B ANANTHAYYA Vs. B SUBBA RAO

JUDGEMENT

(1.) he appellant and the respondent are brothers. They have two other brothers. The respondent is the eldest. The appellant is the youngest. Their father died in 1927. The appellant was then 10 or 11 years old. He was a student in the First Form in the school in their village in the South Kanara Dt. After the father's death, the respondent placed himself in the position of a father in relation to the appellant. The respondent got the appellant educated. The appellant passed the High School examination. He had been endowed by nature with intelligence of a high order. He was admitted into College and passed Intermediate in the first class. He then secured admission in the Engineering College at Guindy. The respondent was looking after all the pecuniary and other material needs and comforts to the appellant Scholarship was secured for him from the Government. Contribution towards the expenses of education was secured also from the Madhwa association. Some friends too helped. The respondent contributed the balance needed for the appellant's expenses and maintenance out of his (respondent's) meagre salary of about Rs. 30. They had some small ancestral property in the South Kanara Dt. The respondent was a cook in the Cosmopolitan club.

(2.) In 1938, the appellant completed three years of his course in the Engineering College. He had another year to do at College and a year of practical course ahead of him before he could hope to secure an appointment and earn a living. At that stage, the respondent considered that the appellant should agree to make some provision for the respondent's own maintenance after the appellant began to earn a livelihood for himself and the members of his family. Just as the respondent had taken care of the appellant in his boyhood and youth, the respondent thought that it was the appellant's duty to take care of the respondent in his old age. The appellant agreed. As a result, the appellant executed an agreement in favour of the respondent on 17-61938. That agreement said that, in consideration of moneys spent by the respondent on account of the appellant out of the respondent's earnings and in consideration of the moneys that would be spent by the respondent in future and out of natural love and affection, the appellant relinquished in favour of the respondent the appellant's interest in the joint family properties and that the appellant would further, pay the respondent on account of the maintenance of himself and the members of his family after the appellant began to earn a salary or income, sums which would represent a percentage of his monthly income. So long as the appellant's income was only Rs. 50 per month, he should pay the respondent Rs. 5 per month; when the income rose to Rs. 90, he should pay the respondent Rs. 13 per month, when the appellant's income rose above Rs. 100 per month, the appellant should pay the respondent Rs. 15 for the first hundred and 12 1/2 per cent of the balance. Payments at that scale should continue until 1953. If the respondent died before 1958, payment should be made till the end of 1958 to the respondent's dependents. If the respondent survived 1958, payments should thereafter be made to the respondent at the rate of only 5 per cent of the income of the appellant in case the appellant's monthly income continued to be more than Rs. 300.

(3.) The suit which has given rise to this second appeal was instituted by the appellant in the City Civil Court for a declaration that the agreement was void and unenforceable. It was pleaded that the agreement had been procured by fraud, coercion and undue influence. The trial Judge as well as the Judge who heard the appeal in the lower appellate court have both held that the agreement was not vitiated by fraud, undue influence or coercion and that the appellant's consent to the agreement was free. That is a finding which I see no reason to disturb in second appeal.