A.C. Arumugaperumal Adityan, J.
1. This second appeal has been directed against the decree and judgment in A.S. No. 363 of 2003 on the file of the Additional District Judge, (FTC-II), Chennai, which had arisen out of the decree and judgment in O.S. No. 12671 of 1996.
2. The short facts of the plaint sans irrelevant particulars are as follows:
While the plaintiff was minor at the age of about two years he lost his father. The plaintiff's mother is the first defendant. Both the father of the plaintiff viz., Eswara Reddy and his mother Suhurlatha/first defendant were living at Madras till the death of the plaintiff's father Eswara Reddy and even thereafter, the first defendant continued to reside at Madras. The plaint schedule property Item No. 1 belongs to the plaintiff under sale deed dated 10.04.1970, purchased out of the funds of the plaintiff while he was minor. Plaint schedule Item No. 2 property devolved on the plaintiff by succession after the death of his father. Even though Item No. 1 to the plaint schedule was purchased in the name of the plaintiff from out of the funds of his father while the plaintiff was minor, the property was being looked after by the first defendant/mother of the plaintiff as guardian. Even the sale deed dated 10.04.1970 was taken by the first defendant/mother of the plaintiff as a guardian of the minor-plaintiff. Upto December 1975 the plaintiff was studying at St. Bedes School at Chennai, and he completed his Senior Cambridge in June 1977. The plaintiff's mother tongue was Telugu, but he does not know to read or write Telugu. After his school education, he joined in Engineering course at Bangalore and was pursuing his Engineering studies at Bangalore from 1977 to 1982. There was no sufficient income from the properties to meet the expenses of the plaintiff in pursuing his Engineering course. He had borrowed Rs. 20,000/- on interest on the representation made by the first defendant/mother of the plaintiff as to the effect that she could not raise money from the properties and that she could not also manage the landed properties of the plaintiff at Nellore District and she requires some documents from the plaintiff authorising her to manage the properties, so that she would be in a position to raise money from the tenant and send the money to the plaintiff, to enable him to continue his Engineering Course at Bangalore. She had requested the plaintiff to go to Nellore on one working day to register the required document. The first defendant/mother of the plaintiff represented that since the plaintiff has become major, she could not collect the rent from the tenants in the property and so she requested the plaintiff to execute a document authorising her (first defendant/mother of the plaintiff) to collect the rent from the tenant. In view of the fact that the first defendant is his mother and the plaintiff had faith and trust in her and in view of the fact that the plaintiff had been requiring money to meet the educational expenses and in view of the fact that he had just attained majority and was under the influence of the first defendant, the plaintiff had to obey the mother who was legally in a position to dominate the will of the plaintiff. In the said situation as demanded by the first defendant/mother of the plaintiff, the plaintiff executed some documents in Telugu produced by the first defendant and also produced the same for registration in the bonafide belief that the said document was some authority for the first defendant to manage the property and raise money on the security of the same. In fact the first defendant stated that the document in question was merely an authority. The plaintiff does not know anything of Telugu language, though he is said to be a native of Nellore and the plaintiff believed the first defendant who got the documents prepared and she also stated that only when such a document was executed, she would be able to get some money by the management of the properties and more particularly described in the schedule to the plaint and send the same for the plaintiff's education and expenses. After completing the course of education in Bangalore in view of the mental depression he could not pass the examination, he returned to Madras and had been living with the first defendant and since by that time he had been a major, after his return to Madras on or about 1982, the plaintiff himself had been collecting the rents and profits from the property till about March 1991 and thereafter, it was learnt that the first defendant/mother of the plaintiff had sold the property and that she had also sent a notice to the tenant/D3. The plaintiff came to know that the subsequent purchaser of the suit property has sent a notice to the tenant and thereafter the tenant/D3 refused to pay the rent to the plaintiff. From the notice the plaintiff came to know that two sale deeds had been executed on 11.03.1991 by the first defendant in favour of the second defendant in respect of the petition scheduled properties. From the recitals to the said sale deeds, the plaintiff was able to understand that there was a reference about the settlement deed dated 23.03.1982 said to have been executed by the plaintiff at Nellore District, Andhra Pradesh, in favour of the first defendant. The said document of settlement deed dated 23.03.1982 is in Telugu, which the plaintiff could not read and understand and thereafter, got the same translated and found to his shock and dismay that the said document purported to have been executed by the plaintiff is a settlement deed in respect of the properties scheduled to the plaint to the value of Rs. 1 lakh. The said document has been obtained by the first defendant by virtune of undue influence by the first defendant. The plaintiff had executed the said deed of settlement without understanding anything of the same. The first defendant had practiced fraud on the plaintiff in so far as she represented while getting the said document executed as though it was required to give authority to her to manage the property when the plaintiff was away from Madras. The said document is a fraudulent document. The said document was not acted upon by the plaintiff. Till March 1991, the plaintiff was receiving rent from the tenants from the property. The plaintiff was not aware of the fraud practiced by the first defendant in view of the deference and respect he had towards his mother. The said document is vitiated by undue influence. The suit is not barred by limiation and the alleged settlement deed was not acted upon in view of the fact that the plaintiff, who is illiterate in Telugu, came to know about the fraud practiced in getting the settlement deed executed in favour of the first defendant and the nature of the document only in 1991 and since till 1991, the plaintiff was under the bonafide belief that the document got executed by the plaintiff was only to confer authority to the first defendant for management of the property on behalf of the plaintiff. Hence, the suit for declaration that the settlement deed dated 23.03.1982 is invalid, fraudulent and unenforceable and that the same is liable to be cancelled and set aside on the ground of fraud and not binding on the plaintiff, and also for declaration that the sale deeds dated 11.03.1991 registered as Document Nos. 410 & 411 of 1991 with the Sub- Registrar of Assurance at Mylapore executed by the first defendant in favour of the second defendant is liable to be cancelled and set aside, and for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property by the plaintiff, and for costs.
3. The first defendant has filed a written statement contending that the suit filed by the plaintiff is not maintainable and that the suit was filed by the plaintiff at the instigation of the third defendant, who is a party in the connected rent control proceedings initiated by the third defendant. The event that had happened after making the settlement deed in favour of the first defendant and also the event that had happened after making the settlement deed in favour of the first defendant i.e., after 23.03.1982 would establish the fact that the property, which has been settled in favour of the first defendant is absolute property of the first defendant and no other person is having right over the property. The marriage of the first defendant took place on 23.02.1957 and the plaintiff was born on 12.09.1959 and the property was purchased on 10.04.1970, the settlement deed was executed on 23.03.1982 and the first defendant issued legal notice on 15.03.1990, for which reply notice dated 08.04.1990 was received by the first defendant. The first defendant had issued another legal notice on 15.04.1991, for which she had received reply notice dated 29.04.1991, for which the first defendant had sent rejoinder notice dated 14.05.1991 and the third defendant had filed a petition in February-1992, for depositing the rents into the court. The plaintiff was three years aged when his father died. The plaintiff never inherited any ancestral property. The plaintiff brought the property through the funds of his mother when he was 11 years old. The plaintiff had settled the property in favour of his mother when he was 23 years old. The plaintiff recognised the title of his mother over the property after 23.03.1982. The first defendant was collecting rents from the third defendant. The plaintiff is very well aware of sale deed dated 11.03.1991 during the year 1991 itself in view of the notices issued by this defendant and the first defendant. The plaintiff is a party in rent control proceedings. The plaintiff has filed the suit after a lapse of 11 years from the date of settlement. Even after the execution of the sale deed a period of 2 1/2 years lapsed. The allegation that the plaintiff is aware of the settlement deed only now is utterly false and it cannot be accepted by any stretch of imagination. At the time of the death of the first defendant's husband, the legal heirs are the first defendant, the plaintiff, Mrs. Aparna and Mrs. Anitha-daughters. After the death of the first defendant's husband, she (D1) along with her children settled at Madras in order to pursue the education of her children. It is not correct to say that the property has been acquired by the funds of the plaintiff. The plaintiff had no financial capacity to buy the properties in the year 1970, since he was only 11 years old boy having no income of his own. The sale consideration for the said sale deed dated 10.04.1970 was provided by this defendant/mother of the plaintiff. The superstructures were constructed only from out of the funds provided by first defendant alone. The plaintiff had no source of income to purchase the property. After the death of Sri Eswara Reddy the entire property has been looked after by the first defendant, who settled at Madras for the same of her children's education. The plaintiff studied upto 3rd standard in St. John's school at Nellore in Telugu Medium and thereafter at St. Bedes School upto X standard at Santhome, Madras, which is nearer to the property. This defendant having lost her husband within 5 years of her marriage, looked after her children providing good education, shelter etc., It is totally false to say that the plaintiff is not aware of his mother tongue Telugu either to write or to speak. The plaintiff is well aware to write Telugu language since he has studied upto 3rd standard at Nellore. The plaintiff has executed various documents in Telugu language during the years of 1980, 1981 and 1982. The plaintiff used to talk only in Telugu and the first defendant made the plaintiff to study Telugu being his mother tongue. It is totally false to say that the first defendant has not forwarded money to pursue the plaintiff's education. After the death of her husband, the first defendant took her children to Madras and provided good education. Only because of the first defendant's efforts the plaintiff was made to study Engineering at Bangalore. It is totally false to say that the plaintiff has borrowed large sums of money from others to pursue the plaintiff's studies at Bangalore. The first defendant had sold major portion of their family properties for the education of the plaintiff and forwarded sums to the plaintiff, who was pursuing his Engineering studies at Bangalore at that time. But the plaintiff had joined with persons, who are undesirable character and cultivated bad habits and did not pursue his studies. Even in the early age, he cultivated bad habits like gambling, races, addiction to drugs etc., It is false to state that only due to undue influence of this defendant, the plaintiff had executed the settlement deed in favour of this defendant. Substantial properties of this defendant have been sold and had been spent for the education of the plaintiff. If the plaintiff's version is true this defendant would have obtained the power of attorney in order to manage the properties. There is no necessity for her to get the settlement deed in her favour for the purpose of managing the properties and also for the purpose of raising money from the properties. This plaintiff by natural love and affection on his mother made a settlement as this defendant is the person who brought up the plaintiff from the age of 3 years when his father died. With very great difficulties this defendant had brought up her children. As stated earlier the first defendant sold major portion of her property and personal jewels and spent money for the education of the plaintiff and other children. Being only son to her, she provided all assistance like any other mother to the plaintiff. This defendant as stated earlier sold major portion of her landed properties belong to her husband and her family and all the amounts have been spent for the education of the plaintiff and to his habits. When the settlement deed was executed the plaintiff was aged about 23 years. He can very well execute survey or guarantee to raise money. Only to evade the responsibilities, he has executed the settlement deed. The plaintiff had pleaded in the plaint at to the fact that the settlement deed was executed only to raise funds from public. The plaintiff because of his bad company and bad habits left studies at Bangalore and joined with this defendant and stayed at Madras and became drug addict and harassed this defendant to the maximum extent. This defendant stayed with the plaintiff upto the year 1986 and when he became totally addict to all bad habits, the plaintiff used to beat this defendant mercilessly and there are occasions when bleeding injuries inflicted by the plaintiff on this defendant. Number of properties have been sold by the plaintiff by himself and in fact all these properties belong to this defendant and her family members. The plaint schedule properties are not ancestral properties of the plaintiff. Whenever the plaintiff requires money this defendant by selling family properties had raised funds and gave the same to the plaintiff. This defendant is a helpless widow and she had sold all her jewels for the welfare of the plaintiff. The first defendant left Madras for her native place Nellore due to the unbearable ill-treatement received by her at the hands of the plaintiff. It is false to say that the plaintiff came to know about the sale deed executed by first defendant in favour of the second defendant only from the notices issued by the first defendant. Those notices have been issued as early as 15.04.1991 by the first defendant to the third defendant. As soon as the sale deeds were executed in favaour of the second defendant by this defendant notice were issued only from the third defendant. The plaintiff would have known about the sale deeds executed by this defendant in favour of the second defendant. Keeping quite for a period of 11 years, the plaintiff has comeforward with this suit only for the purpose of dragging further the rent control proceedings. It is totally false to say that the plaintiff came to know about the settlement deed only after verification of the sale deed dated 11.03.1991. The notices have been issued about the sale deeds to the third defendant as early as April, 1991 itself. In May 1991 itself the plaintiff was aware of the sale deeds dated 11.03.1991 executed by this defendant in favour of the second defendant. Only at the instigation of the third defendant the plaintiff has filed the suit. The tenant in the property taking advantage of the difference of opinions between the plaintiff and the first defendant, had instigated the plaintiff to file this suit. There was no undue influence or fraud played upon by the first defendant against the plaintiff. There was no undue influence or fraud played on the plaintiff by this defendant in getting the settlement deed executed in favour of the first defendant by the plaintiff. Only out of natural love and affection on his mother, the plaintiff had executed the settlement deed. The plaintiff is very well aware of the sale deeds executed by the first defendant in favour of the second defendant. The first defendant had executed a sale deed in favour of the second defendant after receiving the substantial sale consideration. The second defendant is a relative of the first defendant and the second defendant's family members are well-wishers of the first defendant's family. The plaintiff never had any occasion to earn money and acquire properties. When the property was acquired in the year 1970, the plaintiff was aged about 12 years. Taking into consideration all the family back ground and the position of the plaintiff, it goes beyond doubt that all his properties belongs to only to his defendant. The third defendant used undue influence and coercion on the plaintiff to file the present suit. The plaintiff was never in possession and enjoyment of the suit properties after the settlement deed. The first defendant has not conveyed more than the right she had over the property. It is wrong to say that the plaintiff did not question the sale deeds dated 11.03.1991 on the ground that he is not a party to sale deeds. Only to avoid stamp duty and to circumvent the situation in favour of the plaintiff the present claim has been made by the plaintiff. The correspondence between the plaintiff, D1 and D3 earlier to the sale deeds would show that the third defendant obtained rent from the property. The plaintiff is very well aware of the rights of the defendant over the property. Further the exchange of letters between the plaintiff and various statutory authorities would also establish that the plaintiff made a settlement in favour of his mother and it is not in dispute at any point of time. The second defendant is entitled to collect rent from the third defendant, who is a tenant of the suit property. The third defendant is liable to pay rent to the second defendant after the execution of the sale deeds in favour of the second defendant by this defendant. Aggrieved over the sale deeds executed by the first defendant in favour of the second defendant in respect of the suit property, the plaintiff has filed this vexations suit. The third defendant has already initiated proceedings to deposit the rent into the Court and in such circumstances the third defendant now instigated the plaintiff to file the present suit in order to avoid payment of rents to first defendant. The third defendant is now using the entire area of the building for his own use. The land area alone comes to one ground and 2042 sq.ft. The built up area comes to 4200 sq. ft. The third defendant is misusing the entire property for his own use. The suit is time bared. Even at the time when this defendant met the plaintiff, the plaintiff behaved in a rude manner and she tolerated all the misbehavior done by the plaintiff. Now the plaintiff is confined to a small room in ground floor and the entire ground floor is used by the third defendant. The suit has been filed only at the instigation of the third defendant and not by the plaintiff himself. The suit is liable to be dismissed with costs.
4. The second defendant in her written statement would contend that the suit properties have been purchased by the second defendant from the first defendant on 11.03.1991. After the purchase of the property, the second defendant has filed rent control proceedings against the third defendant, who was in occupation of the suit property as a tenant. Only after the receipt of notice from this defendant, the third defendant has instigated the plaintiff to file the present suit against his mother, who is the first defendant in the suit. According to the second defendant, the settlement deed was executed in favour of the first defendant by the plaintiff when the plaintiff was 23 years old. The plaintiff's father had left behind him the first defendant/wife, plaintiff/son, and one Smt. Aparna and Smt. Anitha-duaghters. In other aspects, the second defendnt in verbatim has reproduced the averments in the written statement filed by the first defendant and ultimately the second defendant has prayed that the suit is barred by limitation and the same is liable to be dismissed with costs.
5. The third defendant, who is the tenant under the second defendant, in his written statement would contend that in the absence of the plaintiff, his mother (D1), in the capacity of the guardian of the plaintiff was collecting the rent from the third defendant and during the year 1986, the first defendant had intimated the third defendant to remit further rents to the plaintiff and because of the disputes between the plaintiff and the first defendant, the third defendant had filed a petition before the Rent Controller for permitting him to deposit the rent into the Court in respect of the premises in his occupation. As per the orders of the Rent Controller, the third defendant was depositing the rent into the Court regularly and there is no cause of action for the plaintiff against the third defendant and hence, the suit is liable to be dismissed as against the third defendant.
6. On the above pleadings the learned trial Judge had framed nine issues and after recasting Issue NO. 6, conducted the trial. Before the trial Court, the plaintiff has examined himself as P.W.1 and had exhibited Ex.A. 1 to Ex.A. 6 and the first defendant had examined herself has D.W. 1 besides examining D.W. 2 to D.W. 5 on her side. D.W. 5 is the third defendant/tenant. On the side of the defendant, Ex.B. 1 and Ex.B. 2 were marked. After going through both the oral and documentary evidence, the learned trial Judge has dismissed the suit on the ground that the plaintiff is not entitled to any of the reliefs asked for under the plaint. Aggrieved by the findings of the learned Trial Judge, the plaintiff preferred an appeal in A.S. No. 363 of 2003 before the Additional District Judge (FTC.II), Chennai. The learned first appellant Judge having found no material to interfere with the findings of the learned trial Judge has dismissed the appeal, thereby confirmed the decree and judgment of the learned trial judge in O.S. No. 12671 of 1996 on the file of the VIII Assistant Judge, City Civil Court, Chennai, which necessitated the plaintiff to prefer this second appeal.
7. The following substantial questions of law arose for consideration:
(i) Whether Ex.A.5 settlement deed was a product of undue influence attracting the provisions under Section 16 of the Contract Act?
(ii) When the plaintiff has claimed that the first defendant could have obtained a power of attorney instead of a settlement deed in the light of the contention that the first defendant required proper document to maintain the suit property, whether the Courts below were right in not presuming that the first defendant had exercised undue influence in obtaining Ex.A.5 settlement deed dated 23.3.1982 on her favour?
8. Heard the learned Senior Counsel Mr. A.L. Somayaji appearing for the appellant herein/plaintiff and also the learned counsel appearing for the respondents Mr. P.Subbha Reddy and considered their respective submissions.
9. Points (i) & (ii): Admittedly the plaintiff in O.S. No. 12671 of 1996/appellant herein is the son of the first defendant in O.S. No. 12671 of 1996/the first respondent herein. Under the suit the appellant herein/plaintiff sought for the relief of declaration declaring the settlement deed dated 23.03.1982 Ex. A.5 Ex. B.1-original said to have been executed by the plaintiff in favour of the first defendant as invalid, fraudulent and unenforceable and has been obtained by undue influence by the first defendant, who is none other than the mother of the plaintiff. According to the plaintiff, he studied upto 3rd standard in Nellore and that he is not well versed with Telugu language and he is not able to read or write Telugu, but the alleged Ex. A.5 (Ex. B.1) settlement deed dated 23.03.1982 is in Telugu and only on the pretext to collect money from the tenants and also to safeguard the family properties, the settlement deed Ex. A.5 (Ex. B.1) was obtained from him and that without knowing the contents of Ex. A.5 (Ex. B.1) he had signed the same. The learned counsel appearing for the respondent would brought to the notice of this Court that even at the time of Ex. A.5 (Ex. B.1) settlement deed, the plaintiff was a major aged 23 years and the property was purchased in the name of the plaintiff when he was a minor at the age of 2 1/2 years after the death of his father from out of the funds of the first defendant and that the first defendant became a widow five years after her marriage with the father of the plaintiff and apart from the plaintiff, the first defendant is having two other daughters/sisters of the plaintiff and it was very difficult for her to meet the educational expenses and other family expenses and that at the time of execution of Ex. A.5 (Ex. B.1) settlement deed, the plaintiff was pursuing Engineering Course at Bangalore and only to enable her to collect the rent from the plaint schedule properties, she required a document in her favour in respect of the plaint schedule properties and the plaintiff out of his love and affection had executed Ex. A.5 (Ex. B.1) settlement deed. According to the first defendant, who had deposed before the trial Court as D.W.1, the plaintiff knows Telugu language well and apart from Ex. A.5 (Ex. B.1) settlement deed, the plaintiff had also executed documents in Telugu under Ex. B.17, Ex. B.19, Ex. B.20 and Ex. B.21. Under such circumstance, it cannot be said that only by undue influence and by playing fraud Ex. A.5 was obtained by the first defendant from the plaintiff.
8(a) The learned Senior Court appearing for the plaintiff/appellant herein would submit that the suit is not barred by limitation because only from the notice issued by the third defendant, he came to know that Ex. A.4 was obtained under undue influence by his mother-first defendant and that even three years from the date of notice sent by the first defendant to the third defendant in the year 1995 under Ex. A.8, the plaintiff has filed the suit. Relying on Article 56 of the Indian Limitation Act, the learned Senior Counsel would contend that the suit is in time. But Article 56 of the Indian Limitation Act will be applicable only if it is proved that the document or instrument under challenge is a forged one. Absolutely there is no pleading in the plaint filed by the plaintiff as to the effect that Ex. A.5-settlement deed was a forged document. Under such circumstances, Article 56 of the Indian Limitation Act, will not be applicable to the present facts of the case. At para 29 of the plaint the plaintiff would plead that the alleged settlement deed Ex. A.5 (Ex. B.1) is in Telugu and that the plaintiff is not conversant with Telugu language and that the first defendant had committed fraud on the plaint in getting his signature in Ex. A.5. But at the time when Ex. A.5 (Ex. B.1) was executed by the plaintiff in favour of his mother, he was aged 23 years, as admitted by him in the cross-examination, as 22 years 6 months on the date of execution of Ex. A.5 (Ex. B.1) settlement deed in the year 1982 (original of Ex. A.5 is Ex. B.1). After execution of Ex. A.5 (Ex. B.1) in favour of the first defendant, the first defendant/mother of the plaintiff had executed two sale deeds in favour of the second defendant under Ex. A.3 and Ex. A.4 on 11.03.1991 ie., 10 years after the execution of Ex. A.5 (Ex. B.1) settlement deed. The defendants by producing Ex. B.17 and Ex. B.19 to Ex. B.21 - sale deeds, executed by the plaintiff have proved that the plaintiff is not an illiterate in respect of Telugu language, but he is an literate of Telugu language and had executed the above said Ex. B.17 and Ex. B.19 to Ex. B.21 sale deeds, which are in Telugu. After executing the said sale deeds, it is not open to the plaintiff to contend that he is not aware of the contents of Ex. A.5 (Ex. B.1) settlement deed on the ground that he does not know Telugu language and that only under undue influence the first defendant had obtained Ex. A.5 (Ex. B.1) settlement deed. Admittedly the properties conveyed under Ex. A.5 - settlement deed are not the ancestral properties of the plaintiff. But the properties were purchased by the first defendant herself in the name of the plaintiff while he was minor. The said sale deed was not produced before the trial Court. If at all the plaintiff is having any cause of action to set aside Ex. A.5 (Ex. B.1), he ought to have filed the suit within three years under Article 137 of the Limitation Act from the date of Ex. A.5 (Ex. B.1).
8(b) Relying on AIR 1921 Calcutta 251 Bhusan Mani Dasi v. Profulla Kristo Deb, the learned senior counsel of the appellant herein/plaintiff would contend that the time for limitation will run from the applicant's knowledge. The facts of the said case is that an application to set aside the Sale on the ground of fraudulent suppression of process and also on the ground of irregularities and insufficiency of sale price, was rejected by the trial Court. The first appellate Court also rejected the first appeal on the ground of limitation. According to the applicant in that case, she came to know about the sale some two or three months before the filing of the application on enquiry. Holding that the time for limitation shall run from the applicant's knowledge, the high court of Calcutta had allowed the appeal and remanded the matter after observing as follows:
The applicant must have knowledge not merely of the factum of the sale, but a clear and definite knowledge of the facts which constitute the fraud before time can run against him or her. This is apparent from the number of reported cases to one of which we may refer, namely, Narayan Sahu v. Damodar Das 1912 16 CWN 894 : 16 IC 464.
This case and other cases shown that when, by a fraud of this nature involving suppression of process and submission of false returns the applicant is kept out of knowledge of the sale of his property, such fraud must be held to have a continuing influence. Indeed in such a case it is for the other side to show that the injured party had clear and definite knowledge of the facts which constitute the fraud at a time from which taken as a starting point the suit is barred.
The said facts of the case will not be applicable to the present facts of the case because here the plaintiff had executed Ex.A.5 (Ex. B.1) settlement deed when he was at the age of 22 years 6 months. He was not an illiterate. He was admittedly pursuing Engineering course at Bangalore at that time when he signed in Ex. A.5 (Ex. B.1). If he had any doubt about Ex. A.5, he would have immediately referred to his mother/first defendant in whose favour he had settled the properties under Ex. A.5 (Ex. B.1). Even after the execution of Ex. A.5, the plaintiff used to reside only with his mother at Madras.
8(c)The learned senior counsel would attack on Ex. A.5 (Ex. B.1) also on the note found at the bottom of Ex. A.5 (Ex. B.1) as to the fact that the plaintiff had reserved his right in respect of the ground floor and land in the properties conveyed under Ex. A.5 (Ex. B.1). It is the settled proposition of law that once the settlement deed has been executed and possession has been handedover to the settlee by the settlor, then it is not open for the settlor to claim a portion of the property already conveyed under the settlement deed.
8(d)The learned counsel for the respondent in support of this proposition of law would rely on the following judgment:- : AIR1987Ker84 Sumathy Amma and Anr. v. Sankara Pillai Ananthakrishnan Nair, wherein the relevant observation of the Division Bench of Kerala High Court runs as follows:
A document has to be construed as whole. A stray sentence here and there cannot be picked out to construe a document. To understand the tenor of the document and the intention of the parties it has to be read as a whole. The real intention of parties has to be gathered not merely from what ex facie is stated in the description of the property in the schedule but from the totality of the recitals in the document. It is useful to refer to the decision in Andiappa v. Meyyappan wherein it is held as follows:
In construing a lease deed for the purpose of finding out what land was included in the lease the whole document must be considered and not merely the so called 'description of the property at the end thereofIn Delhi Development Authority v. Durga Chand : [1974]1SCR535 it is held as follows:
In construing the documents one must have regard not to the presumed intention of the parties, but to the meaning of the words they have used. If two interpretations of the documents are possible, the one which would give effect and meaning of all its parts should be adopted and for the purpose, the words creating uncertainty in the documents can be ignored.
One principle of construction of documents is that when the property has been sufficiently identified in a deed and subsequent details are inconsistent with it, the latter has to be disregarded.
The same view has been reiterated in : AIR1970MP23 Shri Digambar Jain and Ors. v. Sub-Registrar, Stamps, Indore, wherein it has been held as follows:
The cardinal rule of construction is that a document must be read as a whole, each clause being read in relation to the other parts of the document, and an attempt should be made to arrive at an interpretation which will harmonise and give effect to the other clauses thereof. It is not legitimate to pick out an expression torn from its context and try to interpret the document as a whole in the light of that expression. Such a forced construction on the document in question cannot but defeat the very object which its executants had in view.
It is the duty of the court to give to the expression its true meaning. It is competent for a court to disregard the literal meaning of the words used in a document and to give to them their real meaning if they are sufficiently flexible to bear that interpretation.
The Bombay High Court in : [1990]183ITR290(Bom) Satyabhamabai - deceased by LR and etc., v. Pandurang Marotrao Pawar, in a similar situation has held that,
The learned counsel could not seriously dispute the findings as recorded by the Courts below. Her suit for concellation of an instrument filed on 29.04.1978 is admittedly beynod three years from the date of knowledge as prescribed under Article 59, in view of this, second appeal No. 35 of 1989 is liable to be dismissed'
8(e)The learned counsel for the respondents would further contend that having executed Ex. A.5 settlement deed at the age of 22 years 6 months, it is not open to the plaintiff to contend, that too, ten years after the execution of the said settlement deed Ex. A.5 (Ex. B.1) that only under undue influence his mother had obtained the said document Ex. A.5 (Ex. B.1). In support of this contention the learned counsel for the respondents would rely on a ratio in : AIR1973Ori76 Raghunath Altia v. Arjuno Altia and Ors. The facts of the said case are as follows:
The plaintiff, whose suit for partition was decreed partially by the Courts below, was the appellant. Under the suit for partition, the plaintiff had asked for a preliminary decree for partition of 1/5th share in the suit properties. It was contended on behalf of the contesting defendants 1 and 2 that after the resumption of the Inam lands and the grant of a Zeoroyty patta in respect thereof of Bhalga, the latter became the sole owner of the properties and had full disposing power in respect thereof and that the settlement deed executed by him in respect of 6.20 acres out of the disputed lands in favour of D2 with full knowledge of its contents and the document is a valid one and is not liable to be challenged by the defendants. The alleged Muchilika dated 1.5.1961 said to have been executed by Bhaiga and his brothers in favour of Bhadralogs is attacked as a forged document and it is contended that the Bhadralogs never passed an award nor was it ever filed in Court. The learned District Munsif held that the Muchilika Ex. A.1 which Bhaiga and his brothers are alleged to have executed in favour of Bhadralogs to partition the disputed properties amongst them is not genuine and that no such partition as is alleged by the plaintiff and defendants 3 to 8 had ever taken place. According to him Bhaiga acquired an exclusive title to the disputed properties and he executed the Nirupana Patro Ext.D in favour of defendant No. 2 consciously and being fully aware of the import thereof and that consequently it is valid. The District Munsit had decreed the suit for partitioning the balance 8.03 acres of land into six equal shares and for allotment of one such share to the plaintiff. In appeal the learned Subordinate Judge had also confirmed the findings of the learned District Munsif and dismissed the appeal. While disposing of the second appeal, Orissa High Court held as follows:
When a person wants to set aside a deed of settlement on the ground that the settlor had executed the document under undue influence of the person in whose favour the settlement has been made, it is not sufficient to establish that the latter was in a position to dominate the will of the settlor. It is only when the transaction appears to be unconscionable that by Sub-section (3) of Section 16 of the Contract Act, the burden of proving that the contract was not induced by undue influence shall lie upon the personwho is in a positionto dominate, in that case he must affirmatively prove that no domination was practised. The position is clearly explained by their Lord ships of the Privy Council in Raghunath Prasad Sahu v. Sarju Prasad Sahu AIR 1924 PC 60, in the following words
In the first place, the relations between the parties to each other must be such that one is in a position to dominate the will of the other. Once that position is substantiated the second stage has been reached, namely, the issue whether the contract has been induced by undue influence. Upon the determination of this issue a third point emerges, which is that of the onus probandi. The burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other.
Even though in the case on hand, the mother/first defendant is dominating the will of her son, the plaintiff herein, after the execution of Ex. A.5 (Ex. B.1) - settlement deed in her favour, she had also executed two sale deeds Ex. A.3 and Ex. A.4 in favour of the second defendant. There is no motive attributed against the mother/first defendant to get Ex. A.5 (Ex. B.1) settlement deed by playing undue influence or fraud upon the plaintiff. It is in evidence of D.W.1/the first defendant/mother of the plantiff that she has become widow within five years after the marriage with the father of the plaintiff and that she was in a predicament position to take care of the family, which consists of the plaintiff, first defendant and two other daughters. After the death of her husband, first defendant had taken care of the education of the plaintiff, who after completing his school education had joined in the Engineering course at Bangalore and even at the time of execution of Ex. A.5 (Ex. B.1), the plaintiff was pursuing his engineering course at Bangalore. It is the definite case of the first defendant that to secure money and also to collect the rent from the tenants of the suit properties, she required a document in her favour and only on that score Ex. A.5 (Ex.B.1) was executed by the plaintiff in the name of the first defendant. Even after the execution of the sale deed under Ex.A.3 and Ex.A.4 by the first defendant, the plaintiff had not raised any objection in respect of the settlement deed executed by him under Ex.A.5 (Ex.B.1). It is hard to believe that the plaintiff without knowing the contents in Ex.A.5 (Ex.B.1) had executed the settlement deed Ex. A.5 (Ex. B.1) in favour of his mother. Admittedly, the plaintiff was major at the time of execution of Ex.A.5 (Ex.B.1) settlement deed. So under such circumstances, the contention of the learned Senior Counsel that only under the undue influence Ex.A.5 (Ex.B.1) was executed by the plaintiff in favour of the first defendant cannot hold any water.
8(f)I am of the view that the relevant Article applicable to set aside Ex. A.5 (Ex. B.1) is Article 137 of the Indian Limitation Act, under which only the period of limitation is three years from the date when the right to sue accrues. In this case the time accrues to sue to the plaintiff is from the date of execution of Ex. A.5 (Ex. B.1) i.e., three years from 23.03.1982. But the suit O.S. No. 883 of 1992 before this Court, which was renumbered as O.S.12671 of 1996 on the file of the VIII Assistant Judge, City Civil Court, Chennai, was filed only in the year 1992, which is squarely barred by limitation. For this proposition of law, the learned counsel for the respondent would rely on Mt. Azizunnissa v. Siraj Husain and Ors. wherein it has been held as follows:
When a person sues to obtain possession of property which has been transferred by the person through whom he claims, the suit must be brought within the period allowed by Art, 91, so long as the transfer is voidable and not abinitio void. When the transfer has been made by some person who had no title to make it and the transfer is therefore void, then the claim to have such transfer set aside will be merely ancillary or incidental to the main claim, which will be one for possession, but when the plaintiff's own predecessor has made a transfer, which is voidable and not void, the claim to have such transfer set aside cannot be regarded as merely ancillary to the plaintiff's claim for possession. The transfers in the suit where so far as the plea of undue influence is concerned are voidable under Section 19A, Contract Act. The plaintiff cannot evade the limitation prescribed by Article 91, by merely framing his suit as though it were a suit for possession and nothing else. Reliance is based by the learned counsel for the respondents on Sm. Buchibai w/o. D.Gangadhar Rao v. Nagpur University, wherein a Hindu widow executed a deed of settlement under the undue influence of her deceased husband's borhter in order to obtain settlement of disptue in regard to family property. The widow was fully aware of the true nature of the deed at the time of its execution. The widow subsequently brought the suit to set aside the deed on the ground of undue influence after three years from the date of the instrument. It was held the said dictum as follows:
The settlement deed was undoubtedly an instrument, the suit was governed by Article 91 and the starting point of limitation was the date of the instrument itself because under the article time ran from the date of knowledge and not from the date of the removal of the undue influence. The suit was therefore barred by limitation.In Ramchandra Jivaji Kanago and Anr. v. Laxman Shrinivas Naik and Anr. it has been held that in a case where gift transaction was attacked by saying that it is obtained by undue influence the gift deed is to be construed as a voidable document and the time for limitation starts from the date of the execution of the said gift deed. The relevant observation runs as follows:
If the deed of gift is a void transaction no question of cancelling, or setting it aside, would arise, but if it is only a voidable transaction, that is, a transaction valid until rescinded, then the necessity to set it aside is obvious before possession of the property can be claimed.... Under Article 91, Limitation Act, limitation beings to run from the time the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him. It is true that Appaji became insane in or about July 1917, and continued so, until his death in 1923; but he was fully aware of the character of the transaction when he executed the deed in 1915 and before he became insane. On this point the High Court observes as follows:
It is not shown that any of the facts which might have entitled him (Appaji) to have the gift cancelled were unknown to him - either his relationship with Laxmand and Akkubai which gave him an opportunity of dominating him will, or the effect of this gift on his family and himself.8(g)Relying on a ratio decidendi in : AIR1978Mad361 P. Saraswathi Ammal v. Lakshmi Ammal alias Lakshmi Kantam, the learned counsel for the respondent would contend that even though the first defendant is the mother of the plaintiff, the said relationship alone will not derive us to come to a conclusion that she had dominated the will of the plaintiff in the absence of any evidence. The exact observation in the above said judgment runs as follows:
It should be established on materials pleaded and acts established that the 'bargain is tainted by undue influence' and it is unconscionable that it could reasonably be said that the person sough to obtain unfair advantage for himself and so as to cause injury to the person relying upon his authority or aid. It is only after such particulars are made available and a reasonable proof thereof has been given, the onus would shift on the so called 'person of domination'. Until then theburden is on the complainant to establish it is so.The said observation in : AIR1978Mad361 P. Saraswathi Ammal v. Lakshmi Ammal alias Lakshmi Kantam has been based on an earlier decision of the Honourable Apex Court in : [1967]1SCR331 Subhas Chandra Das Mushib appellant v. Ganga Prosad Das Mushib and Ors. respondents, wherein the relevant observation of the Honourable Apex Court relevant for the purpose of this case runs as follows:
The law in India as to undue influence as embodied in Section 16 of the Contract Act is based on the English Common Law as noted in the judgment of this court in Ladli Prasad Jaiswal v. Karnal Distillery Co., Ltd., : [1964]1SCR270 . According to Halsbury's Laws of England, Third Edition, Vol. 17, p. 673 Act 1298, 'where there is no relationship shown to exist from which undue influence is presumed, that influence must be proved'. Article 1299 p 674 of the same volume shows that 'there is no presumption of imposition or fraud merely because a donor is old or of weak character'. The nature of relations from the existence of which undue influence is presumed is considered at pages 678 to 681 of the same volume. The learned author notes at p.679 that 'there is no presumption of undue influence in the case of a gift to a son, grandson, or son-in-law, although made during the donor's illness and a few days before his death'. Generally speaking the relation of solicitor and client, trustee and cestui que trust, spiritual adviser and devotee, medical attendant and patient, parent and child are those in which such a presumption arises. Section 16(2) of the Contract Act shows that such a situation can arise wherever the donee stands in a fiduciary relationship to the donor or holds a real or apparent authority over him.
Before, however a court is called uponto examine whether undue influence was exercised or not, it must scrutinise the pleadings to find out that such a case has been made out and that full partiulars of undue influence have been given as in the case of fraud. See Order 6 Rule 4 of the Code of Civil Procedure.
For the same proposition of law the learned counsel for the respondents would also rely on AIR 1938 Nag 470 Mt. Anupa Bai w/o. Gorelal Kirar v. Bhagwant Singh and Ors. wherein it has been held that undue influence, onus of proof, three ingredients- partly pleading undue influence has to prove dominance and unfair gain - other party has then to prove absence of use of such position.
8(h)In : AIR1965Ker189 Talengala Narayana Bhatta v. Narasimha Batta and Ors. it has been held that party impeaching transaction on ground of undue transacting parties was such that one party was in position to dominate other's will, simply by alleging unconsciounableness of transaction, burden does not shift.
8(i) Under such circumstance, the stand of the plaintiff that he had knowledge about the execution of the settlement deed Ex. A.5 (Ex. B.1) by undue influence of the first defendant over him only from the Ex. A.1-notice issued by the first defendant to the third defendant, cannot be sustainable and on that score he cannot take shelter under Article 59 of the Limitation Act to claim that the suit is not barred by limitation since he has field the suit within three years from the date of knowledge about the undue influence through Ex. A.1-notice dated 15.4.1991.
8(j)The learned trial Judge as well as the learned First appellate Judge have concurrently held that the plaintiff is not entitled to the relief of declaration and injunction since he has not filed the suit within three years from the date of execution of Ex. A.5 (Ex. B.1). Both the Courts below have given a sound reasoning for their findings on all the issues. After the execution of Ex. B.17, Ex. B.19, Ex. B.20 and Ex. B.21, documents in Telugu, it is not open to the plaintiff to contend that since he does not know Telugu, he is not able to see what was contained in Ex. A.5 (Ex.B.1). There is no material placed on record to show that the Courts below have rendered a perverse findings or not on the basis of the evidence available on record, to warrant any interference from this Court. Hence, I hold on Point No. 1 that Ex.A.5 settlement deed was not a produce of undue influence attracting the provisions under Section 16 of the Contract Act and I hold on Point No. 2 that the Courts below were right in not presuming that the first defendant exercised undue influence in obtaining Ex. A.5 settlement deed dated 23.03.1982 in her favour.
9. In fine, the second appeal is dismissed confirming the findings of the first appellate Judge in A.S. No. 363 of 2003 on the file of the Additional District Judge, FTC-II, Chennai. No costs.