NIRANJAN REDDY Vs. NUKALAPATHY SURURLATHA

JUDGEMENT

(1.) 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 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 looked after 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 authorizing 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 authorizing her (first defendant / 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 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 limitation and the alleged settlement deed was not acted upon in view of the fact that 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 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 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.