Suguna v. Vinod G.Nehemiah & Ors.

Transfer C.S.No.374 of 2002 was filed by the appellant herein seeking a decree of permanent injunction restraining thedefendants/respondents herein from interfering with the peaceful possession and enjoyment of the suit property by the appellant herein, except by due process of law.

The respondents herein are the sons and daughters of oneJ.V.A.Nehemiah. The first and second respondents are living in India and the third and fourth respondents are living in UnitedStates, making annual visits. It is stated that the saidJ.V.A.Nehemiah was a United Nations Pensioner and he was the absolute owner of the property bearing Door No.9, Second MainRoad, Seethamma Colony, Alwarpet, Chennai. The suit property was purchased by the said J.V.A.Nehemiah as early as 24.2.1960 out of his earnings and hence, it was a self-acquired property. The case of respondents-1 to 4 herein as plaintiffs was that the saidJ.V.A.Nehemiah was residing in the suit property. He had leased out the ground floor of the premises to one K.V.Nair, an Executivein Mahendra Construction Co. Ltd. on a monthly rent ofRs.13,000/-. This was subsequently enhanced to Rs.18,000/- per month since 1.4.2000. He was residing in the first floor of the premises and was enjoying the rental income from the ground floor till the tenant vacated the premises on 7th October 2001.

Respondents-1 to 4 contended that the saidJ.V.A.Nehemiah passed away on 9th February 2002. He was 89 yearsold at that time. It is the case of the first and second respondents that they took care of their father. The first respondent is having his business in Vellore and was frequently visiting Vellore for business purpose. He had his business in Chennai also. The appellant herein/first respondent in the suit, was working as a servant maid under J.V.A.Nehemiah ever since 1987.The specific allegation of respondents-1 to 4 herein is that the appellant herein had fraudulently brought about a settlement deed dated 15th December 2000 purported to have been executed by the Late J.V.A.Nehemiah in favour of Suguna the first appellant herein. It is stated that she was already married and living withher husband, who passed away on 9.3.2000. The document recited the first appellant herein as the wife of J.V.A.Nehemiah. Respondents-1 to 4 stated that their father was at the ripe age of87 years at the time when the alleged settlement deed was executed; he was physically and mentally weak, and that the settlement deed was brought about by playing fraud on their father. On the strength of the settlement deed dated 15th December2000, the appellant herein attempted to occupy the ground floor of the suit property. This resulted in the first respondent giving acomplaint to the police on 16.12.2001. Respondents-1 to 4 state that the appellant herein entered into the ground floor of the premises by obtaining an interim order in a suit proceeding in Transfer C.S.No.374 of 2002, originally filed before the XVIAssistant City Civil Court, Chennai, in O.S.No.7398 of 2000 (inI.A.No.21741 of 2001). In support of the contention that the first appellant exerted pressure and undue influence on the deceased to have the settlement deed executed, respondents-1 to 4 https://hcservices.ecourts.gov.in/hcservices/ alleged that the deceased J.V.A.Nehemiah executed a registered will on 23.7.1997 which was probated before this Court inO.P.No.19 of 2003 on 20th February 2003.

It is stated that one Dr.Rajagopal, who had been the family physician and attending on their father for over 20 years, informed the first respondent that his father was weak and frail and accordingly suggested that the deceased be given treatment in Vellore. They also stated that the Doctor had certified that the father was not maintaining sound mental health apart from the weak physical disposition. By making defamatory statement againstrespondents-1 to 4 that they had kidnapped their father for an ulterior purpose to get the property, the suit had been preferred before the City Civil Court. It is stated by respondents-1 to 4herein that as per the will probated before this Court, the entire property was given to the first respondent herein. It is further stated that the conduct of the appellant herein clearly show that the settlement deed was the hand work of the appellant herein in collusion and connivance with the other defendants in the suit. The document dated 15th December 2000 was registered as Document474/2001 in the office of the Sub Registrar, Thousand Lights. Having regard to the falling mental health of the deceased due to the advanced age and his sickness from 1999, the document was the result of a fraud played on the deceased; as such, the settlement deed dated 15th December 2000 is a sham and nominal document and has no legal effect. It is further submitted that for the illegal occupation by the first appellant herein, the respondents have tobe compensated.

The suit was resisted by the first appellant herein by filing a written statement that the settlement deed dated 15thDecember 2000 was executed by the deceased in her favour, treating her as the wife of the deceased J.V.A.Nehemiah. The first appellant submitted that she was employed as a servant maid under the said Nehemiah and was associated with him for more than 20years. The specific case of the first appellant herein is thatrespondents-1 to 4 never took care of their father and it was this appellant who took full care of the needs of the deceasedNehemiah. In course of time, she became the life partner of the late Nehemiah. The first appellant pointed out to the recital in the document that the deceased settlor, satisfied of the hard work, loyalty and integrity of this appellant in rendering all services akin to a life partner, had settled the 'B' and 'C'schedule properties in her favour. Considering the execution of the document and the contents of the deed admitted by the settlor, respondents-1 to 4 had no right to question the validity of the document. It was further stated that the settlement deed was acted upon even during the life time of the late Nehemiah. Thefirst appellant pointed out that contrary to the assertion, LateNehemiah was active and mentally sound.

On 19.12.2001, respondents-1 to 4 took away the deceasedNehemiah to an unknown place and there afterwards, he died immediately. It is alleged that the deceased Nehemiah was tortured by his sons and daughters which led to his ultimate end. https://hcservices.ecourts.gov.in/hcservices/ Referring to the interim injunction granted by the City CivilCourt in the suit filed by her, the first appellant states that she lived with the deceased Nehemiah as his wife. It is also alleged that there are no grounds to suggest any fraud played on the deceased to obtain this document.

In the suit filed by the first appellant before the CityCivil Court, which was later on transferred to this Court in Transfer C.S.No.374 of 2002, the first appellant herein contended that the suit property was absolutely owned by the deceasedNehemiah. She lived with her husband J.V.A.Nehemiah along withher two daughters and grand daughter. It is alleged that the cause of action of filing of the suit arose by reason ofrespondents-1 to 4 taking away the suit property by dispossessing her illegally. It is further stated that considering her rights and the illegal attempts of respondents-1 to 4 herein to grab the suit property wherein she was living with her husband, the suitfor injunction against respondents-1 to 4 was filed. Respondents-1 to 4 herein filed their written statement in Transfer C.S.No.374of 2002 reiterating the contentions as stated in C.S.No.153 of2002.

Before the learned single Judge, the following issues were framed for trial for determination: In C.S.No.153 of 2002:1. Is the settlement deed dated 15.12.2000 alleged to have been executed by late J.V.A.Nehemiah in favour of the first defendant true and valid?2. Whether the plaintiffs are entitled for a declaration that the settlement deed dated 15.12.2000 registered as Document No.474of 2001 is illegal, invalid and sham and nominal and consequently declare the same as illegal and non-est in the eye of law and not binding on the plaintiffs or the estate ofJ.V.A.Nehemiah.3. Whether defendants 1 to 3 are jointly and severally liable to pay Rs.10 lakhs as damages with future interest at 24% perannum to the plaintiff from the date of plaint till the date of realisation?4. Whether the plaintiffs are entitled for a mandatory injunction directing the first defendant to remove her belongings and deliver possession of the ground floor of the suit premises to the plaintiffs?5.

On the question of damages claimed, learned singleJudge, however, rejected the plea of respondents-1 to 4 herein ashaving no nexus with the original cause of action of the suit. Itis admitted that there is no cross appeal by respondents-1 to 4herein. On the question of Issue Nos.8 and 9, learned singleJudge pointed out that the appellant was bound to pay a sum ofRs.13,000/- per month from 14.12.2001 to theplaintiffs/respondents-1 to 4 herein. Thus, decreeing the suit filed by respondents-1 to 4 the first appellant's suit was dismissed. Hence, the present appeal.

The first appellant in O.S.A.No.330 of 2007, the first defendant in the suit, has preferred the appeal contending that the suit praying for a declaration that the settlement deed dated15.12.2000 executed by the plaintiff's father J.V.A.Nehemiah was illegal, invalid, sham and nominal; for a direction to theappellants/defendants-1 to 3, to jointly and severally pay a sum of Rs.10,00,000/- with future interest at 24% per annum by way of damages; for a mandatory injunction directing the appellant hereinto remove her belongings and to deliver possession of the ground floor of the premises bearing Door No.9, Second Main Road, Seethamma Colony, Alwarpet, Chennai-600 018; for a permanent injunction restraining the appellant herein and the other defendants from interfering with the peaceful possession and enjoyment of the suit property; for a permanent injunction restraining the appellant herein from in any way interfering or dealing or alienating the suit property; for a decree for recovery of a sum of Rs.9,00,000/- as past damages with future interest at18% per annum from the date of the plaint till the date of surrender and to direct defendants-1 to 3 to jointly and severally pay a sum of Rs.25,000/- per month as damages for use and occupation of the premises from the date of the plaint till the date of surrender of the ground floor of the premises, was totallyunsustainable, considering the fact that the pleading on the allegation of undue influence is vague.

Per contra, learned counsel appearing for the respondents placed reliance on the provisions of Section 16(2)(b)of the Indian Contract Act, 1872 and the various circumstances narrated in the plaint to point out that the deceased was under the undue influence of the first appellant herein. Makingspecific reference to the suit filed by the first appellant before the City Civil Court, learned counsel pointed out that there was no reference in the plaint filed by the first appellant as to the settlement deed under which the first appellant claimed her right. Countering the allegation that there are no specific facts narrated and to the issues framed, learned counsel referred to the prayer in the original plaint and the amended plaint and submitted that as per Section 34 of the Specific Relief Act, 1963, it is enough if declaratory relief as to the sham and nominal character of the document was pleaded.

As to the witnesses who had signed the document, learned counsel appearing for the respondents pointed out that admittedly, the first appellant was not living in that house. There was no reason stated for the part-time driver to come on that particular date to take the deceased to the Sub Registrar'sOffice. The evidence on the contrary is that the regular driver left the house after duty hours and the service of a part-timedriver was taken only when the regular driver was not available. There is no explanation as regards the sudden appearance of Devi, the daughter of the first appellant, who signed as a witness to the document. He submitted that undue influence is a question offact.

The mental capacity of the deceased was clearly stated by the Doctor who had been attending on the deceased for nearly 20years. The visits of the Doctor was not denied by the first appellant herein. He also pointed out that contrary to the contention of the first appellant that she never went to the SubRegistrar's Office for execution or that he was aware of the https://hcservices.ecourts.gov.in/hcservices/ execution, Ex.C2, which bears the signature of the first appellant to receive the document, clearly prove the knowledge about the document; yet, surprisingly, the suit was filed by her in the CityCivil Court without any reference to the settlement deed, claiming herself to be the wife of the deceased.

Going by the circumstances, from the evidence of the Doctor and the fact that the tenant had addressed a letter handing over possession to the first respondent herein, learned counsel submitted that the learned Judge rightly held that the settlement deed was a created document brought about by undue influence and afraud played by the appellant on the deceased, who was not mentally fit enough, as certified by the Doctor, to exercise his judgment on any subject matter. He pointed out that the first appellant, in her reply affidavit filed before the City CivilCourt, admitted as to the physical condition of the deceased. Inthe background of these facts, rightly, the learned single Judgeheld that the document was liable to be declared as void and illegal. The cumulative effect of the facts and the existence of the fiduciary relationship, raised a presumption of undue influence. Consequently, he submitted that there are no merits in the appeal. In this connection, he placed reliance on the decision reported in AIR 1927 Madras 255 (VENKATRAMA AIYAR Vs.KRISHNAMMAL), on the question of undue influence, a question as afact which has to be proved, as well as to a series of decisions of the Apex Court reported in AIR 1937 PC 50 (PALANIVELU Vs.NEELAVATHI), AIR 1957 Madras 194 (THANGACHI Vs. AHMED HUSSAIN) andAIR 1961 Madras 190 (ABDUL MALICK Vs. MD.YOUSUF). As to the existence of facts to substantiate the allegation of fraud and undue influence, the onus is on the first appellant to prove that there was no undue influence practised.

We have perused the records and the evidence let in by the parties herein.

The questions raised in these appeals need to beconsidered from the angle of whether the learned single Judge was right in his view that the burden is on the first appellant to prove that there was no undue influence in the matter of execution of the settlement deed; secondly, whether there should be aspecific issue raised on the question of undue influence and finally whether was any evidence to show any undue influence exercised to declare the settlement deed as invalid.

It is no doubt true that there is no specific issue raised on the question of undue influence. However, the reading of the first issue raised as regards whether the settlement deed is true and valid and that whether the plaintiffs were entitled toa declaration that the settlement deed dated 15.12.2000 was illegal, invalid and sham and nominal is wide enough to include such a plea, considering the fact that the entire allegation on the validity of the deed rested on the question of undue influence. On the second question of absence of a specific issue on this point, in the decision reported in AIR 1956 SC 593 https://hcservices.ecourts.gov.in/hcservices/ (NAGUBAI AMMAL AND OTHERS Vs. B.SHAMA RAO AND OTHERS), the ApexCourt held as follows: "Evidence let in on issues, on which the parties actually went to trial should not be made the foundation for decision of another and different issue which was not present to the minds of the parties and on which they had no opportunity of adducing evidence.

Learned senior counsel appearing for the appellant however submitted that the respondent had based the allegations that the deceased was not mentally alright; that there was acollusion between the first appellant and others, namely, the daughter and the driver; that there was undue influence exerted characterising the circumstances as suspicious circumstances, are all phrases taken from the provisions of the Indian Contract Actsolely to maintain the dispute. The mere usage of these phrases do not, in any way, substantiate the allegation. When there are enough materials available to point out to the undue influence exerted by the first appellant herein and when the very challengeis based on this allegation, the absence of specific question does not defeat the prayer in the suit. Learned counsel appearing for both sides made a reference to Section 16 of the Indian ContractAct, 1872. In this connection, a reference to Section 111 of the Indian Evidence Act needs to be made. The Section reads as follows: " Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence the burden of proving good faith of the transaction is on the party who is in a position of active confidence. "Read with Section 16(3) of the Indian contract Act, if the respondents are in a position to prove that the appellant was in aposition to take advantage of the confidence reposed by the deceased, the onus is certainly on the appellant to prove that she did not take advantage of the same to have a settlement executed in her favour.

In the background of the facts projected and the evidence let in in this case, learned single Judge rightly shifted the burden on the appellants herein to prove that the trust placed on the first appellant was not abused and that there was no coercion or undue influence exerted to bring about the settlement deed. It may also be seen that considering the trust that the deceased Nehemiah placed on the appellant, the misuse of the same to obtain an unfair advantage also tantamounts to a fraud played on the deceased to gain an advantage over the near relations. Having regard to the circumstances surrounding the execution of the document, even though there is no specific issue raised, yet, the allegation as to the illegality of the document, resting on the allegation of undue influence, we do not find any infirmity in the judgment of the learned single Judge.

The question as to whether there was undue influence or not need to be looked at from the angle of the age of the deceased, the mental capacity of the deceased settlor, the relationship of the settlor with the settlee and the conduct of the parties herein leading to the registration.

First we may have to see the mental and physical condition of the executant namely Nehemiah. It is an admitted fact https://hcservices.ecourts.gov.in/hcservices/ that Nehemiah was 87 years old at the time of execution of the document. He was a retired United Nationals official living in his house situated at Seethamma Colony. The ground portion waslet out and he had been under the constant medical care ofDr.N.Rajagopal. One of the contentions to challenge the settlement deed was that the deceased was not in a good physical and mental condition.

As to the mental capacity of the deceased settlor, wehave the evidence of the Doctor who had deposed as P.W.2.Admittedly, the deceased was taken care of by the Doctor for the past 20 years. This has not been denied by the first appellant.A reading of the evidence of P.W.2 shows that when the Doctorexamined the deceased, as per Ex.P17 (series of medical records),which includes the letter of the Doctor written to the first respondent dated 10th December 2001, P.W.2 suggested that the deceased had become extremely feeble and that he was not able to take care of himself physically and mentally. Keeping in mind the health condition, he suggested that Nehemiah should be taken care of on a daily basis. He recommended that he be attended by aPhysician who is capable of managing his physical and mental status at the reputed Christian Medical College Hospital. In the evidence, during the course of chief examination, he stated that on 10.12.2001, when he met the deceased, he thought that it washis duty to inform his son about his physical and mental condition. He pointed out that the deceased had lost his orientation of time and space and his mental faculty is subject to variation. As a medical practitioner, he stated that it was his responsibility to inform the family members who had confidence in him about the need of the hour. In the course of cross-examination, he stated that his impression was purely based on clinical interaction and final evaluation. A reading of the evidence from the cross-examination leaves no manner of doubt that the mental ability of the deceased was not uniform throughout the day. It is also seen from the evidence of the first appellant asD.W.1 in her cross-examination that poor health was maintained by the deceased. She admitted that Nehemiah was healthy till the year2001. He used to suffer from urinary infection accompanied by fever. She also admitted that he was also admitted in the hospital for Pneumonia in the year 1999. It may be seen that at the time of execution of the settlement, he was stated to be 87years old.

It is clear from the evidence of the doctor PW2 that from the professional's point of view, and as some one who had interacted and treated Nehemiah, the deceased's orientation with the advancing age was not good enough to make an impartial comprehension and assessment of the state of affairs. The Doctorcertified that the said Nehemiah had lost his mental ability to make "appropriate judgment and reasoning compared to what he was three years ago. " he deposed that late Nehemiah' was sufferedcorteral functions like memory, thinking, orientation, language, learning capacity, comprehension social behaviour made the doctor to put Nehemiah for a clinical clarity test and he was not in aposition to recognize the abstracts like documents, currencies and https://hcservices.ecourts.gov.in/hcservices/ denomination of currencies. He certified that his mental faculties were subject to variation over the period of 24 hours.

The mental condition is further confirmed by the first appellant herself as may be seen from the reply affidavit filed before the City Civil Court in I.A.No.21741 of 2001 in O.S.No.7398of 2001 (which stood transferred to the High Court) as regards the physical condition of the deceased. She stated therein that the deceased was "unable to walk and is completely bed ridden. Takingadvantage of his old age and physical and mental weaknesses, the respondents have detained my husband against his consent and illness. " In the face of the clear admission by the first appellant herself, read along with the evidence of P.W.2, whose statement also find a place in Ex.P17, the fact is that Nehemiahwas mentally and physically frail. He had his ups and downs of his conscious level and his comprehension too. The mental faculties were not normal enough to form an independent opinion.

The interaction by the Doctor and his assessment and the evidence of the first appellant as DW1 certainly are a pointer to the fact that the deceased was subject to mood swings and the mental faculty was not the same as is expected of a healthy person. In any event, a reading of the evidence clearly point out that Late Nehemiah was not having a good mental framework to think independently or was there anything to suggest that he applied his mind over the contents of the document or has he taken any advice from his legal advisers before executing the document.

The mental condition, hence, certainly raises animportant issue on the validity of the document from the standpoint of exercising free will in the matter of disposition ofa right. Viewing this aspect from the standpoint of the relationship of the settlee with the deceased which we will presently note, we do not find any justification to accept the plea of the first appellant herein that the execution of the deed was free from any cloud or doubt.

Learned counsel appearing for respondents pointed out that Late Nehemiah was a very meticulous person. A reading of the will executed would clearly show the narration so perfect, where, in contrast to the way, the settlement deed had been executed. Hepointed out that the settlement deed was not executed out of hisown volition. The document was prepared by a document writer who was the fourth defendant in the suit who lived in Adyar about whom none including the appellant claim to know about. There was no explanation as to why an unknown person's services were secured for writing a settlement deed. A person who claims that she had been living with the deceased for 18 years, says she knows nothing about the document writer or as to the execution . Infact, she pleaded total lack of knowledge on the execution of the alleged deed itself. The document was kept as a guarded secret. The first appellant claimed that the Nehemiah informed her about the contents of the will. When so much of confidence is reposed in the appellant even to divulge out the contents of the will, it appears rather strange for the appellant to state that she knew https://hcservices.ecourts.gov.in/hcservices/ nothing about the settlement deed alleged to have been executed by Nehemiah in her favour.

This takes us to the kind of influence that the appellant had over the deceased Nehemiah. Learned Counsel for the respondents submitted that the execution of the settlement deed was a case of clear manipulation and fraud played by the appellant taking advantage of the trust that late Nehemiah had on this appellant and he submitted that she took undue advantage of the confidence reposed on her as trustworthy servant which she misused to her advantage.

As to the allegation regarding undue influence, the circumstances have to be looked at to the conduct of the first appellant and the witnesses who had signed the document and the execution thereon. There is a specific averment in the plaint that the first appellant was employed as a servant maid since1987. She was already married to one Audikesavan and having two daughters besides a grand child and was living at 100 'B' Block, Baruah Nagar, Alwarpet, Chennai-600 018. At no point of time she resided in the suit property. The settlment deed was written bya document writer attested by the daughter, and the part-timedriver. The document was presented for registration at the closing hours of the Sub Registrar's office on 15.12.2000. It is seen from the plaint document that the first appellant was described as the wife of the deceased yet she was stated to be working there.

In the face of the allegations and counter allegations and having regard to the findings of the learned single Judgedecreeing the suit, issue arises as to whether there was any fiduciary relationship between the first appellant herein and the deceased to allege undue influence exercised by the first appellant on the deceased to have the settlement deed executed inher favour?34. It is seen that although the first appellant stated that there was no such fiduciary relationship to have a dominant control over the deceased, yet, as rightly pointed out byrespondents-1 to 4, in the judgment of the learned single Judge, it was stated that the first appellant, as D.W.1, had admitted that the deceased reposed full confidence in her and that fiduciary relationship existed between them. Learned senior counsel appearing for the appellants pointed out that the first appellant never admitted of any such fiduciary relationship. Assuch, it was wrong to throw the burden on the first appellant interms of Section 16 of the Indian Contract Act, 1872. The first appellant, according to her version, did not exercise any dominant control over the deceased. We do not agree. As rightly pointed out by the learned counsel appearing for respondents-1 to 4, in the cross examination of D.W.1, it was specifically admitted that the first appellant was treated as a family member of Nehemiah and that other servants were also treated as family members by Nehemiah. The first appellant stated that "I used to go tooperate bank accounts on behalf of J.V.A.Nehemiah. J.V.A.Nehemiah https://hcservices.ecourts.gov.in/hcservices/ used to fill up the required bank challans for the bank transactions. No other servants was engaged to operate the bank accounts. " It is further admitted by the first appellant as D.W.1that she claimed herself as the wife of the deceased Nehemiah and that she accompanied the deceased whenever he went to the market, shop or to the bank; that she had also encashed the self cheques given by the deceased who stated that she was confidential. According to her, she was trustworthy. The said facts were also stated in the will of Nehemiah, and in almost identical terms, even in the settlement deed, the document mentions her as atrustworthy person.

Under Section 16(2)(a) of the Indian Contract Act,1872, a person is deemed to be in a position to dominate the willof another "where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other. "As per sub section (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. Afiduciary relationship arises between the parties when one of them stands in a position of a trust to the other and equally when the latter reposes confidence with the other person to an extent that the influence grows out of such a confidence. In order to establish the existence of a fiduciary relationship, it is necessary to show that one party relies on the other to such an extent that there is a complete trust and confidence placed on the other, thus facilitating him to influence the former. In such asituation, if such a person in a fiduciary position wants to havea benefit in a transaction executed in his favour, it is absolutely essential that he must show that the result or the benefit had not flown out of the influence. It may be seen that the mere existence of a fiduciary relationship raises the presumption of undue influence - AIR 1961 Madras 190 (ABDUL MALICKVs. MD.YOUSUF). Considering the presumption raised, a person standing in a fiduciary relationship to another has a duty to protect the interest given to his care. In the case on hand, whenrespondents-1 to 4 have questioned the settlement deed alleged to have been executed showing such a relation, the presumption underlaw is there against such a transaction. As per Section 16(3),onus is cast upon a person holding the position of confidence of trust show that the transaction is a fair one not brought forth by reason of the fiduciary relation and that he had not taken any advantage of his position.

The Apex Court, in the decision reported in (2004) 9SCC 468 (KRISHNA MOHAN KUL Vs. PRATIMA MAITY), dealing with asimilar question as to challenge on the execution of the settlement deed on the ground of undue influence exercised by reason of fiduciary relationship, held as follows: https://hcservices.ecourts.gov.in/hcservices/ "13. In judging the validity of transactions between persons standing in aconfidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donee/beneficiaryunder a document to prove due execution of the document in accordance with law, evendehors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before the Court. "17. The logic is equally applicable to an old, illiterate, ailing person who is unable to comprehend the nature of the document or the contents thereof. It should be established that there was not mere physical act of theexecutant involved, but the mental act. Observations of this Court, though in the context of a pardahnashin lady in KharbujaKuer v. Jang Bahadur Rai are logically applicable to the case of old, invalid, infirm (physically and mentally) and illiterate persons. "

In the background of the declaration of law, and the clear admission of the appellant and the narration in the will, we agree with the contention of the learned counsel appearing forrespondents-1 to 4 and the findings of the learned single Judge in this regard.

It is interesting to note how the deceased Nehemiah had expressed his views about the first appellant herein in his will. Referring to her service since 1987, the deceased stated in his will at paragraph 23 that with her indomitable determination tocome up in life, hard work and loyalty and integrity of a high order, the testator intended her to maintain the living standards she had achieved for herself and her children. The deceased hadmade provisions for her, her children as well as her grand child'seducation. A reading of the evidence of the first appellant also shows that she admitted in her cross-examination that she knew the contents of the will and that her husband and the daughter were treated during their ailment by the deceased J.V.A.Nehemiah. Itis also seen that the cash for the purchase of stamp paper for the execution of the settlement deed was also taken only by the first appellant on the cheque issued for a sum of Rs.2,00,000/- and the balance taken out from her own account. A reading of the evidence of the first appellant clearly show that she was placed in a high https://hcservices.ecourts.gov.in/hcservices/ confidence by Nehemiah; in her own words, "I was very confidential and trustworthy. " The above categorical admission in the evidence given by her clearly proves that she was in afiduciary capacity; as such, the presumption is certainly against her. In the circumstances, we do not find any error in the reasoning of the learned single Judge on the above-said fact.

As to the suspicious circumstances casting cloud on the execution of the settlement deed, learned counsel appearing for respondents-1 to 4 pointed out to the manner in which the document was written in contrast to the will. He pointed out to the meticulous manner in which the will was written by lateNehemiah, giving the details about his age and as to the properties dealt with by him. It is admitted by the first appellant in her evidence that Nehemiah had a portable typewriter in his home and he used to type himself in the said typewriter.

The settlement deed Ex.D1 was admittedly written by ascribe by name Srinivasan stated to be living at Adayar. Therespondents pointed out that late Nehemiah was never in the habit of taking a third party's help and normally consulted his lawyer or his Chartered Accountant, that it was a mystery as to why somebody would locate a document writer so far away from the residence of Nehemiah for preparing the settlement deed through ascribe. The scribe had not been examined in the proceedings by the first appellant as to the execution.

The settlement deed was attested by one Devi daughter of the first appellant and by Parthiban a part-time Driveremployed by late Nehemiah. Except for Devi, no attempt was made to examine the witness Parthiban. In her evidence Devi stated hat she did not know who were the persons present when the settlement deed was registered . She admitted that although she assisted in cooking she was not working in the house of Nehemiah or lived therein . No reason was given for her visit to the house of Nehemiah on the date when the alleged registration took place. Shemerely stated that she accompanied Nehemeiah to the Sub-Registrar's office at 4.30 p.m. and the document was registered at5 p.m.

Coming to the role of the first appellant, though the settlement deed referred the settlee as the wife of the saidNehemiah, it however stated that she was working in the house of Nehamiah. As per Ex.D7, the electoral card of the year 2005,Suguna was stated to be the wife of Adikesavan. Devi the second appellant and the daughter of the first appellant stated that her mother had not remarried. A reading of the settlement deed shows that there is absolutely no reference as to the will under which the first respondent was given a property in toto. It is also seen that the document describes the first appellant herein in almost identical terms as we find in the will. It is seen that the document dated 15th December 2000 was presented before the SubRegistrar's Office at 5.00 p.m., and registered on 02.05.2001 and the deficit duty of Rs.34,235/- was paid on 4.5.2001. The reason for the delayed payment was stated to be attributable to the https://hcservices.ecourts.gov.in/hcservices/ certificate to be obtained from the Income Tax Department under Section 230-A. Although the first appellant denied knowledge about the execution of the deed and the purchase of the stamp papers, she admitted in her evidence as to the transfer of the funds for a sum of Rs 2 lacs from the account of Nehemiah as evidenced by Ex.

Learned senior counsel appearing for the appellants submitted that no serious weight age could be given to Ex.C2, since it is always possible to get the signature subsequent too. Learned senior counsel pointed out that when the factum of https://hcservices.ecourts.gov.in/hcservices/ execution of a document is proved, no adverse inference could be drawn as regards the genuineness of execution of the same. Inthis background, he submitted that the appearance of the signature of Suguna, the first appellant herein, in Ex.C2 could not be arelevant fact to hold that the first appellant had full knowledge on the execution of the document and had undue influence over thesettlor to bring about the document. It may be noted that in thecross-examination of CW2, an Assistant in the Sub Registrar'sOffice, it was categorically stated that the normal practice is that the person who has signed on the reverse of the receipt should have been present when the document is presented for registration and when the document was registered, and after registration, the signature of the recipient would be obtained again on the reverse of the receipt. There are no extenuating circumstances to accept the plea of the first appellant that the signature was obtained subsequently. The evidence of D.W.1 show that although the regular driver was there, on that particular date, the part-time driver's service was taken. In the background of these strange circumstances as to the presence of Devi on that particular date and the presence of the part-timedriver, in the background of the deceased settlor himself not there, one can go by the circumstantial evidence in this case asto the genuineness of the execution of the document.

The signature of the first appellant in Ex.C2 amply proves the knowledge and the presence of the first appellant asto the execution of the document and the registration. LearnedCounsel also pointed out to the manner of the execution and the stamp duty paid therein C.W.2 the Assistant from the Sub-Registrar's office pointed out that as the settlement was effected in favour of the third party, duty payable as a sale was charged at 12 % 45. Learned counsel appearing for the appellants further pointed out that in the suit filed before the City Civil Court in Transfer C.S.No.374 of 2002, filed in the year 2002, there is absolutely no reference to the settlement deed executed in her favour. The suit for injunction was filed by the first appellant during the life time of late Nehemiah He submitted that the whole affair as to the execution of the settlement deed was shrouded in secrecy and there are no details about the property in the schedule given in the plaint. He further pointed out that looking at the conduct of the first appellant, and the persons who have joined as witnesses in this execution, taken together with the age of the deceased, it is clear the that the entire transaction has been taken through to bring about a document which can haveno valid existence in the eye of law that the first appellant played fraud on Nehemiah to make an unlawful gain. The reading of the judgment of the learned single Judge touching on these aspects point out that although the attestation might have been proved, yet, the execution of the document stood not proved. Learnedsingle Judge also pointed out that there was nothing on record to even vaguely suggest that the settlor signed the deed having fully understood the recitals therein. We agree with the findings of https://hcservices.ecourts.gov.in/hcservices/ the learned judge and the conclusions drawn that the execution had not been proved in this case.

It is also seen that in the revised affidavit filed inO.S.No.7398 of 2001, the first appellant stated that Late Nehemiahwas unable to walk and was completely bed-ridden and taking advantage of his old age and physical and mental weaknesses, respondents-1 to 4 had detained Nehemiah, who is described as her husband. Such a contention made by a person who was constantly attending on Nehemiah, clearly supports the stand of the respondents, and as certified by the Doctor, that Nehemiah was notin a position to understand the implication of the alleged settlement deed which he was purported to have signed. Learnedcounsel appearing for the respondents also pointed out to the theory of the alleged desertion of Late Nehemiah by his children. It is also relevant to note that in her plaint filed before the City Civil Court, Chennai, the first appellant stated that Nehemiah was abducted by his children. However, in the evidence before the Court in the course of cross-examination, she stated that she never instructed her counsel to state that the children of Nehemiah abducted him for taking illegal attempts to grab the suit property. The evidence of P.W.2 Dr.Rajagopal and the first appellant's evidence clearly show the falsity of the standof the first appellant that Nehemiah was not taken care of by his children.

Yet another circumstance that has been relied on and rightly so, is the lease of the property given in favour of oneK.V.Nair. It is seen from the documents filed before the Courtthat the ground floor of the suit property was originally let out to one K.V.Nair in 1995, till he surrendered vacant possession of the property on 7.10.2001. The settlement deed was executed in the year 2000. If really the deceased intended the settlement to act, certainly he would have mentioned about the lease of the property, in the settlement deed. It is also relevant to note that although the settlement deed stated that the first appellant should take possession of the property forthwith, nothing had been done either to transfer the tenancy in the name of the first appellant nor mutation of name effected in favour of the first appellant. The documents, viz., the tax receipt and the electricity connection clearly show that Nehemiah continued to have ownership of the property.

It is seen that in the plaint filed before the CityCivil Court, the first appellant sought for an injunction to restrain respondents-1 to 4 herein from interfering or disturbing the peaceful possession and enjoyment of the suit property. Thesuit itself was filed before the City Cvil Court in the year 2001when Nehemiah was alive. It is stated therein that the first appellant and her daughter were in possession and enjoyment of the suit property for more than 18 years along with Nehemiah. As on that date, for reasons best known to the first appellant, thereis no mention in the plaint as regards her rights over the property. Nehemiah was not made a party in the proceedings before the Court. She claimed therein that she was the wife of Nehemiah, living with him for more than 18 years at Door No.9, Second MainRoad, Seethamma Colony, Alwarpet, Chennai-600 018. There is absolutely nothing on record to show that she resided in the property in whatever capacity she might have chosen. Heroccupying the house with the aid of third parties and the removal of the original name board to install her name as A.SugunaNehemiah are clearly an indication of her interest to somehow establish her right, interest and title over the property. Thereport filed by the Advocate Commissioner appointed by the Courtclearly shows the attempt of the first appellant to fix her name board as Suguna Nehemiah just prior to the visit of the AdvocateCommissioner, the removal of the name board of Nehemiah and the attempt to deface the board "Perinbakam" which is dedicated to the memory of the mother of Nehemiah. The same is relied upon byrespondents-1 to 4 herein to show the falsity of the claim. It is also relevant to note that the first appellant, even as per the evidence of her daughter, lived only in Pallipet. Going by theabove-said facts, we do not find any ground to interfere with the order of the learned single Judge.

Learned senior counsel appearing for the appellants took serious exception to the view of the learned single Judgethat Nehemiah was afflicted with silent dementia and that the first appellant maintained a fiduciary relationship with Nehemiah, dominated his will and got the settlement deed executed by exerting aggressive undue influence, taking advantage of his volatile mental condition on account of his very old age. It may https://hcservices.ecourts.gov.in/hcservices/ be noted that the said finding was noted only to impress on the mental incapacity of the person to execute a document in the exercise of individual volition knowing fully well the consequences of such an act. In the background of these facts, wedo not find any error in the reasoning of the learned single Judgeto disturb this finding.

Learned senior counsel for the appellants has also madea serious objection to the finding of the learned single Judgethat the settlement was an unnatural as well as an unconscionable execution of the document. He submitted that as the absolute owner of the property, Nehemiah had the free will to deal with itin any manner that he deemed fit. The correctness or otherwise of the action has to be seen only from the point of view of theexecutant and it is not open to the Court to view it from anyother angle. The Court could not reject a deed validly executed, by its own notions and justifiability.

It must be noted that the burden is on the first appellant herein as the defendant to remove whatever suspicion that existed on the kind of the transaction that has resulted in the settlement of the property in her favour. As already noted, Nehemiah had executed a will which was probated before this Court. The probate in O.P.No.19 of 2003 was granted as early as 20thFebruary 2003. The will dated 23rd July 1997 clearly stated that after the life time of Nehemiah, the property would go to his sonVinod G.Nehemiah. It was also stated therein that the house which was dedicated to the memory of his mother Late Perinbam Nehemiahwhose name was engraved in marble at the entrance, should remain with his son and he should not sell the house for whatever reason during his life time. He made it specific that the house should not pass on to the hands of real estate developers. If for any reason, the house was to be sold against the desire of thetestator, then the proceeds of the sale should be equally divided among his four children.

The forcible entry of the first appellant into the suit property with the help of political forces on the basis of her claim as the wife of late Nehemiah was commented by the respondents as an attempt to bring disrepute to the name of their father and to grab the property through illegal means and hence sought for a direction to the appellants to vacate the premises and pay the damages. Learned Counsel for the respondents placed his reliance on number of decisions of the Apex Court and this Court apart from other Courts to substantiate his contention on the illegality of the transaction and the attack made on the allegation of undue influence and fraud played by the first appellant.

Per contra learned senior counsel placed his reliance on the decisions of the Court as to the effect of registration of the document and the onus on the respondents to prove their contention and the total lack of materials and facts pleaded on the allegation of undue influence in part to the following decisions:1. AIR 1934 Privy Council 130 - Someshwar Dutt V.Tribhawan Dutt and another2. AIR 2004 Supreme Court 1284 - R.Karuppayee and another V. Raja Gounder3. AIR 1974 Supreme Court 1999 – Surendra Pal and others V. Saraswathi Arora and another.4. AIR 1927 Privy Council 42 –T.V.Kalayanasundaram Pillai V. Karuppa Moopanar andothers5. AIR 1932 Allahabad 174 – Mt. Latif Jahan BegamV. Md.Nabi Khan6. AIR 1938 Lahore 333 – Mt.Chandravati V. PanditJanti Parshad and another7. (2007) 4 MLJ464 – Kaliannan and another V.Balakrishnan (died) and another8. 1988-1-L.W. P.425 – M.S.Thanigachala Pillai V.Rukmani Ammal and others9. AIR 2003 SC 3120 – M.Rangasamy V. Rengammal andothers10.AIR 1973 Madras 421 (V 60 C 131) – IrudayamAmmal and others V. Salayath Mary54. In the light of the decision referred to in paragraphNos 35 and 36, namely, AIR 1961 Madras 190 (ABDUL MALICK Vs.MD.YOUSUF) as well as (2004) 9 SCC 468 (KRISHNA MOHAN KUL Vs.PRATIMA MAITY) and the findings as to the fiduciary relationship in which the first appellant was placed and the confidence reposed by the deceased in the first appellant and enjoyed by the first appellant taken advantage of by her in exerting influence on the deceased and further having regard to the suspicious circumstances relating to the execution the settlement deed we https://hcservices.ecourts.gov.in/hcservices/ do not find any support from these decisions to accept the case of the appellants . Consequently the appeal fails and the same is dismissed. However, there shall be no order as to costs. TheM.Ps are also closed.ksv/slSd/Asst. Registrar/true copy/Sub Asst. RegistrarToThe Sub Assistant Registrar, Original Side, High Court, Madras.+ 2 ccs to Mr. B. Harikrishnan, Advocate SR No. 10189+ 2 ccs to Mr. R. Thiagarajan, Advocate SR No. 10221, 10222O.S.A.Nos.330 and 331 of 2007JRG(CO)SR/27.2.2008