In partition suits, the burden of proving undue influence lies on the party claiming benefit from the document, especially in fiduciary relationships.

JUDGMENT :

Appellant is the plaintiff in the suit. The suit was for partition and separate possession of plaint schedule item Nos. 1 and 2 properties, which belonged to one Janu Amma as per Ext. A1 Partition deed, who died on 29.07.2019. The plaintiff, 1^st defendant, and one Damayanthi are the children of Janu Amma. Damayanthi predeceased Janu Amma. The defendants, Nos. 2 to 5, are the children of Damayanthi. The husband of Janu Amma also predeceased her.

2. As per the plaint claim, the property is liable to be divided into three shares. The plaintiff and the first defendant are entitled to one share each, and the defendants 2 to 4 are jointly entitled to one share.

3. In the plaint, it is alleged that Janu Amma expired at the age of 85 years that she was suffering from various age-related physical and mental ailments; that she was under treatment for three years for several diseases; that she was having memory loss and was not in a position to determine the nature and consequences of her actions; that she was not in a position to think like a prudent man and she was mentally unstable to give decisions; that the plaintiff and the defendants were looking after Janu Amma and all her medical treatments; that three months before her death she was under the complete control of the 1^st defendant; that she was staying in the house of the 1^st defendant; that the 1^st defendant created forged documents and obtained plaint scheduled properties from Janu Amma; that the plaintiff suspects that some foul play had happened and Janu Amma executed some documents in favour of the 1^st defendant without her free will and consent.

4. The defendants 2 to 5 did not file written statement and they remained ex-parte.

5. The suit was resisted by the 1st defendant contending, inter alia, that Janu Amma had executed a Will and gift deed in favour of the 1^st defendant and thereby transferred the plaint scheduled properties in favour of the 1^st defendant. The plaint scheduled property is not partiable. Janu Amma was in a fit statement of mind at the time of executing the will and gift deeds. Janu Amma didn’t have any mental or physical infirmities. Janu Amma executed the documents out of her free will and consent.

6. From the side of the plaintiff, he was examined as PW1, and Exts. A1 to A3 documents were marked. From the side of the defendant, the 1^st defendant was examined as DW1; the Sub Registrar was examined as DW2 & the Document Writer was examined as DW4 and Exts. B1 to B7 were marked.

7. The registered Will claimed to have been executed by Janu Amma on 17.05.2002 was not produced before the Court. The Gift Deeds executed by Janu Amma in favour of the 1^st defendant on 09.05.2019 were marked as Exts. B1 and B2.

8. The Trial Court dismissed the suit with costs holding that he 1st defendant established his case and he is possession of the plant scheduled properties as per the Will and Exts. B1 & B2 were executed by Janu Amma, and hence, the properties are not available for partition.

9. The plaintiff filed an appeal before the First Appellate Court, which dismissed the appeal with costs and confirmed the judgment and decree of the Trial Court.

10. I heard the learned Counsel for the appellant, Sri. B. Krishnan.

11. The learned counsel for the appellant contended that since the 1st defendant is in a fiduciary relationship and active confidence with the deceased Janu Amma, who executed Ext.B1 and B2 Gift Deeds, the burden of proving absence of undue influence is upon him, who is in a dominating position. The 1^st