept; her case after an open exhibition of her inconsistence. We are referring to such conduct on the part of the plaintiff at this stage only to show that it is not open to the plaintiff as a party to the litigation to allege one set of facts as against the other side and after being confronted with a denial of such facts by the opponent make a volte-face and attempt to sustain the case of the plaintiff on the facts alleged by the opponent and seek for relief on such an inconsistent stand. This attitude of the plaintiff has to be borne in mind before we go deep into her case about undue influence.\n<\/p>\n
11. The plea of undue influence as raised in the pleadings rests upon the following facts urged by the plaintiff. According to the plaintiff she came to understand that the defendants have taken undue advantage of the dominant position which they and the first daughter and the husbands of both the sisters occupied with reference to her and it was in that atmosphere she was compelled to execute the challenged sale deed. The second objection is that the consideration said to have been paid under the document is ridiculously low, the third contention is that the document is a sham one not intended to be acted upon. To further this contention, the plaintiff would allege that she was told that the mother was taking a loan and that she should attest the document and she believed her mother and signed the same. She would also add that the document on the face of it is unconscionable and gives the first defendant unfair advantage. But the telling irreconcilable part of it is that in the alternative, the plaintiff accepts the document partially and she is prepared to redeem the properties without payment of the consideration mentioned therein, if the Court ultimately holds that the money was lent under the document. She claims that she is not liable to pay any amount for such redemption, since the first defendant was in possession and enjoyment of the properties till the date of suit. In a case where a litigant intends to overlook and bypass a registered document under which prima facie certain rights have become vested and under which third parties have acquired indefeasible rights, then the challenging party should be in a position to give such particulars about such undue influence which should form the basis of her complaint.    The primary ground   on   which   the    plea   of   undue influence  is founded is based on relationship.    It is axiomatic that mere proof of relationship however near it may be, is not sufficient  for a Court to assume that one relation was in a position to dominate the   will of  the other.    Such bonds    of kinship which are universally felt should not be mistaken as  equivalent to saying that one kinsman could unduly influence the other in the circuit of such bondage.  Even if any advice is  given it  may be influence   but  not   undue influence.     The tie of   relationship  need   not   necessarily be  used  unwisely,  injudiciously  and  unhelpfully   so  as   to  gain   an   unfair    advantage  by  the  relation  who  is  advising the    other    relation.     Particularly   in    a Hindu   family   a  widowed   mother,    who would  rather be fairly and  affectionately inclined to an unmarried daughter would not make  undue preferences in favour of a  married  one   who    has    already    been provided   for  and   who  was  well   set   in life.     The     sentiment,      the     traditional features of a  Hindu Home, the  love and affection of a mother towards her natural and last  child which  is a  always  in one way  unless   there   are    very   extraneous circumstances to assume otherwise should always   prompt   a    Court   to    raise   the reasonable   presumption   that   any   advice or  influence   which  a   parent  brought  to bear on his  own child is  not to gain an advantage  for  herself  or  to  see  that  an unfair   advantage  is   gained    by   another child   of hers   in preference to  the challenging   child.    There  is  also   one   other important    and     salient    feature     which ought    to    be    established   on    materials pleaded   and    acts    established   that   the ‘bargain is   tainted   by   undue   influence’ and it is   unconscionable   that    it   could reasonably   be   said   that   the   person    to obtain  unfair  advantage   for himself  and so as to cause injury to the person sought relying upon his authority or aid. It is only after such particulars are made  available and a reasonable  proof thereof  has been given,  the onus probandi  would shift  on the    so-called    ‘person    of    domination’. Until then   the burden   is on the   complainant to establish it is so.\n<\/p>\n
12. In the instant case, the particulars given are not so appealing and telling. It is essential that in a case where fraud,
\nundue influence or coercion is put at the forefront the complaining party should set forth the facts in full and give such essential particulars instead of making general allegations. That this is the legal requirement as provided for in Order 6, Rule 4, C.P.C. is reiterated by the Supreme Court in Subhas Chandra v. Ganga Prosad<\/a> . The Supreme Court said that the Court must scrutinize the pleadings to find out that a plea has been made out and that full particulars thereof have been given before examining Whether undue influence was exercised or not. In the light of this, the pleadings and the evidence let in should be scrutinized.\n<\/p>\n
13. Before doing so, it would be convenient to refer to the plaintiff herself and her ability and capability. She had her early education in an Anglo Indian School and studied up to Pre-University Class in the Nirmala College, Coimbatore. She is, therefore, an educated lady and not an illiterate or a person, who could be said to be incapable of acting on her own. In cases where a person suffers from an infirmity or backwardness, then standards of proof regarding undue influence or coercion may be slightly different. The case cited by the learned counsel for the respondent in Nibaran v. Nirupama (AIR 1921 Cal 131) deals with the transaction of a Pardanashin lady. They divided the decisions on the subject under two groups as follows:\n<\/p>\n
  “…… First, cases where the person who seeks to hold the lady to the terms of her deed is one who stood towards her in fiduciary character or in some relation of personal confidence; and secondly, cases where the person who seeks to enforce the deed was an absolute stranger and dealt with her at arm’s length. In the former class of cases, the Court will act with great caution and will presume confidence put and influence exerted; in the latter class of cases, the Court will require the confidence and influence to be proved intrinsically”.\n<\/p>\n
A fortiori therefore, in a case where the challenging litigant is capable and literate and the parties are parent and child, the Courts, must be doubly careful and would certainly demand strict proof of the misuse of confidence and influence said to have been exercised by the other party when the other party is none else than the mother. P. Ws. 1, 2 and 3 do not convincingly refer to any unfair practice indulged in by the mother when<\/p>\n
she joined with the plaintiff to sell   the property to   the   sister   of   the   plaintiff. P. W. 4, the plaintiff’s father-in-law, does not even   wisper about undue   influence having been exercised by the mother or any other member   of   the   family.    He would only ask us to draw some inference from  surrounding facts.    He  would say  that  Dr.   Punnaivanam,  the   husband of the first defendant took active part in arranging  the marriage  of   the   plaintiff and that the husband chosen was according to the choice of the plaintiff herself and  that   considerable   sums   were   spent for  her  marriage.     It  is   in   this    background of  total   lack of   particulars   of undue influence that we should read the evidence of P. W. 5, the plaintiff herself. She admits that she might have read the document    Ex.     B-2.    This     necessarily means  that she   has read   it,  since there is no denial of it.    Her case is that she was not   aware that she was executing a sale deed.    Her specific particulars which she gives in the witness box about   the practice  of   undue influence are  that her mother, the second defendant, her elder sister,  the  first  defendant,   and   Punnaivanam,   the husband of   the first defendant,  informed   her that another  family house had been brought to sale in Court auction and that in order to save the property she must sign the document. There is    no    corroboration    about   this   extraordinary version.    The first defendant as D.  W.  6 speaking to  the contrary would say that the property had to be sold in order   to secure   money  for  purpose   of the   marriage of   the plaintiff and   since she   was inclined   to purchase the   property she bargained for and fixed a fair price  of   Rs.   10,000\/-  and  purchased   the property under  Ex.   B-2.    No doubt   the mother whose act   has   been   challenged and who is obviously in an embarrassing position, did  not  choose to get into  the box.    D. W.  5 is   characterised   by   the lower court as a respectable person.    He deposed that Ex. B-2 was read over and after it was so read over only, the plaintiff signed Ex.  B-2,    But the trial  Judge thought that   D.   W. 5 should   have   expressed an opinion besides having spoken the truth. He was of the view that D. W. 5 should   have specifically   stated that the plaintiff signed the document after knowing the true nature of it.   We are unable to share the view of the trial court in this behalf.    When once a person placed   in the  position  of the plaintiff who is not an   illiterate and who could  be said   to have such experience in life and matters
\nto  understand  things it is  very difficult to infer that the plaintiff has discharged her burden.    She would say in the witness   box that  she signed    because   she wanted to avoid a sale  of another property of the   family.     She improves   her case in the witness box so as to satisfy the legal   requirement about   the    particulars of undue influence by saying that she believed her mother and  her elder sister   and   signed   the   document.    She would pretend that she signed as a witness to some document.    She also would say that there was no necessity for sale, since there were family jewels and other monies of her father which was available for celebrating her marriage.    The document  is of the year   1964.    Her mother was sending her regularly some amounts by way of pocket money and there was therefore no ill-feelings or any difference of opinion  in the family.     It  is only   in 1969,  when  she was  in  Coimbatore,   she came to know that her property has been sold.    Excepting for this evidence that it was P. W. 3 who  told her about it   no other speak about it, P. W. 3 was examined   on   23-3-1971    and   P.   W.   5   was examined    on    24-3-1971.    There    is    no consistent    version   which   is   acceptable even as regards the information said   to have been   given   by P.   W.   3 in   1969. P. W. 3  would  not specifically refer   to the    meeting    at    Coimbatore    in    1969, whilst P.  W. 5 the plaintiff refers to it very vaguely.    In the suit notices which were exchanged under Exs. A-4 and A-2 there is no specific reference to the plaintiff   having been   unduly   influenced   by her mother.   One other important feature Which  has to   be borne in mind in the instant case is that the plaintiff should be deemed   to   have   understood   the   challenged deed and signed it.    The plea of non est  factum is therefore not available to her.    She   says   “PADITTHU   ERUKKALAM” but she does not say ” PADIKKAVILLI”.    The fair assumption is that she read it, understood it and signed it. To  quote the observations of the Privy Council in Martin   Cashin    v.   Peter   j. Cashin (AIR 1938 PC 103):\n<\/p>\n
  “In a case where the person executing the deed is neither blind nor illiterate, Where no fraudulent misrepresentation is made to him, where he has ample opportunity of reading the deed and such knowledge of its purport that the plea of non est factum is not open to him, it is quite immaterial whether he reads the deed or not. He is bound by the deed<\/p>\n
because it operates as a conclusive bar against him not because he has read it or understands it, but because he has chosen to execute it”.\n<\/p>\n
 Mr. Thiagarajan referred to various decisions. Narayanadoss Balakrishna Doss v. Buchrai Chordia Sowcar (53 Mad LJ 842) : (AIR 1928 Mad 6); Rama Patter v. Lingappa Gounder (69 Mad LJ 104) : (AIR 1935 Mad 726); Mannankatti Ammal v. Vaiyapur Udayar (1961-2 Mad LJ 367); Abdul Malick Sahib v. Md. Yousuf Sahib  and other cases to show that this is a case where the plaintiff should be deemed to have been unduly influenced. In all those cases the following principles were laid down.\n<\/p>\n
“(1) Where confidential relations exist, those standing in such relations cannot entitle themselves to hold benefits unless they can show that the persons who have conferred the benefits had competent and independent advice. In this case, neither does the age nor the capacity of the person conferring the benefit affect the principle”.\n<\/p>\n
“(2) Age and capacity are considerations which may be important in cases where no confidential relation exists”.\n<\/p>\n
There can be no quarrel relating to such accepted and general proposition. But each case has to depend upon its facts. In the instant case, the parties are parent and child. The document was executed at a time when the marriage negotiations of the plaintiff were going on. According to us, the plaintiff understood that it was sale of her property for consideration. The story that there were other moveable properties such as jewels and cash which ought to have been sufficient for the conduct of her marriage though spoken to vaguely has not been established. No such evidence has been placed before us either. The normal circumstance of securing competent and independent advice would not enter for consideration in this case because it was all arranged in a family council in which there was no distrust or mistrust as between the one and the other. What was sold did not belong to the plaintiff at all on the date of sale. She had only a bare right of expectancy; it may be a vested right. The subject-matter of the sale was not fully appreciated by the trial court. Both life interest of the mother as well as the ultimate remainder vested in the plaintiff were act (sic) of the second defendant after freely exercising
\nher independent will and mind. The case relied on by Tyagarajan in Lancashire Loans Ltd. v. Black (1934-1 KB 380) which, of course, is a case as between a daughter and a mother, is certainly distinguishable. There, the daughter, who did not understand the transaction, signed the document at the request of her mother. The only advice which the daughter received was that of a Solicitor, who also acted for the mother and the money-lenders, who duped the daughter and who prepared the documents. It was in those circumstances the Court of Appeal held that the daughter was under the undue influence of her mother when she entered into the transaction in question and as the money-lenders had notice of the facts which constituted undue influence on the part of the mother, the transaction must be set aside. The facts of our case are entirely different.\n<\/p>\n
14. Learned counsel for the first respondent rests his case in the alternative on the inadequacy of consideration which was more or less the sole ground on which the lower Court found a case of undue influence. The Court thought that the price paid under Ex. B-2 was ridiculously low. We have already referred to the fact that the plaintiff came to Court with inconsistent plea and she was not able to substantiate her case of undue influence, by concrete evidence. The sale is both the life estate and the vested remainder. But the lower court did not have this in mind and went on evaluating the property on some uncertain evidence regarding the income which it fetched and came to the conclusion that the price paid was ridiculously low, and therefore, the document should be set aside. Ex. A-17 dated 3-3-1965 furnished data with reference to some other property but said to be similar. This was proved by P. W. 2, who asserts that the suit land would fetch an annual rent of Rs. 5,000\/-. Reliance is also placed on Ex. A-37 which is a diary said to have been written by the second defendant. Apart from the fact that this diary appears to be a book, which cannot be relied upon in a Court of law, the entry therein does not show that the amount mentioned therein related to one year’s period only. But according to the Court below Ex. A-41 dated 1’4-12-1950 and Exs. A-60 dated 25-1-1962 and A-61 provided clinching evidence about the income. The mother was a party to Exhibits   A-60   and   A-61.     The   lower   Court accepted the materials   furnished   under Exs.   A-41,  A-60  and A-61   and  came to the  conclusion that the  annual rent yield from    the     property    would    be     about Rs.  3,500\/-   to  Rs.  4,250\/-.  Prima facie  it appears that  a sale  of a property  for   a sum of Rs.  10,000\/- when its annual yield is in the range of Rs. 3,000\/- to Rs. 4,000\/-is not a fair transaction.    But as we said, the second defendant, who is a party   to Ex. B-2 had a life-interest over the property  and she was selling her life-interest also under it.    The second defendant is   still   alive.    The  document   is   of   the year 1964,     Even now she is reported to be   hale   and   healthy.    For    six    years, therefore,   that   is,   six  years  before   the suit,    she    lost   her   annual   income    of Rs.   4,000\/-  subsequent  to   the  institution of the suit, she has lost another like sum. In  cases where  it   is necessary to   take subsequent events into consideration, the Court   is   not    powerless   to   view   those events also and weigh the reality of the situation or the equity of the  bargain.   If the mother has   lost Rs.   48,000\/- so   far which ought to form part of the consideration,    then    the    property    should    be deemed to have been sold for a sum of Rs.   60,000\/- in  1964.    This is  not an  unfair price even if the   annual yield  was about Rs. 4,000\/-.    This was not borne in mind   by   the learned  Judge.    The lower Court apparently was of the view that it was the   plaintiff and the  plaintiff alone who was  entitled  to the property on the date of sale and it is in that light, it considered the issue whether the price paid was ludicrously low.    The plaintiff’s case is  that the property could  have fetched only  a sum of Rs. 40,000\/-.    Even on the date of    suit,    the    consideration    which should be  deemed to   have passed under the sale was very  near that amount. But this is    not    all.      The    entirety  of    the transaction must be taken into consideration and the  necessity  for the  sale,   are all factors which should    necessarily be borne in mind before a transaction could be set aside on the ground that the price paid   therein  is  so  low that  it  could  be said  to   have  been tainted by  undue  influence.    In A.  S.  No. 644 of  1972    this  Division Bench held :\n<\/p>\n
 \"When once it is proved that the properties in question were sold for a consideration by the vendor without being influenced either by coercion or by undue influence then the question as to why he had  sold   the   property   may    not    loom large.    More so in the instant case when the   father  of   the    vendor   himself   had attested  the said document ... ... ...\" \n \n\nFor the above reasons, we are unable to share the view of the trial court that Ex. B-2 should automatically fail and be held as an inoperative document on the only ground that prima facie the consideration is not adequate.\n \n\n15.    The   plaintiff    cannot    succeed    on one   other  specific   ground  which   affects the very maintainability of her suit. The plaintiff was   born on  2-8-1945.    Ex.  B-2 sale   was   executed   on    29-6-1964.    Her marriage was on 10-6-1965 and the plaint was presented to set aside the sale under Ex.  B-2   on  22-2-1970,    She  tries  to get over the plea of limitation by saying that she  came  to  know  that  Ex.  B-2   was    a sale only  in  1969.    There  is  no  reliable evidence at  all on this.    The lower court was influenced  by the  only fact that the mother and Dr. Punnaivanam did not get into  the box.    The finding  of  the  court below that she came to know of the true nature   of  the   document   only   in   1969 should be accepted, is not based on any acceptable   material.    We   have   already referred to the fact that the plaintiff examined as P. W.   5 says   that   she   knew about it from P.  W.   3 while she was  in Coimbatore.    P.   W.   3 himself does   not whisper   about this.    Then  the   question is  whether the suit instituted in 1970 to set  aside a document executed in 1964 is in time.    When once the document is   a registered  one   and  the   plaintiff   herself attended   the Sub-Registrar's  Office   and accepted the  nature  of   the   transaction and  when according to us she must have acquainted   herself   with   the   recitals    of the document she should have understood it   as a sale  of  her interest in  the   property.     Therefore, the  facts entitling her to have the instrument set aside became known   to  her   even   on  29-6-1964.    She has invented  the  year   1969 as  the   year when  she   first  became  known    of   such facts.    This  story is   unbelievable.    Even in the notice Ex.   A-1  she  would not set out   the  necessary  particulars   as to  how she  came to know   about  the  unfairness of the transaction only in 1969.    We have repeatedly referred  to  the  fact  that the plaintiff came forward with  a case that there was a second will    and   she   was unable to prove it.   She would assert that the will Ex. B-6 was not duly executed by her father. She made a faint attempt to prove it. She would not even accept the partition deed Ex. B-7 when she came to Court. But in appeal she accepts that Exs. B-6 and B-7 are valid. She does not press her case about the existence of a second will but is satisfied with the judgment of the court below and would only ask this Court to incorporate in the decree the finding of the court below that Ex. B-2 is vitiated by undue influence and is unenforceable. Such being the attitude of the plaintiff and in the absence of any evidence which could be accepted to show that it was only in 1969 that she came to know that Ex. B-2 was a sale of her interest in the property, we are unable to accept the said version of the plaintiff. We find that she had knowledge about the sale even in 1964 and she not having taken any action within three years from the date of such execution, the suit is barred under Art. 59 of the Indian Limitation Act, 1963.\n \n\n<\/pre>\n
16. On the ground that what was sold was the life-interest and the ultimate remainder of the plaintiff in the property and that the price, therefore, paid therein cannot be said to be inadequate, for the mother parted with her life-interest, the value of which is considerable and on the ground that the mother cannot be said to have exercised any undue influence over her daughter and lastly on the ground that the suit itself should be held to be barred by limitation, we accept the dismissal of the suit made by the court below and would also hold that the plaintiff has failed to prove that Exhibit B-2 has to be set aside or cancelled on the ground that her mother or any of her near relations unduly influenced her to be a party to it.\n<\/p>\n
17. The appeal, A. S. No. 84 of 1972 is, therefore, allowed; but there will be no order as to costs. In the circumstances, the request of the appellant in A. S. 102 of 1973 that the decree should be modified as prayed for by her cannot be countenanced and A. Section 102 of 1973 is dismissed. There will be no order as to costs. But the appellant in A. S. No. 102 of 1973 shall pay the court-fee payable to the Government.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court P. Saraswathi Ammal vs Lakshmi Ammal Alias Lakshmi … on 4 March, 1977 Equivalent citations: AIR 1978 Mad 361 Author: R Rao Bench: R Rao, R Pandian JUDGMENT Ramaprasada Rao, J. 1. These two appeals arise out of the common judgment rendered by the learned Subordinate Judge of Coimbatore in O. S. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-226971","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nP. 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