IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:26.02.2008 CORAM: THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN O.S.A.Nos.330 and 331 of 2007 O.S.A.No.330 of 2003: 1. Suguna 2. K.Devi .. Appellants versus 1. Vinod G.Nehemiah 2. Padma Daniel 3. Prem G.Nehemiah 4. Jean B.Jeyamitra 5. P.Partheeban .. Respondents Respondents-3 and 4 represented by Power Agents Vinod G.Nehemiah and Padma Daniel. O.S.A.No.331 of 2003: Suguna .. Appellant versus 1. Vinod 2. Padma 3. Jeen .. Respondents ----- PRAYER: O.S.A.No.330 of 2007 is filed under Order XXXVI Rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent against the order of the learned single Judge of this Court dated 12.9.2007 made in C.S.No.153 of 2002. O.S.A.No.331 of 2007 is filed under Order XXXVI Rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent against the order of the learned single Judge of this Court dated 12.9.2007 made in Tr.C.S.No.374 of 2002. https://hcservices.ecourts.gov.in/hcservices/ For appellants in both the O.S.As. : Mr.T.V.Ramanujun Senior Advocate for Mr.B.Harikrishnan For respondents-1, 2 and 4 in O.S.A. No.330 of 2007 and respondents-1 to 3 in O.S.A.No. 331 of 2007 : Mr.R.Thiagarajan ----- JUDGMENT (Judgment of the Court was delivered by CHITRA VENKATARAMAN,J.) These two appeals arise out of the common judgment and decree passed in C.S.No.153 of 2002 and Tr.C.S.No.374 of 2002 dated 12.9.2007. O.S.A.No.330 of 2007 arises out of C.S.No.153 of 2002. O.S.A.No.331 of 2007 arises out of Transfer C.S.No.374 of 2002. The first appellant and the second appellant in O.S.A.No.330 of 2007 are the first and the second defendants in C.S.No.153 of 2002 and the appellant in O.S.A.No.331 of 2002 is the plaintiff in Transfer C.S.No.374 of 2002. 2. For the purpose of convenience, the parties are arrayed as per their rank in O.S.A.No.330 of 2007. The facts leading to the filing of the suits are as follows: Respondents-1 to 4 herein in this appeal filed a suit against the appellants in C.S.No.153 of 2002 seeking a declaration that the settlement deed dated 15.12.2000 executed by the plaintiffs' father J.V.A.Nehemiah was illegal, invalid, sham and nominal. They also sought for a direction to defendants-1 to 3 therein, to jointly and severally pay a sum of Rs.10,00,000/- with future interest at 24% per annum from the date of plaint till the date of realisation as damages. Apart from that, the suit relief sought for included a mandatory injunction directing the first defendant/first appellant herein to remove her belongings and 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 defendants-1 to 3 therein from interfering with the peaceful possession and enjoyment of the suit property; for a permanent injunction restraining the first defendant/first appellant herein from in any manner encumbering or dealing or alienating the suit property, apart from a decree for recovery of a sum of Rs.9,00,000/- as past damages with future interest at 18% 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. https://hcservices.ecourts.gov.in/hcservices/ 3. Transfer C.S.No.374 of 2002 was filed by the appellant herein seeking a decree of permanent injunction restraining the defendants/respondents herein from interfering with the peaceful possession and enjoyment of the suit property by the appellant herein, except by due process of law. 4. The respondents herein are the sons and daughters of one J.V.A.Nehemiah. The first and second respondents are living in India and the third and fourth respondents are living in United States, making annual visits. It is stated that the said J.V.A.Nehemiah was a United Nations Pensioner and he was the absolute owner of the property bearing Door No.9, Second Main Road, 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 said J.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 Executive in Mahendra Construction Co. Ltd. on a monthly rent of Rs.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. 5. Respondents-1 to 4 contended that the said J.V.A.Nehemiah passed away on 9th February 2002. He was 89 years old 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 eversince 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 with her 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 of 87 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 December 2000, the appellant herein attempted to occupy the ground floor of the suit property. This resulted in the first respondent giving a complaint 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 XVI Assistant City Civil Court, Chennai, in O.S.No.7398 of 2000 (in I.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 in O.P.No.19 of 2003 on 20th February 2003. 6. 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 against respondents-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 4 herein 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 Document 474/2001 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 to be compensated. 7. The suit was resisted by the first appellant herein by filing a written statement that the settlement deed dated 15th December 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 20 years. The specific case of the first appellant herein is that respondents-1 to 4 never took care of their father and it was this appellant who took full care of the needs of the deceased Nehemiah. 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. The first appellant pointed out that contrary to the assertion, Late Nehemiah was active and mentally sound. 8. On 19.12.2001, respondents-1 to 4 took away the deceased Nehemiah to an unknown place and thereafterwards, 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 Civil Court 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. 9. In the suit filed by the first appellant before the City Civil 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 deceased Nehemiah. She lived with her husband J.V.A.Nehemiah along with her two daughters and grand daughter. It is alleged that the cause of action of filing of the suit arose by reason of respondents-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 suit for injunction against respondents-1 to 4 was filed. Respondents- 1 to 4 herein filed their written statement in Transfer C.S.No.374 of 2002 reiterating the contentions as stated in C.S.No.153 of 2002. 10. 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.474 of 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 of J.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% per annum 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. Whether the plaintiffs are entitled for injuncton as against defendants 1 to 3 from interfering with their possession and enjoyment of the suit property? 6. Are defendants 1 to 3 entitled to alienate or deal with the schedules 'B' and 'C' mentioned properties either by way of mortgage, lease, sale, transfer or otherwise detrimental to the estate of late J.V.A.Nehemiah or plaintiffs? 7. Whether the plaintiffs are entitled for recovery of schedules 'B' and 'C' forming part of Schedule 'A'? 8. Whether defendants 1 to 3 are entitled to Rs.9 lakhs as past damages with interest at 18% per annum for use and occupation of the ground floor of the suit property? 9. Whether defendants 1 to 3 are liable to pay to the plaintiffs https://hcservices.ecourts.gov.in/hcservices/ Rs.25,000/- per month as damages for use and occupation of the premises till the date of surrender of portion of the suit property in ground floor schedules 'B', 'C' and 'D' forming Schedule 'A'? 10. To what relief are the plaintiffs entitled? In Transfer C.S.No.374 of 2002: 1. Whether the plaintiff is entitled to permanent injunction as prayed for? 2. To what relief, is the plaintiff entitled? 11. The first respondent deposed as P.W.1. Apart from him, the Doctor who was treating the deceased Nehemiah, also deposed as P.W.2. The Security Service, through their Proprietor, deposed on the side of the respondents as P.W.3. On the side of the appellant, apart from the first appellant as D.W.1, the appellant's daughter Devi, second appellant herein, also deposed as D.W.2. It is seen that the daughter who figured as the second defendant in the suit filed by respondents-1 to 4, was one of the attesting witnesses to the settlement deed marked as Ex.D1. On the side of the respondents the probated Will was marked as Ex.P3. It is seen from the perusal of the judgment that on the question of the validity of the settlement deed dated 15.12.2000, alleged to have been executed by Late J.V.A.Nehemiah in favour of the first appellant herein, it was seen that the property was a self- acquired property of the deceased Nehemiah. He died on 9.2.2002 at the age of 89 at Vellore. Ex.D1 is the settlement deed dated 15.12.2000 which was impugned in the suit proceedings. Respondents-1 to 4 pointed out that the deceased Nehemiah's will dated 23.7.1997 was probated under the proceedings marked as Ex.P3 dated 7.2.2003. As per the terms of the will, Nehemiah gave an absolute right to the first respondent with a covenant that the property shall not be sold. In the event of the said first respondent desiring to sell the property, the sale proceeds should be shared by all the children. Apart from bequeathing his property to the children, the deceased Nehemiah also had bequeathed certain sums of money in favour of the servants who had worked for the deceased Nehemiah and one of them happens to be the first appellant herein. The settlement deed is a subsequent document of the year 2000. Dealing with the challenge as to the validity of the settlement on grounds of undue influence and fraud played on, it was pointed out that with reference to Section 16(3) of the Indian Contract Act, 1872, the first appellant admitted that she maintained a fiduciary relationship with the deceased Nehemiah; as such, she was in a position to dominate the will of Nehemiah. In the circumstances, learned single Judge held that the onus to establish that there was no fraud, misrepresentation or undue influence rested on the appellant herein and not on respondents-1 to 4 as plaintiffs. It was also pointed out that D.W.2 who was an attesting witness, was none other than the daughter of the first appellant. The other attesting witness was the driver who served along with the first appellant. It was pointed out that the first appellant categorically stated that she did not know whether the contents of the document were read over and explained to the deceased Nehemiah. The other attesting https://hcservices.ecourts.gov.in/hcservices/ witnesses or the scribe of the document Ex.D1, were not examined to the effect that the deceased signed the document after understanding the contents of the document and the implications thereof. It was also pointed out that the document was presented for registration on 15.12.2000. However, on account of the deficit fee, the same was released after due registration on further payment of the stamp duty of Rs.38,400/- collected from the first appellant. Learned single Judge pointed out that although the first appellant denied her presence at the Registrar's Office at the time of registration and presentation of the document, yet, on the basis of the evidence and taking note of the cumulative circumstances, held that the first appellant actively participated in the execution of the document. Pointing out to the fact that the first respondent was frequently visiting his father and had been taking care of the deceased and also to the effect that one of the daughters was making visits to take care of her father, the submission of the first appellant that the deceased was completely left unattended by his children was not acceptable. Learned single Judge also pointed out that although in Ex.D1 the appellant was stated as the wife of the deceased Nehemiah, at the same time, it was recited therein that she was working in the house of Nehemiah. The settlement deed Ex.D1 also did not contain any reference as to the recital in the will, wherein, the deceased Nehemiah had categorically stated that the first respondent would inherit the property absolutely. Having regard to the fact that the first respondent had been making frequent visits and taking care of his father, it was a mystery as to why the deceased kept the execution of the document as a guarded secret. Learned single Judge pointed out that the transaction was not only an unnatural one, but also an unconscionable execution. Comparing the recitals in the will as well as in the settlement deed as to the services rendered by Suguna, the first appellant herein, learned single Judge pointed out that if really the deceased had intended to part with half of the properties to the first appellant herein, certainly as a party to the document who had been given a share in the property, she could have disclosed the same at the first instance when she laid the suit. However, the disclosure as to the settlement deed came after 17 days in the counter affidavit filed by her. Learned single Judge also pointed out the letters written by the tenant K.V.Nair Exs.P12 to P14 to Nehemiah and Ex.P15 to the first respondent herein. Referring to the evidence of P.W.2, the physician who attended on the deceased, learned single Judge pointed out that the Doctor had categorically observed in his recommendatory letter on 10.12.2001 that the physical and mental problems that the deceased faced need a medical care by one of the family members on a daily basis or by taking him to Vellore where the first respondent was residing for giving him treatment in the Vellore Mission Hospital. It was also pointed out that the judgment and reasoning and the mental condition of Nehemiah were not normal. In the face of this assertion by the Doctor as to the mental capacity of the deceased which had deteriorated on account of his age, learned single Judge pointed out that the settlement deed was executed by exerting pressure and undue influence by the appellant herein, taking advantage of the mental condition of the https://hcservices.ecourts.gov.in/hcservices/ deceased on account of his old age. In the above circumstances, learned single Judge held that the settlement deed dated 15.12.2000 was not a true and valid document and the real owners are the respondents who are the legal heirs of the deceased Nehemiah, whose rights flowed from the probated will marked as Ex.P3. 12. On the question of damages claimed, learned single Judge, however, rejected the plea of respondents-1 to 4 herein as having no nexus with the original cause of action of the suit. It is admitted that there is no cross appeal by respondents-1 to 4 herein. On the question of Issue Nos.8 and 9, learned single Judge pointed out that the appellant was bound to pay a sum of Rs.13,000/- per month from 14.12.2001 to the plaintiffs/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. 13. 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 dated 15.12.2000 executed by the plaintiff's father J.V.A.Nehemiah was illegal, invalid, sham and nominal; for a direction to the appellants/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 herein to 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 at 18% 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 totally unsustainable, considering the fact that the pleading on the allegation of undue influence is vague. Learned senior counsel further pointed out that in the absence of pleading on the question of undue influence, learned Judge erred in placing the burden on the appellant. Pointing out to Section 16 of the Indian Contract Act, 1872, learned senior counsel submitted that there was absolutely no pleading or evidence or facts pointing out or substantiating the allegation on undue influence. Referring to paragraphs 5, 7, 8 and 9 of the plaint, learned senior counsel pointed out that the mere usage of the phrase "fraud", per se, is not sufficient to declare the document as non-est in law as being brought about by fraud and undue influence. He submitted that the settlement deed dated 15.12.2000 was registered on 2.5.2001. The factum of execution and the registration of the same were denied by respondents-1 to 4 herein. In the face of Order VI Rule 4 of https://hcservices.ecourts.gov.in/hcservices/ C.P.C., the mere usage of the words borrowed from the Indian Contract Act, 1872 does not entitle respondents-1 to 4 to a decree. Submitting that a constructive possession pursuant to the settlement deed could be good enough to hold that the first appellant was put on possession, he pointed out that if really there had been an undue influence practised on the settlor, there was time enough for the settlor to recall the document. On the other hand, the deficit duty on the document presented for registration was made five months after its presentation. There are absolutely no materials to suggest that the first appellant coerced the settlor to execute his settlement deed. It was submitted that the circumstances, hence, clearly pointed out the total absence of any fraud and undue influence as alleged by respondents-1 to 4. Referring to Order VI Rule 2 of the C.P.C., he submitted that in the absence of a specific issue raised and a pleading to that effect, the mere usage of the term that the deceased was mentally not alright or that the first appellant instigated the deceased to execute the document by exercising undue influence and coerced the deceased, will not be good enough to dislodge a