IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE THIRTYFIRST DAY OF OCTOBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.129 of 2010 Between: Tarigopula Meenaiah @ Munaiah and another .. Appellants AND Peddi Sudhakara Rao .. Respondent JUDGMENT: The Second Appeal is directed against the judgment and decree in A.S.No.1 of 2009 on the file of the District Judge’s Court, Guntur, dated 11-12-2009, by which the appeal was dismissed with costs and the judgment and decree in O.S.No.42 of 2002 on the file of the Senior Civil Judge’s Court, Bapatla, dated 17-10- 2008 decreeing the suit with costs were confirmed. The parties are referred to herein as they are arrayed before the trial Court. The plaintiff filed the suit to declare his absolute title to the plaint schedule property consisting of Ac.2.81½ cents in D.No.24 and Ac.2.95 cents in D.No.334/2 of Kondapaturu village, for consequential possession from the defendants free from their claims, future mesne profits, costs and other appropriate reliefs. The plaintiff claimed that Tarigopula Annapurnamma, wife of Kalidas, is the sister of his mother and out of her affection and out of her own free will, she voluntarily executed and registered an unconditional and irrevocable gift deed for the plaint schedule property in favour of the plaintiff on 07-11-1983. She reserved a life estate for herself and conveyed the vested remainder to be enjoyed by the plaintiff absolutely after her life. There was a specific condition that she would not alienate the suit property during her life time. The gift deed was drafted on the instructions of Annapurnamma to the scribe, who read over the contents after drafting to Annapurnamma, who accepted the same and executed the document in the presence of attestors and scribe. Annapurnamma admitted voluntary execution of the gift deed before the Sub-Registrar also at the time of registration and the plaintiff, who accepted the gift, became the absolute owner of the property since 07-11-1983 with the possession and enjoyment of the property being deferred till after the life time of Annapurnamma. The original gift deed was claimed to have been misplaced due to which a registration extract has been filed. The plaintiff came to know that Tarigopula Annapurnamma unilaterally revoked the gift deed by a subsequent registered document dated 17-09-1996 with false recitals, which is void abinitio as she had no right of revocation. The revocation deed dated 17/18-09-1996 cannot confer any title and subsequently Tarigopula Ravindra Babu, an attestor of the gift deed dated 7-11-1983, and Annapurnamma connived with the defendants and executed registered gift deeds dated 26-09-1996, in favour of defendants 1 and 2 in respect of items 2 and 1 of the plaint schedule property as if Annapurnamma had absolute title to convey. The defendants can at best possess and enjoy the suit property only till the life time of Annapurnamma and Annapurnamma died on 09-04-2002. After the death of Annapurnamma, the plaintiff and his father demanded the defendants to deliver the possession of the property for which the defendants refused and hence, the suit. The defendants resisted the suit contending that the alleged registered gift deed dated 7-11-1983 was not drafted as per the instructions of the donor and was not properly attested in the presence of the donor. The sister of the donor and her well wishers obtained the signatures of the donor on the document, who was not present at the time of execution or registration of the document. Annapurnamma had no affection towards the plaintiff and she was looked after by the defendants and other members of the family. She never expressed any wish to gift any property to the plaintiff and never informed the defendants or anybody else about the execution of the registered gift deed. The mother of the plaintiff and her well wishers must have had undue influence on Annapurnamma and must have got some document. The plaintiff would not have kept quiet without questioning the revocation deed dated 17-09-1996 or the gift deeds dated 26-09-1996 during the life time of Annapurnamma. The non-production of the original gift deed itself creates doubts about the genuineness of the document and Annapurnamma herself stated in the revocation deed about the fraudulent representations of the plaintiff and his mother. Any acceptance of such gift deed by the plaintiff was not as per law and Tarigopula Ravindra Babu has no cordial terms with the defendants. Even the signatures of the attestors on the gift deed must have been forged or manipulated and the registered revocation deed and registered gift deeds executed by Annapurnamma are true, valid and binding on the plaintiff. The suit lands were in the possession of the statutory tenants even during the life of Annapurnamma and Ramineni Siva Rama Prasad for item No.1 and Guntupalli Sivaiah for item 2 of suit schedule are the lessees attorned to the defendants and the suit is bad for non- joinder of the tenants. The suit had no cause of action and the plaintiff or his father never demanded the defendants to deliver possession after the death of Annapurnamma. The relief of declaration of title is unnecessary and hence, the defendants sought for dismissal of the suit with costs. On such pleadings, the trial Court had framed the following issues for trial. 1) Whether the revocation deed dated 17-09-1996 is void? 2) Whether the gift deed dated 26-09-1996 executed by T. Annapurnamma in favour of the defendants is true and valid? 3) Whether the gift deed dated 7-11-1983 executed by T. Annapurnamma in favour of plaintiff is true and valid? 4) Whether the suit is bad for non-joinder of parties? 5) Whether the plaintiff is entitled for declaration and possession as prayed for? 6) Whether the plaintiff is entitled for future profits? 7) To what relief? During trial, PWs.1 and 2 and DWs.1 to 5 were examined and Exs.A.1 to A.5 and B.1 to B.12 were marked. The trial Court rendered its judgment referring to the pleadings, issues, evidence and arguments. While the plaintiff and his father as PWs.1 and 2 reiterated the suit claim, the 1st defendant was DW.1, Ravindrababu, one of the attestors of Ex.A.1 gift deed in favour of the plaintiff dated 7-11-1983, was DW.2, and DWs.3 to 5 were examined to show that the defendants and their father looked after Annapurnamma till her death and performed her obsequies and that Annapurnamma had much love and affection towards the defendants. DW.2 tried to claim that when he signed on Ex.A.1 as the 2nd attestor at the house of PW.2, the signature of the 1st attestor was not there nor was there the signature of Annapurnamma or PW.2. However, DW.2 admitted being an identifying witness though he claimed to have not witnessed Pothineni Veera Raghavaiah signing on Ex.A.1. The trial Court opined that the Sub-Registrar would not have acted without due signatures and without the presence of the donor. It also took adverse note of absence of any steps by the defendants to probablise the signature of Annapurnamma on Ex.A.1 to be forged. The trial Court, hence, placed no reliance on the evidence of DW.2 and with reference to the contents of Ex.A.1-registered gift deed, it found that Annapurnamma did not reserve her right to cancel or revoke the gift deed. Ex.A.1 was considered to be unconditional and irrevocable proved by PW.2, the attestor of Ex.A.1. While opining that PW.2’s evidence cannot be discarded merely because he is father of the plaintiff, the trial Court found nothing in the evidence of DWs.2 to 5 to probablise any undue influence in obtaining Ex.A.1. DW.2 did not speak about any such aspect and the trial Court also further noted that Annapurnamma never issued any notice to the plaintiff about her intention to revoke the gift and the defendants also never issued any notice questioning the validity of Ex.A.1 or asserting the validity of Exs.B.1 and B.2. The trial Court also felt that the plaintiff did not object concerning the possession of the properties during the life time of Annapurnamma as such a right of enjoyment was reserved under Ex.A.1 and the trial Court concluded that Annapurnamma had no alienable right subsequent to Ex.A.1. The contention about the plaintiff never looking after Annapurnamma after Ex.A.1 was ignored as the same was not a condition under Ex.A.1 and the revocation and gift under Exs.B.1 and B.2 were 13 years after Ex.A.1, after which Annapurnamma lived up to 2002. The silence of Annapurnamma for 13 years was considered incompatible with any undue influence and the trial Court, referring to the precedents cited on either side, concluded Ex.A.1 gift deed to be valid and binding on the defendants and Exs.B.1 and B.2 to be invalid in law. The objection regarding non-joinder of necessary parties was also rejected in the absence of any relevant evidence and consequently, the trial Court declared the title of the plaintiff to the suit property, directed delivery of possession by the defendants within three months and relegated ascertainment of future mesne profits to a separate application. In the appeal against the said judgment and decree, the First Appellate Court considered the truth, validity and binding nature of the gift deed in favour of the plaintiff and the revocation deed and gift deeds in favour of the defendants. The First Appellate Court noted that while the relationship between the parties is not in dispute, DW.2 admitted execution of Ex.A.1 under which life estate was reserved by Annapurnamma and the vested remainder was given to the plaintiff. Annapurnamma was not a stranger to the plaintiff and resided with the mother of the plaintiff for some time and there is nothing improbable in gifting the property to the plaintiff as she had no issues. Annapurnamma never filed any suit for cancellation of Ex.A.1 during her life time of about 20 years after Ex.A.1. The First Appellate Court also followed a decision of the Madras High Court in AIR 2002 Madras (1) for concluding that Annapurnamma had no right of revocation left and consequently, the revocation deed and the subsequent gift deeds were not acted upon by the First Appellate Court also, which considered the rights of the defendants, if any, in the suit property, to have extinguished with the death of Annapurnamma since when the plaintiff became the absolute owner. Hence, the appeal was dismissed with costs. The defendants challenged the same in this second appeal contending that the Courts below depended on the mere nomenclature of Ex.A.1 to determine its validity. The independent evidence of DW.2 that Annapurnamma never intended to gift the property and deliver it to the plaintiff should have been appreciated and the property was not delivered to the plaintiff to treat it as a gift. When the executant cancelled the devolution of property on the plaintiff after her death, Ex.A.1 could not have been considered to be in existence and the son of one of the attestors of Ex.A.1 clearly stated as DW.5 that the signature does not belong to his father. PW.1 admittedly had no disputes with DWs.2 to 5 and Ex.A.1 is in the nature of a Will irrespective of its nomenclature and can be revoked at any time during the life time of the executant. Hence, the defendants contended the second appeal to involve substantial questions of law raised by them. A learned Judge of this Court admitted the second appeal on the questions raised by the defendants as substantial questions of law as follows: 1) Whether the nomenclature of the document alone is the criteria to determine the validity of the document? 2) Whether the document contains recitals of Will can be treated as Settlement Deed? 3) Whether the document under Ex.A.1 is irrevocable, though no rights have been conferred by the executant during her life time in favour of the plaintiff? 4) Whether Ex.A.1 can be treated as valid document, though attesting witnesses deny their signatures? Sri N. Subba Rao, learned counsel for the appellants and Sri Ghanta Rama Rao, learned counsel for the respondents advanced their arguments in extenso with reference to the various precedents. The points for consideration in the second appeal are the substantial questions of law on which it has been admitted and as all the four questions are closely interlinked, they are being dealt with and answered together. Ex.A.1 registered gift deed dated 7-11-1983 was written on stamps purchased in the name of T. Annapurnamma on the same date and the donor recited the affection towards her sister’s son, who is also her son to be the reason for her intention to convey some of her property to the plaintiff with her love and affection alone as the consideration. The document further recited conveyance of the property to the plaintiff under the document itself though possession was retained with Annapurnamma to be taken over by the plaintiff after her life to be enjoyed with absolute rights. Annapurnamma undertook under the document that during her life, she will not alienate the property in any manner. The document appeared to contain the signatures of Annapurnamma on all pages and to have been attested by three witnesses including DW.2 and the father of DW.5 and scribed by one N. Venkata Krishnaiah. DW.2 and the father of DW.5 also appeared to be the identifying witnesses before the Sub-Registrar with Annapurnamma signing in token of the execution before the Sub- Registrar also. The document underwhich Annapurnamma undertook not to raise any disputes about the property by herself or any persons claiming through her does not appear vitiated by any of its contents and the plain and unambiguous language of the document indicates a gift pure, simple and unconditional and the specific recitals exclude any construction of the document to be in the nature of a Will revocable at will by the executant. The specific stipulations about conveying the property under the document itself, undertaking not to raise any disputes and to resolve any such disputes at the cost of the donor and further undertaking not to alienate the property in any manner during the life time of the donor militate against any contents of the document being construed to be in the nature of a Will. Ex.B.1 registered revocation deed dated 17-09-1996 alleged that Annapurnamma was made to believe that she can lead the rest of her widowed and lonely life at the house of the plaintiff, who promised to look after her and take care of her medical and other needs and that prior to 7-11-1983, she was taken to plaintiff’s house and was being served making her believe about such services in future. Ex.B.1 alleges the execution of Ex.A.1 to be under such circumstances and Annapurnamma was claimed to have stated in Ex.B.1 that the unkept promises of the plaintiff led her to revoke the gift deed. While Ex.A.1 made no reference to Annapurnamma being persuaded to believe any promises of the plaintiff to look after her for the rest of her life or any services rendered prior to 7-11-1983, Ex.B.1 itself admits that the gift deed was obtained without mentioning such aspects and specifying that Annapurnamma will not alienate the property in any manner during her life. DW.2 happens to be attestor and identifying witness for this document also executed about 13 years after Ex.A.1 and within 9 days thereafter she was claimed to have executed Exs.B.2 and B.3 in favour of the defendants respectively gifting and delivering the suit schedule properties. While Exs.B.4 to B.12 cist receipts have no bearing on the questions in issue, the death of Annapurnamma on 9-4-2002 is proved by Ex.A.5-death extract. The plaintiff as PW.1 reiterated the suit claim and he claimed that Annapurnamma lived with them from 1983 to 1995. He claimed the contents of Ex.A.1 to be on the instructions of Annapurnamma who joined their family about two months prior to Ex.A.1. While his lapses of memory about the details of the events at the time of execution of Ex.A.1 is not unnatural due to lapse of time, even if his ignorance as to who performed obsequies of Annapurnamma may not indicate continuance of cordiality between Annapurnamma and the plaintiff till her end, the question involved is about any factors vitiating Ex.A.1, but not about the plaintiff showing his gratitude by looking after Annapurnamma till her end. The relationship between the plaintiff and Annapurnamma is not such as would make the gift unnatural. The father of plaintiff as PW.2 also deposed to the same effect and there are no significant contradictions between the plaintiff-PW.1 and PW.2. The ignorance of the plaintiff about Exs.B.1 to B.3 till after the death of Annapurnamma in contrast with the knowledge of PW.2 about them within one week from the date of their execution and the inaction by the plaintiff to challenge Exs.B.1 to B.3 during the life time of Annapurnamma are not of much significance, as PW.2 explained that his brother-in-law G. Venkateswarlu advised them to keep quiet till the death of Annapurnamma as they have no right till such time. As Annapurnamma reserved life estate under Ex.A.1, the claim is not unnatural and PW.2 admitted that by the time of death of Annapurnamma, she was at the house of the defendants. While both PWs.1 and 2 denied any undue influence in obtaining Ex.A.1, DW.1, the 1st defendant, could not identify the signature of Annapurnamma or the signatures of DW.2 and the father of DW.5 on Ex.A.1 and he does not know the contents of Ex.A.1. He could not identify the handwriting of the scribe of Ex.A.1 and he does not know whether DW.2 and DW.5’s father were attestors and N. Venkata Krishnaiah, was scribe of Ex.A.1. DW.1 was also unaware whether Annapurnamma ever issued any notices to PWs.1 and 2 about any misrepresentation or fraud vitiating Ex.A.1 and he admitted that Annapurnamma never informed him about any such fraud or misrepresentation by PWs.1 and 2. DW.1 was patently not present at the time of execution of Ex.A.1 or its registration and he cannot be a dependable witness for the circumstances under which Ex.A.1 came to be executed. DW.2 admitted his signature on Ex.A.1 as second attestor and identifying witness and his claims about attesting the document even without the signature of executant do not sound convincing or natural. DW.2 does not speak about any promises by PWs.1 and 2 to Annapurnamma persuading her to execute Ex.A.1 and DW.2 admitted that Annapurnamma never discussed about Ex.A.1 with him. The claims of DW.2, who admittedly subscribed to Ex.A.1 as attestor and identifying witness, do not inspire any confidence and the evidence of DWs.3 and 4 is about Annapurnamma being looked after by the defendants and not PWs.1 and 2, which has no relevance to the validity or otherwise of Ex.A.1. DW.5 claimed that the signatures on Ex.A.1 of one P. Veera Raghavaiah are not those of his father and the witness admitted that his father and Annapurnamma were cordial with each other and that he cannot identify the signature of Annapurnamma. He had no document or any other papers containing the handwriting and signatures of his father to indulge in any comparison and when the execution of Ex.A.1 is admitted by Annapurnamma in Ex.B.1, the evidence of DWs.2 and 5 attempting to create doubts on the due execution and registration of Ex.A.1 cannot be of any significance. The due execution and registration of Ex.A.1 were not specifically disputed in Ex.B.1, which only claimed the document to have been obtained either on a misrepresentation or due to fraud or under undue influence. With this factual background, the precedents relied on by either side need to be examined with reference to their applicability to the facts and circumstances probablised by the evidence on record. In Rash Behari Naskar and others v. Haripada Naskar and others[1], it was held that under Section 19 (a), Contract Act, when consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the party whose consent was so caused and if a contract made under undue influence naturally could not be cancelled until the undue influence was removed, it is open to the legal representatives to raise the defence of undue influence within three years after the contract. While the defendants seek to rely on this precedent for showing their entitlement to raise the plea of undue influence even after the death of Annapurnamma as her legal representatives, the precedent also signifies that a contract vitiated by undue influence is not per se void, but is only voidable. If the party whose consent was caused by undue influence did not avoid the same or if the party or even his legal representatives did not avoid the same within the period of limitation, the validity of the contract does not appear to be questionable as per the decision and in the present case, Annapurnamma had an opportunity of avoiding Ex.A.1 at least after 13 years after execution of Ex.A.1, when she executed Ex.B.1 revocation deed and living thereafter for about six years and even after her death, the defendants claiming to be her legal representatives did not initiate any legal action independently or in this suit to nullify Ex.A.1 by avoidance. When the voidable contract was not avoided as per law, whether Exs.B.1 to B.3 could have afforded a valid defence to the suit is doubtful. In Dubash D.K. Ahmad Ibrahim Sahib v. A.K.R.M.K. Meyyappa Chettiar and others[2], a Division Bench held that 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 on the person in a position to dominate the will of the other. It was also observed that it may well be argued that when there is evidence of overpowering influence and the transaction brought about is immoderate and irrational, proof of undue influence is complete. The allegation herein about the sister or her son, the plaintiff being in a position to dominate the will of Annapurnamma is sought to be inferred from the loneliness of Annapurnamma and the relationship of PW.1 and his mother, but not on any positive evidence. Otherwise, the gift under Ex.A.1 by the old issueless widow to her sister’s son out of love and affection cannot be normally said to be appearing on the face of it to be unconscionable or immoderate or irrational. If overpowering influence or ex facie inducement of the transaction by undue influence are not probablised by the evidence on record, the plaintiff not discharging any negative burden of proof to show the absence of any exercise of undue influence cannot lead to any presumption of absolute proof of undue influence. At best, what was proved was the existence of such relationship as would make undue influence possible with nothing further to indicate the exercise of any such undue influence as concluded by the Courts below. In Inche Noriah binte Mohamed Tahir v. Shaik Allie bin Omar bin Abdullah Bahashuan[3], an illiterate widow entirely dependent on her nephew for food, clothes and management of her affairs was claimed to have made a gift to the nephew and such relations were held to be amply sufficient to raise the presumption of the influence of the nephew over the woman rendering it incumbent upon him to prove that the gift was the spontaneous act of the woman acting under circumstances, which enabled her to exercise an independent will to justify the Court holding it to be so. Referring to various precedents, one of the obvious ways to prove free exercise of independent will was stated to be independent and qualified advice. In the present case, Annapurnamma was not shown to be a helpless feeble woman totally and entirely dependent on PW.1 or PW.2 or PW.1’s mother and it is the specific case of the defendants