J U D G M E N T

The suit for cancellation of Exts.A7 to A9 Gift Deeds was dismissed by the trial court. The second plaintiff is in appeal.

2. The first plaintiff is the mother of the second plaintiff. The first defendant is another son of the first plaintiff. The second defendant is the wife of the first defendant. The third defendant is the daughter of defendants 1 and 2.

3. The plaint consists of three items of properties as described in plaint schedule item Nos.1 to 3. Plaint schedule item No.1 is an extent of 38.60 Ares with a residential building thereon. Plaint schedule item No.2 property is 7.65 Ares and plaint schedule item No.3 property is 26.80 Ares with improvements thereon.

4. On 10.08.2004, the first plaintiff executed Ext.A7 Gift Deed with regard to plaint schedule item Nos.1 and 2 properties in favour of the first defendant, Ext.A9 Gift Deed in favour of the second plaintiff with regard to 10 cents = 4.05 Ares out of plaint schedule item No.3 property, and Ext.A8 in favour of the third defendant for the remaining extent out of the third schedule. The suit was filed seeking to set aside the gift deeds. In the suit, the first plaintiff mother was sought to be represented by the second plaintiff as her next friend, on the allegation that the first plaintiff, due to old age and incapacity is unable to protect her interests. The plaint allegation is that, the first plaintiff mother was of 94 years of age at the time of execution of Ext.A7 to A9 Gift Deeds; that the first plaintiff was residing with the first defendant; that she did not have sufficient physical and mental health, and was unable to understand and comprehend things correctly; and that the defendants caused Exts.A7 to A9 to be executed by her by exerting undue influence.

5. The defendants challenged the allegation that the first plaintiff did not have sufficient physical and mental capacity. It was contended that she is competent to protect her interests.

6. The trial court on conducting enquiry as mandated under Order XXXII Rule 15 of the Code of Civil Procedure and found that the first plaintiff is competent to represent and protect her interests. Exts.A7 to A9 Gift Deeds were upheld and accordingly the suit was dismissed.

7. I have heard Sri.M.Narendra Kumar, the learned counsel for the appellant and Smt.Praicy Joseph, the learned counsel for the respondent.

8. The points that arises for determination are :-

(i) Is the finding of the trial court that Exts.A7 to A9 Gift Deeds are not vitiated by undue influence, based on the evidence on record?

(ii) Does the decree and judgment of the trial court warrants any interference?

9. The challenge against ExtsA7 to A9 Gift Deeds is founded upon the plea of “undue influence” under Section 16 of the Contract Act which vitiates a contract. Section 16 reads thus:-

“16. “Undue influence” defined.—(1) A contract is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.

(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another—

(a) Where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or (b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.

(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.

Nothing in this sub-section shall affect the provisions of section 111 of the Indian Evidence