Madras High Court
Suguna vs Vinod G.Nehemiah on 26 February, 2008
Bench: K.Raviraja Pandian, Chitra Venkataraman
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:26.02.2008 CORAM: THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN O.S.A.Nos.330 and 331 of 2007 O.S.A.No.330 of 2003: 1. Suguna 2. K.Devi .. Appellants versus 1. Vinod G.Nehemiah 2. Padma Daniel 3. Prem G.Nehemiah 4. Jean B.Jeyamitra 5. P.Partheeban .. Respondents Respondents-3 and 4 represented by Power Agents Vinod G.Nehemiah and Padma Daniel. O.S.A.No.331 of 2003: Suguna .. Appellant versus 1. Vinod 2. Padma 4. Jeen .. Respondents ----- PRAYER: O.S.A.No.330 of 2007 is filed under Order XXXVI Rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent against the order of the learned single Judge of this Court dated 12.9.2007 made in C.S.No.153 of 2002. O.S.A.No.331 of 2007 is filed under Order XXXVI Rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent against the order of the learned single Judge of this Court dated 12.9.2007 made in Tr.C.S.No.374 of 2002. For appellants in both the O.S.As. : Mr.T.V.Ramanujun Senior Advocate for Mr.B.Harikrishnan For respondents-1, 2 and 4 in O.S.A. No.330 of 2007 and respondents-1 to 3 in O.S.A.No. 331 of 2007 : Mr.R.Thiagarajan ----- JUDGMENT
(Judgment of the Court was delivered by CHITRA VENKATARAMAN,J.) These two appeals arise out of the common judgment and decree passed in C.S.No.153 of 2002 and Tr.C.S.No.374 of 2002 dated 12.9.2007. O.S.A.No.330 of 2007 arises out of C.S.No.153 of 2002. O.S.A.No.331 of 2007 arises out of Transfer C.S.No.374 of 2002. The first appellant and the second appellant in O.S.A.No.330 of 2007 are the first and the second defendants in C.S.No.153 of 2002 and the appellant in O.S.A.No.331 of 2002 is the plaintiff in Transfer C.S.No.374 of 2002.
2. For the purpose of convenience, the parties are arrayed as per their rank in O.S.A.No.330 of 2007. The facts leading to the filing of the suits are as follows:
Respondents-1 to 4 herein in this appeal filed a suit against the appellants in C.S.No.153 of 2002 seeking a declaration that the settlement deed dated 15.12.2000 executed by the plaintiffs' father J.V.A.Nehemiah was illegal, invalid, sham and nominal. They also sought for a direction to defendants-1 to 3 therein, to jointly and severally pay a sum of Rs.10,00,000/- with future interest at 24% per annum from the date of plaint till the date of realisation as damages. Apart from that, the suit relief sought for included a mandatory injunction directing the first defendant/first appellant herein to remove her belongings and deliver possession of the ground floor of the premises bearing Door No.9, Second Main Road, Seethamma Colony, Alwarpet, Chennai-600 018; for a permanent injunction restraining defendants-1 to 3 therein from interfering with the peaceful possession and enjoyment of the suit property; for a permanent injunction restraining the first defendant/first appellant herein from in any manner encumbering or dealing or alienating the suit property, apart from a decree for recovery of a sum of Rs.9,00,000/- as past damages with future interest at 18% per annum from the date of the plaint till the date of surrender and to direct defendants-1 to 3 to jointly and severally pay a sum of Rs.25,000/- per month as damages for use and occupation of the premises from the date of the plaint till the date of surrender of the ground floor of the premises.
3. Transfer C.S.No.374 of 2002 was filed by the appellant herein seeking a decree of permanent injunction restraining the defendants/respondents herein from interfering with the peaceful possession and enjoyment of the suit property by the appellant herein, except by due process of law.
4. The respondents herein are the sons and daughters of one J.V.A.Nehemiah. The first and second respondents are living in India and the third and fourth respondents are living in United States, making annual visits. It is stated that the said J.V.A.Nehemiah was a United Nations Pensioner and he was the absolute owner of the property bearing Door No.9, Second Main Road, Seethamma Colony, Alwarpet, Chennai. The suit property was purchased by the said J.V.A.Nehemiah as early as 24.2.1960 out of his earnings and hence, it was a self-acquired property. The case of respondents-1 to 4 herein as plaintiffs was that the said J.V.A.Nehemiah was residing in the suit property. He had leased out the ground floor of the premises to one K.V.Nair, an Executive in Mahendra Construction Co. Ltd. on a monthly rent of Rs.13,000/-. This was subsequently enhanced to Rs.18,000/- per month since 1.4.2000. He was residing in the first floor of the premises and was enjoying the rental income from the ground floor till the tenant vacated the premises on 7th October 2001.
5. Respondents-1 to 4 contended that the said J.V.A.Nehemiah passed away on 9th February 2002. He was 89 years old at that time. It is the case of the first and second respondents that they took care of their father. The first respondent is having his business in Vellore and was frequently visiting Vellore for business purpose. He had his business in Chennai also. The appellant herein/first respondent in the suit, was working as a servant maid under J.V.A.Nehemiah eversince 1987. The specific allegation of respondents-1 to 4 herein is that the appellant herein had fraudulently brought about a settlement deed dated 15th December 2000 purported to have been executed by the Late J.V.A.Nehemiah in favour of Suguna the first appellant herein. It is stated that she was already married and living with her husband, who passed away on 9.3.2000. The document recited the first appellant herein as the wife of J.V.A.Nehemiah. Respondents-1 to 4 stated that their father was at the ripe age of 87 years at the time when the alleged settlement deed was executed; he was physically and mentally weak, and that the settlement deed was brought about by playing fraud on their father. On the strength of the settlement deed dated 15th December 2000, the appellant herein attempted to occupy the ground floor of the suit property. This resulted in the first respondent giving a complaint to the police on 16.12.2001. Respondents-1 to 4 state that the appellant herein entered into the ground floor of the premises by obtaining an interim order in a suit proceeding in Transfer C.S.No.374 of 2002, originally filed before the XVI Assistant City Civil Court, Chennai, in O.S.No.7398 of 2000 (in I.A.No.21741 of 2001). In support of the contention that the first appellant exerted pressure and undue influence on the deceased to have the settlement deed executed, respondents-1 to 4 alleged that the deceased J.V.A.Nehemiah executed a registered will on 23.7.1997 which was probated before this Court in O.P.No.19 of 2003 on 20th February 2003.
6. It is stated that one Dr.Rajagopal, who had been the family physician and attending on their father for over 20 years, informed the first respondent that his father was weak and frail and accordingly suggested that the deceased be given treatment in Vellore. They also stated that the Doctor had certified that the father was not maintaining sound mental health apart from the weak physical disposition. By making defamatory statement against respondents-1 to 4 that they had kidnapped their father for an ulterior purpose to get the property, the suit had been preferred before the City Civil Court. It is stated by respondents-1 to 4 herein that as per the will probated before this Court, the entire property was given to the first respondent herein. It is further stated that the conduct of the appellant herein clearly show that the settlement deed was the hand work of the appellant herein in collusion and connivance with the other defendants in the suit. The document dated 15th December 2000 was registered as Document 474/2001 in the office of the Sub Registrar, Thousand Lights. Having regard to the falling mental health of the deceased due to the advanced age and his sickness from 1999, the document was the result of a fraud played on the deceased; as such, the settlement deed dated 15th December 2000 is a sham and nominal document and has no legal effect. It is further submitted that for the illegal occupation by the first appellant herein, the respondents have to be compensated.
7. The suit was resisted by the first appellant herein by filing a written statement that the settlement deed dated 15th December 2000 was executed by the deceased in her favour, treating her as the wife of the deceased J.V.A.Nehemiah. The first appellant submitted that she was employed as a servant maid under the said Nehemiah and was associated with him for more than 20 years. The specific case of the first appellant herein is that respondents-1 to 4 never took care of their father and it was this appellant who took full care of the needs of the deceased Nehemiah. In course of time, she became the life partner of the late Nehemiah. The first appellant pointed out to the recital in the document that the deceased settlor, satisfied of the hard work, loyalty and integrity of this appellant in rendering all services akin to a life partner, had settled the 'B' and 'C' schedule properties in her favour. Considering the execution of the document and the contents of the deed admitted by the settlor, respondents-1 to 4 had no right to question the validity of the document. It was further stated that the settlement deed was acted upon even during the life time of the late Nehemiah. The first appellant pointed out that contrary to the assertion, Late Nehemiah was active and mentally sound.
8. On 19.12.2001, respondents-1 to 4 took away the deceased Nehemiah to an unknown place and thereafterwards, he died immediately. It is alleged that the deceased Nehemiah was tortured by his sons and daughters which led to his ultimate end. Referring to the interim injunction granted by the City Civil Court in the suit filed by her, the first appellant states that she lived with the deceased Nehemiah as his wife. It is also alleged that there are no grounds to suggest any fraud played on the deceased to obtain this document.
9. In the suit filed by the first appellant before the City Civil Court, which was later on transferred to this Court in Transfer C.S.No.374 of 2002, the first appellant herein contended that the suit property was absolutely owned by the deceased Nehemiah. She lived with her husband J.V.A.Nehemiah along with her two daughters and grand daughter. It is alleged that the cause of action of filing of the suit arose by reason of respondents-1 to 4 taking away the suit property by dispossessing her illegally. It is further stated that considering her rights and the illegal attempts of respondents-1 to 4 herein to grab the suit property wherein she was living with her husband, the suit for injunction against respondents-1 to 4 was filed. Respondents-1 to 4 herein filed their written statement in Transfer C.S.No.374 of 2002 reiterating the contentions as stated in C.S.No.153 of 2002.
10. Before the learned single Judge, the following issues were framed for trial for determination:
In C.S.No.153 of 2002:
1. Is the settlement deed dated 15.12.2000 alleged to have been executed by late J.V.A.Nehemiah in favour of the first defendant true and valid?
2. Whether the plaintiffs are entitled for a declaration that the settlement deed dated 15.12.2000 registered as Document No.474 of 2001 is illegal, invalid and sham and nominal and consequently declare the same as illegal and non-est in the eye of law and not binding on the plaintiffs or the estate of J.V.A.Nehemiah.
3. Whether defendants 1 to 3 are jointly and severally liable to pay Rs.10 lakhs as damages with future interest at 24% per annum to the plaintiff from the date of plaint till the date of realisation?
4. Whether the plaintiffs are entitled for a mandatory injunction directing the first defendant to remove her belongings and deliver possession of the ground floor of the suit premises to the plaintiffs?
5. Whether the plaintiffs are entitled for injuncton as against defendants 1 to 3 from interfering with their possession and enjoyment of the suit property?
6. Are defendants 1 to 3 entitled to alienate or deal with the schedules 'B' and 'C' mentioned properties either by way of mortgage, lease, sale, transfer or otherwise detrimental to the estate of late J.V.A.Nehemiah or plaintiffs?
7. Whether the plaintiffs are entitled for recovery of schedules 'B' and 'C' forming part of Schedule 'A'?
8. Whether defendants 1 to 3 are entitled to Rs.9 lakhs as past damages with interest at 18% per annum for use and occupation of the ground floor of the suit property?
9. Whether defendants 1 to 3 are liable to pay to the plaintiffs Rs.25,000/- per month as damages for use and occupation of the premises till the date of surrender of portion of the suit property in ground floor schedules 'B', 'C' and 'D' forming Schedule 'A'?
10. To what relief are the plaintiffs entitled?
In Transfer C.S.No.374 of 2002:
1. Whether the plaintiff is entitled to permanent injunction as prayed for?
2. To what relief, is the plaintiff entitled?
11. The first respondent deposed as P.W.1. Apart from him, the Doctor who was treating the deceased Nehemiah, also deposed as P.W.2. The Security Service, through their Proprietor, deposed on the side of the respondents as P.W.3. On the side of the appellant, apart from the first appellant as D.W.1, the appellant's daughter Devi, second appellant herein, also deposed as D.W.2. It is seen that the daughter who figured as the second defendant in the suit filed by respondents-1 to 4, was one of the attesting witnesses to the settlement deed marked as Ex.D1. On the side of the respondents the probated Will was marked as Ex.P3. It is seen from the perusal of the judgment that on the question of the validity of the settlement deed dated 15.12.2000, alleged to have been executed by Late J.V.A.Nehemiah in favour of the first appellant herein, it was seen that the property was a self-acquired property of the deceased Nehemiah. He died on 9.2.2002 at the age of 89 at Vellore. Ex.D1 is the settlement deed dated 15.12.2000 which was impugned in the suit proceedings. Respondents-1 to 4 pointed out that the deceased Nehemiah's will dated 23.7.1997 was probated under the proceedings marked as Ex.P3 dated 7.2.2003. As per the terms of the will, Nehemiah gave an absolute right to the first respondent with a covenant that the property shall not be sold. In the event of the said first respondent desiring to sell the property, the sale proceeds should be shared by all the children. Apart from bequeathing his property to the children, the deceased Nehemiah also had bequeathed certain sums of money in favour of the servants who had worked for the deceased Nehemiah and one of them happens to be the first appellant herein. The settlement deed is a subsequent document of the year 2000. Dealing with the challenge as to the validity of the settlement on grounds of undue influence and fraud played on, it was pointed out that with reference to Section 16(3) of the Indian Contract Act, 1872, the first appellant admitted that she maintained a fiduciary relationship with the deceased Nehemiah; as such, she was in a position to dominate the will of Nehemiah. In the circumstances, learned single Judge held that the onus to establish that there was no fraud, misrepresentation or undue influence rested on the appellant herein and not on respondents-1 to 4 as plaintiffs. It was also pointed out that D.W.2 who was an attesting witness, was none other than the daughter of the first appellant. The other attesting witness was the driver who served along with the first appellant. It was pointed out that the first appellant categorically stated that she did not know whether the contents of the document were read over and explained to the deceased Nehemiah. The other attesting witnesses or the scribe of the document Ex.D1, were not examined to the effect that the deceased signed the document after understanding the contents of the document and the implications thereof. It was also pointed out that the document was presented for registration on 15.12.2000. However, on account of the deficit fee, the same was released after due registration on further payment of the stamp duty of Rs.38,400/- collected from the first appellant. Learned single Judge pointed out that although the first appellant denied her presence at the Registrar's Office at the time of registration and presentation of the document, yet, on the basis of the evidence and taking note of the cumulative circumstances, held that the first appellant actively participated in the execution of the document. Pointing out to the fact that the first respondent was frequently visiting his father and had been taking care of the deceased and also to the effect that one of the daughters was making visits to take care of her father, the submission of the first appellant that the deceased was completely left unattended by his children was not acceptable. Learned single Judge also pointed out that although in Ex.D1 the appellant was stated as the wife of the deceased Nehemiah, at the same time, it was recited therein that she was working in the house of Nehemiah. The settlement deed Ex.D1 also did not contain any reference as to the recital in the will, wherein, the deceased Nehemiah had categorically stated that the first respondent would inherit the property absolutely. Having regard to the fact that the first respondent had been making frequent visits and taking care of his father, it was a mystery as to why the deceased kept the execution of the document as a guarded secret. Learned single Judge pointed out that the transaction was not only an unnatural one, but also an unconscionable execution. Comparing the recitals in the will as well as in the settlement deed as to the services rendered by Suguna, the first appellant herein, learned single Judge pointed out that if really the deceased had intended to part with half of the properties to the first appellant herein, certainly as a party to the document who had been given a share in the property, she could have disclosed the same at the first instance when she laid the suit. However, the disclosure as to the settlement deed came after 17 days in the counter affidavit filed by her. Learned single Judge also pointed out the letters written by the tenant K.V.Nair Exs.P12 to P14 to Nehemiah and Ex.P15 to the first respondent herein. Referring to the evidence of P.W.2, the physician who attended on the deceased, learned single Judge pointed out that the Doctor had categorically observed in his recommendatory letter on 10.12.2001 that the physical and mental problems that the deceased faced need a medical care by one of the family members on a daily basis or by taking him to Vellore where the first respondent was residing for giving him treatment in the Vellore Mission Hospital. It was also pointed out that the judgment and reasoning and the mental condition of Nehemiah were not normal. In the face of this assertion by the Doctor as to the mental capacity of the deceased which had deteriorated on account of his age, learned single Judge pointed out that the settlement deed was executed by exerting pressure and undue influence by the appellant herein, taking advantage of the mental condition of the deceased on account of his old age. In the above circumstances, learned single Judge held that the settlement deed dated 15.12.2000 was not a true and valid document and the real owners are the respondents who are the legal heirs of the deceased Nehemiah, whose rights flowed from the probated will marked as Ex.P3.
12. On the question of damages claimed, learned single Judge, however, rejected the plea of respondents-1 to 4 herein as having no nexus with the original cause of action of the suit. It is admitted that there is no cross appeal by respondents-1 to 4 herein. On the question of Issue Nos.8 and 9, learned single Judge pointed out that the appellant was bound to pay a sum of Rs.13,000/- per month from 14.12.2001 to the plaintiffs/respondents-1 to 4 herein. Thus, decreeing the suit filed by respondents-1 to 4 the first appellant's suit was dismissed. Hence, the present appeal.
13. The first appellant in O.S.A.No.330 of 2007, the first defendant in the suit, has preferred the appeal contending that the suit praying for a declaration that the settlement deed dated 15.12.2000 executed by the plaintiff's father J.V.A.Nehemiah was illegal, invalid, sham and nominal; for a direction to the appellants/defendants-1 to 3, to jointly and severally pay a sum of Rs.10,00,000/- with future interest at 24% per annum by way of damages; for a mandatory injunction directing the appellant herein to remove her belongings and to deliver possession of the ground floor of the premises bearing Door No.9, Second Main Road, Seethamma Colony, Alwarpet, Chennai-600 018; for a permanent injunction restraining the appellant herein and the other defendants from interfering with the peaceful possession and enjoyment of the suit property; for a permanent injunction restraining the appellant herein from in any way interfering or dealing or alienating the suit property; for a decree for recovery of a sum of Rs.9,00,000/- as past damages with future interest at 18% per annum from the date of the plaint till the date of surrender and to direct defendants-1 to 3 to jointly and severally pay a sum of Rs.25,000/- per month as damages for use and occupation of the premises from the date of the plaint till the date of surrender of the ground floor of the premises, was totally unsustainable, considering the fact that the pleading on the allegation of undue influence is vague. Learned senior counsel further pointed out that in the absence of pleading on the question of undue influence, learned Judge erred in placing the burden on the appellant. Pointing out to Section 16 of the Indian Contract Act, 1872, learned senior counsel submitted that there was absolutely no pleading or evidence or facts pointing out or substantiating the allegation on undue influence. Referring to paragraphs 5, 7, 8 and 9 of the plaint, learned senior counsel pointed out that the mere usage of the phrase "fraud", per se, is not sufficient to declare the document as non-est in law as being brought about by fraud and undue influence. He submitted that the settlement deed dated 15.12.2000 was registered on 2.5.2001. The factum of execution and the registration of the same were denied by respondents-1 to 4 herein. In the face of Order VI Rule 4 of C.P.C., the mere usage of the words borrowed from the Indian Contract Act, 1872 does not entitle respondents-1 to 4 to a decree. Submitting that a constructive possession pursuant to the settlement deed could be good enough to hold that the first appellant was put on possession, he pointed out that if really there had been an undue influence practised on the settlor, there was time enough for the settlor to recall the document. On the other hand, the deficit duty on the document presented for registration was made five months after its presentation. There are absolutely no materials to suggest that the first appellant coerced the settlor to execute his settlement deed. It was submitted that the circumstances, hence, clearly pointed out the total absence of any fraud and undue influence as alleged by respondents-1 to 4. Referring to Order VI Rule 2 of the C.P.C., he submitted that in the absence of a specific issue raised and a pleading to that effect, the mere usage of the term that the deceased was mentally not alright or that the first appellant instigated the deceased to execute the document by exercising undue influence and coerced the deceased, will not be good enough to dislodge a validly executed document, the execution and presentation of which was done by the deceased himself. There are no suspicious circumstances to raise any presumption. He pointed out that the burden was certainly on the plaintiffs/respondents-1 to 4 herein to prove the allegation of fraud and that the learned single Judge committed an error of law in wrongly throwing the burden on the first appellant. He also pointed out that without a pleading and an issue raised, the reasoning on this aspect is totally unsustainable in law. Referring to the allegation on the mental capacity of the deceased Nehemiah and his age, learned senior counsel pointed out that the recitals in the document and the execution by the deceased clearly show that in consideration of the services of the first appellant herein, the deceased Nehemiah had thought it fit to settle 50% of the share in the immovable property. He pointed out that the property being a self-acquired property, no exception could be taken to the deceased giving 50% of the property to the first appellant herein. One cannot view the correctness of such a settlement as an unconscionable act, considering the recognition of the services of the first appellant to look after the deceased when the children practically abandoned their father. He pointed out that the deceased was alert and he was operating his bank account, apart from looking after his finances. Relying on the decision reported in AIR 1963 SC 1279 (LADLI PRASHAD JAISWAL Vs. THE KARNAL DISTILLERY CO. LTD. KARNAL AND OTHERS), he referred to the fact that the deceased was paying the property tax and that by mere reference to the old age, no presumption as to the lack of mental capacity could be raised. On the question of burden of proof, he relied upon the decisions reported in AIR 1967 SC 878 (SUBHAS CHANDRA DAS MUSHIB Vs. GANGA PROSAD DAS MUSHIB AND OTHERS), AIR 1976 SC 163 (AFSAR SHAIKH AND ANOTHER Vs. SOLEMAN BIBI AND OTHERS) and 1997 AIHC 193 (CHANDRA BAI AMMAL Vs. VENKATESAN). He further relied on the decision reported in AIR 1964 SC 524 (SHASHI KUMAR BANERJEE AND OTHERS Vs. SUBODH KUMAR BANERJEE SINCE DECEASED AND AFTER HIM HIS LEGAL REPRESENTATIVES AND OTHERS) that the mere fact of one of the witnesses being the daughter of the first appellant and the other a part-time driver, will not defeat the valid execution. In the circumstances, he submitted that the evidence let in by the Doctor as P.W.2 as to the mental status of the deceased Nehemiah who had been looking after his finances on his own, could not be relied upon. He even suggested that the Doctor's letter itself will not be sufficient enough to support the reasoning of the Court that the deceased Nehemiah was not mentally fit enough to execute the settlement deed in favour of the appellant. He pointed out to the letter written by the lessee marked as Ex.P12 on the renewal of the licence and the signature of the deceased to point out that even in the year 2001, the settlor was in a good mental capacity. He further pointed out that the letter written by the lessee addressed to the first respondent dated 7.10.2001 was a created letter, intended to create an impression that the deceased father was not well and the possession was handed over to the son. In the background of these facts, learned senior counsel submitted that the order of the learned single Judge throwing the burden on the first appellant herein to prove that the settlement deed is not sham and nominal is totally unsustainable.
14. Per contra, learned counsel appearing for the respondents placed reliance on the provisions of Section 16(2)(b) of the Indian Contract Act, 1872 and the various circumstances narrated in the plaint to point out that the deceased was under the undue influence of the first appellant herein. Making specific reference to the suit filed by the first appellant before the City Civil Court, learned counsel pointed out that there was no reference in the plaint filed by the first appellant as to the settlement deed under which the first appellant claimed her right. Countering the allegation that there are no specific facts narrated and to the issues framed, learned counsel referred to the prayer in the original plaint and the amended plaint and submitted that as per Section 34 of the Specific Relief Act, 1963, it is enough if declaratory relief as to the sham and nominal character of the document was pleaded. He pointed out to the fact that the deceased executed the registered will under which, he had treated the children equally well. The suit property was given to the first respondent herein. The will was probated before this Court in O.P.No.19 of 2003 dated 17.2.2003. The will was written by the deceased in a very elaborate manner, which clearly showed that the deceased was a well-informed person with a charitable disposition. The servants who had taken care of him had been dealt with liberally. If really the deceased intended that the first appellant should be given share in his property, certainly, the settlement deed would contain a reference as to the will under which the suit property was given to the first respondent herein or a codicil drawn referring to the settlement deed alleged to have been executed by the father. Learned counsel pointed out to the allegations in the plaint that the settlement deed was brought about by a fraud perpetrated by the influence of the first appellant herein along with the others who had acted as witnesses of this document and the various circumstances substantiating the allegations. He pointed out that the settlement deed was presented for registration at 5.00 p.m. on 15.12.2000. The stamp duty was calculated at 4%. A sum of Rs.2,00,000/- was drawn from the settlor's account and the balance from the first appellant's account. The evidence of the Doctor who had been attending on the deceased, clearly pointed out, apart from the letter, that at the twilight of his existence, the deceased was not maintaining good physical and mental health. Contrary to the allegation that the children had abandoned their father, he pointed out to the the evidence of the first appellant that the first and second respondents had been frequenting their father every week to take care of him. As such, the allegation that the children had abandoned their father is totally a matter of imagination. He further pointed out to the similarity of the language used in the will as well as in the settlement deed while referring to the first appellant's services. He pointed out that the deceased never got married to the first appellant herein, who had continued to mention her marital status as the wife of Adikesavan as seen in the ration card and in the election card. However, surprisingly, in the settlement deed, she had claimed herself to be the wife of the deceased, yet, as working at Door No.9, Second Main Road, Seethamma Colony, Alwarpet, Chennai-600 018. He also pointed out that there was absolutely no reference about tenancy in the settlement deed even to put the first appellant to a symbolic possession. In the circumstances, he made specific allegation that the settlement deed, which was kept as a secret document by the first appellant, was not a validly executed document. Taking advantage of her position as a servant who was in overall administration, the settlor was pressurised to execute the document without knowing the implications of the same. In matters of this nature, when the executor of a document was not alive to speak on the validity of the document, the circumstances alone can be pointed out as to the undue influence that the first appellant exercised over the settlor. Pointing out to the fiduciary capacity of the first appellant, learned counsel for the respondents submitted that there was total breach of trust from the side of the first appellant herein.
15. As to the witnesses who had signed the document, learned counsel appearing for the respondents pointed out that admittedly, the first appellant was not living in that house. There was no reason stated for the part-time driver to come on that particular date to take the deceased to the Sub Registrar's Office. The evidence on the contrary is that the regular driver left the house after duty hours and the service of a part-time driver was taken only when the regular driver was not available. There is no explanation as regards the sudden appearance of Devi, the daughter of the first appellant, who signed as a witness to the document. He submitted that undue influence is a question of fact.
16. The mental capacity of the deceased was clearly stated by the Doctor who had been attending on the deceased for nearly 20 years. The visits of the Doctor was not denied by the first appellant herein. He also pointed out that contrary to the contention of the first appellant that she never went to the Sub Registrar's Office for execution or that he was aware of the execution, Ex.C2, which bears the signature of the first appellant to receive the document, clearly prove the knowledge about the document; yet, surprisingly, the suit was filed by her in the City Civil Court without any reference to the settlement deed, claiming herself to be the wife of the deceased.
17. Going by the circumstances, from the evidence of the Doctor and the fact that the tenant had addressed a letter handing over possession to the first respondent herein, learned counsel submitted that the learned Judge rightly held that the settlement deed was a created document brought about by undue influence and a fraud played by the appellant on the deceased, who was not mentally fit enough, as certified by the Doctor, to exercise his judgment on any subject matter. He pointed out that the first appellant, in her reply affidavit filed before the City Civil Court, admitted as to the physical condition of the deceased. In the background of these facts, rightly, the learned single Judge held that the document was liable to be declared as void and illegal. The cumulative effect of the facts and the existence of the fiduciary relationship, raised a presumption of undue influence. Consequently, he submitted that there are no merits in the appeal. In this connection, he placed reliance on the decision reported in AIR 1927 Madras 255 (VENKATRAMA AIYAR Vs. KRISHNAMMAL), on the question of undue influence, a question as a fact which has to be proved, as well as to a series of decisions of the Apex Court reported in AIR 1937 PC 50 (PALANIVELU Vs. NEELAVATHI), AIR 1957 Madras 194 (THANGACHI Vs. AHMED HUSSAIN) and AIR 1961 Madras 190 (ABDUL MALICK Vs. MD.YOUSUF). As to the existence of facts to substantiate the allegation of fraud and undue influence, the onus is on the first appellant to prove that there was no undue influence practised.
18. We have perused the records and the evidence let in by the parties herein.
19. The questions raised in these appeals need to be considered from the angle of whether the learned single Judge was right in his view that the burden is on the first appellant to prove that there was no undue influence in the matter of execution of the settlement deed; secondly, whether there should be a specific issue raised on the question of undue influence and finally whether was any evidence to show any undue influence exercised to declare the settlement deed as invalid.
20. It is no doubt true that there is no specific issue raised on the question of undue influence. However, the reading of the first issue raised as regards whether the settlement deed is true and valid and that whether the plaintiffs were entitled to a declaration that the settlement deed dated 15.12.2000 was illegal, invalid and sham and nominal is wide enough to include such a plea, considering the fact that the entire allegation on the validity of the deed rested on the question of undue influence. On the second question of absence of a specific issue on this point, in the decision reported in AIR 1956 SC 593 (NAGUBAI AMMAL AND OTHERS Vs. B.SHAMA RAO AND OTHERS), the Apex Court held as follows:
" Evidence let in on issues, on which the parties actually went to trial should not be made the foundation for decision of another and different issue which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto."
It is not denied by the parties herein that the entire allegation on the validity of the document rested on the allegation of undue influence exercised by the first appellant on the deceased. A reference to the plaint filed by respondents-1 to 4 herein in the suit show that there is a specific averment as regards the mental status of Nehemiah and the circumstances which were taken advantage of by the first appellant herein, considering the trust that the deceased had on her to clearly point out the fiduciary relationship which was fully exploited by the first appellant herein to bring forth the settlement deed. It must be seen that the facts herein narrated by the respondents substantiated by the evidence let in both documentary as well as the oral evidence, clearly show that the first appellant was in a position to dominate the will of the deceased that having regard to the clear admission by the first appellant herein as to the fiduciary relationship in which she was placed, the absence of a specific question on this aspect does not vitiate the order by any illegality. The reasons given by the learned single Judge on his finding clearly justify the inference that the deed was brought about under undue influence. It must be remembered that the settlor is not there to speak about the document and his mental status. Hence, the respondents herein could prove only by materials namely, the surrounding circumstances which pointed out to the fact that the settlor was not in sound mental condition or had independent advice while executing the document. It may be seen that the respondents challenged the validity of the deed on the ground that the deed itself was an unconscionable transaction and that parties have understood herein that the challenge to the validity of the document was resting on the allegation of undue influence. The appellant understood the nature of the allegation and proceeded thereupon to let in evidence. In the circumstances, when the entire case proceeded on the allegation of undue influence, with a clear understanding thereupon, the absence of a specific question does not defeat the prayer in the suit. The reading of the plaint filed clearly narrate the circumstances which are relied upon in making the allegation of undue influence. Consequently, we do not find any merit in the allegation either on the aspect of a specific question not raised or on the specific allegation.
21. Learned senior counsel appearing for the appellant however submitted that the respondent had based the allegations that the deceased was not mentally alright; that there was a collusion between the first appellant and others, namely, the daughter and the driver; that there was undue influence exerted characterising the circumstances as suspicious circumstances, are all phrases taken from the provisions of the Indian Contract Act solely to maintain the dispute. The mere usage of these phrases do not, in any way, substantiate the allegation. When there are enough materials available to point out to the undue influence exerted by the first appellant herein and when the very challenge is based on this allegation, the absence of specific question does not defeat the prayer in the suit. Learned counsel appearing for both sides made a reference to Section 16 of the Indian Contract Act, 1872. In this connection, a reference to Section 111 of the Indian Evidence Act needs to be made. The Section reads as follows:
" Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence the burden of proving good faith of the transaction is on the party who is in a position of active confidence. "
Read with Section 16(3) of the Indian contract Act, if the respondents are in a position to prove that the appellant was in a position to take advantage of the confidence reposed by the deceased, the onus is certainly on the appellant to prove that she did not take advantage of the same to have a settlement executed in her favour.
22. In the background of the facts projected and the evidence let in in this case, learned single Judge rightly shifted the burden on the appellants herein to prove that the trust placed on the first appellant was not abused and that there was no coercion or undue influence exerted to bring about the settlement deed. It may also be seen that considering the trust that the deceased Nehemiah placed on the appellant, the misuse of the same to obtain an unfair advantage also tantamounts to a fraud played on the deceased to gain an advantage over the near relations. Having regard to the circumstances surrounding the execution of the document, even though there is no specific issue raised, yet, the allegation as to the illegality of the document, resting on the allegation of undue influence, we do not find any infirmity in the judgment of the learned single Judge.
23. The question as to whether there was undue influence or not need to be looked at from the angle of the age of the deceased, the mental capacity of the deceased settlor, the relationship of the settlor with the settlee and the conduct of the parties herein leading to the registration.
24. First we may have to see the mental and physical condition of the executant namely Nehemiah. It is an admitted fact that Nehemiah was 87 years old at the time of execution of the document. He was a retired United Nationals official living in his house situated at Seethamma Colony. The ground portion was let out and he had been under the constant medical care of Dr.N.Rajagopal. One of the contentions to challenge the settlement deed was that the deceased was not in a good physical and mental condition.
25.As to the mental capacity of the deceased settlor, we have the evidence of the Doctor who had deposed as P.W.2. Admittedly, the deceased was taken care of by the Doctor for the past 20 years. This has not been denied by the first appellant. A reading of the evidence of P.W.2 shows that when the Doctor examined the deceased, as per Ex.P17 (series of medical records), which includes the letter of the Doctor written to the first respondent dated 10th December 2001, P.W.2 suggested that the deceased had become extremely feeble and that he was not able to take care of himself physically and mentally. Keeping in mind the health condition, he suggested that Nehemiah should be taken care of on a daily basis. He recommended that he be attended by a Physician who is capable of managing his physical and mental status at the reputed Christian Medical College Hospital. In the evidence, during the course of chief examination, he stated that on 10.12.2001, when he met the deceased, he thought that it was his duty to inform his son about his physical and mental condition. He pointed out that the deceased had lost his orientation of time and space and his mental faculty is subject to variation. As a medical practitioner, he stated that it was his responsibility to inform the family members who had confidence in him about the need of the hour. In the course of cross-examination, he stated that his impression was purely based on clinical interaction and final evaluation. A reading of the evidence from the cross-examination leaves no manner of doubt that the mental ability of the deceased was not uniform throughout the day. It is also seen from the evidence of the first appellant as D.W.1 in her cross-examination that poor health was maintained by the deceased. She admitted that Nehemiah was healthy till the year 2001. He used to suffer from urinary infection accompanied by fever. She also admitted that he was also admitted in the hospital for Pneumonia in the year 1999. It may be seen that at the time of execution of the settlement, he was stated to be 87 years old.
26. It is clear from the evidence of the doctor PW2 that from the professional's point of view, and as some one who had interacted and treated Nehemiah, the deceased's orientation with the advancing age was not good enough to make an impartial comprehension and assessment of the state of affairs. The Doctor certified that the said Nehemiah had lost his mental ability to make "appropriate judgment and reasoning compared to what he was three years ago." he deposed that late Nehemiah' was suffered corteral functions like memory, thinking, orientation, language, learning capacity,comprehension social behaviour made the doctor to put Nehemiah for a clinical clarity test and he was not in a position to recognize the abstracts like documents, currencies and denomination of currencies. He certified that his mental faculties were subject to variation over the period of 24 hours.
27. The mental condition is further confirmed by the first appellant herself as may be seen from the reply affidavit filed before the City Civil Court in I.A.No.21741 of 2001 in O.S.No.7398 of 2001 (which stood transferred to the High Court) as regards the physical condition of the deceased. She stated therein that the deceased was "unable to walk and is completely bed ridden. Taking advantage of his old age and physical and mental weaknesses, the respondents have detained my husband against his consent and illness." In the face of the clear admission by the first appellant herself, read along with the evidence of P.W.2, whose statement also find a place in Ex.P17, the fact is that Nehemiah was mentally and physically frail. He had his ups and downs of his conscious level and his comprehension too. The mental faculties were not normal enough to form an independent opinion.
28. The interaction by the Doctor and his assessment and the evidence of the first appellant as DW1 certainly are a pointer to the fact that the deceased was subject to mood swings and the mental faculty was not the same as is expected of a healthy person. In any event, a reading of the evidence clearly point out that Late Nehemiah was not having a good mental framework to think independently or was there anything to suggest that he applied his mind over the contents of the document or has he taken any advice from his legal advisers before executing the document.
29. The mental condition, hence, certainly raises an important issue on the validity of the document from the standpoint of exercising free will in the matter of disposition of a right. Viewing this aspect from the standpoint of the relationship of the settlee with the deceased which we will presently note, we do not find any justification to accept the plea of the first appellant herein that the execution of the deed was free from any cloud or doubt.
30. Learned counsel appearing for respondents pointed out that Late Nehemiah was a very meticulous person. A reading of the will executed would clearly show the narration so perfect, where, in contrast to the way, the settlement deed had been executed. He pointed out that the settlement deed was not executed out of his own volition. The document was prepared by a document writer who was the fourth defendant in the suit who lived in Adyar about whom none including the appellant claim to know about. There was no explanation as to why an unknown person's services were secured for writing a settlement deed. A person who claims that she had been living with the deceased for 18 years, says she knows nothing about the document writer or as to the execution . In fact, she pleaded total lack of knowledge on the execution of the alleged deed itself. The document was kept as a guarded secret. The first appellant claimed that the Nehemiah informed her about the contents of the will. When so much of confidence is reposed in the appellant even to divulge out the contents of the will, it appears rather strange for the appellant to state that she knew nothing about the settlement deed alleged to have been executed by Nehemiah in her favour.
31. This takes us to the kind of influence that the appellant had over the deceased Nehemiah. Learned Counsel for the respondents submitted that the execution of the settlement deed was a case of clear manipulation and fraud played by the appellant taking advantage of the trust that late Nehemiah had on this appellant and he submitted that she took undue advantage of the confidence reposed on her as trustworthy servant which she misused to her advantage.
32. As to the allegation regarding undue influence, the circumstances have to be looked at to the conduct of the first appellant and the witnesses who had signed the document and the execution thereon. There is a specific averment in the plaint that the first appellant was employed as a servant maid since 1987. She was already married to one Audikesavan and having two daughters besides a grand child and was living at 100 'B' Block, Baruah Nagar, Alwarpet, Chennai-600 018. At no point of time she resided in the suit property. The settlment deed was written by a document writer attested by the daughter, and the part-time driver. The document was presented for registration at the closing hours of the Sub Registrar's office on 15.12.2000. It is seen from the plaint document that the first appellant was described as the wife of the deceased yet she was stated to be working there.
33. In the face of the allegations and counter allegations and having regard to the findings of the learned single Judge decreeing the suit, issue arises as to whether there was any fiduciary relationship between the first appellant herein and the deceased to allege undue influence exercised by the first appellant on the deceased to have the settlement deed executed in her favour?
34. It is seen that although the first appellant stated that there was no such fiduciary relationship to have a dominant control over the deceased, yet, as rightly pointed out by respondents-1 to 4, in the judgment of the learned single Judge, it was stated that the first appellant, as D.W.1, had admitted that the deceased reposed full confidence in her and that fiduciary relationship existed between them. Learned senior counsel appearing for the appellants pointed out that the first appellant never admitted of any such fiduciary relationship. As such, it was wrong to throw the burden on the first appellant in terms of Section 16 of the Indian Contract Act, 1872. The first appellant, according to her version, did not exercise any dominant control over the deceased. We do not agree. As rightly pointed out by the learned counsel appearing for respondents-1 to 4, in the cross examination of D.W.1, it was specifically admitted that the first appellant was treated as a family member of Nehemiah and that other servants were also treated as family members by Nehemiah. The first appellant stated that "I used to go to operate bank accounts on behalf of J.V.A.Nehemiah. J.V.A.Nehemiah used to fill up the required bank challans for the bank transactions. No other servants was engaged to operate the bank accounts." It is further admitted by the first appellant as D.W.1 that she claimed herself as the wife of the deceased Nehemiah and that she accompanied the deceased whenever he went to the market, shop or to the bank; that she had also encashed the self cheques given by the deceased who stated that she was confidential. According to her, she was trustworthy. The said facts were also stated in the will of Nehemiah, and in almost identical terms, even in the settlement deed, the document mentions her as a trustworthy person.
35. Under Section 16(2)(a) of the Indian Contract Act, 1872, a person is deemed to be in a position to dominate the will of another "where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other." As per sub section (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. A fiduciary relationship arises between the parties when one of them stands in a position of a trust to the other and equally when the latter reposes confidence with the other person to an extent that the influence grows out of such a confidence. In order to establish the existence of a fiduciary relationship, it is necessary to show that one party relies on the other to such an extent that there is a complete trust and confidence placed on the other, thus facilitating him to influence the former. In such a situation, if such a person in a fiduciary position wants to have a benefit in a transaction executed in his favour, it is absolutely essential that he must show that the result or the benefit had not flown out of the influence. It may be seen that the mere existence of a fiduciary relationship raises the presumption of undue influence - AIR 1961 Madras 190 (ABDUL MALICK Vs. MD.YOUSUF). Considering the presumption raised, a person standing in a fiduciary relationship to another has a duty to protect the interest given to his care. In the case on hand, when respondents-1 to 4 have questioned the settlement deed alleged to have been executed showing such a relation, the presumption under law is there against such a transaction. As per Section 16(3), onus is cast upon a person holding the position of confidence of trust show that the transaction is a fair one not brought forth by reason of the fiduciary relation and that he had not taken any advantage of his position.
36. The Apex Court, in the decision reported in (2004) 9 SCC 468 (KRISHNA MOHAN KUL Vs. PRATIMA MAITY), dealing with a similar question as to challenge on the execution of the settlement deed on the ground of undue influence exercised by reason of fiduciary relationship, held as follows:
"13. In judging the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donee/beneficiary under a document to prove due execution of the document in accordance with law, even dehors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before the Court. "
17. The logic is equally applicable to an old, illiterate, ailing person who is unable to comprehend the nature of the document or the contents thereof. It should be established that there was not mere physical act of the executant involved, but the mental act. Observations of this Court, though in the context of a pardahnashin lady in Kharbuja Kuer v. Jang Bahadur Rai are logically applicable to the case of old, invalid, infirm (physically and mentally) and illiterate persons. "
37. In the background of the declaration of law, and the clear admission of the appellant and the narration in the will, we agree with the contention of the learned counsel appearing for respondents-1 to 4 and the findings of the learned single Judge in this regard.
38. It is interesting to note how the deceased Nehemiah had expressed his views about the first appellant herein in his will. Referring to her service since 1987, the deceased stated in his will at paragraph 23 that with her indomitable determination to come up in life, hard work and loyalty and integrity of a high order, the testator intended her to maintain the living standards she had achieved for herself and her children. The deceased had made provisions for her, her children as well as her grand child's education. A reading of the evidence of the first appellant also shows that she admitted in her cross-examination that she knew the contents of the will and that her husband and the daughter were treated during their ailment by the deceased J.V.A.Nehemiah. It is also seen that the cash for the purchase of stamp paper for the execution of the settlement deed was also taken only by the first appellant on the cheque issued for a sum of Rs.2,00,000/- and the balance taken out from her own account. A reading of the evidence of the first appellant clearly show that she was placed in a high confidence by Nehemiah; in her own words, "I was very confidential and trustworthy." The above categorical admission in the evidence given by her clearly proves that she was in a fiduciary capacity; as such, the presumption is certainly against her. In the circumstances, we do not find any error in the reasoning of the learned single Judge on the above-said fact.
39. As to the suspicious circumstances casting cloud on the execution of the settlement deed, learned counsel appearing for respondents-1 to 4 pointed out to the manner in which the document was written in contrast to the will. He pointed out to the meticulous manner in which the will was written by late Nehemiah, giving the details about his age and as to the properties dealt with by him. It is admitted by the first appellant in her evidence that Nehemiah had a portable typewriter in his home and he used to type himself in the said typewriter.
40. The settlement deed Ex.D1 was admittedly written by a scribe by name Srinivasan stated to be living at Adayar. The respondents pointed out that late Nehemiah was never in the habit of taking a third party's help and normally consulted his lawyer or his Chartered Accountant, that it was a mystery as to why somebody would locate a document writer so far away from the residence of Nehemiah for preparing the settlement deed through a scribe. The scribe had not been examined in the proceedings by the first appellant as to the execution.
41. The settlement deed was attested by one Devi daughter of the first appellant and by Parthiban a part-time Driver employed by late Nehemiah. Except for Devi, no attempt was made to examine the witness Parthiban. In her evidence Devi stated hat she did not know who were the persons present when the settlement deed was registered . She admitted that although she assisted in cooking she was not working in the house of Nehemiah or lived therein . No reason was given for her visit to the house of Nehemiah on the date when the alleged registration took place. She merely stated that she accompanied Nehemeiah to the Sub-Registrar's office at 4.30 p.m. and the document was registered at 5 p.m.
42. Coming to the role of the first appellant, though the settlement deed referred the settlee as the wife of the said Nehemiah, it however stated that she was working in the house of Nehamiah. As per Ex.D7, the electoral card of the year 2005, Suguna was stated to be the wife of Adikesavan. Devi the second appellant and the daughter of the first appellant stated that her mother had not remarried. A reading of the settlement deed shows that there is absolutely no reference as to the will under which the first respondent was given a property in toto. It is also seen that the document describes the first appellant herein in almost identical terms as we find in the will. It is seen that the document dated 15th December 2000 was presented before the Sub Registrar's Office at 5.00 p.m., and registered on 02.05.2001 and the deficit duty of Rs.34,235/- was paid on 4.5.2001. The reason for the delayed payment was stated to be attributable to the certificate to be obtained from the Income Tax Department under Section 230-A. Although the first appellant denied knowledge about the execution of the deed and the purchase of the stamp papers, she admitted in her evidence as to the transfer of the funds for a sum of Rs 2 lacs from the account of Nehemiah as evidenced by Ex. P33 She also admitted to the payment of Rs. 38,400 towards the stamp duty registration and remitted a sum of Rs. 1,36,940 on the day the document was released by the Sub-Registrar. It is seen from Ex.P33, letter from the Standard Chartered Bank to P.W.1 that that a sum of Rs.2,00,000/- was drawn from Standard Chartered Bank by D.W.1 and the same was credited to her account on the cheque issued by Nehemiah. Hence, it is highly improbable to accept the version of Suguna that she knew nothing about the purchase of the stamp papers. Learned counsel appearing for respondents-1 to 4 pointed out that at the time of execution of the alleged settlement deed, the deceased was 87 years old. However, it was stated that he was 85 years old. He pointed out that absolutely there was no proof as to the marriage between Nehemiah and the first appellant. The evidence of Devi also confirmed this. Again, he pointed out to the discrepancies as to the dates contained therein as regards the mortgage of the property and to the discharge of the same. In the background of this, if we look at the evidence of D.W.1, the case projected by her was that she did not know that by whom and when the document was prepared and where from the stamp papers were purchased. She stated that she was informed about the registration of the document after a week of the registration and the registered document was handed over after six months. She also stated that Ex.D2, namely, the receipt issued by the Sub Registrar's Office, was handed over to her by Nehemiah to pay additional stamp duty to the Sub-Registrar's Office. A reading of the evidence of the appellant leaves no doubt as to her knowledge on the execution and her active participation in the execution. Although she denied the suggestion that she was present at the Registrar's Office, yet, Ex.C2 clearly show that the signature of the first appellant was there for having received the document. The document marked in this case as Ex.P18 show the transfer of the said amount and the clearance was handled by the first appellant herein. The contention that she had no knowledge of the execution of the settlement deed is falsified by her admission as to the execution of the settlement deed in her favour in the course of the chief examination. In the face of the amount handled by her in purchasing the stamps and Ex C.2 which bears the signature of the first appellant, and cosidering the evidence of C.W.2, we do not agree with the contentions of the first appellant as to genuineness of the document as well as to her lack of knowledge as to the execution. Learned counsel for the respondents pointed out to the writing in hand in the description of the first appellant as the wife of Nehemiah as well as in the schedule, the writing by hand referring to the land and building.
43. Learned senior counsel appearing for the appellants submitted that no serious weightage could be given to Ex.C2, since it is always possible to get the signature subsequent too. Learned senior counsel pointed out that when the factum of execution of a document is proved, no adverse inference could be drawn as regards the genuineness of execution of the same. In this background, he submitted that the appearance of the signature of Suguna, the first appellant herein, in Ex.C2 could not be a relevant fact to hold that the first appellant had full knowledge on the execution of the document and had undue influence over the settlor to bring about the document. It may be noted that in the cross-examination of CW2, an Assistant in the Sub Registrar's Office, it was categorically stated that the normal practice is that the person who has signed on the reverse of the receipt should have been present when the document is presented for registration and when the document was registered, and after registration, the signature of the recipient would be obtained again on the reverse of the receipt. There are no extenuating circumstances to accept the plea of the first appellant that the signature was obtained subsequently. The evidence of D.W.1 show that although the regular driver was there, on that particular date, the part-time driver's service was taken. In the background of these strange circumstances as to the presence of Devi on that particular date and the presence of the part-time driver, in the background of the deceased settlor himself not there, one can go by the circumstantial evidence in this case as to the genuineness of the execution of the document.
44. The signature of the first appellant in Ex.C2 amply proves the knowledge and the presence of the first appellant as to the execution of the document and the registration. Learned Counsel also pointed out to the manner of the execution and the stamp duty paid therein C.W.2 the Assistant from the Sub-Registrar's office pointed out that as the settlement was effected in favour of the third party, duty payable as a sale was charged at 12 %
45. Learned counsel appearing for the appellants further pointed out that in the suit filed before the City Civil Court in Transfer C.S.No.374 of 2002, filed in the year 2002, there is absolutely no reference to the settlement deed executed in her favour. The suit for injunction was filed by the first appellant during the life time of late Nehemiah He submitted that the whole affair as to the execution of the settlement deed was shrouded in secrecy and there are no details about the property in the schedule given in the plaint. He further pointed out that looking at the conduct of the first appellant, and the persons who have joined as witnesses in this execution, taken together with the age of the deceased, it is clear the that the entire transaction has been taken through to bring about a document which can have no valid existence in the eye of law that the first appellant played fraud on Nehemiah to make an unlawful gain. The reading of the judgment of the learned single Judge touching on these aspects point out that although the attestation might have been proved, yet, the execution of the document stood not proved. Learned single Judge also pointed out that there was nothing on record to even vaguely suggest that the settlor signed the deed having fully understood the recitals therein. We agree with the findings of the learned judge and the conclusions drawn that the execution had not been proved in this case.
46. It is also seen that in the revised affidavit filed in O.S.No.7398 of 2001, the first appellant stated that Late Nehemiah was unable to walk and was completely bed-ridden and taking advantage of his old age and physical and mental weaknesses, respondents-1 to 4 had detained Nehemiah, who is described as her husband. Such a contention made by a person who was constantly attending on Nehemiah, clearly supports the stand of the respondents, and as certified by the Doctor, that Nehemiah was not in a position to understand the implication of the alleged settlement deed which he was purported to have signed. Learned counsel appearing for the respondents also pointed out to the theory of the alleged desertion of Late Nehemiah by his children. It is also relevant to note that in her plaint filed before the City Civil Court, Chennai, the first appellant stated that Nehemiah was abducted by his children. However, in the evidence before the Court in the course of cross-examination, she stated that she never instructed her counsel to state that the children of Nehemiah abducted him for taking illegal attempts to grab the suit property. The evidence of P.W.2 Dr.Rajagopal and the first appellant's evidence clearly show the falsity of the stand of the first appellant that Nehemiah was not taken care of by his children.
47. Yet another circumstance that has been relied on and rightly so, is the lease of the property given in favour of one K.V.Nair. It is seen from the documents filed before the Court that the ground floor of the suit property was originally let out to one K.V.Nair in 1995, till he surrendered vacant possession of the property on 7.10.2001. The settlement deed was executed in the year 2000. If really the deceased intended the settlement to act, certainly he would have mentioned about the lease of the property, in the settlement deed. It is also relevant to note that although the settlement deed stated that the first appellant should take possession of the property forthwith, nothing had been done either to transfer the tenancy in the name of the first appellant nor mutation of name effected in favour of the first appellant. The documents, viz., the tax receipt and the electricity connection clearly show that Nehemiah continued to have ownership of the property. It is further relevant to note that communications as to the tenancy renewal remained between the deceased and the tenant and on the termination of tenancy, the property was handed over to the first respondent herein. In the letter dated 25.6.2001, Ex.P12, the tenant K.V.Nair expressed his option to renew the lease upto 30.9.2001. Again, in the letter dated 16.7.2001, Ex.P.13 written by K.V.Nair addressed to Nehemiah, similar was the option. Under Ex.P14, the tenant addressed a letter to Nehemiah informing him that he was handing over the property to the first respondent herein and requested him to refund the balance of the deposit after adjusting the rent of September, 2001. Again, on 29th April 2002, K.V.Nair addressed a letter to the first respondent herein acknowledging receipt of the advance amount. A reading of these documents clearly show that there is absolutely no reference as regards the settlement alleged to have been executed, and for some reason or the other, the said document never surfaced for anybody's knowledge and attention. In any event, the first appellant was never put in possession of the property and the property continued to be under the enjoyment and control of respondents-1 to 4. In the face of these circumstances, it is difficult to accept the plea of the first appellant as to her claim on Nehemiah executing the settlement deed in favour of the first appellant as free from any cloud thereon. Hence, quite apart from the physical and mental condition of Nehemiah, the fiduciary relationship clearly point out the undue influence that the first appellant had over the deceased Nehemiah in having the document executed in her favour and this is a clear case of a breach of trust as per Section 8 of the Indian Trusts Act, 1882.
48. It is seen that in the plaint filed before the City Civil Court, the first appellant sought for an injunction to restrain respondents-1 to 4 herein from interfering or disturbing the peaceful possession and enjoyment of the suit property. The suit itself was filed before the City Cvil Court in the year 2001 when Nehemiah was alive. It is stated therein that the first appellant and her daughter were in possession and enjoyment of the suit property for more than 18 years along with Nehemiah. As on that date, for reasons best known to the first appellant, there is no mention in the plaint as regards her rights over the property. Nehemiah was not made a party in the proceedings before the Court. She claimed therein that she was the wife of Nehemiah, living with him for more than 18 years at Door No.9, Second Main Road, Seethamma Colony, Alwarpet, Chennai-600 018. There is absolutely nothing on record to show that she resided in the property in whatever capacity she might have chosen. Her occupying the house with the aid of third parties and the removal of the original name board to install her name as A.Suguna Nehemiah are clearly an indication of her interest to somehow establish her right, interest and title over the property. The report filed by the Advocate Commissioner appointed by the Court clearly shows the attempt of the first appellant to fix her name board as Suguna Nehemiah just prior to the visit of the Advocate Commissioner, the removal of the name board of Nehemiah and the attempt to deface the board "Perinbakam" which is dedicated to the memory of the mother of Nehemiah. The same is relied upon by respondents-1 to 4 herein to show the falsity of the claim. It is also relevant to note that the first appellant, even as per the evidence of her daughter, lived only in Pallipet. Going by the above-said facts, we do not find any ground to interfere with the order of the learned single Judge.
49. Learned senior counsel appearing for the appellants took serious exception to the view of the learned single Judge that Nehemiah was afflicted with silent dementia and that the first appellant maintained a fiduciary relationship with Nehemiah, dominated his will and got the settlement deed executed by exerting aggressive undue influence, taking advantage of his volatile mental condition on account of his very old age. It may be noted that the said finding was noted only to impress on the mental incapacity of the person to execute a document in the exercise of individual volition knowing fully well the consequences of such an act. In the background of these facts, we do not find any error in the reasoning of the learned single Judge to disturb this finding.
50. Learned senior counsel for the appellants has also made a serious objection to the finding of the learned single Judge that the settlement was an unnatural as well as an unconscionable execution of the document. He submitted that as the absolute owner of the property, Nehemiah had the free will to deal with it in any manner that he deemed fit. The correctness or otherwise of the action has to be seen only from the point of view of the executant and it is not open to the Court to view it from any other angle. The Court could not reject a deed validly executed, by its own notions and justifiability.
51. It must be noted that the burden is on the first appellant herein as the defendant to remove whatever suspicion that existed on the kind of the transaction that has resulted in the settlement of the property in her favour. As already noted, Nehemiah had executed a will which was probated before this Court. The probate in O.P.No.19 of 2003 was granted as early as 20th February 2003. The will dated 23rd July 1997 clearly stated that after the life time of Nehemiah, the property would go to his son Vinod G.Nehemiah. It was also stated therein that the house which was dedicated to the memory of his mother Late Perinbam Nehemiah whose name was engraved in marble at the entrance, should remain with his son and he should not sell the house for whatever reason during his life time. He made it specific that the house should not pass on to the hands of real estate developers. If for any reason, the house was to be sold against the desire of the testator, then the proceeds of the sale should be equally divided among his four children. After the execution of the registered will, we have the settlement deed alleged to have been executed by the deceased. The will reveals Nehemiah attached great sentimental value to the property and that he intended his sons to respect the same. A person who was so fondly attached to the property with lot of sentiments, however made no mention of the will in the settlement deed, nor was any codicil made to change the terms of the will. As rightly contended by the learned counsel appearing for the respondents, the probate granted acts as a judgment in rem. The relationship of the deceased with the first appellant was of a master and servant. Although the first appellant claimed that she was married to the testator, there was absolutely no evidence to that. Even in the settlement deed, there was nothing to indicate the alleged marriage of the first appellant with the deceased Nehemiah, except paying encomium to the first appellant that she was a trustworthy servant. There is hardly any material worthwhile to substantiate the contention of the first appellant as regards her relationship as wife of the deceased. The execution of the settlement deed remained highly suspicious and there is nothing to substantiate that the settlement deed was one which had flown out of the free will of Nehemiah. In the face of these facts we do not agree with the contentions of the appellants to upset the judgment and decree granted in favour of the respondents.
52. The forcible entry of the first appellant into the suit property with the help of political forces on the basis of her claim as the wife of late Nehemiah was commented by the respondents as an attempt to bring disrepute to the name of their father and to grab the property through illegal means and hence sought for a direction to the appellants to vacate the premises and pay the damages. Learned Counsel for the respondents placed his reliance on number of decisions of the Apex Court and this Court apart from other Courts to substantiate his contention on the illegality of the transaction and the attack made on the allegation of undue influence and fraud played by the first appellant.
53. Per contra learned senior counsel placed his reliance on the decisions of the Court as to the effect of registration of the document and the onus on the respondents to prove their contention and the total lack of materials and facts pleaded on the allegation of undue influence in part to the following decisions:
1. AIR 1934 Privy Council 130 - Someshwar Dutt V. Tribhawan Dutt and another
2. AIR 2004 Supreme Court 1284 - R.Karuppayee and another V. Raja Gounder
3. AIR 1974 Supreme Court 1999 Surendra Pal and others V. Saraswathi Arora and another.
4. AIR 1927 Privy Council 42 T.V.Kalayanasundaram Pillai V. Karuppa Moopanar and others
5. AIR 1932 Allahabad 174 Mt. Latif Jahan Begam V. Md.Nabi Khan
6. AIR 1938 Lahore 333 Mt.Chandravati V. Pandit Janti Parshad and another
7. (2007) 4 MLJ464 Kaliannan and another V. Balakrishnan (died) and another
8. 1988-1-L.W. P.425 M.S.Thanigachala Pillai V. Rukmani Ammal and others
9. AIR 2003 SC 3120 M.Rangasamy V. Rengammal and others
10.AIR 1973 Madras 421 (V 60 C 131) Irudayam Ammal and others V. Salayath Mary
54. In the light of the decision referred to in paragraph Nos 35 and 36, namely, AIR 1961 Madras 190 (ABDUL MALICK Vs. MD.YOUSUF) as well as (2004) 9 SCC 468 (KRISHNA MOHAN KUL Vs. PRATIMA MAITY) and the findings as to the fiduciary relationship in which the first appellant was placed and the confidence reposed by the deceased in the first appellant and enjoyed by the first appellant taken advantage of by her in exerting influence on the deceased and further having regard to the suspicious circumstances relating to the execution the settlement deed we do not find any support from these decisions to accept the case of the appellants . Consequently the appeal fails and the same is dismissed. However, there shall be no order as to costs. The M.Ps are also closed.
(K.R.P.,J) (C.V.,J) 26.02.2008 Index:Yes Internet:Yes ksv/sl K.RAVIRAJAPANDIAN,J AND CHITRA VENKATARAMAN,J ksv/sl O.S.A.Nos.330 and 331 of 2007 26.02.2008