Meenakshi v. Pangan and others (AS No. 696 of 2000)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **THURSDAY ,THE 30TH DAY OF AUGUST 2018 / 8TH BHADRA, 1940** **AS.No. 696 of 2000** **AGAINST THE JUDGMENT AND DECREE DATED 14.06.2000 IN OS NO. 298/1994 of ADDL.SUB COURT, PALAKKAD** ## **APPELLANTS/DEFENDANTS 1 TO 3:** - 1 **MEENAKSHY, W/O.MANICKAN, RESIDING AT PARAKATTUCHALLA, PATTANCHERRY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT.** - 2 **PARVATHY, W/O.SWAMINATHAN, RESIDING AT NENMENI, KOLLENGODE, CHITTUR TALUK, PALAKKAD DISTRICT.** - **AMBUJAKSHY, W/O.KUTTIKRISHNAN, RESIDING AT** - 3 **PANNIYAMPADAM, MUTTIKULANGARA, PALAKKAD.** **BY ADVS. SRI. S.KRISHNA PRASAD SRI.T.C. SURESH MENON SRI.P.S.APPU** ## **RESPONDENTS/SUPPL. PLAINTIFFS/4TH DEFENDANT:** - **1 **PONNAN, S/O.KUNJU. NAME CORRECTED.** - *2 **KRISHNAN, S/O.KUNJU. (DIED. L.RS. IMPLEADED)** - 3 **LAKSHMY, W/O.KUNJU.** **ALL ARE RESIDING AT DAFEDARCHALLA, PERUMATTY VILLAGE,CHITTUR TALUK, PALAKKAD DISTRICT.** **ADDL.R4 TO 6 IMPLEADED.** **ADDL.R4. SUMATHY, WIDOW OF KRISHNAN.** - **R5. ARDRA, D/O.LATE KRISHNAN.** AS No.696 of 2000 & Cross Objection 2 **R6. ARAVIND, S/O.LATE KRISHNAN (MINOR), REPRESENTED BY HIS GUARDIAN MOTHER, THE 4TH RESPONDENT.** **ALL ARE RESIDING AT THEKKEDATH EASWARA VILAS, SREE KURUMBA KAVU ROAD, THATTAMANGALAM P.O., PALAKKAD-678 102.** ***THE LEGAL HEIRS OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 4 TO 6 VIDE ORDER DT.14.3.13 IN I.A.763/10.** ****THE NAME OF THE 1ST RESPONDENT IS CORRECTED AS 'PANGAN' INSTEAD OF 'PONNAN' VIDE ORDER DATED 8.8.18 IN IA 1289/18.** **R1 & R4 TO 6-BY ADVS.SRI.O.RAMACHANDRAN NAMBIAR R1 BY ADV.SMT.P.K.PRIYA ADDL.R4 TO R6 BY ADV.GEEN T.MATHEW R3 BY ADV. SMT.M.R.VALSA** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08.08.2018 ALONG WITH CROSS OBJECTION, THE COURT ON 30.08.2018 DELIVERED THE FOLLOWING:** ## **A.HARIPRASAD, J.** **--------------------------------------** **A.S.No.696 of 2000 & Cross Objection** **-------------------------------------Dated this the 30[th] day of August, 2018** ## **JUDGMENT** Defendants 1 to 3 in O.S.No.298 of 1994 before the Subordinate Judge’s Court, Palakkad, a suit for setting aside Exts.A2 to A4 AS No.696 of 2000 & Cross Objection 3 (same as Exts.B1 to B3) and for recovery of possession, are the appellants. Plaintiffs are the contesting respondents. 2. Heard the learned counsel for the appellants and contesting respondents. 3. Short facts:1[st] plaintiff is the second wife of one Pangan. Through the first wife, Pangan had a son by name Kunju. Kunju’s wife is the 4[th] defendant Lakshmi. Supplemental plaintiffs 2 and 3 and one Arumughan are the male children of Kunju and Lakshmi. Defendants 1 to 3 are the female children of them. It is alleged that the plaint schedule properties along with other items belonged to the 1[st] plaintiff and Kunju on verumpattam right. They purchased jenmom right from the Land Tribunal, Chittur. Subsequently, they orally partitioned the properties. Plaint schedule properties were set apart to the share of the 1[st] plaintiff and another portion of the property was set apart to Kunju. Later, Kunju and his children partitioned the properties set apart to the former in an oral partition. Defendants 1 to 3 were married away. After the death of Kunju, 4[th] defendant was looking after affairs of the plaintiffs. Though the 1[st] plaintiff had executed Wills in favour of the 4[th] defendant’s sons, later in 1986, she executed another Will in favour of supplemental 3[rd] plaintiff Krishnan. During January, 1992, 1[st] defendant took the 1[st] plaintiff and 4[th] defendant AS No.696 of 2000 & Cross Objection 4 to her house for a short stay. On one pretext or the other, they were made to stay in the house of the 1[st] defendant for a long time. Later, 1[st] plaintiff alone was sent back. Thereafter supplemental 3[rd] plaintiff understood that the 1[st] plaintiff had been taken to the Sub Registrar’s office, Chittur and forced her to execute and register some documents. It was revealed that defendants 1 to 3 got a Will executed in their names and thereafter they obtained assignment deeds from the 1[st] plaintiff in their names. Documents are vitiated by fraud and undue influence. Defendants took the advantage of the old age and illiteracy of the 1[st] plaintiff. The said documents are not valid in law and are liable to be set aside. On the death of the 1[st] plaintiff, supplemental plaintiffs 2 and 3 were impleaded as they claimed right over the properties by virtue of Ext.A7 Will. 4. Defendants 1 to 3 in their written statement contended that the suit was not instituted as per wish of the 1[st] plaintiff. It was instituted as the supplemental plaintiffs implored to the 1[st] plaintiff. The defendants 1 to 3 had filed O.S.No.168 of 1994, 222 of 1994 and 223 of 1994 before the Munsiff’s Court, Chittur and the present suit is filed to get over the consequences. Allegations that the 1[st] plaintiff and 4[th] defendant were taken to the house of 1[st] defendant in the month of January, 1992 and that the 1[st] defendant got executed a Will and three assignment deeds without AS No.696 of 2000 & Cross Objection 5 making the 1[st] plaintiff aware of their contents are incorrect. The above documents were executed by the 1[st] plaintiff with full knowledge and defendants 1 to 3 purchased the properties as per Exts.B1 to B3 for a valuable consideration. They possessed the property pursuant to the sale deeds. 1[st] plaintiff and 4[th] defendant were living with supplemental 3[rd] plaintiff Krishnan. They were forced to shift their residence to a “kalam” on account of ill-treatment meted out on them by Krishnan. No valid ground is mentioned in the plaint for setting aside the sale deeds. 5. 4[th] defendant filed a separate written statement supporting the contentions of defendants 1 to 3. 6. Before the trial court, three witnesses were examined on each side and Exts.A1 to A14 and B1 to B12 were marked. 7. At the outset, learned counsel for the appellants contended that the court below failed in the duty cast upon it by Order XIV Rule 1 of the Code of Civil Procedure, 1908 (in short, “Code”) in framing proper issues in the case. 8. It is alleged in the plaint that the 1[st] plaintiff was an aged illiterate lady and Exts.B1 to B3 were caused to be executed by her without disclosing real nature of the documents. Defendants 1 to 3 and husband of 1[st] defendant persuaded the 1[st] plaintiff, while she was staying with AS No.696 of 2000 & Cross Objection 6 them, to execute Exts.B1 to B3. Due to old age, illiteracy and lack of worldly experience of the 1[st] plaintiff, the defendants 1 to 3 and husband of the 1[st] defendant were able to exert undue influence on her as they were dominating the will of 1[st] plaintiff. Exts.B1 to B3 are the products of fraud and undue influence and the defendants obtained unfair advantage by their illegal act. 9. This fact has been specifically denied in the written statement filed by the defendants 1 to 3. Illegality and impropriety on the part of the trial court is that despite these pleadings, it failed to frame necessary issues regarding commission of fraud and exertion of undue influence by defendants 1 to 3 over 1[st] plaintiff. An issue in very general terms, like whether the plaintiffs are entitled to get any decree to set aside the assignment deeds, alone was framed. It is true that the trial court did not fulfill its legal obligation under the provisions of Order XIV of the Code. Every assertion of a fact or law which is denied by the other side should be framed as an issue and finding thereon should be entered after analysing the evidence. This practice of abdicating the responsibilities in framing issues in very general terms has to be deprecated. In many decisions such a practice has been frowned upon. It is alarming to note that the court below committed an error in approaching the problem in the correct 7 AS No.696 of 2000 & Cross Objection perspective. 10. However, in this case, the plaintiffs cannot claim any benefit on account of the mistake committed by the court in wrongly framing the issues. It is seen from the documentary and oral evidence that the parties have clearly understood the contentions raised by each other and adduced evidence to substantiate their contentions and also to destroy that of adversary. Therefore, non-framing of proper issues has not caused any prejudice to the appellants since the court below has understood the points in dispute and entered a finding on the rival contentions raised by the disputants. 11. Learned counsel for the appellants contended that appreciation of evidence by the court below is not correct. Court below should have seen that Exts.B1 to B3 were executed by deceased 1[st] plaintiff with full knowledge and intention. Exts.B1 to B3, being registered sale deeds, carry a presumption in their favour. That aspect was overlooked by the court below is the contention. Per contra, learned counsel for the contesting respondents contended that execution of Exts.B1 to B3 was not proved properly and the attending circumstances coupled with the age and illiteracy of the 1[st] plaintiff would show that the court below was right in finding against those documents. As mentioned AS No.696 of 2000 & Cross Objection 8 above, there are clear pleadings to the effect that the 1[st] plaintiff was taken to the house of 1[st] defendant and she was persuaded to execute some documents in favour of the defendants. Initially 1[st] plaintiff was made to execute Ext.B4 Will on 24.02.1992 and it was caused to be registered. Within a span of four months, the 1[st] plaintiff was made to execute Exts.B1 to B3 on 06.06.1992, styled as sale deeds in the names of defendants 1 to 3. According to the learned counsel for the respondents, the inherent improbability relating to Exts.B1 to B3 lies in the fact that if Meenakshi (1[st] plaintiff) had executed Ext.B4 Will on 24.02.1992 properly, then there was no occasion for her to execute Exts.B1 to B3 on 06.06.1992 and there was no tangible reason for the defendants paying consideration to a tune of `70,000/- for all the three properties put together when they were sure to get the properties free pursuant to Ext.B4 Will. 12. In the above context, I shall refer to the oral evidence adduced. PW1 Krishnan is the supplemental 3[rd ] plaintiff. He testified about the relationship between the parties. Since there is no dispute on that aspect, I need not elaborate it. PW1 asserted that the 1[st] plaintiff Meenakshi was staying along with him and 4[th] defendant. Admittedly, Arumughan is one of the sons of deceased Kunju and a sibling of PW1. It is his assertion that deceased 1[st] plaintiff’s affairs were looked after by AS No.696 of 2000 & Cross Objection 9 himself and 4[th] defendant. While 1[st] plaintiff Meenakshi was residing with PW1, she had executed Wills in 1977, 1979, 1984 and 1986. Finally in 1994 she executed a registered Will. It is the case of PW1 that the Will executed by 1[st] plaintiff in 1994 was lost while traveling in a bus. Despite aggressive search made, it could not be found out. Therefore, Ext.A1 paper publication was effected. Certified copy of the Will was sought to be marked in the proceedings. PW1 asserted that the 1[st] defendant and her husband took the 1[st] plaintiff to their home in 1992. She used to go for a short stay with her grand children. As usual she did not return within a short time and she came back only in May, 1994. It was revealed by deceased 1[st] plaintiff that she was caused to execute certain documents while she was staying in the house of the 1[st] defendant. On enquiry it was revealed that a Will and three assignment deeds were caused to be executed by the 1[st] plaintiff. It is the allegation of PW1 that no consideration was paid by the defendants to the 1[st] plaintiff for Exts.B1 to B3. PW1 emphatically testified that the 1[st] plaintiff was completely illiterate and she was not able to read or write. She used to put a mark by stroke of a pen. Deceased 1[st] plaintiff informed PW1 that she had not executed any document in favour of the defendants. Admittedly 1[st] plaintiff died in 1996. 13. In cross-examination of PW1 it was suggested that there was AS No.696 of 2000 & Cross Objection 10 no reason for not examining deceased 1[st] plaintiff in the suit during her life time. No definite explanation was given by PW1 to this suggestion. Regarding Ext.A1 Will executed by the 1[st] plaintiff in favour of PW1, he feigned ignorance. It is his unchallenged version that at the time of death, 1[st] plaintiff (Meenaskhi) was aged 85-86 years. Answers were elicited from PW1 to the effect that ordinarily deceased 1[st] plaintiff used to sign a document only on understanding the intent and purport of the same. In cross-examination, PW1 further deposed that the 1[st] plaintiff told him that she was asked to sign the documents on the representation that the property would remain with her till death. PW1 deposed that deceased 1[st] plaintiff was able to distinguish between an assignment deed and a Will, if it was explained to her. 14. PW2 is a witness to Ext.A7 Will. Original of Ext.A7 was not produced before the court stating that it was lost from the possession of PW1. Marking of a certified copy was disputed by the defendants. It is true that no reliance can be placed on Ext.A7 without proving its due execution with reference to the original document or the filing sheet kept in the Sub Registrar’s office. Therefore, testimony of PW2 will not improve the case of plaintiffs. It cannot be taken that Ext.A7 Will was properly proved in accordance with Section 68 of the Indian Evidence Act, 1872 and AS No.696 of 2000 & Cross Objection 11 Section 63 of the Indian Succession Act, 1925. In the absence of any effort made by the plaintiffs to prove Ext.A7 by summoning the relevant document from the Sub Registrar’s office, court below is justified in eschewing Ext.A7 from consideration. 15. PW3 is another witness to Ext.A7. For the above mentioned reason, testimony of PWs.2 and 3 is of no avail to the plaintiffs. 16. DW1 is the husband of 1[st] defendant. He testified that he personally knew the facts and circumstances involved in the case. He asserted that Exts.B1 to B3 were executed by deceased Meenakshi with free will and consent. It is his version that deceased Meenakshi was a lady capable of understanding the consequences of executing a document. Admittedly Exts.B1 to B3 were registered from DW1's residence. Necessary applications were filed for bringing the Registrar to the house of DW1 for registering the documents. He would depose that the documents were read over to Meenakshi by DW2 Sanal Kumar, who is the document writer. In chief examination, he deposed that Meenakshi approved all the documents and signed the documents by putting a mark with a pen. Thereafter witnesses signed the document. `70,000/- was paid to Meenakshi as consideration for the three sale deeds. Subsequently at 5.00 p.m., on the date of execution itself, the Sub Registrar and a peon were AS No.696 of 2000 & Cross Objection 12 brought to his house. DW2 read out the document in the presence of the Sub Registrar. It is the version of DW1 that deceased Meenakshi admitted execution and reception of consideration in the presence of the Registrar. Signatures and thumb impressions of deceased Meenakshi were taken by the Registrar on the documents and the process of registration was completed. It is further deposed by DW1 that the parties fought other litigations in respect of these properties which were decreed in favour of the plaintiffs. Exts.B7 to B12 are the documents showing these facts. At the time of cross-examination, it was suggested by the plaintiffs' counsel that impersonation was performed and Meenakshi did not sign the documents. This suggestion was denied by DW1. Another question asked to DW1 was as to why he did not take any step to bring Meenakshi to court and record her deposition during her life time. No tangible answer was given to this question. Yet another aspect brought out in cross-examination of DW1 is that Meenakshi was a permanent resident in a particular address and the house registration was made in a different address. Question regarding submission of the request for house registration was also put to DW1 for which he did not give a satisfactory answer. DW1 feigned ignorance about Ext.B4 Will which Meenakshi is said to have executed in favour of defendants 1 to 3 a couple of months prior to the AS No.696 of 2000 & Cross Objection 13 execution of Exts.B1 to B3. Portions from Ext.B4 Will was read out to DW1 to the effect that Meenakshi was sure that defendants 1 to 3, being her grand children, would have taken care of her in the old age. This aspect will probabilise the case of the plaintiffs that if Meenakshi had believed so, there was no occasion for her to execute Exts.B1 to B3 because she had already bequeathed these properties in their favour as per Ext.B4. What was the occasion for Meenakshi to raise funds by sale of properties and whether consideration was actually paid to Meenakshi for Exts.B1 to B3 are aspects seriously challenged at the time of DW1's cross-examination. 17. Learned counsel for the respondents contended that item No.2 in Ext.B3 is the tarawad house over which Meenakshi had no right or interest. That was also included in the sale deed fraudulently created and thereby it can be seen that the documents were procured by exerting undue influence and fraud. Even though learned counsel for the appellants contended that Meenakshi had a fractional right over item No.2 in Ext.B3, the purchase certificate (Ext.B5) will not substantiate this contention. 18. DW2 is the scribe. He asserted that Exts.B1 to B3 were prepared in his handwriting. DW2 also deposed that he had read over the documents to Meenakshi from the house of DW1. In cross-examination, DW2 deposed that deceased Meenakshi had handed over necessary AS No.696 of 2000 & Cross Objection 14 documents to him including a purchase certificate for preparing the documents. According to his testimony, the documents were executed from DW1’s house at 9.00 a.m. on the date of registration. But DW1 deposed that the execution was at 4.00 p.m. on the date of registration. Learned counsel for the respondents contended that testimony of DWs 1 and 2 are contrary to each other. If DW1 is believed, then DW2 cannot be believed because there is a considerable difference in time of executing the documents. DW2 testified that he did not see passing of consideration from the defendants 1 to 3 to Meenakshi. Even though he is the scribe, he was not aware as to whether the Registrar followed the necessary directions to register the documents executed by aged persons. Admittedly deceased Meenakshi was an illiterate and aged lady. She died within a couple of years after the execution of Exts.B1 to B3. 19. DW3 is a neighbour of DW1 and a witness to Exts.B1 to B3. He is a witness to Ext.B4 Will also. In cross-examination, he deposed that he saw deceased Meenakshi from the house of DW1. DW3 deposed that he signed the document at 5.00 p.m. on the date of registration. This evidence is also against the testimony of DW2 who says that the documents were executed in the morning. 20. On an over all assessment of the oral evidence, I am of the AS No.696 of 2000 & Cross Objection 15 view that the plea of _non est factum_ raised by the plaintiffs on the ground that deceased Meenakshi was old, infirm and illiterate and also that the defendants were in a position to dominate the will of Meenakshi was not effectively refuted by the defendants. 21. Learned counsel for the respondents argued that there is no reliable material either in the pleadings or in the evidence to find that who prepared the schedules to Exts.B1 to B3 by segregating 3.14 acres of wet land and 81.5 cents of garden land which belonged to Meenakshi. Similarly house site having an extent of 7 cents was included in Ext.B1 against the recitals in Ext.B5 and admission of DW1 that Meenakshi had no right over tarawad house. As submitted by the learned counsel, there is no material to understand as to who gave the information to prepare documents and how the division of properties were made in the name of defendants 1 to 3 as per Exts.B1 to B3. From the totality of evidence, it is clear that Meenakshi was not a competent person to deal with her properties independently and without seeking external help. In addition to the above aspect, why defendants 1 to 3 purchased the property for consideration from Meenakshi if she had executed Ext.B4 Will in their favour a couple of months prior is also an unanswered question. If the testamentary disposition by Meenakshi in the form of Ext.B4 Will were to AS No.696 of 2000 & Cross Objection 16 operate, why defendants 1 to 3 purchased the property for value is a pertinent question not properly answered by the appellants. 22. Another circumstance against the appellants is that from where did they raise consideration for Exts.B1 to B3 and whether it was paid at the time of registration or at the time of execution were not clearly established. Incongruities in the pleadings and evidence have been pointed out by the learned counsel for the respondents to advance these arguments. 23. Another point argued against the appellants is that they did not choose to examine the 4[th] defendant, their own mother, despite the fact that in the written statement she supported the appellants. Apart from the husband of 1[st] defendant, no other defendants was examined on the side of the appellants is the complaint raised. It would have been sufficient if the testimony of DW1 was credible. It is well said that not the number of witness to be counted, but quality of evidence is to be appreciated. However, the evidence tendered by DW1 cannot be said to be acceptable in the light of infirmities mentioned above and incongruities between his testimony and those of the other witnesses examined on his side. Relying on **Velayudhan v. Velayudhan (2001 (1) KLT 392)** learned counsel for the respondents contended that when there is a specific denial of execution of AS No.696 of 2000 & Cross Objection 17 a document, mere putting of signature does not amount to admission of execution of document and the burden is on the plaintiff to prove the same. Following observation is relied on: _“To sign means to affix the signature. But when it comes to the signing of a written instrument, it implies more than the act of affixing a signature. It implies more than the clerical act of writing the name. The intention of the person signing is important. The person should have affixed the signature to the instrument in token of an intention to be bound by its conditions. It has been said that for a signing consists of both the act of writing a person’s name and the intention in doing this to execute, authenticate or to sign as a witness. The execution of a deed or other instrument includes the performance of all acts which may be necessary to render it complete as a deed or an instrument importing the intended obligation of every act required to give the instrument validity, or to carry it into effect or to give it the forms required to render it valid. Thus, the signature is an acknowledgement that the person signing has agreed to_ AS No.696 of 2000 & Cross Objection 18 _the terms of the document. This can be achieved only if a person signs after the document is prepared and the terms are known to the person signing. In that view of the matter, mere putting of signature cannot be said to be execution of the document._ _Mere putting of signature does not amount to admission of the execution of the document. Ordinarily, signature merely means putting one’s name or any other mark to identify a person making the mark. But when a word ‘signature’ is attributed with regard to the written document, which creates obligation on the person signing it, it can only mean signing the document after the document is prepared and completed. There, the signature is put to show that the person who signed has agreed the terms and conditions of that document. The intention with regard to the acknowledgement of the term should be there. When the person signs the same, then only it can be said that the person has executed the document. Hence, according to us, when a person says that he put the signature on a blank paper that does not_ AS No.696 of 2000 & Cross Objection 19 _mean that he had admittedly executed the document. We cannot ignore the circumstances under which where a person may be compelled to give signed blank paper to another person. Person who signs the paper may not know what are the conditions, which will be imposed by the other side. Hence, in such circumstances, a general proposition cannot be laid down that the burden should be on the person, who has subscribed his signature to a blank paper. Evidence that has to be adduced by the plaintiff in such case will be less onerous than in cases where there is complete denial of signature and execution. But if the plaintiff’s evidence is not sufficient or unreliable that onus cannot be said to be discharged. We may further say that always the burden of proof is on the person, who wants to get relief in the suit. As always stated, onus of proof shifts during the pendency of the litigation depending upon the nature of the evidence given by either side. The plaintiff may give evidence regarding the execution of the document. If the fact of thumb impression or signature is admitted, that will give_ AS No.696 of 2000 & Cross Objection 20 _more reliability to the plaintiff’s evidence. If such evidence adduced by the plaintiff is reliable and if the plaintiff is able to discharge his burden sufficiently, then onus will shift on the defendant to show that he had not executed the document. We only say that the plaintiff cannot succeed in the case without giving evidence. Because the defendant had admitted his signature, he had to give some evidence to show that the document has been properly executed. Further things depend upon the evidence adduced and on facts and circumstances of each case. When both sides have adduced evidence, the question of burden to proof vanishes into the air."_ 24. In this context, it is come out in evidence that Meenakshi had put a mark with a pen and it is also seen that the document writer helped her to put it. In the absence of any reliable material to show that Meenakshi was made to understand the contents of document, signing the documents by putting marks alone cannot be treated as due execution of the documents. 25. Both sides relied on the ratio in **Ladli Prashad Jaiswal v. The Karnal Distillery Co.Ltd., Karnal and others (AIR 1963 SC 1279)** . That AS No.696 of 2000 & Cross Objection 21 was a case dealing with the question of undue influence. In paragraphs 25 and 26, clear exposition of law on the subject has been made as follows: “25. _The doctrine of undue influence under the common law was evolved by the Courts in England for granting protection against transactions procured by the exercise of insidious forms of influence spiritual and temporal. The doctrine applies to acts of bounty as well_ _as to other transactions in which one party by exercising his position of dominance obtains an unfair advantage over another. The Indian enactment is founded substantially on the rules of English common law. The first sub-section of S.16 lays down the principle in general terms. By sub-section (2) a presumption arises that a person shall be deemed to be in a position to dominate the will of another if the conditions set out therein are fulfilled. Sub-section (3) lays down the conditions for raising a rebuttable presumption that a transaction is procured by the exercise of undue influence. The reason for the rule in the third sub-section is that a person who has obtained_ AS No.696 of 2000 & Cross Objection 22 _an advantage over another by dominating his will may also remain in a position to suppress the requisite evidence in support of the plea of undue influence._ _26. A transaction may be vitiated on account of undue influence where the relations between the parties are such that one of them is in a position to dominate the will of the other and he uses his position to obtain an unfair advantage over the other. It is manifest that both the conditions have ordinarily to be established by the person seeking to avoid the transaction: he has to prove that the other party to a transaction was in a position to dominate his will and that the other party had obtained an unfair advantage by using that position. Clause (2) lays down a special presumption that a person is deemed to be in a position to dominate the will of another where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other or where he enters into a transaction with a person whose mental capacity is temporarily or permanently affected by reason of age_ AS No.696 of 2000 & Cross Objection 23 _illness or mental or bodily distress. Where it is proved that a person is in a position to dominate the will of another (such proof being furnished either by evidence or by the presumption arising under sub-sec. (2) and he enters into a transaction with that other person which on the face of it or on the evidence adduced, appears to be unconscionable the burden of proving that the transaction was not induced by undue influence lies upon the person in a position to dominate the will of the other. But sub- sec.(3) has manifestly a limited application: the presumption will only arise if it is established by evidence that the party who had obtained the benefit of a transaction was in a position to dominate the will of the other and that the transaction is shown to be unconscionable. If either of these two conditions is not fulfilled the presumption of undue influence will not arise and burden will not shift.”_ ## 26. In **Mst. Kharbuja Kuer v. Jangbahadur Rai and others (AIR 1963 SC 1203)** it has been held that the burden of proof shall always rest upon a person who seeks to sustain a transaction entered into with a AS No.696 of 2000 & Cross Objection 24 pardahnashin lady to establish that the said document was entered into by her after clearly understanding the nature of the transaction. This ratio may not be strictly applicable to our case. 27. Learned counsel for the respondents relying on **S.P.Chengalvaraya Naidu v. Jagannath ((1994) 1 SCC 1)** contended that fraud is an act of deliberate deception with the design of securing something by taking an unfair advantage from another. It is the deception in order to gain from another’s loss. In the facts and circumstances, it is argued that the principles in the above decision are to be applied to find that Exts.B1 to B3 are vitiated by fraud as it has come out in evidence that deceased Meenakshi was old, infirm and illiterate. 28. Non-examination of material witnesses and non-production of best evidence is also commented upon by the learned counsel for the respondents based on the decision in **Vidhyadhar v. Mankikrao (AIR 1999 SC 1441)** , wherein it is stated that where a party to the suit does not appear in the witness box and state his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct. It is well settled that withholding of best evidence cannot be approved by any court. 29. A certified copy of Ext.A7 Will cannot be used for proving the AS No.696 of 2000 & Cross Objection 25 execution when there is a challenge against the document. No attempt was made by the plaintiffs to summon the original document from the Registrar’s office and comply with the requirements in Section 63 of the Indian Succession Act,1925 and Section 68 of the Indian Evidence Act, 1872. Therefore, the exclusive right set up by the plaintiffs on the properties by virtue of Ext.A7 Will can only be rejected. 30. Learned counsel for the appellants relying on **Bellachi v. Pakeeran ((2009) 12 SCC 95)** contended that law does not envisage raising a presumption in favour of undue influence. Party alleging the same must prove it subject to just exceptions. The principles in **Ladli Prashad Jaiswal** 's case have been considered and followed in this decision. The proposition therein is indubitable. However, in this case the evidence if taken together do not support the case put forward by defendants 1 to 3. 31. To sum up the discussions, I find that Exts.B1 to B3 relied upon by the appellants are vitiated by undue influence and fraud for the reason that they were capable of dominating the will of old, infirm and illiterate Meenakshi, who was residing with them for a considerable time. Therefore, Exts.B1 to B3 were correctly set aside by the court below. It is also found that Ext.A7 Will set up by the plaintiffs was not properly proved to be the last Will and testament by the deceased Meenakshi. Therefore, it AS No.696 of 2000 & Cross Objection 26 has no legal effect. Plaintiffs cannot claim exclusive right over the property. Corollary of the above findings is that deceased Meenakshi left behind the plaint schedule properties at the time of her death to be inherited by her legal heirs, who are the plaintiffs, defendants and another brother of them by name Arumughan. In the above view of the matter, it has to be found that the property lies in co-ownership of all the parties. Court below rightly therefore rejected the prayer for recovery of possession. Even though issues were not properly framed, the parties adduced evidence fully understanding the rival contentions. I affirm the findings of the trial court, even though there was no satisfactory discussion made by the trial Judge on the above aspects. In the result, the appeal is dismissed confirming the judgment of the court below. Cross objection is also dismissed. There is no order as to costs. All pending interlocutory applications will stand dismissed. **A.HARIPRASAD, JUDGE.** **cks** AS No.696 of 2000 & Cross Objection 27 **A.HARIPRASAD, J.** **A.S.No.696 of 2000 & Cross Objection** **JUDGMENT** **30[th] August, 2018**