K M MADHAVAKRISHNAN Vs. S R SAMI

JUDGEMENT

(1.) THE Additional plaintiff in O.S. No. 71 of 1968, who is the son and legal representative of Paramayee Ammal, the deceased first plaintiff, is the appellant. Paramayee Ammal having died pending suit, her son the appellant was brought on record as her legal representative. Paramayee Ammal filed the suit for a declaration that the agreement of sale executed by her in favour of defendants 1 and 2 on 17th June, 1967 was void and inoperative and for other reliefs. THE suit was dismissed by the trial Court and consequently the present appeal has been filed.

(2.) THE facts of the case may be briefly set out as follows: One Marimuthu Pillai, the husband of Paramayee Ammal was the owner of an extent of 4.04 acres of land comprised in T.S. No. 1332 in Erode Town. Marimuthu Pillai died in 1953 leaving two widows one of whom was Paramayee Ammal and two sons Venugopal and Rajagopal through his first wife and a son Madhavakrishnan, the appellant herein and a daughter Lakshmi though his second wife Paramayee Ammal. On the death of Marimuthu Pillai disputes arose between the first plaintiff on the one hand and her son, the second plaintiff and step-sons on the other. THE deceased first plaintiff was living separately in Vellala Street in Erode while her sons were living in Kaveri Street. THE second plaintiff filed O.S. No. 111 of 1954 on the file of the Sub-Court, Coimbatore for partition and recovery of his share in the suit property. In that suit a preliminary decree was passed and pursuant to the preliminary decree, an interim final decree was passed on 19th November, 1954, by which the suit property was allotted to the deceased first plaintiff Paramayee Ammal. Purusuant to the interim final decree, the deceased first plaintiff took possession of the suit property. On 14th May, 1966 the deceased first plaintiff leased out the suit property to defendants 3 and 4 under Exhibit B-16. Pursuant to the lease, defendants 3 and 4 were enjoying the property. Besides the suit property, the deceased first plaintiff had other properties which were yielding considerable income. While so, the second defendant who was a relation and employee under Marimuthu Pillai pretended that he was very much interested in the welfare of the deceased first plaintiff and taking advantage of the strained relationship "between her and her sons, gained her confidence. THE result was that he was put in charge of the collection of rents, letting out the properties etc., on behalf of the deceased first plaintiff and she was acting as per his suggestions and instructions in routine matters for nearly fifteen years. While so, defendants 3 and 4 were not paying rents properly to the deceased first plaintiff and they fell into heavy arrears. THEy were not willing to surrender possession either. At the same time, they had inducted a number of persons as subtenants. THE second defendant therefore informed the deceased first plaintiff that the first defendant who owned a turmeric mandi and a theatre was a very influential man of the locality. He further suggested that if a document was created in trust in the name of the first defendant with suitable recitals it would intimidate and induce defendants 3 and 4 and their sub-tenats to surrender possession of the property. THE second defendant is said to have further stated that if the fact of the execution of such document is circulated in the locality, her son, step-sons and other members of the family would come forward to take effective steps to get defendants 3 and 4 evicted from the suit property. THE, deceased first plaintiff, without realising the import and impact of the. suggestion of the second defendant and placing great reliance, on the confidence she had in him, agreed to the proposal. Accordingly, on 17th June, 1967 an agreement purporting; to convey the suit property of an extent of 4.04 acres in T.S. No. 1232 in Erode Town to defendants 1 and 2 was got up by the second defendant. THE agreement contained recitals appropriate for the, purpose though contrary to facts. THE first plaintiff was made to execute the document . THE said agreement for sale was marked as Exhibit A-13. In executing the document, the first plaintiff had no independent advice but solely relied upon the confidence she had in the second defendant. THE deceased first plaintiff also filed, on the advice of the second defendant, O.S. No. 155 of 1967: on the file of the Sub-Court, Erode against defendants 3 and 4 for receovery of arrears of rent. A month prior to the institution of the suit the second defendant informed the deceased first plaintiff that a sum of Rs. 40,000 would be required to secure vacant possession from the tenants and that therefore the first defendant should be put in possession of sufficient funds for that purpose. THE deceased first plaintiff thereupon arranged with one Rangasamy Pillai a turmeric merchant in the locality for the required amount and went to the second defendant. However, since the second defendant did not like Rangasamy Pillai being associated in the matter, he gave an excuse that the first defendant was not in station and that the suit had been adjourned beyond the summer holidays. This conduct on the part of the second defendant created suspicion in the mind of the deceased first plaintiff. While so, her son and stepsons caused a publication to be made in "Malai Murasu" to prevent third parties from entering into any transaction of sale or otherwise with the deceased first plaintiff in respect of the suit properties as they formed part of Marimuthu Pillai's estate and were the subject-matter of pending litigation. Defendants 1 and 2 got notice of the publication of this notice in "Malai Murasu". THEy then obtained possession from defendants 3 and 4 by paying them Rs. 15,000 as if the deceased first plaintiff had been paid Rs. 10,000 as advance under Exhibit A-17 agreement for sale and as if she had asked them to take possession from defendants 3 and 4 on payment of Rs. 15,000. This was followed by the issue of a lawyer's notice dated 19th March, 1968 on behalf of defendants 1 and 2 and another notice on behalf of defendants 3 and 4 to the first plaintiff reciting" the fact that the suit property had been taken possession of by defendants 1 and 2 on payment of Rs. 15,000 to defendants 3 and 4 at the instance of the deceased first plaintiff.

(3.) THE second plaintiff has consequently challenged the correctness of the judgment and decree of the trial Court dismissing the suit.