Judgment

GROVER, J.:- This is an appeal by special leave from a judgment and decree of the Kerala High Court whereby the appeal preferred by respondent No. 1 herein was allowed and the suit was dismissed. The following pedigree table will be helpful in understanding the facts:

2. The suit out of which the appeal has arisen was instituted in the name of Narasimha Bhatta who was stated to be of weak intellect by his next friend and daughter Adithiamma for a declaration that the will dated September 30, 1955 said to have been executed by him was invalid and also for the cancellation of the deed of settlement dated December 13, 1955, which had also been executed by Narasimha Bhatta in favour of the first respondent and for other incidental reliefs. The case as laid in the plaint was that the plaintiff, who was of advanced age, was suffering from diabetes for a long time and his physical and mental condition was very weak. Respondent No. 1 was at first unsuccessful in getting a will executed by him by which he bequeathed almost all his properties to the said respondent. In December 1955 he was taken to Mangalore by respondent No. 1 and there the latter managed to get executed Ext. B-3 by him. By this deed of settlement the entire properties which were considerable were given to respondent No. 1, the plaintiff reserving only a life interest for himself besides making some provision for the maintenance of his wife Lakshmiamma. Respondent No. 1 was able to obtain benefits under the settlement deed for himself owing to the weak intellect and old age of the plaintiff. A declaration was thus claimed that the will and the settlement deed was null and void and were not binding on the plaintiff. Respondent No. 1 contested the suit. He denied the existence of the will and maintained that the deed of settlement was not executed under undue influence or when the plaintiff was in a weak state of mind.

3. A number of issues were framed on the pleadings of the parties. The trial Court by its judgment dated March 31, 1959, decreed t he suit holding that the will was invalid and that the deed of settlement Ext. B-3 was also invalid. It was held that the plaintiff was a person of weak intellect and was not in a position to take care of himself and manage his affairs properly on the date of the execution of the aforesaid documents. The respondent preferred an appeal to the High Court. After hearing the parties the High Court directed that the evidence of three persons, two of whom were doctors and the third was a document writer, should be recorded by the trial Court and the record submitted to it. After the receipt of the record the appeal was again heard. During the pendency of the appeal the plaintiff died on October 8, 1959 and his widow Lakshmiamma and two daughters, Adithiamma and Parmeshwariamma were impleaded as legal representatives by an order dated November 30, 1959. The High Court reversed the judgment of the Court below holding that the gift contained in Ext. B-3 was a spontaneous act of the plaintiff and he had exercised an independent will in the matter of its execution.

4. It appears that before the High Court the decision of the trial Court relating to the will was not challenged. At any rate since the will was never produced the sole question which we are called upon to decide is whether the deed of settlement Ext. B-3 was executed in circumstances which rendered it invalid and void. It was stated in this document that on September 30, 1955 a will had been executed by the executant but he considered it advisable to execute a settlement deed in respect of his immovable and movable properties and also for the discharge of his debts etc. This, it was stated, was being done in supersession of the will. It was stated the respondent No. 1 had been nursing the executant and looking after him and therefore he was conferring full rights over his properties on him subject to the certain conditions. He was to have full right to enjoy the said prop