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2. The facts of the case may be briefly set out as follows : One Marimuthu Pillai, the husband of Paramayee Animal was the owner of an extent of 4.04 acres of land comprised in T.S. No. 1332 in Erode Town. Marimuthu Pillai died in 1953 leaving two widows one of whom was Paramayee Ammal and two sons Venugopal and Rajagopal through his first wife and a son Madhavakrishnan, the appellant herein and a daughter Lakshmi though his second wife Paramayee Ammal. On the death of Marimuthu Pillai disputes arose between the first plaintiff on the one hand and her son, the second plaintiff and step-sons on the other. The deceased first plaintiff was living separately in Vellala Street in Erode while her sons were living in Kaveri Street. The second plaintiff filed O.S. No. 111 of 1954 on the file of the Sub-Court, Coimbatore for partition and recovery of his share in the suit property. In that suit a preliminary decree was passed and pursuant to the preliminary decree an interim final decree was passed on 19th November, 1954, by which the suit property was allotted to the deceased first plaintiff Paramayee Ammal. Purusuant to the interim final decree, the deceased first plaintiff took possession of the suit property. On 14th May, 1966 the deceased first plaintiff leased out the suit property to defendants 3 and 4 under Exhibit B-16. Pursuant to the lease, defendants 3 and 4 were enjoying the property. Besides the suit property, the deceased first plaintiff had other properties which were yielding considerable income. While so, the second defendant who was a relation and employee under Marimuthu Pillai pretended that he was very much interested in the welfare of the deceased first plaintiff and taking advantage of the strained relationship between her and her sons, gained her confidence. The result was that he was put in charge of the collection of rents, letting out the properties etc., on behalf of the deceased first plaintiff and she was acting as per his suggestions and instructions in routine matters for nearly fifteen years. While so, defendants 3 and 4 were not paying rents properly to the deceased first plaintiff and they fell into heavy arrears. They were not willing to surrender possession either. At the same time, they had inducted a number of persons as subtenants. The second defendant therefore informed the deceased first plaintiff that the first defendant who owned a turmeric mandi and a theatre was a very influential man of the locality. He further suggested that if a document was created in trust in the name of the first defendant with suitable recitals it would intimidate and induce defendants 3 and 4 and their sub-tenats to surrender possession of the property. The second defendant is said to have further stated that if the fact of the execution of such document is circulated in the locality, her son, step-sons and other members of the family would come forward to take effective steps to get defendants 3 and 4 evicted from the suit property. The deceased first plaintiff, without realising the import and impact of the, suggestion of the second defendant and placing great reliance on the confidence she had in him, agreed to the proposal. Accordingly, on 17th June, 1967 an agreement purporting to convey the suit property of an extent of 4.04 acres in T.S. No. 1232 in Erode Town to defendants 1 and 2 was got up by the second defendant. The agreement contained recitals appropriate for the purpose though contrary to facts. The first plaintiff was made to execute the document . The said agreement for sale was marked as Exhibit A-13. In executing the, document, the first plaintiff had no independent advice but solely relied upon the confidence she had in the second defendant. The deceased first plaintiff also filed, on the advice of the second defendant, O.S. No. 155 of 1967 on the file of the Sub-Court, Erode against defendants 3 and 4 for recovery of arrears of rent. A month prior to the institution of the suit the second defendant informed the deceased first plaintiff that a sum of Rs. 40,000 would be required to secure vacant possession from the tenants and that therefore the first defendant should be put in possession of sufficient funds for that purpose. The deceased first plaintiff thereupon arranged with one Rangasamy Pillai a turmeric merchant in the locality for the required amount and went to the second defendant. However, since the second defendant did not like Rangasamy Pillai being associated in the matter, he gave an excuse that the first defendant was not in station and that the suit had been adjourned beyond the summer holidays. This conduct on the part of the second defendant created suspicion in the mind of the deceased first plaintiff. While so, her son and step sons caused a publication to be made in "Malai Murasu" to prevent third parties from entering into any transaction of sale or otherwise with the deceased first plaintiff in respect of the suit properties as they formed part of Marimuthu Pillai's estate and were the subject-matter of pending litigation. Defendants 1 and 2 got notice of the publication of this notice in "Malai Murasu". They then obtained possession from defendants 3 and 4 by paying them Rs. 15,000 as if the deceased first plaintiff had been paid Rs. 10,000 as advance under Exhibit A-17 agreement for sale and as if she had asked them to take possession from defendants 3 and 4 on payment of Rs. 15,000. This was followed by the issue of a lawyer's notice dated 19th March, 1968 on behalf of defendants 1 and 2 and another notice on behalf of defendants 3 and 4 to the first plaintiff reciting the fact that the. suit property had been taken possession of by defendants 1 and 2 on payment of Rs. 15,000 to defendants 3 and 4 at the instance of the deceased first plaintiff.

7. The second plaintiff has consequently challenged the correctness of the judgment and decree of the trial Court dismissing the suit.

8. Admittedly defendants 1 and 2 have filed O.S. No. 83 of 1968 in the Sub-Court, Erode for specific performance of the agreement for sale dated 17 June, 1967. It was stated at the Bar that the said suit is pending as the same has been stayed under Section 10, Civil Procedure Code, in view of the pendency of the present suit and the appeal therefrom.

9. Admittedly, the suit property, belonged to Marimuthu Pillai, who died leaving his junior widow the deceased first plaintiff, her son the second plaintiff and her daughter Lakshmi and two sons by his first wife. On the death of Marimuthu Pillai misunderstandings had arisen between the deceased first plaintiff on the one hand and the second plaintiff and his step-brothers on the other and the second plaintiff filed O.S. No. 110 of 1954 on the file of the Sub-Court, Coimbatore, which was later transferred and renumbered as O.S. No, 87 of 1956 on the file of Sub-Court, Erode for partition and recovery of his share in the father's property. A preliminary decree for partition was passed followed by an interim final decree on 19th November, 1954. It is admitted that under the said interim final decree the suit property was allotted to Paramayee Ammal, the deceased first plaintiff and she took possession of the same. It is also admitted that on 16th November, 1956 she leased out the property to defendants 3 and 4 under Exhibit B-16. While so, under Exhibit A-13 dated 17th June, 1967 she is said to have executed an agreement for sale in favour of defendants 1 and 2. The sale consideration mentioned is Rs. 1,90,000. Under the agreement for sale the deceased first plaintiff had to evict the tenants within a period of six months, and the sale transaction was to be completed. In the event of there being any delay in evicting the tenants, within three months from the date of eviction of the tenants, defendants 1 and 2 had to pay the balance and take the sale deed. A sum of Rs. 10,011 was paid as advance by defendants 1 and 2 and the balance of Rs. 1,79,989 was to be paid by defendants 1 and 2 at the time when the possession of the property was given and the sale deed to be executed at the expense of defendants 1 and 2. In the event of the deceased first plaintiff not being able to evict the tenants liberty was given to the deceased first plaintiff as well as defendants 1 and 2 to cancel the agreement for sale. In such an event, the deceased first plaintiff was bound to return the advance amount of Rs. 10,011. It was also open to defendants 1 and 2 to take the sale deed even if the lessees were in possession of the property. There is a further clause that if any litigation arose in respect of the suit property, the deceased first plaintiff should prosecute the same and should indemnify defendants 1 and 2 for the loss that might be occasioned to them. The deceased first plaintiff further agreed that she would do whatever was necessary to enable defendants 1 and 2 to get the lay-out of the property, sanctioned. It is the validity of this agreement for sale that is the subject-matter of attack in this appeal.

11. Mr. G. Ramaswami, learned Counsel for the, appellant elaborated the first of his contentions thus : The second defendant was originally employed under Marimuthu Pillai. On Marimuthu Pillai's death differences arose between the deceased first plaintiff on the one hand and her son and step-sons on the other which resulted in the filing of O.S. No. 111 of 1954 by her son the present appellant for partition and recovery of his share in Marimuthu Pillai's properties. In view of the differences of opinion between the deceased first plaintiff and her son and step-sons, she was living separately in Vellala Street in Erode, while the son and the step-sons were living in Kaveri Street in Erode. The deceased first plaintiff had a large estate to manage. The second defendant continued with the plaintiff even after the death of Marimuthu Pillai and was managing her affairs. He slowly managed to secure the full confidence of the deceased first plaintiff and began to occupy a portion of her own house on a pittance of a rent of Rs. 20 per month. The second defendant's mother was the cook of the deceased first plaintiff. The second defendant was maintaining the diary on behalf of the deceased first plaintiff. He was attending to her Court work and visiting her legal adviser on her behalf. He used to draw large sums of money from Court on behalf of the deceased first plaintiff. Such was the confidence reposed by the deceased first plaintiff in the second defendant. At that time defendants 3 and 4 were in possession of the suit property as tenants. The property was leased to defendants 3 and 4 on 14th May, 1956, under Exhibit B-46 for a period of one year on a rent of Rs. 1,200 per month. Even after the period of the lease they did not surrender possession. In 1959 the deceased first plaintiff erected about 21 huts on the suit property and the, defendants 3 and 4 were to pay Rs. 1,500 as rent for the 21 huts. However the tenants did not pay the rent to the deceased first plaintiff. She therefore caused Exhibit A-58, notice to be issued to them on 6th June, 1967, through counsel. The deceased first plaintiff was an old lady of 65 years and short of sight and hearing. Taking advantage of her physical weaknesses and also the absolute confidence she had placed in the second defendant, the latter abused his position as her confidant and informed her that the first defendant was the owner of a theatre as well as a turmeric mandi in Erode town and was a highly influential man of the locality. He further suggested that if a document was created in his name, it would be possible to secure possession of the suit property from defendants 3 and 4. Further the creation of such a document would enable her son and step-sons to take appropriate steps to recover possession of the suit property from defendants 3 and 4. With this object in view the second defendant got up Exhibit A-13 agreement for sale and got it signed by the deceased first plaintiff. In the same breath, the learned Counsel also contended that the deceased first plaintiff was not aware that she was putting her signature to an agreement for sale of the suit property in favour of defendants 1 and 2. The advance of Rs. 10,011 alleged to have been paid under the agreement for sale was not really paid. The sale consideration of Rs. 1,90,000 mentioned in the agreement for sale was ridiculously low. The property was worth Rs. 5,00,000 on the date of agreement for sale. There was no necessity for the deceased first plaintiff who was admittedly a rich lady, deriving large income from her properties, to sell the suit property for such a ridiculously low price. At no time in her life she was engaged in business and the recital in the written statement that she wanted to dispose of the property to invest the sale proceeds in business was false. The manner in which the defendants 1 and 2 took possession of the property from defendants 3 and 4 under false pretences, as if the deceased first plaintiff had asked them to pay Rs. 15,000 to the tenants and take possession of the property in part performance of the agreement for sale, which was on the face of it totally false, would itself show that the execution of the agreement for sale was a result of fraud. The learned Counsel further laid emphasis on the fact that the attestors to the agreement for sale were all partisans of the defendants and no one connected with the deceased first plaintiff had been included as attestors to the document. The conduct of the deceased first plaintiff herself about the time of the execution of the alleged agreement for sale was inconsistent with her having voluntarily executed the agreement. She had already filed the suit for recovery of possession of the property from the tenants. There was no mention, in the said suit, of the agreement for sale. There was no scrutiny of the title deeds by the defendants 1 and 2 prior to the execution of the agreement for sale.

30. Mr. G. Ramaswami then referred to the fact that defendants 1 and 2 took possession? of the property from defendants 3 and 4 and that the manner in which they took possession of the property from defendants 3 and 4 would show that the entire transaction was vitiated by fraud. Exhibit B-21 is the possession receipt executed by defendants 3 and 4 in favour of the defendants 1 and 2 on 19th March, 1968. Exhibit B-21 recites that as per the instructions from Paramayee Ammal (deceased first plaintiff) defendants 3 and 4 had received a sum of Rs. 15,000 from defendants 1 and 2* and surrendered possession of the property to them. It is further stated that the possession of the property was being delivered over to defendants 1 and 2 in part-performance of the agreement for sale, dated 17th June, 1967. Exhibit B-37 is a notice published in Malai Murasu on 20th March, 1968. The said publication states that there was litigation pending in the Sub-Court, Erode and in the High Court at Madras regarding the properties of deceased Marimuthu Pillai and that while so some persons were trying to purchase the property of an extent of 4-04 acres comprised in S. No. 1332 in Erode town from Paramayee Ammal taking advantage of her feeble mind and her helplessness. It is further stated that if anybody entered into any agreement for sale with the said Paramayee Ammal whose mind and power of thinking have become enfeebled such agreement for sale would be ineffective. The publication was given by the second plaintiff and his step-brother. The publication is dated 19th March, 1968, and it appeared in the issue of "Malai Murasu' on 20th March, 1968. It is the contention of Mr. G. Ramaswami for the appellant that since defendants 1 and 2 came to know about the intended publication of Exhibit B-37, they took possession receipt with a recital that possession was being handed over by defendants 3 and 4 under instructions from Paramayee Ammal, the deceased first plaintiff and in part-performance of the agreement for sale dated 17th June, 1967. Whatever might be the impact of Exhibit B-21 on the plea of defendants 1 and 2 that they are now in possession of the property in part-performance of Exhibit A-13 agreement for sale, we have no doubt in our minds that Exhibit B-21 which has come into existence nearly nine months after the execution of Exhibit A-13, would have no relevance at all in deciding the question whether Exhibit A-13 agreement for sale is vitiated by fraud and undue influence. There is no evidence to show that defendants 1 and 2 were aware of the intended publication of Exhibit B-37 prior to their taking Exhibit B-21 from defendants 3 and 4. Even if it is assumed that they would have been aware of the intended publication of Exhibit B-37 notice by the son and step-son of the deceased first plaintiff, there was nothing unnatural in their attempting to make their position secure by taking possession of the property from defendants 3 and 4 in view of the admitted threat held out by the son and step-son of the deceased first plaintiff. In the circumstances, we repel the contention of Mr. G. Ramaswami that the simultaneous publication of Exhibit B-37 and the execution of Exhibit B-21 possession receipt would be evidence of undue influence and fraud exercised by defendants 1 and 2 on the deceased first plaintiff.