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CASE NO.:

Appeal (civil) 5199 of 1997

PETITIONER:

M. RANGASAMY

RESPONDENT:

RENGAMMAL AND ORS.

DATE OF JUDGMENT: 25/08/2003

BENCH:

Y.K. SABHARWAL & G.P. MATHUR

JUDGMENT:

JUDGMENT

2003 Supp(2) SCR 948

The Judgment of the Court was delivered by

Y.K. SABHARWAL, J. Appellant is defendant No.l in the suit out of which the

appeal has arisen. Three sisters were plaintiffs in the suit. The suit

properties originally belonged to Nanjammal @ Kuttiammal, mother of the

three plaintiffs and father of defendant No.l who was brother of three

plaintiffs. Father of defendant No.l pre-deceased his mother Nanjammal. The

husband of Nanjammal, i.e., father of the plaintiffs and grandfather of

defendant No.l also pre-deceased his wife. Nanjammal died on 11th

September, 1979 at an old age.

According to the plaintiffs, their mother in sound disposing mind duly

executed on 20th August, 1966 a registered will whereunder she bequeathed

in their favour properties described in Schedule A to the plaint. Schedule

B properties also belonged absolutely to Nanjammal which, according to the

allegations in the plaint, were inherited to the extent of 3/4th share by

the three plaintiffs together and l/4th undivided share by defendant No.l

according to law of succession Nanjammal having died intestate in respect

of the said properties. After death of Nanjammal, the appellant began to

assert his exclusive title to suit properties as a result whereof the

plaintiffs sent a notice to him requiring him to restrain from unlawful

interference in the enjoyment of the properties. In reply to the notice,

the appellant denied the title of the plaintiffs to Schedule A and B

properties and asserted his exclusive title under two settlement deeds

dated 27th October, 1976 alleged to have been executed in his favour by

Nanjammal. The plaintiff on receipt of the reply notice obtained copies of

the said deeds and then only became aware about the said deeds which, it

was claimed, were not validly executed. Under these circumstances, the

plaintiffs who are respondents before us sought a declaration that plaint A

Schedule properties belong exclusively to them and sought injunction

restraining the appellant/first defendant from interfering and disturbing

the plaintiffs' exclusive possession and enjoyment of those properties

through their tenant and further sought partition of Schedule B properties

into 4 equal shares so as to allot three shares to the plaintiffs

altogether and one share to defendant No. 1.

The trial court held that the settlement deeds dated 27th October, 1976

which were in the nature of gift deeds in favour of the first defendant

were not valid documents and the said deeds were brought into existence by

fraud, misrepresentation and undue influence. The suit was, therefore,

decreed.

The appeal filed by the appellant challenging the judgment and decree of

the trial court was, however, allowed by the Additional District Judge and

setting aside the judgment and decree of the trial court, the suit was

dismissed with costs in favour of the appellant both of the first appeal

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and also of the suit. It was held that Exhibits B-6 and B-7 were validly

and voluntarily executed with full knowledge of contents thereof and with

intention to gift the properties in favour of the appellant.

In the second appeal that was preferred by the plaintiffs, the High Court

has held that the aforesaid deeds have not been proved and are void for all

purposes. Resultantly, setting aside the judgment of the lower appellate

court, the judgment and decree of the trial court has been restored. Under

these circumstances, the original first defendant has preferred this

appeal.

The High Court has come to the conclusion that Exhibits B-6 and B-7 are not

valid documents for lack of evidence in proof thereof; absence of knowledge

of Nanjammal in respect of contents of documents and doubts about the

execution thereof, and, the burden being on the appellant to prove the

validity of the documents which he has failed to discharge.

For reaching the aforesaid conclusion, the High Court has said that the

expression 'attested' is not defined in the Transfer of Property Act, 1882,

and that Section 63(c) of the Indian Succession Act, 1925 (for short, 'the

Succession Act) is applicable which has not been complied. The High Court

has also observed that under Section 68 of the Indian Evidence Act, 1872, a

document which requires attestation shall not be used as evidence until one

attestator at least is examined and proves execution thereof but the

testimony of the two attesting witnesses DW2 and DW3 has been discarded by

the High Court on the ground that their testimony does not speak anything

about compliance of the ingredients of Section 63 of the Succession Act.

Thus, the High Court has concluded that although the attestators DW2 and

DW3 were examined but the attestation of Exhibits B-6 and B-7 has not been

proved and the question of undue influence or fraud, even if pleaded, will

come into play only when execution of the document is properly proved in

which attempt the appellant has miserably failed. Further, on

reappreciation of evidence, the testimony of Sub-Registrar (DW6) who had

registered the two documents was also discarded holding that the

registration was done in a perfunctory manner holding that at the time of

registration, the executant did not have proper eye-sight nor was she in a

position to hear properly.

We are unable to sustain the judgment of the High Court on any of the

aforesaid count. Besides reappreciating evidence which is not permissible

while exercising jurisdiction under Section 100 of the Code of Civil

Procedure, on all other aforesaid counts also the High Court has committed

glaring illegalities.

Firstly, the High Court is not correct in observing that the expression

'attested' is not defined in the Transfer of Property Act, 1882. Section 3

of the Transfer of Property Act defines the expression 'attested'. It reads

:

" 'attested', in relation to an instrument, means and shall be deemed

always to have meant attested by two or more witnesses each of whom has

seen the executant sign or affix his mark to the instrument, or has seen

some other person sign the instrument in the presence and by the direction

of the executant, or has received from the executant a personal

acknowledgement of his signature or mark, or of the signature of such other

person, and each of whom has signed the instrument in the presence of the

executant; but it shall not be necessary that more than one of such

witnesses shall have been present at the same time, and no particular form

of attestation shall be necessary."

Secondly, Section 63(c) of the Succession Act on the basis whereof the High

Court has discarded the testimony of attesting witnesses of Exhibits B-6

and B-7 on the ground that the ingredients of the said section have not

been spoken by the attestators (DW2 and DW3), has no applicability. It is

not a case of proof of will. Exhibits B-6 and B-7 are in the nature of gift

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deeds. The High Court, while rightly holding that the said documents are in

the nature of gift deeds, committed glaring illegality in coming to the

conclusion that the said documents have not been proved for want of

evidence in terms of Section 63(3) of the Succession Act. It is because of

this illegality that the High Court holds that the question of undue

influence or fraud, even if pleaded by the plaintiffs, will come into play

only if execution of the documents is properly proved and since the

appellant has failed miserably to prove those documents, the question of

undue influence or fraud becomes insignificant.

Section 68 of the Indian Evidence Act deals with proof of execution of

document required by law to be attested. Proviso to Section 68, inter alia,

provides that it is necessary to call an attesting witness in proof of the

execution of any document unless its execution by the person by whom it

purports to have been executed is specifically denied. The two attesting

witnesses, as aforesaid, have been examined by the appellant. Their

testimony has been ignored for the reasons which are wholly untenable.

Further, a perusal of the plaint shows that the execution of Exhibits B-6

and B-7 has, in fact, not been disputed by the plaintiffs. The case set up

by them is that the first defendant, exercising dominating influence over

his grandmother, got the two settlement deeds executed from her exploiting

her old age, dim eyesight and mental condition. It has been further pleaded

that first defendant had a fiduciary relationship with his grandmother and,

therefore, though normally it would be for a person who pleads undue

influence to establish the said fact, but in view of this relationship, it

is for the first defendant to prove that the gift deeds were the result of

free exercise of independent will by the executant.

It stands proved and has also not been disputed that the grandmother was

living with her grandson, i.e., the appellant since 1971. The plaintiffs

were married daughters, settled and living separately. They had not met the

mother for the last 5-6 years before her death. These aspects have not been

properly appreciated by the High Court.

Thirdly, the first appellate court, on consideration of the evidence on

record, came to the conclusion that Exhibits B-6 and B-7 were not vitiated

by any invalid circumstance as alleged in the plaint and the appellant was

entitled to Schedule A and B properties absolutely under those documents.

The first appellate court has also noticed that Exhibits B-6 and B-7 were

not only deeds executed by grandmother in favour of the appellant for the

first time as previously too she had executed documents in respect of other

properties in his favour. The said documents have been detailed in the

judgment of the first appellate court. Regarding the lack of proper eye-

sight, hearing and stage of senility and not been in a position to move

about freely, the first appellate court, on examination of the averments in

the plaint, has concluded that it does not contain any details as to the

acts of frauds or undue influence committed by the appellant in the matter

of execution of the settlement of deeds. The first appellate court has

further noticed that PWI, the first plaintiff, has not said anything about

fraud in her deposition; there is no allegation that the appellant

represented those documents to be one contrary to what the same were and,

in fact, in the plaint it is admitted that since 1971 Nanjammal was living

with the appellant who alone was looking after her. The settlement deeds

had been executed nearly three years before her death. The plaintiffs had

no contact with their mother. They had not visited her. They learnt about

the settlement deeds and obtained copies thereof on receipt of reply notice

from the appellant as noticed hereinbefore and thereafter obtained the

copies from the office of the Sub-Registrar. The first appellate court also

referred to the testimony of the Sub-Registrar (DW6) and held that he was

satisfied about the good health and sound disposing mind of Nanjammal. The

first appellate court has also referred to the fact of Nanjammal having

attended a family function where she had gone alone and the reliance was

placed on the photographs taken at the said function which events had taken

place about an year after the execution of Exhibits B-6 and B-7. On

consideration of the evidence on record, the first appellate court

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concluded that Nanjammal was physically healthy and in a sound disposing

mind when she executed Exhibits B-6 and B-7 and that she voluntarily

executed the said documents with full knowledge of the nature and purport

of the documents she was executing. These findings, in our view, have been

correctly recorded by the first appellate court. Be that as it may, we see

no ground on the basis whereof the High Court could reappreciate evidence

and reverse the said findings while deciding a second appeal.

Further, the High Court, in view of the relationship of the appellant with

his grandmother, presumed undue influence and held that the documents

Exhibits B-6 and B-7 were executed in view thereof in favour of the

appellant. We are unable to sustain the approach of the High Court.

In Subhas Chandra Das Mushib v. Ganga Prasad Das Mushib and Ors., AIR

(1967) SC 868, this Court held that the Court trying the case of undue

influence must consider two things to start with, namely, (1) are the

relations between the donor and the donee such that the donee is in a

position to dominate the will of the donor, and (2) has the donee used that

position to obtain an unfair advantage over the donor? Upon the

determination of these two issues a third point emerges, which is that of

the onus profaned. If the transaction appears to be unconscionable, then

the burden of proving that the contract was not induced by undue influence

lies upon the person who is in a position to dominate the will of the

other. It was further said that merely because the parties were nearly

related to each other or merely because the donor was old or of weak

character, no presumption of undue influence can arise. Generally speaking

the relations 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. The High Court presumed

the undue influence merely on account of near relationship. The presumption

made by the High Court on the basis of relationship was not warranted by

law. The whole approach of the High Court was wrong and it cannot be

sustained.

Before parting, we wish to note the level of assistance rendered in the

matter by learned counsel for the respondents. In reply to submissions of

learned counsel for the appellant, one sentence submission was made by

learned counsel that he adopts what has been said in the impugned judgment

by the High Court in favour of his clients and has nothing more to add.

For the aforesaid reasons, we set aside the .impugned judgment of the High

Court and allow the appeal. The judgment and decree of the trial court is

set aside and that of the first appellate court is restored. Resultantly,

the suit shall stand dismissed. The appellant shall also be entitled to his

costs throughout.