NARAYANA DOSS BALAKRISHNA DOSS Vs. BUCHRAJ CHORDIA SOWCAR

JUDGEMENT

(1.) The plaintiff in this suit impeaches a mortgage executed by him. The 2nd defendant Purushothamdas is his maternal uncle and he became indebted to the 1 defendant, a money lender, in a large sum of money. When Purushothamdas was pressed for repayment, the plaintiff executed a" mortgage in favour of the 1 defendant securing his share in his family property and making himself liable for his uncle's debt. The transaction is challenged by the plaintiff on the ground that it is vitiated by undue influence. The short point to be decided in the case is : is it so vitiated? I may however point out that a mass of evidence has been adduced to show, or to rebut, that other invalidating grounds existed, namely, (1) that in the deed finally executed, the term that the amount is repayable on demand was fraudulently inserted, contrary to the original understanding that it was repayable only after two years; (2) that the 1 defendant falsely denied the existence of certain jewels and repudiated after the execution of the deed his promise to return them to the 2nd defendant. Not only was evidence directed to these points but much time was taken up on that account. But when the case reached the stage of final argument, the Counsel for the plaintiff and the 1 defendant adopted the view which I was disposed to take from the start and confined themselves to the bare question, the question decisive of the case--is the transaction vitiated by undue influence? I may state that I did not prevent evidence being adduced on the other points as I felt that in the event of the case going further, the parties should have no ground of complaint on the score of any evidence having been shut out.

(2.) The following pedigree may be found useful in understanding the facts of the case: Damodardas d. 8-12-19 | ___________________________________________ || Govardhandas Balakrishnadas d. 1914 | m. Rukmanibai. Subbaroyadas | (minor) Plaintiff Born 4-2-05.

(3.) The father of the plaintiff died in 1914 and the plaintiff thereafter lived at Madras with his maternal uncle, the 2nd defendant, whereas his mother resided also at Madras in the family house along with Govardhandas and his son. On the 30 of September, 1917, there was a partition of the family properties. The grandfather separated from the rest and certain properties were allotted in common to the other members of the family. At the partition the plaintiff who was an infant was represented by his mother and his maternal uncle, the 2nd defendant, who acted as his guardian. Immediately after the partition, a trust deed was executed constituting the plaintiff's grand-father and Purushothamdas trustees for managing the properties belonging to the plaintiff, his uncle and his uncle's son. These properties, of course, included those that fell to their share at the partition. Damordardas died in 1919 and on the 5th, January, 1921, a deed came into existence which appointed one Chinna Veerappa trustee in the place of Damodardas. Shortly afterwards Chinna Veerappa died and Purushothamdas remained and continued to be the sole trustee.