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9. The learned Judge proceeded on the basis that if the validity or otherwise of Exhibit B-1, the settlement deed dated 16-9-1968 is decided upon, then the subsequent deed of cancellation under Exhibit B-27 and the deed of gift under Exhibit B-28 dated: 17-10-1968 have got to be ignored, and that first defendant and his legal representatives being defendants 4 to 7, cannot resist the title claimed by plaintiff. It is in this perspective, the learned Judge held that the evidence tendered by D.Ws. 1 and 2, the two of the four attestors to Exhibit B-1, and the evidence of second defendant, as D.W.3 would show that Exhibit B-1 was not brought into existence by practising any fraud or misrepresentation upon Sankaralinga. The learned Judge also held that in the absence of any details furnished in the written statement about the nature of misrepresentation fraud; and there being no cogency between the stand taken in Exhibit B-27, and the lawyers's notice (Exhibit B-26) dated 31-10-1968 at the instance of Sankaralinga relating to the fraud practised upon him; and also taking note of the conduct of Nedungi Ammal in Contrast to what her husband did; it was held that Exhibit B-1 is not a valid document as claimed by first defendant and his legal heirs (hereinafter referred as defendants) (ranking of parties as in suit).

4. My client has gifted his properties to his three daughters on 17-10-1968. You are. hereby directed that you shall not in any way deal with my client's properties, collect rer.ts, or draw monies from Court or in any way act as my client's agent.

Sankaralinga died on 24-12-1969. Therefore, what all he could think of doing regarding Exhibit B-1 and the power of attorney, he had done to his best of knowledge and ability. He had taken legal" advice, and the lawyer had not advised him to file a suit then and there. That would not mean that what all he had done in this manner, and that too by bringing into existence registered documents, cannot be treated as irrelevant. What is contended by plaintiff is that it is not for Sankaralinga to decide whether fraud had been practised upon him or not, and whatever he says cannot be the conclusive evidence, and that by executing a cancellation deed, cannot take away the validity of Exhibit B-1, unless in a proceeding instituted by him, it is declared to be invalid and inoperative, and that his version in the document could not be acted upon unless corroborated; and in the written statement, the particulars of fraud having not been pleaded, whatever he had done, could not unsettle Exhibit B-1. These extreme contentions are least impressive, because Sankaralinga himself had taken certain positive steps to expose the fraud practised upon him. It would be improper for a Court if it cannot appreciate the circumstances in which a person like him is placed, and what ail he could do when faced with misrepresentation and fraud being practised upon him by his close relations and associates around this lay man without eye sight. It is too much to claim that he should have then and there instituted a suit and also obtained a decree setting aside the document before he died, failing which, it is a fraud that should prevail with flying colours. In these days, fraud is having better chance than truth. Cannot a party faced with misrepresentation and fraud, do any other act or thing, other than filing a suit to show that fraud had been practised upon him? It is for the Court to decide whether the follow up actions taken by Sankaralinga after the execution of Exhibit B-1 would constitute evidence or not. Therefore, the aforesaid documents which had come into existence during his life time, are taken into account as relevant piece of evidence. It must be remembered that to the lawyer's notice (Exhibit B-26), second defendant had not chosen to send any reply. As claimed by plaintiff's Counsel, is there any corroborative evidence of what Sankaralinga has claimed? D.W.4, an attestor to Exhibit B-27 has stated in cross-examination by counsel for defendants 2 and 3 as follows:

18. As for the judgment under appeal is concerned, the first aspect taken into account is that no details of misrepresentation or fraud are found in the written statement of first defendant. In para. 2, he had referred to what Sankaralinga did on coming to know about the fraud practised upon him, and about sending of lawyer's notice, which had not been refuted, etc., He was a tenant under Sankaralinga. It was not the first defendant against whom any fraud had been practised. He had chosen to rely upon the contents in the cancellation deed. Furthermore, he is not better placed than Sankaralinga to speak about the fraud experienced by him. It is not known as to what more is required to be stated in a written statement under such circumstances. On the nature of fraud, he had put the plaintiff on notice that reliance will be placed, on what Sankaralinga has stated in his documents. Hence, it cannot be said that there is absence of pleadings relating to fraud and misrepresentation in the written Statement of first defendant.

22. The other point which had impressed the learned Judge is that, there is no cogency between the stand taken in Exhibit B-26 and B-27. The contents of the lawyer's notice (Exhibit B-26) had been already extracted. The lawyer used the word "undue influence", and therefore, it was considered that there being difference between fraud, misrepresentation and undue influence, Sankaralinga had not come forward with a consistent plea. Except for the last sentence in para 1, in all the earlier sentences the plea that fraud has been practised upon him had been spelt out, and which is in consonance with the recitals in Exhibit B-27. It has been claimed that it was a deliberate creation by the son-in-law and his wife, and that the recitals found therein are contrary to their intention An inept expression used by a lawyer, who cannot be termed as a seasoned lawyer, ought not to have been highlighted to this extent, particularly when every piece of evidence available goes to show that fraud was practised on Sankaralinga, who had re-acted to it at the shortest possible time by taking such steps which he could do to the best of his knowledge and ability. Hence there is practically no lack of cogency between the contents of Exhibit B-26 and B-27