TALENGALA NARAYANA BHATTA Vs. NARSIMHA BATTA

JUDGEMENT

(1.) This is an appeal by the 1st defendant from a decree in a suit for setting aside a settlement deed and a will executed by the plaintiff. The suit was instituted by the next friend of the plaintiff. The plaintiff died since the filing of the appeal. The plaintiff was about 75 years of age at the time when he executed these documents. He was a Naik Brahmin by caste. He had married thrice, but had no children by his first two wives. The third wife is the 2nd defendant. She had two daughters Parameswari Amma, and Adithiamma by him. The latter is the next friend of the plaintiff. Parameswari Amma has 7 children, 5 males and 2 females; the 1st defendant is the eldest of them. Adithiamma has two children, a son and a daughter. The husband of Adithiamma died sometime in 1937 and their children were very young at that time. The properties left by the husband could not be looked after by them. The plaintiff and his wife therefore stayed with Adithiamma and her children at Madakatte from 1938 and looked after their affairs till 1950. In 1950 they shifted their residence to Pathur Village i. e. to Sodankur after having constructed a house there and were residing there. The 1st defendant was residing with them since 1955 and was assisting the 2nd defendant as the plaintiff was suffering from diabetis. The case of the plaintiff was that the 1st defendant by taking advantage of the weak condition of the plaintiff got a will executed by him bequeathing almost all his properties to the 1st defendant. Plaintiff's further case was that in December, 1955, he was taken to Mangalore under the pretext of giving him medical treatment, and that while he was there, he was made to execute a settlement of his properties, Ext. B3, that he was unable to understand the nature and the contents of Ext. B3 when he executed the same, that at the time he was unable to manage his affairs on account of his weak intellect and old age, that his affairs were being managed by the 1st defendant and that he took undue advantage of his helpless position. Under the settlement the bulk of the properties belonging to the plaintiff were given to the 1st defendant, the plaintiff reserving a life interest for himself and making a provision for the maintenance of his wife, the 2nd defendant. The document was registered on 15-12-1955. The substantial ground on which the settlement was sought to be set aside was that the 1st defendant under the guise of assisting the 2nd defendant was really managing the affairs of the plaintiff: that the plaintiff on account of his illness became weak in mind and body and that he was unable to understand and appreciate the nature of the documents he executed: that the settlement was executed under undue influence and on account of fraud of the 1st defendant: that the settlement did not disclose the true state of affairs: that the debts alleged to be due to the 1st defendant's father and his uncle and set out therein were not really due: that the debt actually due from the plaintiff under a pronote executed in favour of the son of the next friend was omitted to be mentioned: that but for the undue influence and compulsion of the 1st defendant the plaintiff would have given the properties to his two daughters and all their children and would not have given the 1st defendant the bulk of the properties: that the provisions in Ext. B3 were unconscionable: and that the recital therein that the plaintiff's next friend was given large amounts in the past was false.

(2.) The substantial contention of the 1st defendant was that he was not in a position to dominate the will of the plaintiff, that the plaintiff, although he was suffering from diabetis was not of weak intellect, that he was able to manage his affairs and did not require the assistance of any person: he further contended that Adithiamma and her son proved ungrateful to the plaintiff and that it was because of that they were excluded from his bounty in the settlement, that the plaintiff was taken to Mangalore for treatment as advised by Dr. K. P. Ganesan and not for the purpose of making him execute any document clandestinely, that while the plaintiff was in Mangalore he expressed his desire to execute a settlement, that on 13-12-1955 the settlement was executed and it was attested by two doctors and was registered by the Sub Registrar, that the allegation in the plaint that the doctors attested Ext. B3 under the influence of the 1st defendant was false, that item No. 2 in the plaint A schedule which is a garden land in Bayar village was not the subject matter of the settlement deed, that the movable properties described in the B schedule were not included in the settlement. It was further contended that the document was executed by the plaintiff voluntarily of his own free will and judgment and that it was not liable to be set aside on any of the grounds mentioned in the plaint.

(3.) The 2nd defendant supported the plaintiff's case.