Full Judgment
P. Shanmugam, J.
1. C.M.A. No.1397 of 1996 is the petitioner's appeal against thedismissal of O.P. No.16 of 1993 filed by her for judicial separation.C.M.A. No.1398 of 1996 is an appeal filed by the plaintiff/wifeagainst the dismissal of the suit O.S. No.25 of 1996 for a decree to cancelthe deeds executed by her in favour of her husband and for return of thejewels and money.
C.M.A. No.1399 of 1996 is filed by the respondent/wife in O.P. No.24of 1992 against the order passed restoring the conjugal rights in favour ofthe husband.
2. All the three matters were decided by a common judgment dated30.6.1994 by the Family Court Judge at Pondicherry.
3. The facts of the case are stated hereunder :
The marriage between the appellant/wife and the respondent/husbandtook place as per the Christian Law on 15.9.1969. Out of their wedlock, theappellant had given birth to three children, each of them suffering with somedeficiency. The appellant purchased four items of property under ExhibitsA.6, A.7, A.8 and A.12 during the period between 1984 to 1988. According tothe appellant, right from the beginning of their marriage, the respondent wasill-treating the appellant and on many occasions, drove her out of the housefor getting huge money for his business and other luxurious expenses. Many panchayats were convened and he then used to take her back. According to her,he had spread rumours among the relatives suspecting the appellant's characterand fidelity. However, she was tolerating the cruelty for the sake of herchildren and for the family. During April 1988, she was threatened to handover all her jewels weighing about 150 sovereigns and receipt of the same wasacknowledged by the respondent in a panchayat. During the last week of May 1988, in view of the constant threat to her life from the respondent and hishenchmen, the appellant was forced to go to her mother's house and thereafter,she issued a lawyer's notice dated 26.5.1988. Once again, there was a panchayat and the respondent persuaded her to join him in Pondicherry. Thatalso lasted only for a few weeks and in the last week of July 1988, theappellant was forced and coerced to execute three documents which were styledas release deed, power of attorney and gift deed, on the same day, i.e. on28.7.1988 in favour of the respondent. She had to sign the documents against her will for fear of her life and safety. Inspite of her signing thedocuments, she was mercilessly beaten and became bed-ridden for nearly two months. Thereupon, her mother came with her close relatives and rescued her. The respondent detained the children and refused to hand over the jewels and hence the suit O.S. No.2 5 of 1996 for a decree to cancel those two documentsand for a direction to return the gold jewels and money.
4. The appellant preferred O.P. No.73 of 1992 for a decree ofjudicial separation against the respondent herein on the ground of cruelty andthe constant ill-treatment meted out to her by beating. She has also alleged,apart from what is stated above, that she was coerced and compelled to executethree documents under threat and undue influence and further alleged that inthe written statement, the respondent had, without any regard for the truth,alleged that the appellant was living in criminal intimacy with the driver andthat this fact was known to her daughter and others in Pondicherry. Accordingto her, these allegations are, per se, false, malicious and motivated and itis no longer safe for her to continue the marital relationship with therespondent. According to her, the allegations amount to legal and mentalcruelty and hence, she prayed for a decree of judicial separation.
5. Miscellaneous Petition No.24 of 1992 is an application filed bythe respodnent herein under Section 212 of the French Civil Court for restitution of conjugal rights on the ground that there is nobody to lookafter the three children and that the appellant/wife is bound to oblige himfor all the matrimonial obligations. He further says in his application thatdue to the love and affection that he had for his wife, he had purchased theproperties in her name as benami and these properties thereafter werere-conveyed by the appellant in favour of the respondent. After havingexecuted these deeds, at the instigation of her paternal uncle, she had fileda suit for cancellation of the deeds. According to the respondent, though sheinitially agreed for a settlement, at the instigation of her paternal uncle,she went back and hence the above application.
6. Both the suit as well as the appellant's application were resistedto by filing a detailed statement and counter, inter alia, contending anddenying the allegation of cruelty. The respondent has stated that because ofhis attachment with his wife, he foolishly purchased the properties in thename of his wife. But, the appellant was unfaithful to him and was acting at the instigation of her relatives. According to the respondent, he had signeda blank white paper on 20.4.1 988 to avoid separation and thereafter, she hadillicit relationship with the driver and in repentance of her behaviour, sheexpressed her willingness to execute three documents on 28.7.1988 and did execute the same and thereafter, she had filed the above suit as anafterthought at the instigation of her relatives. He had denied the handingover of the jewels and retention of the same by him. The respondent haddenied the averments including the allegation of mental torture andill-treatment.
7. The Family Court framed two issues in the suit for consideration,namely whether the three deeds were executed under coercion and threat to lifeand if they are to be cancelled and whether there was any entrustment of thejewels to the respondent and if the appellant is entitled to recover the same.The learned Judge answered the issues in favour of the respondent and heldthat the appellant had not proved that the documents were obtained under undueinfluence and that there was any entrustment of 150 sovereigns of jewels andaccordingly dismissed the suit. The learned Judge allowed O.P. No.24 of 1992 for restitution of conjugal rights on the finding that there was noilltreatment and that the appellant has got a duty to go and live with therespondent for the benefit and welfare of the children. The learned Judgealso dismissed the application for judicial separation. He has found that theappellant has not proved the allegation of cruelty.
8. Learned counsel Mr. R. Sekar arguing on behalf of the appellantmade the following submissions :
(a) The events that had taken place from the date of the marriage, especially from April 1988 till the date of execution of the three deeds dated28.7.1988 would clearly show that the appellant was under threat and coercionand was under the dominance and threat of her husband.
(b) The recitals of the documents executed on 28.7.1988 and the mannerand method of its execution would clearly show that all these documents wereunconscionable on the face of it and therefore, they would clearly come underSub-clause (3) of Section 16 of the Indian Contract Act, 1872 and therespondent has not discharged his burden.
(c) The respondent has not issued any reply to the legal notice issuedby the appellant, Ex.A.2 dated 26.5.1988 which alleged clearly that therespondent had treated the appellant cruelly and mercilessly and subjected herto various acts of defamation in front of her own children and relatives andthat she had to go to her parents' house, unable to bear the torture andmental agony. In the said letter, she had called upon the respondent to actas per the terms of the agreement dated 20.4.1988.
(d) The inconsistent stand of the respondent in reference to themotive for the alleged execution of the three documents and the failure of thelearned Judge to consider the patent illegality in those documents has occasioned failure of justice.
9. Learned senior counsel Mr. G. Masilamani arguing on behalf ofthe respondent made the following submissions :
(a) The properties were purchased benami in the name of the wife and she did not have any source for the purchase of these properties.
(b) There is no proof of entrustment of 150 sovereigns of gold jewelswith the respondent.
(c) There is no pleading as required under Order 6, Rule 4 of the Codeof Civil Procedure in the plaint and the appellant had come to the court withvague allegations and false stories. In the absence of any evidence insupport of these vague allegations, she is not entitled for the decree andorder as prayed for.
(d) The respondent has established that the properties were initiallypurchased benami and that the appellant had executed the impugned documents on her own volition. In order to establish that the properties were purchasedbenami, the respondent has let in the evidence of D.W.5, the vendor to the documents, and established the same. According to him, the original documentswere not produced and the possession and enjoyment of the properties was withthe respondent and the respondent had paid the money for the purchase of theseproperties.
(e) There is no proof for the entrustment of jewels with therespondent and in the absence of any evidence whatsoever, the appellant is notentitled to seek for a decree in reference to the jewels.
(f) The appellant is not entitled to let in any oral evidence contraryto the writings in the documents.
10. We have heard the counsel for the appellant Mr. R. Sekar andMr. G. Masilamani, senior counsel appearing on behalf of the respondent,gone through the records and considered the matter carefully.
11. The following are the questions that arise for consideration inthese appeals :
(i) Whether the appellant has established her allegation of cruelty and dominance over her by the respondent ?
(ii) Whether Exhibits A.3 and A.11 are brought about by undue influence andcoercion and are liable to be set aside ?
(iii) Whether the appellant is entitled to the jewels and if so, towhat extent ?
(iv) Whether the appellant has made out a case for judicial separation? and
(v) What are the reliefs that are to be granted to the parties
12. The parties were married on 15.9.1969 as per Christian Law andlived together at the appellant's place at Komarapalayam initially. Theappellant's family was affluent, whereas the respondent admittedly wasdepending on the appellant's father. They came to Cuddalore some time in theyear 1980. The father of the appellant died in the year 1983. Partition tookplace between the appellant and her brothers immediately thereafter. Theappellant purchased the properties under Item 4 of 'B' Schedule on 15.10.1984,Item 3 of 'B' Schedule on 3.12 .1984, Item 2 of 'B' Schedule on 22.10.1986 andItem 1 of 'B' Schedule on 1.2.1988 in her name. Apart from this, she hadearlier purchased at Komarapalayam, in her father's place, a property on11.4.1972. She was given, at the time of marriage, 150 sovereigns of goldjewellery. Though there is some controversy regarding the actual quantum ofsovereigns given to the appellant and contributed by the respondent, the factthat the appellant was given a considerable amount of jewellery in the rangeof 100 sovereigns cannot be disputed.
13. The case of the appellant is that ever since the birth of thechildren, the husband started ill-treating her in order to force her to gethuge sums of money for his business and other luxurious expenses. There weremany occasions of compromise and on the promise of the respondent, she would come back and live with him. However, the respondent used to keep quite for few days and again would begin to illtreat and harass her. Though there weremany such instances of illtreatment, the important piece of evidence insupport of a compromise is evidenced by Ex.A.1, the Panchayat Muchalika, where the appellant as well as the respondent have signed. The English transactionof this Panchayat Muchalika is as follows :
'(1) The family is in a confused state without peace and till peace is restored between the parties and till the appellant agrees, the parties shalllive separately.
(2) The appellant will be living at the Tagore Nagar house with thechildren. The respondent shall pay the expenses for the family. He shouldnot refuse to pay the same and create a scene by seeking accounts for theexpenses.
(3) Under no circumstances, the respondent should scold or beat theappellant and should not interfere with her going out and at the same time,the appellant also will not interfere and take any liberty with therespondent.
(4) On important occasions (marriage and functions), the respondentshall take the jewels and give it to the appellant.
(5) If any of the above conditions are violated, the appellant isentitled to take legal steps.
14. A reading of the above Panchayat Muchalika shows that it iswritten in plain words, coming out naturally. It makes clear that there isconflict and no peace in the family and that the appellant has agreed to liveat the Tagore Nagar house along with the children. The respondent hadcomplete control over the income of the family and the jewellery of theappellant. Even this panchayat did not bring about peace in the family andthe appellant left her house and joined her mother at Komarapalayam. Afer this, the appellant had sent a lawyer's notice Ex.A.2 dated 26.5.1988 whereinshe had stated that the respondent had been treating her cruelly and subjectedher to various acts of defamation in front of her own children and relatives.She was driven out of the family house and many panchayats were convened and on the repentance of the respondent that no such things will take place infuture, the appellant used to come back. However, after a few days, again theharassment and mental agony will begin. The respondent had spread rumours among the relatives about the character of the appellant, which caused seriousmental agony to the appellant. She has specifically stated in Ex.A.2 asfollows :
'As you are also aware that all the jewels and cash belonging to theappellant are with the respondent in safe custody.'
Ultimately, she requested as follows :
'Our client, as per the agreed terms dated 20.4.1988, calls upon youto allow her to live peacefully, failing which our client will be forced totake legal steps against you in a court of law.'
Admittedly, there was no reply for this legal notice. However, according tothe appellant, due to the intervention of the appellant's brothers and on theassurance of the respondent, who came down to her mother's place stating thathe would behave properly, she came back to live with him. It is thereafterthat the respondent gave a police complaint on 17.7.1988 against the appellantalleging that she had ran away with one Jayachandran and that she was missing.The fact that the respondent had given a police complaint on 17.7.1988 isadmitted by the appellant. On the basis of this police complaint, a policeofficer came to the appellant's house and asked her to come to the policestation. The respondent's uncle one Soosairaj had also threatened her at 7 pmon that day to execute the documents as required. Thereafter, on the nextday, i.e. on 28.7.1988, she executed three documents styling them as releasedeed, power of attorney and gift deed in favour of the respondent. Theappellant did not question the respondent in reference to the coercion andcompulsion immediately thereafter, but could react only after two months,starting with the lawyer's notice dated 29.11.1988, Ex.A.4 and culminating inthe filing of the suit on 29.1.1988.
15. The following circumstances would establish that the execution ofthe documents is quite unnatural, apart from the allegation of undue influence
(i) Ex.B.3 is the Release Deed executed by the appellant in favour of the respondent. There is no mention as to the items of property or thedescription of the property in the same. The document recites as though theappellant is releasing the property purchased in her name and that theproperty was purchased by the respondent out of his earnings. Obviously, theproperty is not a joint family property nor the respondent had any interest inthe property. Therefore, there is no question of releasing the rights of theappellant in favour of the respondent. The reference in the release deed isto the effect that the respondent/husband had purchased the property in hiswife's name from out of his income and that the said property has to betreated as family property and that the appellant/wife has to release therights without any consideration. Obviously, it is a self-serving stand ofthe respondent/husband.
(ii) Ex.B.4 is the Power of Attorney executed by the appellant infavour of the respondent for the purpose of managing suit items 2 to 4. Thereason stated in the document is that the appellant has to go to her mother'shouse and therefore, in order to manage the property, the husband is given thepower. It is stated that the wife is not in a position to manage theproperties and therefore, the husband is appointed as the person-in-confidencefor giving the power of attorney. In the latter portion of the document, itis stated that the husband is given the right to make applications before theauthorities and change the accounts from the bank and take the money, and ifnecessary, close the account. Here again, the question of alleged managementdoes not arise, since according to him, he obtained a release deed. By virtueof this power of attorney, the respondent concedes that the properties stillbelonged to his wife and that he only wants to manage the same.
(iii) Ex.A.1 is a Gift Deed of Item 1 of 'B' Schedule Tagore Nagar house. The reason stated in the gift deed is that the appellant is executingthe gift out of love and affection. This document also is in reference to theonly house wherein the appellant is living, and the genuineness of thisdocument, gifting away this property in favour of the respondent by theappellant, in the light of the allegations of cruelty as evidenced by ExhibitsA.1 and A.2 appears to be difficult to accept, especially in view of the following statement in the document : 'By virtue of the fact that you (respondent) are my husband and out of love and affection and that you have earned and purchased the property in myname, I desire that you must keep and enjoy the property.'
16. By going through the recitals in the documents, we find that there is intrinsic evidence in the documents themselves positively suggestingthat these documents were made to suit his requirements. The recitals are socouched in a language which is contrary to the actual state of affairs. Apartfrom this, the circumstances under which these documents came into existence would support an inference that the respondent is out to take away all theproperties of the appellant and deprive her of any right of an independentexistence. The case of the appellant is that these documents were obtained bycoercion, compulsion and under threat to the life of her person and herchildren and in the light of the serious allegations of cruelty, including thedoubting of her fidelity. The following are the circumstances set out by herin support of this allegation :
(i) Exhibit A.1, the Panchayat Muchalika.
(ii) Exhibit A.2, the notice issued by the appellant through herlawyer alleging acts of cruelty, defamation and harassment, for which there isno reply.
(iii) The police complaint daetd 17.7.1988 alleging that the appellanthad ran away and is missing.
(iv) The visit of the police officers to the appellant's house askingher to come to the police station.
These facts have been spoken to by the witnesses and cannot be disputed.
17. Therefore, in the light of the alleged cruelty, defamation andthreat by way of the police complaint, the appellant's case that she was compelled and forced and under the dominance of her husband she had to execute the three documents, has to be accepted.
18. On the contrary, the case of the respondent in reference to this allegation is contradicting. At one stage, he has stated that the propertieswere purchased by him benami in the appellant's name and therefore, she hadexecuted the same in his favour. In another place, he says that the appellanthad executed these documents in repentance of her misdeeds. He also says inEx.A.10, reply notice dated 19.12.1988, that he never doubted his wife'scharacter.
19. After the arrangement under Ex.A.1, on the specific condition ofthe appellant that on violation of the terms, she is entitled to take legalaction, coupled with Ex.A.2 notice dated 26.5.1988 alleging cruelty, for whichthere is no reply, the fact is established that they were living together till20.4.1988 and some time thereafter on the basis of the said arrangement, andthat the appellant had left the house on the respondent's failure to keep upwith the terms of the arrangement. After 26.5.1988, the fact that she hadcome back to Pondicherry is also not in dispute. The respondent had given acomplaint to the police on 17.7.1988 that his wife had eloped. Therefore, thefact that the appellant was living under the dominance of her husband till thedate of the execution of these three documents on 28.7.1988 cannot be disputedand coupled with the artificial, unnatural and questionable recitals found inthose three deeds, the appellant has made out a case that they were broughtabout by coercion and compulsion. The appellant was also right in saying thatthe statutory presumption is raised in this case in favour of the appellant.The suit properties which stood in the name of the appellant were sought to betaken away at one stroke and on the basis of the evidence, it is seen thatthey are unconscionable, one-sided and therefore, the burden is on therespondent to establish that the documents were not induced by undue influence. The case of the respondent that the wife had executed thedocuments out of love and affection, in the light of his own allegation ofpolice complaint on 17.7.1988, hardly ten days prior to the execution of thegift deed, is very difficult to accept. The argument that this court need notgo into the aspect of the legal validity or otherwise of the document cannot be accepted.
20. The appellant, apart from examining herself, examined three otherwitnesses on her side and the respondent examined himself and eight others.Both of them have marked Exhibits A.1 to A.36 and B.1 to B.36 respectively.Ex.A.1 is a crucial document, wherein the respondent admits that there was confusion and dispute in the family and wherein he agreed that he would notbeat his wife and that the jewels were entrusted with the husband. Though ata later stage the respondent disowns his letter and stated that his signaturewas obtained in a blank white paper, in his earliest reply notice dated19.12.1988, Ex.A.10, the respondent has admitted as follows :
'Your alleged letter given by my client on 20.4.1988 was again givenby my client under the pressure of the so called henchmen of my client, namelythe Parish Priest, my client's uncle, your client's brother (also a Priest)and other common friends and relatives. It is only given to satisfy yourclient as usual with the solemn assurance of the Parish Priest that it will bekept in his custody. But, your client's brother, who is also a Priest,fraudulently collected the letter from the Parish Priest of ThattanchavadiRev. Fr. Lourdenadhan and misused it for some oblique purposes.'
From the above, it is clear that the respondent is fully aware of the contentsof the letter and the same was given under the alleged pressure and to satisfythe appellant. Whereas, in the written statement, in paragraph 7, he hasstated that he was called upon to sign against his conscience in a blank whitepaper by the so called panchayatdars. To the same effect, he has repeated inhis deposition as D.W.1, wherein he says that nothing was written in Ex.A.1and that he did not know anything about the contents of the letter and thesignature of the plaintiff and the witnesses. Therespodnent is not speaking the truth, especially after having admitted thesame in his reply notice Ex.A.10.
21. It is further seen that at the earliest point of time, theappellant had issued Ex.A.2 letter when the respondent went back on hisassurance of treating the appellant reasonably with the specific allegation ofill-treatment, cruelty and beating. She has also referred to Ex.A.1 dated 20.4.1988 therein. For this notice, there was no reply by the respondent.After having stated in Ex.A.10 reply notice dated 19.12.1988 that he neverdoubted the appellant's chastity or her fidelity, the respondent went back andmade all sorts of allegations against the appellant in the written statementand in his deposition. The respondent refers to the illicit relationship in anumber of places in his written statement, which per se, amounts to cruelty,if it goes unsubstantiated. He has stated as follows :
'He never told about the said immoral conduct of the plaintiff sincehe was not aware of the same personally.'
'Thus, the plaintiff was induced to become unfaithful to thedefendant.'
In paragraph 10, he says as follows :
'In the course of time during the said separation, the said illicitrelationship of the plaintiff with the driver became an open secret in themonth of July, 1988.'
He admits of giving a police complaint in his deposition about the plaintiff'smissing, suspecting that she had ran away with one Jayachandran. D.W.7, in his evidence, admits that he saw police in the house of the appellant and hehas stated that only on his request, the police went back. Inspite of thisclear evidence, the Family Court erroneously concluded that the appellant hasadmitted in her evidence that she was living separately from July 1988 onwardsand hence, there was no domination by the husband against the wife and thattherefore, there can be no presumption under Section 16 of the Contract Act.
22. The respondent has admitted in his evidence as D.W.1 as follows :
'On 13.7.1988, the appellant returned to Pondicherry from Hosur after the issue of Ex.A.2.'
The appellant, in her evidence as P.W.1, has clearly stated that even afterthe letter dated 20.4.1988, the respondent was ill-treating her afterconsuming liquor and that she went to her mother's house and issued thelawyer's notice Ex.A.2, for which no reply was given. She did not return toher husband's house. The respondent came to her house and took her back on a promise and consequently, she had returned to her husband's house only after he went over to Dharmapuri and persuaded her brothers. She had resumed her marital life with her husband. It is only thereafter that a complaint dated17.7.1988 is said to have been given and on 21.7.1988, the police officer cameto her house and asked her to come to the police station and that therespondent's uncle Soosairaj threatened her over phone on the same nightasking her to come to the Registrar Office on the next day. Therefore, theappellant, who went back to her mother's house, returned to Pondicherry and toher Tagore Nagar house, which was the only house as residence and was living there till she was made to sign the three documents at one stroke. The trialcourt failed to consider the continued cruelty undergone by the appellant andthe fact that she was to bring up three children who are admittedlyhandicapped and the fact that she was branded as an immoral and unfaithfulwife and also that a police complaint about her alleged eloping with thedriver was given and the police was enquiring about her. All these factscumulatively will definitely go to show that the documents said to have beenexecuted on 28.7.1988 were obtained under those circumstances by coercion and undue influence.
23. The attempts of the respondent to justify the execution of thedocuments are conflicting and contradictory. At one stage, the respondentsubmits that all the properties were purchased by him benami in the name of the wife out of love and affection and that the wife wanted to go to hernative place, entrusting the management of the properties with the respondent,and in another place, he has stated that the appellant, in repentance of herbehaviour, had executed those documents. In Ex.A.10, another story is statedto the effect that the appellant had disposed of her Komarapalayam propertyfor a low sale consideration without the knowledge of the respondent and whenthe respondent questioned about her conduct, she had informed him that shewould give back to the respondent all the properties that were purchased inher name and only under those circumstances a panchayat was held and she executed the documents in question on her own free will and without any coercion or undue influence. The stand of the respondent that there was noproper pleading and proof cannot be accepted. In paragraph 9 of her plaint,the appellant has stated as follows :
'In the last week of July 1988, the petitioner was under the completecontrol and under the influence of the respondent. She was forced by therespondent against her will and was taken to the SubRegistrar's Office whereshe was forced to sign some document under threat and coercion. For fear of her life and the safety of her children, she signed the documents against herfree will under the undue influence of the respondent. The respondent had ahuge following to back him up in all his illegal and unlawful activities.'
In her evidence as P.W.1, the appellant, in her chief-exmination, has statedas follows :
'Even subsequent to the documents, he has illtreated me. He used toilltreat me after consuming liquor. I went to my mother's house and issued alawyers notice to the defendant. Ex.A.2 is the copy of the lawyers noticeissued by me to the defendant. No reply was given by the defendant even afterreceipt of the notice. I did not return to my husbands house. The defendantcame to my house and has taken me back on a promise in the result I havereturned to my husband's house only after my husband went over to Dharmapuriand my husband has pursuaded my brothers Gasper and Filominaraj. I resumed my marital life with my husband. On 27.7.88, a Police Officer came to my house and asked me to come to Police Station on the allegation that my husband hasgiven a complaint against me. The defendants uncle Susairaj has threatened meover phone on the same night at 7.00 p.m. and threatened me to come on thenext day to the Registrar Office for putting signature before the Registrar.I also rang up to my uncle Advocate Mr. Jayaraj and stated to him about thethreat of Soosairaj and asked me his advise. He has also advised me not toput signature in any document and advised me not to put signature in anydocument and advised me to leave Pondicherry immediately. Next day thedefendants uncle Soosairaj came along with two persons and the policeConstable. I do not know who the persons who accompanied Soosairaj. They obtained my signatures iin several printed forms and plain papers and stampedpapers in the house. They have taken me to the Registrar Office in a van.The defendant went to the Registrar Office along with his uncle and came afterabout fifteen minutes. They brought me inside the Registrar Office and asked my thumb impressions and signatures. I have done so in ten or fifteen papers.I was taken back to my house at Tagore Nagar. On the same night the defendant along with his friends have illtreated me and misbehaved with me. When I enquired my husband, he has assaulted me and I have sustained cut injury in mymiddle finger.'
24. It is seen that all the three documents were executedconsecutively within a short span of 15 minutes. Assuming that undue influence is not established for the sake of argument, a reading of thedocuments in question will show that the transaction, on the face of it, on the basis of the evidence adduced, appears to be unconscionable in the absenceof any acceptable reason for the appellant to execute those documents. Eventhe learned counsel for the respondent has to concede that the validity of thedocuments in question cannot be the subject matter in these proceedings and the same has to be separately raised and decided. We are unable to accept such a stand. The documents are under question, both on the basis of themanner of their execution as well as on the validity of their effect. Therespondent has not satisfactorily explained as to how a release deed could beexecuted when the property, which was purchased in the name of the appellantwith all the records and being enjoyed by her, can be released in favour ofthe respondent. Similarly, the question of giving a power of attorney for thevery same property also does not arise for consideration. Again, the reasonsfor executing the gift deed in favour of the respondent who is said to havecaused so much of ill-treatment and cruelty and was suspecting the fidelity ofthe appellant are not at all acceptable. It is too artificial to accept thecase of the respondent that the appellant executed a gift out of love andaffection for her husband. Yet another aspect is that by these deeds, theappellant has parted away with all her properties without anything to fallback upon for herself. We have to remember that the appellant's father is nomore and her brothers have obtained release deed from her and that she hadsold away the only property through power of attorney obtained from her by herbrothers and therefore, it is difficult to accept the case of the respondentthat all the properties were thus parted away in favour of the respondent. Wemust also appreciate the fact that the mental condition of the wife, when thehusband makes allegations of suspicion of her character and gives a policecomplaint and the police comes to her house to take her to the police station,would definitely form part of coercion to get the documents executed.25. In support of the submission that the respondent had notdischarged the burden of proof and the law on this aspect, reference was madeto a judgment of the Division Bench of this Court in ANDALAMMAL VS . RAJESWARI VEDACHALAM : AIR1985 Mad321 , wherein the Division Bench was dealing with a case of similar nature. In that case, their lordships held that if itis established that a person, who is in a position to dominate the will ofanother, entered into a contract with him and if the transaction appeared,either on the face of it or on evidence adduced, to be unconscionable, thenthe burden is upon the person who was dominating the will of the other person,to prove that such contract was not induced by undue influence. The word'shall' found in Section 16(3) of the Contract Act indicates that thepresumption is mandatory. The concomitant position is that if the burden isnot discharged, the presumption shall prevail. It is further significant tonotice that either on the evidence or on the face of the transaction, it isenough if it appeared to be unconscionable. In other words, it is enough forthe appellant to substantiate that the transaction was prima facieunconscionable and that she was under the domination of her husband. TheDivision Bench also held that if a person were to stand in a fiduciaryrelationship with another, the former would be deemed to have dominated thewill of the latter. They have also referred and followed the decision of thePrivy Council in INCHE NORIAH VS. SHAIK ALLIE A.I.R. 1929 P.C. 3, wherein the Privy Council had held that the relationship between the donor and thedonee were sufficient to raise the presumption of the influence of the donee over the donor and to render it incumbent upon him to prove that the gift wasa spontaneous act of the donor acting under the circumstances which enabledher to exercise an independent will and which would justify the Court inholding that the gift was the result of a free exercise of her will. Theirlordships also referred to the judgment of the Supreme Court in SUBASH CHANDRA VS. GANGA PRASAD and held in reference to theobservation of the Supreme Court as follows :
'Merely because the parties were nearly related to each other, nopresumption of undue influence can arise. Therefore, it cannot be understoodthat the Supreme Court had subscribed their concurrence to the aboveobservation. We had taken some pains to refer to this passage because theSection as such does not make any reference to relationship. It may be statedthat in that case, the Supreme Court set aside the judgment and decree of theHigh Court particularly because the case of undue influence had not beensufficiently alleged either in the pleadings or substantiated in the evidenceadduced.'
On going through the evidence in this case, we find that there are sufficientpleadings and evidence as set out above, apart from the intrinsic materialavailable in the documents themselves to prove that the documents were broughtabout by undue influence.
26. In the light of the above, we have no hesitation in holding thatthe appellant has clearly established undue influence and also her allegationthat the execution of the documents was unconscionable and that the respondenthas not discharged his burden and that the Family Court has erroneously failedto consider all these aspects and hence, the judgment of the Family Court isliable to be set aside.
27. The case of the respondent that the properties were originallypurchased by the respondent in the name of the wife has not been established.It is well settled that the burden of proving that the transactions were madebenami and that the apparent purchaser is not the real owner rests on therespondent. There is absolutely no acceptable legal evidence in this case toestablish the benami character. When the respondent alleged that the wife hadno source to purchase these properties during the period from 1984 to 1988, hehas neither explained as to how he had the source to purchase these properties. On the contrary, it is admitted that the wife comes from anaffluent family and that she is an Income Tax Assessee, whereas there is noevidence to show about any independent source of income for the respondent topurchase all these properties in the name of his wife. The Family Court hasfailed to see whether the respondent had discharged his burden of proving thecase of benami. It is by now well settled that the burden is upon the personwho sets up the case of benami to prove the same. The relevant factors forthe purpose of establishing the benami transaction, namely the passing ofconsideration, motive for the transaction and mutation of the records were notproved by the respondent. The respondent has not proved that he had thesource to offer the consideration and that he was in exclusive possession andenjoyment of the property and hence, his statement that these properties werepurchased out of love and affection also cannot be accepted.
28. There is a bar under Section 4 of the Benami Transactions (Prohibition) Act, 1988 to make any claim in respect of any property heldbenami. There is a legal presumption, unless the contrary is proved, that the property had been purchased for the benefit of the wife. The said Actreceived the assent of the President on 5.9.1988. Sections 3, 5 and 8 of theAct came into force on 5.9.1988 and the remaining Sections were deemed to have come into force on 19.5.1988. In the case on hand, the documents were executed on 28.7.1988 and the suit was filed on 29.1.1990. The respondentfiled his written statement on 9.12.1991. As per Section 4(2) of the Act, nodefence based on any right in respect of any property held benami shall beallowed in any suit by a person claiming to be the real owner of such property. These provisions were the subject matter of interpretation by theSupreme Court in P. RAJAGOPAL REDDY & OTHERS VS . PADMINI CHANDRASEKARAN , wherein, while upholding Section 4(2) of the Act, their lordships held that all real owners who stake their claim regarding benami transaction, after Sections 4(1) and 4(2) came into operation, are givenuniform treatment by these provisions, whether they come as plaintiffs or asdefendants. Their lordships held as follows :
'Even though such a suit might have been filed prior to 19.5.1988, ifbefore the stage of filing of defence by the real owner is reached Section4(2) becomes operative from 19.5.1988, then such a defence as laid down underSection 4(2) will not be allowed to such a defendant.'
Applying this ratio in reference to the interpretation of Section 4(2) of theAct, the respondent herein cannot be allowed to raise the plea of benami transaction in reference to the properties in question.
29. Insofar as the entrustment of jewels is concerned, in Ex.A.1notice, the rsepondent had categorically agreed that on important occasions,he will take and give the jewels to the appellant. In Ex.A.2 notice, it iscategorically stated that all the jewels and cash belonging to the appellantwas in safe custody, for which there is no reply. P.W.1 has stated in herevidence that she had handed over 150 sovereigns of jewels to the respondentin the presence of the panchayatdars. The respondent had admitted in hiswritten statement that the appellant was adorned with 75 sovereigns at thetime of her marriage and that the respondent gave the appellant 30 sovereigns.The respondent, as R.W.1 in O.P. No.234 of 1990, has categorically admitted in the cross-examination as follows :
'I have not operated so many lockers after the petitioner (wife) leftme. On the date of execution of Ex.A.1, the jewels were with me. Afterwards,on her demand, the jewels were returned to her. I have not mentioned in my previous notice that the petitioner had taken 105 sovereigns of jewels withher.'
In the counter filed in O.P. No.234 of 1990 to the Pauper Application, the respondent has stated that the appellant was having 105 sovereigns of goldjewels with her. Therefore, it is clear that the appellant was having 105sovereigns of gold jewels and in the light of Ex.A.1, Panchayat Muchalika, therespondent has admitted of the entrustment of the jewellery to him. Therefore, it is clear that the respondent is retaining the 105 sovereigns ofjewels belonging to the appellant from 20.4.1988 onwards. The Family Court failed to consider the conflicting stand of the respondent and the admittedcase that the appellant was adorned with 105 sovereigns of gold jewellery.Therefore, the only question that remained to be determined was whether thejewels were entrusted with the respondent or whether the appellant had takenall the jewellery with her. In Ex.A.10 notice, the case of the respondent isthat the jewels were handed over to her father and were with him till hisdeath. Whereas, in Ex.A.19, the respondent says that the appellant had takenher 75 sovereigns of jewels along with the 35 sovereigns of jewels of hismother when she left her matrimonial home. A different story is stated in thewritten statement, wherein it is stated that the appellant's father hadentrusted her jewels with one Irudayaselvam, the brother-in-law of therespondent. All these things ought not have been accepted by the Family Courtin the light of Ex.A.2, the letter given by the respondent himself. Theappellant, in her plaint, has specifically pleaded that during April 1988, therespondent threatened the petitioner to hand over all her jewels of goldweighing 150 sovereigns. A Panchayat was convened in the presence of one Rev. Father Lourdusamy on 20.4.1988 about the jewels. The Panchayatdars asked the petitioner to hand over the jewels to the respondent for safe custody. Aletter to this effect was signed by the petitioner and the respondent hadaffirmed in the letter about the handing over the jewels to the respondent.This is evidenced by Ex.A.2, the appellant's notice to the respondent, whereinit was stated as follows :
'You are also aware that all the jewels and cash belonging to ourclient are with you in safe custody.'
The respondent was in the custody of the locker as evidenced by his ownadmission in the cross-examination referred to earlier and that is why inEx.A.1, it was stated that the respondent has to take those jewels duringimportant functions like marriage and other ceremonies and give them to theappellant to wear. From the above, it can safely be concluded that therespondent had been entrused with 105 sovereigns of gold jewels belonging to the appellant and that he has retained them and therefore, he is bound toreturn the same. The order of the trial court, therefore, to that extent isliable to be set aside.
30. It is submitted by the Senior Counsel for the respondentthat the respondent had sold all but one of the properties, the subject matterof the impugned documents. The judgment of the Family Court was rendered on 30.6.1994. The respondent had sold Item 3 of the 'B' Schedule land on5.12.1995 and another portion in March, 1996. He further sold Item 1 of the'B' Schedule property namely the Tagore Nagar house on 12.12.1998. Accordingto him, he has put up a construction in Item 2 of the 'B' Schedule land andlet in tenants and this appears to have been done to see that she may not beable to physically get at the properties. All these alleged transactionswould only show that the respondent has dealt with these properties as his ownon the basis of the alleged release deed, power of attorney and gift deed.The suit was dismissed along with the petitions by a common judgment dated 30.6.1994. The appellant filed her appeal on 23.8.1994. The respondentadmittedly had notice and inspite of the same, had transferred theseproperties, which are the subject matter of the appeals, on 5 .12.1995, March 1996 and on 12.2.1998. The appeal has to be held to be a continuation of the suit so as to make the transfer made pending the appeal are liable to be hitby Section 52 of the Transfer of Property Act. A Division Bench of the MadrasHigh Court, in KRISHNAPPA CHETTY VS. ABDUL KHADER SAHEB A.I.R. 1915 MAD 495, has accepted the argument that alienations made during the continuanceof the proceedings originated by the claim petition till the disposal of thesuit are affected by the doctrine of lis pendens. The said principle willapply to the present case in reference to appeal also. Hence, the transactions are clearly hit by lis pendens.
31. Learned counsel for the appellant referred to these transactionsand also the talks of compromise. It is seen that several panchayats andcompromises are freely referred to, right from the beginning, at severalstages. We are of the view that the respondent has made these transactions as a fait accompli and his offer of these properties in favour of the children isonly an after-thought. As a matter of fact, the counsel for the appellantsubmitted that at one particular stage of compromise talk, what all the appellant had requested was a life estate in the properties and the remainderto the children, since she had no other property or income to sustain herself.We have no doubt that the appellant is as affectionate as the respondent andis interested in the welfare of the three unfortunate children. Therespondent cannot take advantage of the disability of the children and on thatscore, deprive the interest of the respondent. It is stated that the firstdaughter, aged 29 years, got married to a Law graduate during the year 1994and she is also a Law graduate. She has now got a son aged six years. The second daughter is said to be mentally retarded and is aged 27 years. The third son, with certain immunity deficiency, is studying. We are unable toappreciate the action of the respondent to dispose of all these propertieswhen the appeals are pending and come forward to settle the properties infavour of the children. We are not persuaded to accept these proposals asthere were a number of such attempts, proposals and counter-proposals in thepast, which did not fructify to the satisfaction of the parties, all along.
32. In the light of the unsubstantiated allegations touching on thecharacter of the appellant and the cruelty caused on her, as evidenced by thefalse police complaint and coercion to execute the documents, the appellanthas made out a case for judicial separation. According to the appellant, shewas put to constant threat for her life and she had apprehension that she willbe murdered, bodily harmed, molested or her modesty outraged by the respondent or his henchmen if she made any protest for all the brutality shown to her.She has stated that she was beatun up and ill-treated and forcibly driven outof the house and thereafter, she issued a registered notice dated 26.5.1988,for which there is no reply. She was thereafter persuaded by the respondentto come back to live with him and even thereafter, the police complaint wasgiven against her. She had alleged that the respondent had filed a writtenstatement in the suit on 9.12.1991, wherein he has, without any regard for thetruth, alleged that she was living in criminal intimacy with one Jayachandran.The allegations are, per se, false, malicious, attrocious and motivated. Shehas also stated that the respondent had wantonly deserted her without anyjustifiable cause and put her in a horrible state of mind. Though theallegations are denied in the counter, it is clearly established on theadmitted statement of the respondent himself that he made accusations abouther character and the same remains unsubstantiated. No attempt has been made before this court to justify the said stand of the respondent. For all otherreasons stated above in the above suit, we find that the appellant has madeout a case for judicial separation. The Family Court has erroneously heldthat the appellant had not proved the alleged cruelty and therefore, there hasto be an order of restitution of conjugal rights. We have found that theappellant has clearly and cogently established her allegation of crueltyagainst the respondent. Hence, the order directing restitution of conjugalrights has to be set aside.
33. In the result, the suit O.S. No.25 of 1991 is decreed as prayedfor in reference to the documents impugned and to the extent indicated inreference the jewellery. O.P. No.16 of 1993 for a decree of judicialseparation is allowed. O.P. No.24 of 1992 is dismissed. All the threeappeals namely C.M.A. Nos.1397, 1398 and 1399 of 1996 are allowed with costs.
34. Consequently, the connected C.M.Ps. are closed.