The burden of proof lies on the party claiming undue influence to establish that the other party had the ability to dominate their will, which was not proven in this case.

JUDGMENT :

S.S. SUNDAR, J.

(1)Plaintiff in the suit in C.S.No.228 of 2013 on the file of this Court, is the appellant in the above Original Side Appeal.

(2)The appellant as plaintiff filed the suit in C.S.No.228 of 2013 before this Court for partition and separate possession of 7/72 share in all the suit properties and for consequential reliefs. The suit is also to declare the family settlement deed, dated 18.05.2005, bearing Document No.1854 of 2005 on the file of Sub-Registrar, Anna Nagar, Chennai, as null, void, illegal and not binding on the plaintiff.

(3)The suit properties consist of two items. The first item is a vacant land along with building to an extent of One Ground and 1270 sq.ft., situated in Koyambedu Village, Saidapet Taluk, Chenglpet District. The second item is also a plot in a sanctioned layout measuring an extent of 2 Grounds and 893 sq.ft. and an additional land measuring 1010 sq.ft. in Koyambedu Village, Saidapet Taluk, Chengalpet District.

(4)It is the case of appellant/plaintiff in the plaint that the suit first item was purchased by her father Late Sri M.A.Sheriff under a registered sale deed dated 06.02.1974 and the second item was purchased by him under a registered sale deed dated 18.08.1978. It is the appellant's further case that her father Late Sri M.A.Sheriff died on 10.07.2010 intestate, leaving behind plaintiff and defendants as his legal heirs. The 1^st defendant in the suit is the appellant's mother and defendants 2 to 5 in the suit are appellant's brothers.

(5)It is contended by the plaintiff that she is a co-owner of the suit properties along with defendants 1 to 5 and that, as per the Mohammedan Law of Succession, the plaintiff has 7/72 share in all the suit properties. It is the case of appellant that defendants 2 to 5 were keeping her father with them and that her father was dependent on the defendants 2 to 5 as he was not keeping good health both physically and mentally because of his old age and several other ailments. In the plaint, it is stated that defendants 2 to 5 had full control over her father Late Sri M.A.Sheriff and her mother 1^st defendant, and by taking undue advantage of such a position, defendants 2 to 5 were interfering in all the decisions of Late Sri M.A.Sheriff and unduly influencing his mind to their advantage. Stating that defendants 1 to 5 were in fiduciary relationship with Late Sri M.A.Sheriff, it is contended by the appellant/plaintiff that defendants have influenced Late Sri M.A.Sheriff and brought about a deed of family settlement dated 18.05.2005. It is contended that the deed of family settlement is not a true and lawful document and it is void and not binding on the plaintiff nor affects her legitimate share over the suit properties. If the document as such is allowed to exist, it would be impossible for the plaintiff to enjoy her share in the suit properties and therefore, it is stated by the appellant that the settlement deed should be declared as null and void.

(6)The suit was resisted by defendants including the mother. The purchase of suit properties by father is admitted. It is stated that father Sri.M.A.Sheriff was a law graduate and was working as Manager of Reserve Bank of India, Mumbai and retired from service on 28.02.1997. It is also stated that father shifted to his native along with 1^st defendant and one of his sons, the 5^th defendant in July 2008. It is the case of defendants that Late Sri M.A.Sheri