Plaintiff must seek to set aside the order passed regarding certain releases

The plaintiff in O.S. Nos. 10 and 11 of 1949 on the file of the Sub-Court, West Tanjore, is the petitioner in both these cases. The question for determination in both these petitions is the same and therefore they may be dealt with together.

The plaintiff is a Muslim lady. Two of her sons, Mohamed Ismail and Mohamed Ibrahim, died some time before the suits were filed. She sued for partition of her one-sixth share in the properties of her deceased sons. On 4th January, 1946, two documents had come into existence, under which for a consideration expressed in those documents to be Rs. 5,000 the plaintiff released her rights in the properties of her sons in favour of some of the defendants in the suits. It is obvious that if these documents are valid and binding on the plaintiff her suits must fail. The plaintiff’s case in respect of these release deeds is set out in paragraphs 4 to 7 of the plaint. Therein the plaintiff alleged that her son, Abdul Aziz, took her mark in two documents, of the contents of which she was apprised. Abdul Aziz told her that some documents were required, in order that she might not be put to the inconvenience of attending public offices and Courts in connection with the management of the estate of her deceased sons,-the suggestion thus far being, apparently that she was executing some power of attorney. But actually undue advantage was taken of the possession of these documents and the alleged release deed brought into existence. Thus far the case of the plaintiff would be a simple one and in substance to the effect that these documents were really forged ones. Under section 464, Indian Penal Code, a person is said to make a false document who dishonestly or fraudulently causes any person to execute a document, knowing that such person by reason of deception practised upon him does not know the contents of the document. Whether we read the averments of the plaintiff as amounting to an allegation that her mark was taken to blank pieces of paper, on which these release deeds were subsequently engrossed, or, whether her mark was taken to documents already written up, she being told that they were some other kind of documents, in either case, the documents would be void, and the plaintiff would be entitled to ignore them and ask for partition. In the plaint, however, there are certain other allegations which suggest that the case of the plaintiff is not merely one of fraud making the documents void but something more or something in the alternative. The allegations in this regard are not all set out consecutively being spread over a number of paragraphs; but, when read together, they do definitely suggest that the plaintiff was putting forward an additional or alternative case, namely, that the documents were vitiated by undue influence and that therefore they are voidable. Thus in paragraph 4 we find:

“The plaintiff now understands that he had taken undue advantage of it and practised undue influence and fraud and brought about the alleged release deeds.........”

Again, in paragraph 5:

“The plaintiff is a purdanashin woman unable to read or write or even sign her name. She was very old and advanced in age, being 75 years old at that time..... She had no independent advice. She was then immersed in grief at the death of her two sons abovenamed in quick succession and consequently she was in a very weak state of mind and health....... She was not a free agent in the alleged execution of the documents above referred to........”

Finally in paragraph 7:

“The plaintiff submits that the said deed was really not executed by her or with her free consent and knowledge and that it had been obtained from her by misrepresentation and fraud, and is of no effect.”

The language used is reminiscent of and was very probably suggested by several decisions of the Judicial Committee and would have been wholly out of place unless at the back of the plaintiff’s mind there was the intention to put forward an alternative case, of