BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 07.03.2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN S.A.No.659 of 2007 Niranjan Reddy .. Appellant (Appellant/ Plaintiff) Vs. 1.Mrs.Nukalapathy Sururlatha 2.Mrs.E.Sathyavathamma 3.K.B.Subramaniam .. Respondents (Respondents/ Defendants) Prayer:- This second appeal has been preferred under Section 100 of CPC against the judgment and decree dated 09.03.2007 in A.S.No.363 of 2003 passed by the Additional District Judge, (FTC-II), Chennai, which had arisen out of the judgment and decree dated 16.06.2003 in O.S.NO.12671 of 1996 (C.S.No.884 of 1992) on the file of the VIII Assistant Judge, City Civil Court, Chennai. For Appellant : Mr.A.L.Somayaji, Senior Counsel for Mr.S.Subramanian For Respondents : Mr.P.Subba Reddy JUDGMENT This second appeal has been directed against the decree and judgment in A.S.No.363 of 2003 on the file of the Additional District Judge, (FTC-II), Chennai, which had arisen out of the decree and judgment in O.S.No.12671 of 1996. 2.The short facts of the plaint sans irrelevant particulars are as follows:- While the plaintiff was minor at the age of about two years he lost his father. The plaintiff's mother is the first defendant. Both the father of the plaintiff viz., Eswara Reddy and his mother Suhurlatha / first defendant were living at Madras till the death of the plaintiff's father Eswara Reddy and even thereafter, the first defendant continued to reside at Madras. The plaint schedule property Item No.1 belongs to the plaintiff under sale deed dated 10.04.1970, purchased out of the funds of the plaintiff while he https://hcservices.ecourts.gov.in/hcservices/ was minor. Plaint schedule Item No.2 property devolved on the plaintiff by succession after the death of his father. Even though Item No.1 to the plaint schedule was purchased in the name of the plaintiff from out of the funds of his father while the plaintiff was minor, the property was being lookedafter by the first defendant / mother of the plaintiff as guardian. Even the sale deed dated 10.04.1970 was taken by the first defendant / mother of the plaintiff as a guardian of the minor-plaintiff. Upto December- 1975 the plaintiff was studying at St.Bedes School at Chennai, and he completed his Senior Cambridge in June – 1977. The plaintiff's mother tongue was Telugu, but he does not know to read or write Telugu. After his school education, he joined in Engineering course at Bangalore and was pursuing his Engineering studies at Bangalore from 1977 to 1982. There was no sufficient income from the properties to meet the expenses of the plaintiff in pursuing his Engineering course. He had borrowed Rs.20,000/- on interest on the representation made by the first defendant / mother of the plaintiff as to the effect that she could not raise money from the properties and that she could not also manage the landed properties of the plaintiff at Nellore District and she requires some documents from the plaintiff authorising her to manage the properties, so that she would be in a position to raise money from the tenant and send the money to the plaintiff, to enable him to continue his Engineering Course at Bangalore. She had requested the plaintiff to go to Nellore on one working day to register the required document. The first defendant / mother of the plaintiff represented that since the plaintiff has become major, she could not collect the rent from the tenants in the property and so she requested the plaintiff to execute a document authorising her (first defenant / mother of the plaintiff) to collect the rent from the tenant. In view of the fact that the first defendant is his mother and the plaintiff had faith and trust in her and in view of the fact that the plaintiff had been requiring money to meet the educational expenses and in view of the fact that he had just attained majority and was under the influence of the first defendant, the plaintiff had to obey the mother who was legally in a position to dominate the will of the plaintiff. In the said situation as demanded by the first defendant / mother of the plaintiff, the plaintiff executed some documents in Telugu produced by the first defendant and also produced the same for registration in the bonafide belief that the said document was some authority for the first defendant to manage the property and raise money on the security of the same. In fact the first defendant stated that the document in question was merely an authority. The plaintiff does not know anything of Telugu language, though he is said to be a native of Nellore and the plaintiff believed the first defendant who got the documents prepared and she also stated that only when such a document was executed, she would be able to get some money by the management of the properties and more particularly described https://hcservices.ecourts.gov.in/hcservices/ in the schedule to the plaint and send the same for the plaintiff's education and expenses. After completing the course of education in Bangalore in view of the mental depression he could not pass the examination, he returned to Madras and had been living with the first defendant and since by that time he had been a major, after his return to Madras on or about 1982, the plaintiff himself had been collecting the rents and profits from the property till about March 1991 and thereafter, it was learnt that the first defendant / mother of the plaintiff had sold the property and that she had also sent a notice to the tenant/D3. The plaintiff came to know that the subsequent purchaser of the suit property has sent a notice to the tenant and thereafter the tenant/D3 refused to pay the rent to the plaintiff. From the notice the plaintiff came to know that two sale deeds had been executed on 11.03.1991 by the first defendant in favour of the second defendant in respect of the petition scheduled properties. From the recitals to the said sale deeds, the plaintiff was able to understand that there was a reference about the settlement deed dated 23.03.1982 said to have been executed by the plaintiff at Nellore District, Andhra Pradesh, in favour of the first defendant. The said document of settlement deed dated 23.03.1982 is in Telugu, which the plaintiff could not read and understand and thereafter, got the same translated and found to his shock and dismay that the said document purported to have been executed by the plaintiff is a settlement deed in respect of the properties scheduled to the plaint to the value of Rs.1 lakh. The said document has been obtained by the first defendant by virtune of undue influence by the first defendant. The plaintiff had executed the said deed of settlement without understanding anything of the same. The first defendant had practiced fraud on the plaintiff in so far as she represented while getting the said document executed as though it was required to give authority to her to manage the property when the plaintiff was away from Madras. The said document is a fraudulent document. The said document was not acted upon by the plaintiff. Till March 1991, the plaintiff was receiving rent from the tenants from the property. The plaintiff was not aware of the fraud practiced by the first defendant in view of the deference and respect he had towards his mother. The said document is vitiated by undue influence. The suit is not barred by limiation and the alleged settlement deed was not acted upon and the plaintiff, who is illiterate in Telugu, came to know about the fraud practiced in getting the settlement deed executed in favour of the first defendant and the nature of the document only in 1991 and since till 1991, the plaintiff was under the bonafide belief that the document got executed by the plaintiff was only to confer authority to the first defendant for management of the property on behalf of the plaintiff. Hence, the suit for declaration that the settlement deed dated 23.03.1982 is invalid, fraudulent and unenforceable and that the same is liable to be cancelled and set aside on the ground https://hcservices.ecourts.gov.in/hcservices/ of fraud and not binding on the plaintiff, and also for declaration that the sale deeds dated 11.03.1991 registered as Document Nos.410 & 411 of 1991 with the Sub-Registrar of Assurance at Mylapore executed by the first defendant in favour of the second defendant is liable to be cancelled and set aside, and for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property by the plaintiff, and for costs. 3.The first defendant has filed a written statement contending that the suit filed by the plaintiff is not maintainable and that the suit was filed by the plaintiff at the instigation of the third defendant, who is a party in the connected rent control proceedings initiated by the third defendant. The event that had happened after making the settlement deed in favour of the first defendant and also the event that had happened after making the settlement deed in favour of the first defendant i.e., after 23.03.1982 would establish the fact that the property, which has been settled in favour of the first defendant is absolute property of the first defendant and no other person is having right over the property. The marriage of the first defendant took place on 23.02.1957 and the plaintiff was born on 12.09.1959 and the property was purchased on 10.04.1970, the settlement deed was executed on 23.03.1982 and the first defendant issued legal notice on 15.03.1990, for which reply notice dated 08.04.1990 was received by the first defendant. The first defendant had issued another legal notice on 15.04.1991, for which she had received reply notice dated 29.04.1991, for which the first defendant had sent rejoinder notice dated 14.05.1991 and the third defendant had filed a petition in February-1992, for depositing the rents into the court. The plaintiff was three years aged when his father died. The plaintiff never inherited any ancestral property. The plaintiff brought the property through the funds of his mother when he was 11 years old. The plaintiff had settled the property in favour of his mother when he was 23 years old. The plaintiff recognised the title of his mother over the property after 23.03.1982. The first defendant was collecting rents from the third defendant. The plaintiff is very well aware of sale deed dated 11.03.1991 during the year 1991 itself in view of the notices issued by this defendant and the first defendant. The plaintiff is a party in rent control proceedings. The plaintiff has filed the suit after a lapse of 11 years from the date of settlement. Even after the execution of the sale deed a period of 2 ½ years lapsed. The allegation that the plaintiff is aware of the settlement deed only now is utterly false and it cannot be accepted by any stretch of imagination. At the time of the death of the first defendant's husband, the legal heirs are the first defendant, the plaintiff, Mrs.Aparna and Mrs.Anitha- daughters. After the death of the first defendant's husband, she (D1) along with her children settled at Madras in order to pursue https://hcservices.ecourts.gov.in/hcservices/ the education of her children. It is not correct to say that the property has been acquired by the funds of the plaintiff. The plaintiff had no financial capacity to buy the properties in the year 1970, since he was only 11 years old boy having no income of his own. The sale consideration for the said sale deed dated 10.04.1970 was provided by this defendant / mother of the plaintiff. The superstructures were constructed only from out of the funds provided by first defendant alone. The plaintiff had no source of income to purchase the property. After the death of Sri Eswara Reddy the entire property has been lookedafter by the first defendant, who settled at Madras for the same of her children's education. The plaintiff studied upto 3rd standard in St.John's school at Nellore in Telugu Medium and thereafter at St.Bedes School upto X standard at Santhome, Madras, which is nearer to the property. This defendant having lost her husband within 5 years of her marriage, lookedafter her children providing good education, shelter etc., It is totally false to say that the plaintiff is not aware of his mother tongue Telugu either to write or to speak. The plaintiff is well aware to write Telugu language since he has studied upto 3rd standard at Nellore. The plaintiff has executed various documents in Telugu language during the years of 1980, 1981 and 1982. The plaintiff used to talk only in Telugu and the first defendant made the plaintiff to study Telugu being his mother tongue. It is totally false to say that the first defendant has not forwarded money to pursue the plaintiff's education. After the death of her husband, the first defendant took her children to Madras and provided good education. Only because of the first defendant's efforts the plaintiff was made to study Engineering at Bangalore. It is totally false to say that the plaintiff has borrowed large sums of money from others to pursue the plaintiff's studies at Bangalore. The first defendant had sold major portion of their family properties for the education of the plaintiff and forwarded sums to the plaintiff, who was pursuing his Engineering studies at Bangalore at that time. But the plaintiff had joined with persons, who are undesirable character and cultivated bad habits and did not pursue his studies. Even in the early age, he cultivated bad habits like gambling, races, addiction to drugs etc., It is false to state that only due to undue influence of this defendant, the plaintiff had executed the settlement deed in favour of this defendant. Substantial properties of this defendant have been sold and had been spent for the education of the plaintiff. If the plaintiff's version is true this defendant would have obtained the power of attorney in order to manage the properties. There is no necessity for her to get the settlement deed in her favour for the purpose of managing the properties and also for the purpose of raising money from the properties. This plaintiff by natural love and affection on his mother made a settlement as this defendant is the person who brought up the plaintiff from the age of 3 years when his father died. With very https://hcservices.ecourts.gov.in/hcservices/ great difficulties this defendant had brought up her children. As stated earlier the first defendant sold major portion of her property and personal jewels and spent money for the education of the plaintiff and other children. Being only son to her, she provided all assistance like any other mother to the plaintiff. This defendant as stated earlier sold major portion of her landed properties belong to her husband and her family and all the amounts have been spent for the education of the plaintiff and to his habits. When the settlement deed was executed the plaintiff was aged about 23 years. He can very well execute survey or guarantee to raise money. Only to evade the responsibilities, he has executed the settlement deed. The plaintiff had pleaded in the plaint at to the fact that the settlement deed was executed only to raise funds from public. The plaintiff because of his bad company and bad habits left studies at Bangalore and joined with this defendant and stayed at Madras and became drug addict and harassed this defendant to the maximum extent. This defendant stayed with the plaintiff upto the year 1986 and when he became totally addict to all bad habits, the plaintiff used to beat this defendant mercilessly and there are occasions when bleeding injuries inflicted by the plaintiff on this defendant. Number of properties have been sold by the plaintiff by himself and in fact all these properties belong to this defendant and her family members. The plaint schedule properties are not ancestral properties of the plaintiff. Whenever the plaintiff requires money this defendant by selling family properties had raised funds and gave the same to the plaintiff. This defendant is a helpless widow and she had sold all her jewels for the welfare of the plaintiff. The first defendant left Madras for her native place Nellore due to the unbearable ill- treatement received by her at the hands of the plaintiff. It is false to say that the plaintiff came to know about the sale deed executed by first defendant in favour of the second defendant only from the notices issued by the first defendant. Those notices have been issued as early as 15.04.1991 by the first defendant to the third defendant. As soon as the sale deeds were executed in favaour of the second defendant by this defendant notice were issued only from the third defendant. The plaintiff would have known about the sale deeds executed by this defendant in favour of the second defendant. Keeping quite for a period of 11 years, the plaintiff has comeforward with this suit only for the purpose of dragging further the rent control proceedings. It is totally false to say that the plaintiff came to know about the settlement deed only after verification of the sale deed dated 11.03.1991. The notices have been issued about the sale deeds to the third defendant as early as April, 1991 itself. In May 1991 itself the plaintiff was aware of the sale deeds dated 11.03.1991 executed by this defendant in favour of the second defendant. Only at the instigation of the third defendant the plaintiff has filed the suit. The tenant in the property taking advantage of the https://hcservices.ecourts.gov.in/hcservices/ difference of opinions between the plaintiff and the first defendant, had instigated the plaintiff to file this suit. There was no undue influence or fraud played upon by the first defendant against the plaintiff. There was no undue influence or fraud played on the plaintiff by this defendant in getting the settlement deed executed in favour of the first defendant by the plaintiff. Only out of natural love and affection on his mother, the plaintiff had executed the settlement deed. The plaintiff is very well aware of the sale deeds executed by the first defendant in favour of the second defendant. The first defendant had executed a sale deed in favour of the second defendant after receiving the substantial sale consideration. The second defendant is a relative of the first defendant and the second defendant's family members are well- wishers of the first defendant's family. The plaintiff never had any occasion to earn money and acquire properties. When the property was acquired in the year 1970, the plaintiff was aged about 12 years. Taking into consideration all the family back ground and the position of the plaintiff, it goes beyond doubt that all his properties belongs to only to his defendant. The third defendant used undue influence and coercion on the plaintiff to file the present suit. The plaintiff was never in possession and enjoyment of the suit properties after the settlement deed. The first defendant has not conveyed more than the right she had over the property. It is wrong to say that the plaintiff did not question the sale deeds dated 11.03.1991 on the ground that he is not a party to sale deeds. Only to avoid stamp duty and to circumvent the situation in favour of the plaintiff the present claim has been made by the plaintiff. The correspondence between the plaintiff, D1 and D3 earlier to the sale deeds would show that the third defendant obtained rent from the property. The plaintiff is very well aware of the rights of the defendant over the property. Further the exchange of letters between the plaintiff and various statutory authorities would also establish that the plaintiff made a settlement in favour of his mother and it is not in dispute at any point of time. The second defendant is entitled to collect rent from the third defendant, who is a tenant of the suit property. The third defendant is liable to pay rent to the second defendant after the execution of the sale deeds in favour of the second defendant by this defendant. Aggrieved over the sale deeds executed by the first defendant in favour of the second defendant in respect of the suit property, the plaintiff has filed this vexations suit. The third defendant has already initiated proceedings to deposit the rent into the Court and in such circumstances the third defendant now instigated the plaintiff to file the present suit in order to avoid payment of rents to first defendant. The third defendant is now using the entire area of the building for his own use. The land area alone comes to one ground and 2042 sq.ft. The built up area comes to 4200 sq.ft. The third defendant is misusing the entire property for his own use. The https://hcservices.ecourts.gov.in/hcservices/ suit is time bared. Even at the time when this defendant met the plaintiff, the plaintiff behaved in a rude manner and she tolerated all the misbehavior done by the plaintiff. Now the plaintiff is confined to a small room in ground floor and the entire ground floor is used by the third defendant. The suit has been filed only at the instigation of the third defendant and not by the plaintiff himself. The suit is liable to be dismissed with costs. 4.The second defendant in her written statement would contend that the suit properties have been purchased by the second defendant from the first defendant on 11.03.1991. After the purchase of the property, the second defendant has filed rent control proceedings against the third defendant, who was in occupation of the suit property as a tenant. Only after the receipt of notice from this defendant, the third defendant has instigated the plaintiff to file the present suit against his mother, who is the first defendant in the suit. According to the second defendant, the settlement deed was executed in favour of the first defendant by the plaintiff when the plaintiff was 23 years old. The plaintiff's father had left behind him the first defendant / wife, plaintiff / son, and one Tmt.Aparna and Tmt.Anitha-duaghters. In other aspects, the second defendnt in verbatim has reproduced the averments in the written statement filed by the first defendant and ultimately the second defendant has prayed that the suit is barred by limitation and the same is liable to be dismissed with costs. 5.The third defendant, who is the tenant under the second defendant, in his written statement would contend that in the absence of the plaintiff, his mother (D1), in the capacity of the guardian of the plaintiff was collecting the rent from the third defendant and during the year 1986, the first defendant had intimated the third defendant to remit further rents to the plaintiff and because of the disputes between the plaintiff and the first defendant, the third defendant had filed a petition before the Rent Controller for permitting him to deposit the rent into the Court in respect of the premises in his occupation. As per the orders of the Rent Controller, the third defendant was depositing the rent into the Court regularly and there is no cause of action for the plaintiff against the third defendant and hence, the suit is liable to be dismissed as against the third defendant. 6.On the above pleadings the learned trial Judge had framed nine issues and after recasting Issue NO.6, conducted the trial. Before the trial Court, the plaintiff has examined himself as P.W.1 and had exhibited Ex.A.1 to Ex.A.6 and the first defendant had examined herself has D.W.1 besides examining D.W.2 to D.W.5 on her side. D.W.5 is the third defendant / tenant. On the side of the https://hcservices.ecourts.gov.in/hcservices/ defendant, Ex.B.1 and Ex.B.2 were marked. After going through both the oral and documentary evidence, the learned trial Judge has dismissed the suit on the ground that the plaintiff is not entitled to any of the reliefs asked for under the plaint.