CHANDRA BAI AMMAL AND OTHERS Vs. VENKATESAN

JUDGEMENT

(1.) This is a frivolous second appeal filed by the plaintiffs in spite of concurrent findings of the Courts below on a question of fact whether the document Ex. A 1 under which the husband of the first plaintiff gave the suit property to his son, the defendant in the case on 27.8.1977, is vitiated by undue influence, fraud and coercion. The first plaintiff is the wife of the deceased Kanniappa Mudaliar. Plaintiffs 2 and 3 are her daughters and the defendant is her son. The said Kanniappa Mudaliar was a teacher in Government service and after retirement, he was getting his pension. He executed on 27.8.1977 the original of Ex. A1 under which he gave the property to his only son to be taken by him after the life time of the executant and enjoyed absolutely. The case of the plaintiff is that the defendant being the son of the executant had dominated the will of the father and brought about the document by fraudulant means. That case has been found against by both the Courts on the basis of the evidence on record.

(2.) In this second appeal, it is contended that the Courts below have failed to keep in mind the relevant principles of law relating to burden of proof on the question of undue influence and also over-looked the evidence on record. It is the contention of learned counsel for the appellants that the evidence on record has not been properly considered by the Courts below.

(3.) On a persual of the entire records, I am of the view that there is no merit whatever in this second appeal. The attack against the document Ex. A. 1 is that the husband of the first plaintiff was suffering from tuberculosis and that he was being protected by the plaintiffs. It is the case of the plaintiffs that the first defendant has fraudulently got the document executed and taken his father to the Registrar's Office and got it registered. It is also the case of the plaintiffs that the document was obtained by coercion on the part of the first defendant. This case is belied by the various circumstances admitted by P.W. 1 herself. The document is executed on 27.8.1977. But, it was actually registered only on 5.9.1977. The man died on 21.9.1977. The case of the plaintiffs that the executant was not in a position to understand what was happening arid that he was so ill that he could not do anything on his own is belied by the evidence of P.W. 1 herself. She has admitted in her deposition that her husband obtained Government loan and spent for the marriage of the third plaintiff which took place about ten days prior to his death. It means that the marriage took place on or about 11.9.1977. That was soon after the registration of the document. P.W. 1 has admitted that the defendant did not attend marriage and at her instance, her husband attended and performed the marriage. According to her, herself and the other daughter took the executant to the place of the marriage by bus. That itself shows that the husband of the first plaintiff was in a position to move about and he was if at all in the custody of the plaintiffs themselves, if really any undue influence had been exercised by the defendant on the husband of the first plaintiff, that could have been wiped off by the plaintiff themselves when he was taken to the marriage in the absence of the defendant. It is also the deposition of P.W. 1 that the marriage took place at Tirupati. The fact that the first plaintiff's husband was able to go to Tirupati from Kanchipuram by bus is sufficient to show that he was maintaining sufficient health as to do things of his own. Apart from that P.W. 1 has admitted in her evidence that her husband could do tilings on his own without the help of others. In the face of such admission, it is not open to the counsel for the appellants to contend that the first plaintiff's husband was not in a position to take care of himself. It is the contention of learned counsel that the evidence by P.W. 1 that the husband borrowed from the Government is erroneous and cannot be true because he was retired at that time. This contention is wholly unacceptable. It is for the witness to explain as to what she said. In fact this part of the statement is found in the chief-examination. If the witness has stated wrongly In the chief-examination, it was the duty of the counsel to have it clarified or corrected by further questions. But, no such attempt had been made to do so. Hence, the evidence of P.W. 1 has to be accepted and it has been rightly accepted by the Courts below.