ARUMUGHAM CHETTIAR Vs. GANAPATHI CHETTIAR

JUDGEMENT

(1.) THE unsuccessful plaintiff in O. S. No. 106 of 1971, on the file of the Sub-Court, Tiruchirapalli, is the appellant herein.

(2.) HE filed the suit for partition and separate possession of his alleged half share in the suit items 1 and 3 to 7 or in the alternative in items 1 to 6 and for accounting from 27 th December, 1970. His case asset out in the plaint was as follows: The plaintiff is the younger brother of the first defendant and defendants 2 and 3 are the sons of the first defendant. Fourth defendant is an alienee of the plaint item 2 from the plaintiff's father. Fifth and sixth defendants are cultivating items 3 and 1 respectively. The plaintiff's father died on 27th December, 1970. There was a partition between the father of the plaintiff, the first defendant and the plaintiff on 26th February, 1959, under which items 1 to 6 were given to the plaintiff's father Subra-mania Chettiar for life with vested remainder in equal moieties to the plaintiff on the one hand and defendants 1 and 2 on the other. The plaintiff's father, however, sold the second item on 1st June, 1965, for a sum of Rs. 10,000 to the fourth defendant, but that sale is not binding on the plaintiff. In any event, the plaintiff's father having purchased the plaint item 7 from the sale proceeds of plaint item 2 on 3rd February, 1967, the said item 7 should be taken to have been substituted for item 2. The plaintiff's father was ailing for two years before his death and he was infirm both physically and mentally. Taking advantage of the physcial and mental infirmity of the plaintiff's father who was aged 75 and who was living with the first defendant, the first defendant has managed to bring into existence two settlement deeds, dated 2nd March, 1970, and 22nd May, 1970. The said settlement deeds are not true and genuine. Even if the settlement deeds arc taken to be binding, on the plaintiff who has acquired vested remainder under the partition deed, dated 26th February, 1959, the plaintiff is entitled to ignore the said settlement deeds and claim his half share therein. Under the two settlement deeds, dated 2nd March, 1970 and 22nd May, 1970, the plaintiff's father has purported to settle the plaint item 7 in favour of the first defendant and the southern half of item 5 to defendants 2 and 3. It is on these allegations the plaintiff sought the relief of allotment of his share in the suit properties as indicated above.

(3.) THE appellant plaintiff has examined himself as P. W. 1, and three other witnesses as P. Ws. 2 to 4 who are the pangalis of his father to prove that the plaintiff's father was bedridden for one year before his death on 27th December, 1970. THE first defendant has examined himself as D. W. 1 apart from examining D. Ws. 2 to 5. D. W. 2 is an attestor and identifying witness to Exhibit B-5 settlement deed for plaint item 7 executed on 2nd March, 1970. He is also the co-brother of the first defendant. THE other attestor to Exhibit B-5 settlement deed is one Arumugham, a pangali of the plaintiff's father. D. W. 3, is the scribe of Exhibit B-5 settlement deed and D. W, 4 is the scribe of Exhibit B-6 settlement deed. THE settlement deed, Exhibit B-6 has been registered at Trichi and Exhibit B-5 settlement deed was executed at Musiri. D. Ws. 2 and 3 have spoken to the due execution and attestation of Exhibit B-5 settlement. THEy have also deposed that Exhibit B-5 settlement was voluntarily executed out of his own free will by the plaintiff's father while he was in a sound and disposing state of mind with full knowledge of its contents. As already stated, D. W. 2 is the attestor and identifying Witness to Exhibit B-5 settlement deed and he is the co-brother of the first defendant. Similarly the execution of Exhibit B-6 has been duly spoken to by D. W. 4 the scribe. He has also deposed that Exhibit B-6 settlement deed was executed by the plaintiff's father of his own free will while he was in a sound and disposing state of mind. THEre is no medical evidence adduced by the plaintiff to substantiate his assertion that his father was infirm both physically and mentally at the time of the execution of Exhibit B-5 and B-6 settlement deeds. In the light of the said oral evidence which is sufficient to prove the due execution of the settlement deeds by the plaintiff's father, the other question that remains to be considered as regards the settlement deeds is whether they are vitiated by undue influence.