Niranjan Reddy v. Mrs.Nukalapathy Sururlatha & Ors.

was minor. Plaint schedule Item No.2 property devolved on theplaintiff by succession after the death of his father. Even thoughItem No.1 to the plaint schedule was purchased in the name of theplaintiff from out of the funds of his father while the plaintiffwas minor, the property was being lookedafter by the firstdefendant / mother of the plaintiff as guardian. Even the saledeed dated 10.04.1970 was taken by the first defendant / mother ofthe plaintiff as a guardian of the minor-plaintiff. Upto December-1975 the plaintiff was studying at St.Bedes School at Chennai, andhe completed his Senior Cambridge in June – 1977. Theplaintiff's mother tongue was Telugu, but he does not know to reador write Telugu. After his school education, he joined inEngineering course at Bangalore and was pursuing his Engineeringstudies at Bangalore from 1977 to 1982. There was no sufficientincome from the properties to meet the expenses of the plaintiff inpursuing his Engineering course. He had borrowed Rs.20,000/- oninterest on the representation made by the first defendant / motherof the plaintiff as to the effect that she could not raise moneyfrom the properties and that she could not also manage the landedproperties of the plaintiff at Nellore District and she requiressome documents from the plaintiff authorising her to manage theproperties, so that she would be in a position to raise money fromthe tenant and send the money to the plaintiff, to enable him tocontinue his Engineering Course at Bangalore. She had requestedthe plaintiff to go to Nellore on one working day to register therequired document. The first defendant / mother of the plaintiffrepresented that since the plaintiff has become major, she couldnot collect the rent from the tenants in the property and so sherequested the plaintiff to execute a document authorising her(first defenant / mother of the plaintiff) to collect the rent fromthe tenant. In view of the fact that the first defendant is hismother and the plaintiff had faith and trust in her and in view ofthe fact that the plaintiff had been requiring money to meet theeducational expenses and in view of the fact that he had justattained majority and was under the influence of the firstdefendant, the plaintiff had to obey the mother who was legally ina position to dominate the will of the plaintiff. In the saidsituation as demanded by the first defendant / mother of theplaintiff, the plaintiff executed some documents in Telugu producedby the first defendant and also produced the same for registrationin the bonafide belief that the said document was some authorityfor the first defendant to manage the property and raise money onthe security of the same. In fact the first defendant stated thatthe document in question was merely an authority. The plaintiffdoes not know anything of Telugu language, though he is said to bea native of Nellore and the plaintiff believed the first defendantwho got the documents prepared and she also stated that only whensuch a document was executed, she would be able to get some moneyby the management of the properties and more particularly described https://hcservices.ecourts.gov.in/hcservices/ in the schedule to the plaint and send the same for the plaintiff'seducation and expenses. After completing the course of educationin Bangalore in view of the mental depression he could not pass theexamination, he returned to Madras and had been living with thefirst defendant and since by that time he had been a major, afterhis return to Madras on or about 1982, the plaintiff himself hadbeen collecting the rents and profits from the property till aboutMarch 1991 and thereafter, it was learnt that the first defendant /mother of the plaintiff had sold the property and that she had alsosent a notice to the tenant/D3. The plaintiff came to know thatthe subsequent purchaser of the suit property has sent a notice tothe tenant and thereafter the tenant/D3 refused to pay the rent tothe plaintiff. From the notice the plaintiff came to know that twosale deeds had been executed on 11.03.1991 by the first defendantin favour of the second defendant in respect of the petitionscheduled properties. From the recitals to the said sale deeds,the plaintiff was able to understand that there was a referenceabout the settlement deed dated 23.03.1982 said to have beenexecuted by the plaintiff at Nellore District, Andhra Pradesh, infavour of the first defendant. The said document of settlementdeed dated 23.03.1982 is in Telugu, which the plaintiff could notread and understand and thereafter, got the same translated andfound to his shock and dismay that the said document purported tohave been executed by the plaintiff is a settlement deed in respectof the properties scheduled to the plaint to the value of Rs.1lakh. The said document has been obtained by the first defendantby virtune of undue influence by the first defendant. Theplaintiff had executed the said deed of settlement withoutunderstanding anything of the same. The first defendant hadpracticed fraud on the plaintiff in so far as she represented whilegetting the said document executed as though it was required togive authority to her to manage the property when the plaintiff wasaway from Madras. The said document is a fraudulent document. Thesaid document was not acted upon by the plaintiff. Till March1991, the plaintiff was receiving rent from the tenants from theproperty. The plaintiff was not aware of the fraud practiced bythe first defendant in view of the deference and respect he hadtowards his mother. The said document is vitiated by undueinfluence. The suit is not barred by limiation and the allegedsettlement deed was not acted upon and the plaintiff, who isilliterate in Telugu, came to know about the fraud practiced ingetting the settlement deed executed in favour of the firstdefendant and the nature of the document only in 1991 and sincetill 1991, the plaintiff was under the bonafide belief that thedocument got executed by the plaintiff was only to confer authorityto the first defendant for management of the property on behalf ofthe plaintiff. Hence, the suit for declaration that the settlementdeed dated 23.03.1982 is invalid, fraudulent and unenforceable andthat the same is liable to be cancelled and set aside on the ground https://hcservices.ecourts.gov.in/hcservices/ of fraud and not binding on the plaintiff, and also for declarationthat the sale deeds dated 11.03.1991 registered as Document Nos.410& 411 of 1991 with the Sub-Registrar of Assurance at Mylaporeexecuted by the first defendant in favour of the second defendantis liable to be cancelled and set aside, and for permanentinjunction restraining the defendants from interfering with thepeaceful possession and enjoyment of the suit property by theplaintiff, and for costs.3.The first defendant has filed a written statement contendingthat the suit filed by the plaintiff is not maintainable and thatthe suit was filed by the plaintiff at the instigation of the thirddefendant, who is a party in the connected rent control proceedingsinitiated by the third defendant. The event that had happened aftermaking the settlement deed in favour of the first defendant andalso the event that had happened after making the settlement deedin favour of the first defendant i.e., after 23.03.1982 wouldestablish the fact that the property, which has been settled infavour of the first defendant is absolute property of the firstdefendant and no other person is having right over the property.The marriage of the first defendant took place on 23.02.1957 andthe plaintiff was born on 12.09.1959 and the property was purchasedon 10.04.1970, the settlement deed was executed on 23.03.1982 andthe first defendant issued legal notice on 15.03.1990, for whichreply notice dated 08.04.1990 was received by the first defendant.The first defendant had issued another legal notice on 15.04.1991,for which she had received reply notice dated 29.04.1991, for whichthe first defendant had sent rejoinder notice dated 14.05.1991 andthe third defendant had filed a petition in February-1992, fordepositing the rents into the court. The plaintiff was threeyears aged when his father died. The plaintiff never inherited anyancestral property. The plaintiff brought the property through thefunds of his mother when he was 11 years old. The plaintiff hadsettled the property in favour of his mother when he was 23 yearsold. The plaintiff recognised the title of his mother over theproperty after 23.03.1982. The first defendant was collectingrents from the third defendant. The plaintiff is very well awareof sale deed dated 11.03.1991 during the year 1991 itself in viewof the notices issued by this defendant and the first defendant.The plaintiff is a party in rent control proceedings. Theplaintiff has filed the suit after a lapse of 11 years from thedate of settlement. Even after the execution of the sale deed aperiod of 2 ½ years lapsed. The allegation that the plaintiff isaware of the settlement deed only now is utterly false and itcannot be accepted by any stretch of imagination. At the time ofthe death of the first defendant's husband, the legal heirs are thefirst defendant, the plaintiff, Mrs.Aparna and Mrs.Anitha-daughters. After the death of the first defendant's husband, she(D1) along with her children settled at Madras in order to pursue https://hcservices.ecourts.gov.in/hcservices/ the education of her children. It is not correct to say that theproperty has been acquired by the funds of the plaintiff. Theplaintiff had no financial capacity to buy the properties in theyear 1970, since he was only 11 years old boy having no income ofhis own. The sale consideration for the said sale deed dated10.04.1970 was provided by this defendant / mother of theplaintiff. The superstructures were constructed only from out ofthe funds provided by first defendant alone. The plaintiff had nosource of income to purchase the property. After the death of SriEswara Reddy the entire property has been lookedafter by the firstdefendant, who settled at Madras for the same of her children'seducation. The plaintiff studied upto 3rd standard in St.John'sschool at Nellore in Telugu Medium and thereafter at St.BedesSchool upto X standard at Santhome, Madras, which is nearer to theproperty. This defendant having lost her husband within 5 years ofher marriage, lookedafter her children providing good education,shelter etc., It is totally false to say that the plaintiff isnot aware of his mother tongue Telugu either to write or to speak.The plaintiff is well aware to write Telugu language since he hasstudied upto 3rd standard at Nellore. The plaintiff has executedvarious documents in Telugu language during the years of 1980, 1981and 1982. The plaintiff used to talk only in Telugu and thefirst defendant made the plaintiff to study Telugu being his mothertongue. It is totally false to say that the first defendant hasnot forwarded money to pursue the plaintiff's education. After thedeath of her husband, the first defendant took her children toMadras and provided good education. Only because of the firstdefendant's efforts the plaintiff was made to study Engineering atBangalore. It is totally false to say that the plaintiff hasborrowed large sums of money from others to pursue the plaintiff'sstudies at Bangalore. The first defendant had sold major portionof their family properties for the education of the plaintiff andforwarded sums to the plaintiff, who was pursuing his Engineeringstudies at Bangalore at that time. But the plaintiff had joinedwith persons, who are undesirable character and cultivated badhabits and did not pursue his studies. Even in the early age, hecultivated bad habits like gambling, races, addiction to drugsetc., It is false to state that only due to undue influence ofthis defendant, the plaintiff had executed the settlement deed infavour of this defendant. Substantial properties of this defendanthave been sold and had been spent for the education of theplaintiff. If the plaintiff's version is true this defendant wouldhave obtained the power of attorney in order to manage theproperties. There is no necessity for her to get the settlementdeed in her favour for the purpose of managing the properties andalso for the purpose of raising money from the properties. Thisplaintiff by natural love and affection on his mother made asettlement as this defendant is the person who brought up theplaintiff from the age of 3 years when his father died. With very https://hcservices.ecourts.gov.in/hcservices/ great difficulties this defendant had brought up her children. Asstated earlier the first defendant sold major portion of herproperty and personal jewels and spent money for the education ofthe plaintiff and other children. Being only son to her, sheprovided all assistance like any other mother to the plaintiff.This defendant as stated earlier sold major portion of her landedproperties belong to her husband and her family and all the amountshave been spent for the education of the plaintiff and to hishabits. When the settlement deed was executed the plaintiff wasaged about 23 years. He can very well execute survey or guaranteeto raise money. Only to evade the responsibilities, he hasexecuted the settlement deed. The plaintiff had pleaded in theplaint at to the fact that the settlement deed was executed only toraise funds from public. The plaintiff because of his bad companyand bad habits left studies at Bangalore and joined with thisdefendant and stayed at Madras and became drug addict and harassedthis defendant to the maximum extent. This defendant stayed withthe plaintiff upto the year 1986 and when he became totally addictto all bad habits, the plaintiff used to beat this defendantmercilessly and there are occasions when bleeding injuriesinflicted by the plaintiff on this defendant. Number of propertieshave been sold by the plaintiff by himself and in fact all theseproperties belong to this defendant and her family members. Theplaint schedule properties are not ancestral properties of theplaintiff. Whenever the plaintiff requires money this defendant byselling family properties had raised funds and gave the same to theplaintiff. This defendant is a helpless widow and she had sold allher jewels for the welfare of the plaintiff. The first defendantleft Madras for her native place Nellore due to the unbearable ill-treatement received by her at the hands of the plaintiff. It isfalse to say that the plaintiff came to know about the sale deedexecuted by first defendant in favour of the second defendant onlyfrom the notices issued by the first defendant. Those notices havebeen issued as early as 15.04.1991 by the first defendant to thethird defendant. As soon as the sale deeds were executed infavaour of the second defendant by this defendant notice wereissued only from the third defendant. The plaintiff would haveknown about the sale deeds executed by this defendant in favour ofthe second defendant. Keeping quite for a period of 11 years, theplaintiff has comeforward with this suit only for the purpose ofdragging further the rent control proceedings. It is totally falseto say that the plaintiff came to know about the settlement deedonly after verification of the sale deed dated 11.03.1991. Thenotices have been issued about the sale deeds to the thirddefendant as early as April, 1991 itself. In May 1991 itself theplaintiff was aware of the sale deeds dated 11.03.1991 executed bythis defendant in favour of the second defendant. Only at theinstigation of the third defendant the plaintiff has filed thesuit. The tenant in the property taking advantage of the https://hcservices.ecourts.gov.in/hcservices/ difference of opinions between the plaintiff and the firstdefendant, had instigated the plaintiff to file this suit. Therewas no undue influence or fraud played upon by the first defendantagainst the plaintiff. There was no undue influence or fraudplayed on the plaintiff by this defendant in getting the settlementdeed executed in favour of the first defendant by the plaintiff.Only out of natural love and affection on his mother, the plaintiffhad executed the settlement deed. The plaintiff is very well awareof the sale deeds executed by the first defendant in favour of thesecond defendant. The first defendant had executed a sale deed infavour of the second defendant after receiving the substantial saleconsideration. The second defendant is a relative of the firstdefendant and the second defendant's family members are well-wishers of the first defendant's family. The plaintiff never hadany occasion to earn money and acquire properties. When theproperty was acquired in the year 1970, the plaintiff was agedabout 12 years. Taking into consideration all the family background and the position of the plaintiff, it goes beyond doubt thatall his properties belongs to only to his defendant. The thirddefendant used undue influence and coercion on the plaintiff tofile the present suit. The plaintiff was never in possession andenjoyment of the suit properties after the settlement deed. Thefirst defendant has not conveyed more than the right she had overthe property. It is wrong to say that the plaintiff did notquestion the sale deeds dated 11.03.1991 on the ground that he isnot a party to sale deeds. Only to avoid stamp duty and tocircumvent the situation in favour of the plaintiff the presentclaim has been made by the plaintiff. The correspondence betweenthe plaintiff, D1 and D3 earlier to the sale deeds would show thatthe third defendant obtained rent from the property. The plaintiffis very well aware of the rights of the defendant over theproperty. Further the exchange of letters between the plaintiffand various statutory authorities would also establish that theplaintiff made a settlement in favour of his mother and it is notin dispute at any point of time. The second defendant is entitledto collect rent from the third defendant, who is a tenant of thesuit property. The third defendant is liable to pay rent to thesecond defendant after the execution of the sale deeds in favour ofthe second defendant by this defendant. Aggrieved over the saledeeds executed by the first defendant in favour of the seconddefendant in respect of the suit property, the plaintiff has filedthis vexations suit. The third defendant has already initiatedproceedings to deposit the rent into the Court and in suchcircumstances the third defendant now instigated the plaintiff tofile the present suit in order to avoid payment of rents to firstdefendant. The third defendant is now using the entire area of thebuilding for his own use. The land area alone comes to one groundand 2042 sq.ft. The built up area comes to 4200 sq.ft. The thirddefendant is misusing the entire property for his own use. The https://hcservices.ecourts.gov.in/hcservices/ suit is time bared. Even at the time when this defendant met theplaintiff, the plaintiff behaved in a rude manner and shetolerated all the misbehavior done by the plaintiff. Now theplaintiff is confined to a small room in ground floor and theentire ground floor is used by the third defendant. The suit hasbeen filed only at the instigation of the third defendant and notby the plaintiff himself. The suit is liable to be dismissed withcosts.4.The second defendant in her written statement would contendthat the suit properties have been purchased by the seconddefendant from the first defendant on 11.03.1991. After thepurchase of the property, the second defendant has filed rentcontrol proceedings against the third defendant, who was inoccupation of the suit property as a tenant. Only after thereceipt of notice from this defendant, the third defendant hasinstigated the plaintiff to file the present suit against hismother, who is the first defendant in the suit. According to thesecond defendant, the settlement deed was executed in favour of thefirst defendant by the plaintiff when the plaintiff was 23 yearsold. The plaintiff's father had left behind him the firstdefendant / wife, plaintiff / son, and one Tmt.Aparna andTmt.Anitha-duaghters. In other aspects, the second defendnt inverbatim has reproduced the averments in the written statementfiled by the first defendant and ultimately the second defendanthas prayed that the suit is barred by limitation and the same isliable to be dismissed with costs.5.The third defendant, who is the tenant under the seconddefendant, in his written statement would contend that in theabsence of the plaintiff, his mother (D1), in the capacity of theguardian of the plaintiff was collecting the rent from the thirddefendant and during the year 1986, the first defendant hadintimated the third defendant to remit further rents to theplaintiff and because of the disputes between the plaintiff andthe first defendant, the third defendant had filed a petitionbefore the Rent Controller for permitting him to deposit the rentinto the Court in respect of the premises in his occupation. As perthe orders of the Rent Controller, the third defendant wasdepositing the rent into the Court regularly and there is no causeof action for the plaintiff against the third defendant and hence,the suit is liable to be dismissed as against the third defendant.6.On the above pleadings the learned trial Judge had framednine issues and after recasting Issue NO.6, conducted the trial.Before the trial Court, the plaintiff has examined himself as P.W.1and had exhibited Ex.A.1 to Ex.A.6 and the first defendant hadexamined herself has D.W.1 besides examining D.W.2 to D.W.5 on herside. D.W.5 is the third defendant / tenant. On the side of the https://hcservices.ecourts.gov.in/hcservices/ defendant, Ex.B.1 and Ex.B.2 were marked. After going through boththe oral and documentary evidence, the learned trial Judge hasdismissed the suit on the ground that the plaintiff is not entitledto any of the reliefs asked for under the plaint. Aggrieved by thefindings of the learned Trial Judge, the plaintiff preferred anappeal in A.S.No.363 of 2003 before the Additional District Judge(FTC.II), Chennai. The learned first appellate Judge having foundno material to interfere with the findings of the learned trialJudge has dismissed the appeal, thereby confirmed the decree andjudgment of the learned trial judge in O.S.No.12671 of 1996 on thefile of the VIII Assistant Judge, City Civil Court, Chennai, whichnecessitated the plaintiff to prefer this second appeal. 6.The following substantial questions of law arose forconsideration:-(i)Whether Ex.A.5 settlement deed was a product ofundue influence attracting the provisions under Section 16 ofthe Contract Act?(ii)When the plaintiff has claimed that the firstdefendant could have obtained a power of attorney instead of asettlement deed in the light of the contention that the firstdefendant required proper document to maintain the suitproperty, whether the Courts below were right in not presumingthat the first defendant had exercised undue influence inobtaining Ex.A.5 settlement deed dated 23.3.1982 on herfavour?7.Heard the learned Senior Counsel Mr.A.L.Somayaji appearingfor the appellant herein / plaintiff and also the learned counselappearing for the respondents Mr.P.Subbha Reddy and consideredtheir respective submissions. 8.Points (i) & (ii):- Admittedly the plaintiff in O.S.No.12671of 1996 / appellant herein is the son of the first defendant inO.S.No.12671 of 1996 / the first respondent herein. Under the suitthe appellant herein / plaintiff sought for the relief ofdeclaration declaring the settlement deed dated 23.03.1982 Ex.A.5(Ex.B.1-original said to have been executed by the plaintiff infavour of the first defendant as invalid, fraudulent andunenforceable and has been obtained by undue influence by the firstdefendant, who is none other than the mother of the plaintiff.According to the plaintiff, he studied upto 3rd standard in Nelloreand that he is not well versed with Telugu language and he is notable to read or write Telugu, but the alleged Ex.A.5 (Ex.B.1)settlement deed dated 23.03.1982 is in Telugu and only on thepretext to collect money from the tenants and also to safeguard thefamily properties, the settlement deed Ex.A.5 (Ex.B.1) was obtainedfrom him and that without knowing the contents of Ex.A.5 (Ex.B.1)he had signed the same. The learned counsel appearing for the https://hcservices.ecourts.gov.in/hcservices/ respondent would brought to the notice of this Court that even atthe time of Ex.A.5 (Ex.B.1) settlement deed, the plaintiff was amajor aged 23 years and the property was purchased in the name ofthe plaintiff when he was a minor at the age of 2 ½ years after thedeath of his father from out of the funds of the first defendantand that the first defendant became a widow five years after hermarriage with the father of the plaintiff and apart from theplaintiff, the first defendant is having two other daughters /sisters of the plaintiff and it was very difficult for her to meetthe educational expenses and other family expenses and that at thetime of execution of Ex.A.5 (Ex.B.1) settlement deed, the plaintiffwas pursuing Engineering Course at Bangalore and only to enable herto collect the rent from the plaint schedule properties, sherequired a document in her favour in respect of the plaint scheduleproperties and the plaintiff out of his love and affection hadexecuted Ex.A.5 (Ex.B.1) settlement deed. According to the firstdefendant, who had deposed before the trial Court as D.W.1, theplaintiff knows Telugu language well and apart from Ex.A.5 (Ex.B.1)settlement deed, the plaintiff had also executed documents inTelugu under Ex.B.17, Ex.B.19, Ex.B.20 and Ex.B.21. Under suchcircumstance, it cannot be said that only by undue influence and byplaying fraud Ex.A.5 was obtained by the first defendant from theplaintiff. 8(a)The learned Senior Court appearing for the plaintiff /appellant herein would submit that the suit is not barred bylimitation because only from the notice issued by the thirddefendant, he came to know that Ex.A.t was obtained under undueinfluence by his mother – first defendant and that even three yearsfrom the date of notice sent by the first defendant to the thirddefendant in the year 1995 under Ex.A.8, the plaintiff has filedthe suit. Relying on Article 56 of the Indian Limitation Act, thelearned Senior Counsel would contend that the suit is in time. ButArticle 56 of the Indian Limitation Act will be applicable only ifit is proved that the document or instrument under challenge is aforged one. Absolutely there is no pleading in the plaint filed bythe plaintiff as to the effect that Ex.A.5-settlement deed was aforged document. Under such circumstances, Article 56 of theIndian Limitation Act, will not be applicable to the present factsof the case. At para 29 of the plaint the plaintiff would pleadthat the alleged settlement deed Ex.A.5 (Ex.B.1) is in Telugu andthat the plaintiff is not conversant with Telugu language and thatthe first defendant had committed fraud on the plaint in gettinghis signature in Ex.A.5. But at the time when Ex.A.5 (Ex.B.1) wasexecuted by the plaintiff in favour of his mother, he was aged 23years, as admitted by him in the cross-examination, as 22 years 6months on the date of execution of Ex.A.5 (Ex.B.1) settlement deedin the year 1982 (original of Ex.A.5 is Ex.B.1). After executionof Ex.A.5 (Ex.B.1) in favour of the first defendant, the first https://hcservices.ecourts.gov.in/hcservices/ defendant / mother of the plaintiff had executed two sale deeds infavour of the second defendant under Ex.A.3 and Ex.A.4 on11.03.1991 ie., 10 years after the execution of Ex.A.5 (Ex.B.1)settlement deed. The defendants by producing Ex.B.17 and Ex.B.19to Ex.B.21 – sale deeds, executed by the plaintiff have proved thatthe plaintiff is not an illiterate in respect of Telugu language,but he is an literate of Telugu language and had executed the abovesaid Ex.B.17 and Ex.B.19 to Ex.B.21 sale deeds, which are inTelugu. After executing the said sale deeds, it is not open to theplaintiff to contend that he is not aware of the contents of Ex.A.5(Ex.B.1) settlement deed on the ground that he does not know Telugulanguage and that only under undue influence the first defendanthad obtained Ex.A.5 (Ex.B.1) settlement deed. Admittedly theproperties conveyed under Ex.A.5 – settlement deed are not theancestral properties of the plaintiff. But the properties werepurchased by the first defendant herself in the name of theplaintiff while he was minor. The said sale deed was not producedbefore the trial Court. If at all the plaintiff is having anycause of action to set aside Ex.A.5 (Ex.B.1), he ought to havefiled the suit within three years under Article 137 of theLimitation Act from the date of Ex.A.5 (Ex.B.1).8(b)Relying on AIR 1921 Calcutta 251 (Bhusan Mani Dasi Vs.Profulla Kristo Deb), the learned senior counsel of the appellantherein / plaintiff would contend that the time for limitation willrun from the applicant's knowledge. The facts of the said case isthat an application to set aside the Sale on the ground offraudulent suppression of process and also on the ground ofirregularities and insufficiency of sale price, was rejected by thetrial Court. The first appellate Court also rejected the firstappeal on the ground of limitation. According to the applicant inthat case, she came to know about the sale some two or three monthsbefore the filing of the application on enquiry. Holding that thetime for limitation shall run from the applicant's knowledge, thehigh court of Calcutta had allowed the appeal and remanded thematter after observing as follows:-"The applicant must have knowledge not merely of thefactum of the sale, but a clear and definite knowledge of thefacts which constitute the fraud before time can run againsthim or her. This is apparent from the number of reportedcases to one of which we may refer, namely, Narayan Sahu vs.Damodar Das (1912-16 CWN 894 = 16 IC 464).This case and other cases shown that when, by a fraud ofthis nature involving suppression of process and submission offalse returns the applicant is kept out of knowledge of thesale of his property, such fraud must be held to have acontinuing influence. Indeed in such a case it is for theother side to show that the injured party had clear anddefinite knowledge of the facts which constitute the fraud at https://hcservices.ecourts.gov.in/hcservices/ a time from which taken as a starting point the suit isbarred."The said facts of the case will not be applicable to the presentfacts of the case because here the plaintiff had executed Ex.A.5(Ex.B.1) settlement deed when he was at the age of 22 years 6months. He was not an illiterate. He was admittedly pursuingEngineering course at Bangalore at that time when he signed inEx.A.5 (Ex.B.1). If he had any doubt about Ex.A.5, he would haveimmediately referred to his mother / first defendant in whosefavour he had settled the properties under Ex.A.5 ( Ex.B.1). Evenafter the execution of Ex.A.5, the plaintiff used to reside onlywith his mother at Madras. 8(c)The learned senior counsel would attack on Ex.A.5 (Ex.B.1)also on the note found at the bottom of Ex.A.5 (Ex.B.1) as to thefact that the plaintiff had reserved his right in respect of theground floor and land in the properties conveyed under Ex.A.5(Ex.B.1). It is the settled proposition of law that once thesettlement deed has been executed and possession has beenhandedover to the settlee by the settlor, then it is not open forthe settlor to claim a portion of the property already conveyedunder the settlement deed. 8(d)The learned counsel for the respondent in support of thisproposition of law would rely on the following judgment:- AIR 1987Kerala 84 (Sumathy Amma and another Vs. Sankara PillaiAnanthakrishnan Nair), wherein the relevant observation of theDivision Bench of Kerala High Court runs as follows:-"A document has to be construed as whole. A straysentence here and there cannot be picked out to construe adocument. To understand the tenor of the document and theintention of the parties it has to be read as a whole. Thereal intention of parties has to be gathered not merely fromwhat ex facie is stated in the description of the propertyin the schedule but from the totality of the recitals in thedocument. It is useful to refer to the decision in AndiappaVs. Meyyappan, AIR 1944 PC 80 wherein it is held as follows:-'In construing a lease deed for the purpose offinding out what land was included in the lease the wholedocument must be considered and not merely the so called'description of the property at the end thereof"In Delhi development Authority Vs. Durga Chand, AIR 1973 SC2609 it is held as follows:-In construing the documents one must have regard not tothe presumed intention of the parties, but to the meaning ofthe words they have used. If two interpretations of thedocuments are possible, the one which would give effect andmeaning of all its parts should be adopted and for thepurpose, the words creating uncertainty in the documents can https://hcservices.ecourts.gov.in/hcservices/ be ignored.One principle of construction of documents is that when theproperty has been sufficiently identified in a deed andsubsequent details are inconsistent with it, the latter has tobe disregarded."The same view has been reiterated in AIR 1970 Madhya Pradesh 23(Shri Digambar Jain and others, Vs. Sub-Registrar, Stamps, Indore),wherein it has been held as follows:-"The cardinal rule of construction is that a documentmust be read as a whole, each clause being read in relation tothe other parts of the document, and an attempt should be madeto arrive at an interpretation which will harmonise and giveeffect to the other clauses thereof. It is not legitimate topick out an expression torn from its context and try tointerpret the document as a whole in the light of thatexpression. Such a forced construction on the document inquestion cannot but defeat the very object which itsexecutants had in view.It is the duty of the court to give to the expression itstrue meaning. It is competent for a court to disregard theliteral meaning of the words used in a document and to give tothem their real meaning if they are sufficiently flexible tobear that interpretation."The Bombay High Court in AIR 1990 BOMBAY 134 (Satyabhamabai –deceased by LR and etc., Vs. Pandurang Marotrao Pawar), in asimilar situation has held that ,"The learned counsel could not seriously dispute thefindings as recorded by the Courts below. Her suit forconcellation of an instrument filed on 29.04.1978 isadmittedly beynod three years from the date of knowledge asprescribed under Article 59, in view of this, second appealNo.35 of 1989 is liable to be dismissed"8(e)The learned counsel for the respondents would furthercontend that having executed Ex.A.5 settlement deed at the age of22 years 6 months, it is not open to the plaintiff to contend, thattoo, ten years after the execution of the said settlement deedEx.A.5 (Ex.B.1) that only under undue influence his mother hadobtained the said document Ex.A.5 (Ex.B.1). In support of thiscontention the learned counsel for the respondents would rely on aratio in AIR 1973 ORISSA 76 (V 60 C 28) (Raghunath Altia Vs.Arjuno Altia and other). The facts of the said case are asfollows:-"The plaintiff, whose suit for partition was decreedpartially by the Courts below, was the appellant. Under thesuit for partition, the plaintiff had asked for a preliminarydecree for partition of 1/5th share in the suit properties. Itwas contended on behalf of the contesting defendants 1 and 2that after the resumption of the Inam lands and the grant of a https://hcservices.ecourts.gov.in/hcservices/ Zeoroyty patta in respect thereof of Bhalga, the latter becamethe sole owner of the properties and had full disposing powerin respect thereof and that the settlement deed executed byhim in respect of 6.20 acres out of the disputed lands infavour of D2 with full knowledge of its contents and thedocument is a valid one and is not liable to be challenged bythe defendants. The alleged Muchilika dated 1.5.1961 said tohave been executed by Bhaiga and his brothers in favour ofBhadralogs is attacked as a forged document and it iscontended that the Bhadralogs never passed an award nor was itever filed in Court. The learned District Munsif held thatthe Muchilika Ex.A.1 which Bhaiga and his brothers are allegedto have executed in favour of Bhadralogs to partition thedisputed properties amongst them is not genuine and that nosuch partition as is alleged by the plaintiff and defendants 3to 8 had ever taken place. According to him Bhaiga acquiredan exclusive title to the disputed properties and he executedthe Nirupana Patro Ext.D in favour of defendant No.2consciously and being fully aware of the import thereof andthat consequently it is valid. The District Munsit haddecreed the suit for partitioning the balance 8.03 acres ofland into six equal shares and for allotment of one such shareto the plaintiff. In appeal the learned Subordinate Judge hadalso confirmed the findings of the learned District Munsif anddismissed the appeal. While disposing of the second appeal,Orissa High Court held as follows:-When a person wants to set aside a deed ofsettlement on the ground that the settlor had executedthe document under undue influence of the person in whosefavour the settlement has been made, it is not sufficientto establish that the latter was in a position todominate the will of the settlor. It is only when thetransaction appears to be unconscionable that by sub-section (3) of Section 16 of the Contract Act, the burdenof proving that the contract was not induced by undueinfluence shall lie upon the personwho is in a positiontodominate, in that case he must affirmatively prove thatno domination was practised. The position is clearlyexplained by their Lord ships of the Privy Council inRaghunath Prasad Sahu Vs. Sarju Prasad Sahu, AIR 1924 PC60, in the following words;In the first place, the relations between theparties to each other must be such that one is in aposition to dominate the will of the other. Once thatposition is substantiated the second stage has beenreached, namely, the issue whether the contract has beeninduced by undue influence. Upon the determination ofthis issue a third point emerges, which is that of theonus probandi. The burden of proving that the contract https://hcservices.ecourts.gov.in/hcservices/ was not induced by undue influence is to lie upon theperson who was in a position to dominate the will of theother."Even though in the case on hand, the mother / first defendant isdominating the will of her son, the plaintiff herein, after theexecution of Ex.A.5 (Ex.B.1) – settlement deed in her favour, shehad also executed two sale deeds Ex.A.3 and Ex.A.4 in favour of thesecond defendant. There is no motive attributed against the mother/ first defendant to get Ex.A.5 (Ex.B.1) settlement deed by playingundue influence or fraud upon the plaintiff. It is in evidence ofD.W.1 / the first defendant / mother of the plantiff that she hasbecome widow within five years after the marriage with the fatherof the plaintiff and that she was in a predicament position totake care of the family, which consists of the plaintiff, firstdefendant and two other daughters. After the death of her husband,first defendant had taken care of the education of the plaintiff,who after completing his school education had joined in theEngineering course at Bangalore and even at the time of executionof Ex.A.5 (Ex.B.1), the plaintiff was pursuing his engineeringcourse at Bangalore. It is the definite case of the firstdefendant that to secure money and also to collect the rent fromthe tenants of the suit properties, she required a document in herfavour and only on that score Ex.A.5 (Ex.B.1) was executed by theplaintiff in the name of the first defendant. Even after theexecution of the sale deed under Ex.A.3 and Ex.A.4 by the firstdefendant, the plaintiff had not raised any objection in respect ofthe settlement deed executed by him under Ex.A.5 (Ex.B.1). It ishard to believe that the plaintiff without knowing the contents inEx.A.5 (Ex.B.1) had executed the settlement deed Ex.A.5 (Ex.B.1) infavour of his mother. Admittedly, the plaintiff was major at thetime of execution of Ex.A.5 (Ex.B.1) settlement deed. So undersuch circumstances, the contention of the learned Senior Counselthat only under the undue influence Ex.A.5 (Ex.B.1) was executed bythe plaintiff in favour of the first defendant cannot hold anywater.8(f)I am of the view that the relevant Article applicable toset aside Ex.A.5 (Ex.B.1) is Article 137 of the Indian LimitationAct, under which only the period of limitation is three years fromthe date when the right to sue accrues. In this case the timeaccrues to sue to the plaintiff is from the date of execution ofEx.A.5 (Ex.B.1) i.e, three years from 23.03.1982. But the suitO.S.No.883 of 1992 before this Court, which was renumbered asO.S.12671 of 1996 on the file of the VIII Assistant Judge, CityCivil Court, Chennai, was filed only in the year 1992, which issquarely barred by limitation. For this proposition of law, thelearned counsel for the respondent would rely on AIR 1934 Allahabad507 (Mt.Azizunnissa Vs. Siraj Husain and others), wherein it has https://hcservices.ecourts.gov.in/hcservices/ been held as follows:-"When a person sues to obtain possession of propertywhich has been transferred by the person through whom heclaims, the suit must be brought within the period allowed byArt, 91, so long as the transfer is voidable and not abinitiovoid. When the transfer has been made by some person who hadno titlle to make it and the transfer is therefore void, thenthe claim to have such transfer set aside will be merelyancillary or incidental to the main claim, which will be onefor possession, but when the plaintiff's own predecessor hasmade a transfer, which is voidable and not void, the claim tohave such transfer set aside cannot be regarded as merelyancillary to the plaintiff's claim for possession. Thetransfers in the suit where so far as the plea of undueinfluence is concerned are voidable under Section 19-A,Contract Act. The plaintiff cannot evade the limitationprescribed by Article 91, by merely framing his suit as thoughit were a suit for possession and nothing else."Reliance is based by the learned counsel for the respondents on AIR(33) 1940 Nagpur 377 (Sm.Buchibai w/o.D.Gangadhar Rao Vs. NagpurUniversity), wherein a Hindu widow executed a deed of settlementunder the undue influence of her deceased husband's borhter inorder to obtain settlement of disptue in regard to family property.The widow was fully aware of the true nature of the deed at thetime of its execution. The widow subsequently brought the suit toset aside the deed on the ground of undue influence after threeyears from the date of the instrument. It was held the said dictumas follows:-"The settlement deed was undoubtedly an instrument, thesuit was governed by Article 91 and the starting point oflimitation was the date of the instrument itself because underthe article time ran from the date of knowledge and not fromthe date of the removal of the undue influence. The suit wastherefore barred by limitation."In AIR (32) 1945 Privy Council 54 (Ramchandra Jivaji Kanago andanother Vs. Laxman Shrinivas Naik and another), it has been heldthat in a case where gift transaction was attacked by saying thatit is obtained by undue influence the gift deed is to be construedas a voidable document and the time for limitation starts from thedate of the execution of the said gift deed. The relevantobservation runs as follows:-"If the deed of gift is a void transaction no question ofcancelling, or setting it aside, would arise, but if it isonly a voidable transaction, that is, a transaction validuntil rescinded, then the necessity to set it aside is obviousbefore possession of the property can beclaimed......................Under Article 91, Limitation Act, limitation beings torun from the time the facts entitling the plaintiff to have https://hcservices.ecourts.gov.in/hcservices/ the instrument cancelled or set aside become known to him. Itis true that Appaji became insane in or about July 1917, andcontinued so, until his death in 1923; but he was fully awareof the character of the transaction when he executed the deedin 1915 and before he became insane. On this point the HighCourt observes as follows:-It is not shown that any of the facts which might hveentitled him (Appaji) to have the gift cancelled were unknownto him – either his relationship with Laxmand and Akkubaiwhich gave him an opportunity of dominating him will, or theeffect of this gift on his family and himself"8(g)Relying on a ratio decidendi in AIR 1978 Madras 361(P.Saraswathi Ammal Vs. Lakshmi Ammal alias Lakshmi Kantam), thelearned counsel for the respondent would contend that even thoughthe first defendant is the mother of the plaintiff, the saidrelationship alone will not derive us to come to a conclusion thatshe had dominated the will of the plaintiff in the absence of anyevidence. The exact observation in the above said judgment runs asfollows:-"It should be established on materials pleaded and actsestablished that the 'bargain is tainted by undue influence'and it is unconscionable that it could reasonably be said thatthe person sough to obtain unfair advantage for himself and soas to cause injury to the person relying upon his authority oraid. It is only after such particulars are made available anda reasonable proof thereof has been given, the onus wouldshift on the so called 'person of domination'. Until thentheburden is on the complainant to establish it is so."The said observation in AIR 1978 Madras 361 (P.Saraswathi Ammal Vs.Lakshmi Ammal alias Lakshmi Kantam) has been based on an earlierdecision of the Honourable Apex Court in AIR 1967 Supreme Court 878(Subhas Chandra Das Mushib - appellant Vs. Ganga Prosad Das Mushiband others - respondents), wherein the relevant observation of theHonourable Apex Court relevant for the purpose of this case runs asfollows:-"The law in India as to undue influence as embodied inSection 16 of the Contract Act is based on the English CommonLaw as noted in the judgment of this court in Ladli PrasadJaiswal Vs. Karnal Distillery Co., Ltd., (1964) 1 SCR 270 atp.300 : (AIR 1963 SC 1279 at p. 1290). According toHalsbury's Laws of England, Third Edition, Vol. 17, p. 673 Act1298, 'where there is no relationship shown to exist fromwhich undue influence is presumed, that influence must beproved". Article 1299 p 674 of the same volume shows that'there is no presumption of imposition or fraud merely becausea donor is old or of weak character'. The nature of relationsfrom the existence of which undue influence is presumed isconsidered at pages 678 to 681 of the same volume. The https://hcservices.ecourts.gov.in/hcservices/ learned author notes at p.679 that 'there is no presumption ofundue influence in the case of a gift to a son, grandson, orson-in-law, although made during the donor's illness and a fewdays before his death'. Generally speaking the relation ofsolicitor and client, trustee and cestui que trust, spiritualadviser and devotee, medical attendant and patient, parent andchild are those in which such a presumption arises. Section16(2) of the Contract Act shows that such a situation canarise wherever the donee stands in a fiduciary relationship tothe donor or holds a real or apparent authority over him.Before, however a court is called uponto examine whetherundue influence was exercised or not, it must scrutinise thepleadings to find out that such a case has been made out andthat full partiulars of undue influence have been given as inthe case of fraud. See Order 6 Rule 4 of the Code of CivilProcedure."For the same proposition of law the learned counsel for therespondents would also rely on AIR 1938 Nagpur 470 (Mt.Anupa Baiw/o.Gorelal Kirar Vs. Bhagwant Singh and others), wherein it hasbeen held that undue influence, onus of proof, three ingredients-partly pleading undue influence has to prove dominance and unfairgain – other party has then to prove absence of use of suchposition.8(h) In AIR 1965 Kerala 189 (Talengala Narayana Bhatta Vs.Narasimha Batta and others), it has been held that party impeachingtransaction on ground of undue transacting parties was such thatone party was in position to dominate other's will, simply byalleging unconsciounableness of transaction, burden does not shift.8(i) Under such circumstance, the stand of the plaintiff thathe had knowledge about the execution of the settlement deed Ex.A.5(Ex.B.1) by undue influence of the first defendant over him onlyfrom the Ex.A.1-notice issued by the first defendant to the thirddefendant, cannot be sustainable and on that score he cannot takeshelter under Article 59 of the Limitation Act to claim that thesuit is not barred by limitation since he has field the suit withinthree years from the date of knowledge about the undue influencethrough Ex.A.1-notice dated 15.4.1991. 8(j)The learned trial Judge as well as the learned Firstappellate Judge have concurrently held that the plaintiff is notentitled to the relief of declaration and injunction since he hasnot filed the suit within three years from the date of execution ofEx.A.5 (Ex.B.1). Both the Courts below have given a soundreasoning for their findings on all the issues. After theexecution of Ex.B.17, Ex.B.19, Ex.B.20 and Ex.B.21, documents inTelugu, it is not open to the plaintiff to contend that since hedoes not know Telugu, he is not able to see what was contained inEx.A.5 (Ex.B.1). There is no material placed on record to showthat the Courts below have rendered a perverse findings or not on https://hcservices.ecourts.gov.in/hcservices/ the basis of the evidence available on record, to warrant anyinterference from this Court. Hence, I hold on Point No.1 thatEx.A.5 settlement deed was not a produce of undue influenceattracting the provisions under Section 16 of the Contract Act andI hold on Point No.2 that the Courts below were right in notpresuming that the first defendant exercised undue influence inobtaining Ex.A.5 settlement deed dated 23.03.1982 in her favour.9.In fine, the second appeal is dismissed confirming thefindings of the first appellate Judge in A.S.No.363 of 2003 on thefile of the Additional District Judge, FTC-II, Chennai. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssvTo,1.The Additional District Judge, FTC-II, Chennai2.The VIII Assistant Judge, City Civil Court, Chennai.3. The RegistrarCity Civil Court, Chennai.4. The Section OfficerVR Section,High Court, Madras.1 cc to Mr.S. Subramanian, Advocate, sr. 130503 ccs to Mr.P. Subba Raddy, Advocate, Sr. 12901S.A.No.659 of 2007BV (CO)kk 27/3