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1996 Supreme(Mad) 654

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE D. RAJU
Dharman & others
Versus
Marimuthu
Second Appeal No.744 of 1983
Decided On : 02-07-1996

G.Subramaniam, Senior Counsel for Mr. Prabhakar, Advocates for Appellants Mr.A.KKumarasamy Advocate for the Respondent.

Headnote:

GIFT DEED - REVOCATION - TRANSFER OF PROPERTY ACT, SECTION 126 - UNDUE INFLUENCE - BURDEN OF PROOF - UNNATURAL DISPOSITION - EVIDENCE - APPRECIATION - SECOND APPEAL - INTERFERENCE - SCOPE.

Fact of the Case:

The plaintiff filed a suit for declaration of title, permanent injunction, and possession of the suit properties, claiming that the first defendant executed a registered gift deed in his favor on 10.1977, that the settlement came into force immediately, and that he began cultivation of suit items 1 to 6. The first defendant, who died pending suit, was said to have also cancelled Ex.A-6 gift deed by a deed of revocation dated 211.77 marked as Ex.B-3. The defendants contended that the settlement deed dt. 10.1977 is not true and it was not acted upon, that the plaintiff has not spent Rs. 1,300 towards medical expenses of the first defendant as claimed, that the first defendant never treated the plaintiff as a male issue for him, that the allegation that the defendants have kidnapped the first defendant or was responsible for the issuance of notices as well as the execution of the deed of cancellation of the gift deed in plaintiff’s favor was incorrect, that the notice sent by the first defendant contained true and correct facts as to what had happened and that the first defendant neither had any intention to execute any gift deed nor was possessed of the required mental condition or was in sound state of mind to know the contents of the settlement deed.

Finding of the Court:

The trial court held that the plaintiff has failed to prove that the first defendant executed the settlement deed dt. 10.1977 when he was in sound state of mind and out of his free will and he has not also produced any evidence to substantiate his claim of kidnapping of the first defendant by other defendants before issuing the Notice Ex.A-3 and effecting a cancellation of the gift deed in favor of the plaintiff. The first appellate court set aside the judgment and decree of the trial court and allowed the appeal, decreeing the suit for declaration and injunction as prayed for.

Issues: 1. Whether the gift deed Ex.A-6 said to have been executed by the first defendant is revocable under Sec. 126 of the Transfer of Property Act as has been done by him under Ex.B-3 on the ground that the contract is rescindable under the appropriate provisions of the Contract Act?

Ratio Decidendi: 1. The burden of proving that the transaction was not induced by undue influence lies heavily upon the beneficiary under the document, who was in a position to dominate the will of the other. 2. 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 was in a position to dominate the will of the other. 3. The mere fact that the signature on the document was admitted is not to be treated as execution of the document so as to make it the imperative duty on the part of the Registrar to register the same and the admission of signature cannot be taken to be either conclusive or as constituting admission of execution of the document. 4. In a case where the plea of the executant of a document was that he was an illiterate and that apart from putting his signature, he does not know to read or write the burden was heavily on the plaintiff to prove.

Final Decision: The second appeal was allowed by setting aside the judgment and decree of the learned First Appellate Judge and restoring the judgment and decree of the learned Trial Judge.

Judgment :

.1. Defendants 2 to 7 in O.S.No.338 of 1977 on the file of the Court of District Munsif, Ariyalur, who succeeded before the Trial Court, but lost before the First Appellate Court, are the appellants in the above second appeal. The suit came to be filed by the respondent/plaintiff for declaration of” the plaintiffs title over the suit properties and for permanent injunction restraining the defendants from interfering with the peaceful possession of the suit properties by the plaintiff or in the alternative the relief of possession and future mesne profits and for costs. The plaintiff is the brother’s son of the first defendant, who died pending suit. The second defendant is the son-in-law of the first defendant and the third and fourth defendants are the brothers of the plaintiff and the first defendant respectively. Defendants 5 to 7 are daughters of the first defendant, who were impleaded as the legal representatives of the deceased first defendant. The case of the plaintiff was that the first defendant executed a registered gift deed in his favour on 10. 1977 marked as Ex.A-6 in respect of the suit properties, that the settlement came into force immediately and the plaintiff began cultivation of suit items 1 to 6, that subsequently, defendants 2 to 4 kidnaped the first defendant and caused the issuance of a notice with false allegations, marked as Ex.A-3, that the plaintiff issued a reply to the same, marked as Ex.A.-5 and that the plaintiffs possession was sought to be disturbed by the defendants necessitating the filling of the suit for the reliefs referred to supra. It was also the plea of the plaintiff that the daughters of the first defendant neglected and were not maintaining the first defendant properly, that it was the plaintiff, who was taking care of him and maintaining him, that as a matter of fact, the plaintiff had spent Rs. 1,300 towards the medical expenses of the first defendant, who had no male issue as such and the document Ex.A-6 came to be executed out of love and affection, and in recognition of the help, assistance and services that were being rendered by the plaintiff. The first defendant was said to have also cancelled Ex.A-6 gift deed by a deed of revocation dated 211. 77 marked as Ex.B-3. The case of the plaintiff was that the first defendant was in good and sound state of health when he executed the gift deed dated 10. 1977. The written statement came to be filed by defendants 1 to 4 even when the first defendant was alive. It was contended therein that the settlement deed dt. 10. 1977 is not true and it was not acted upon, that the plaintiff has not spent Rs. 1,300 towards medical expenses of the first defendant as claimed, that the first defendant never treated the plaintiff as a male issue for him, that the allegation that the defendants have kidnapped the first defendant or was responsible for the issuance of notices as well as the execution of the deed of cancellation of the gift deed in plaintiff’s favour was incorrect, that the notice sent by the first defendant contained true and correct facts as to what had happened and that the first defendant neither had any intention to execute any gift deed nor was possessed of the required mental condition or was in sound state of mind to know the contents of the settlement deed. The first defendant, it was further contended, was forced to put his thumb impression in a deed, that when he later attained consciousness, he came to know from the villagers about his having executed a gift deed and immediately thereafter he took action by issuing a notice and subsequently executing a cancellation deed. While claiming that the first defendant was sufficiently taken care of by the daughters and son-in-laws, it was also claimed that the first defendant had no justification or reason for executing a gift deed of all his properties in favour of the plaintiff disinheriting the daughters. Defendants 2 and 4 were contended to be unnecessary parties. On t




































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