9911796707
TMI Blog1987 (1) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not yield sufficient income either for the performance of the charities or for the liquidation of the debts due to Krishnaswamy Chetty referred to earlier. She entered into an agreement with one Bysani Krishnayya Chetty that she would appoint him if, he paid a sum of ₹ 1,650 in full satisfaction of the debt due to her late husband Krishnasamy Chetty. Consequently, a transfer deed was brought into existence on February 2, 1931 in and by which Bysani Krishnayya Chetty became the trustee after payment of ₹ 1,650 to Sriranganacharamma. He was administering the estate upto 1938 when he transferred his rights of trusteeship to his son Bysani Rangayya Chetty under a deed of transfer dated 4th May 1938. The said document is marked as Ex. B2. Under the said deed, Bysani Sundaramma was directed to manage the trust estate in accordance with the provisions of the Indian Trust Act and the specific directions and terms contained in the will of Pasumarthy Krishnasamy Chetty. 3. Bysani Sundaramma died on 3.12.1976. The plaintiff in the present suit, who is the respondent herein, and the first defendant, who is the first appellant herein, are her daughters. The second defendant/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not by Sundaramma and she was hot in a position to execute the documents her mind following the hand. The plaintiff states that the said Sundaramma was not mentally and physically well enough to execute the documents and the defendants have taken advantage of her sick condition and obtained her signatures by exercise of undue influence. The plaintiff states that Sundaramma died on 3.12.1976 and her death was thereafter intimated to the plaintiff and other relatives. Sundaramma's sickness was not intimated but kept a closely guarded secret by defendants 1 and 2. 7. The plaintiff states that the transfer of trust to the defendants is illegal and invalid. The defendants are not the beneficiaries under the original deed of trust. The plaintiff states that there can be in law no transfer of the right of trusteeship. The alleged transfer deed dated 29.12.1976 is invalid. The plaintiff states that the transfer of trust could not have been at the instance of Sundaramma who was mentally incapable at that time for executing any such deed. 6. The prayer in the plaint at the time of its presentation was one for declaring the document as 'invalid and not true and genuine document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned document was not produced before the Court. 10. On appeal by the plaintiff, the learned Second Additional Judge of the City Civil Court framed the point for determination as follows : 'Whether the deed of transfer of trust executed by the deceased Bysani Sundaramma in favour of the respondents dated 15.11.1976 was obtained by undue influence and if so whether it is enforceable?' Again it is seen from the judgment of the lower appellate Court that the change in the prayer in the plaint made at the time of representation was not taken note of by the counsel or the Court. The learned appellate Judge commented upon the non-production of the impugned document by the defendants, which was admittedly with them. Though there is no specific finding by the learned appellate Judge that the document in question was vitiated by undue influence, a perusal of the judgment would show that he came to such a conclusion and held in favour of the plaintiff. The learned appellate Judge has also taken the view that the power of attorney executed by Sundaramma in favour of the second appellant authorising him to present the deed of transfer' of trust for registration became inoperat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owledge. He points out to the various suspicious circumstances surrounding the execution of the impugned document and urges that the defendants failed to clear the suspicion by giving evidence themselves. The fact that the impugned document was not produced before the Courts below is also relied upon by learned Counsel for the respondent. Learned Counsel submits that P.W. 2 is a reliable witness who had no axe to grind and his evidence makes out that Sundaramma was not in a position to understand the contents and execute the document in question. Learned Counsel for the respondents submits that even though there is no specific finding in the judgment of the lower appellate Court to the effect that the document was vitiated by undue influence, it is clear from a reading of the judgment that the learned Judge came to such a conclusion. 13. Before proceeding to deal with the respective contentions of learned Counsel on both sides, it is necessary to point out that neither of them was aware of the change in the prayer in the plaint made at the time of representation of the same in the trial Court. The same was actually discovered by the Court practically when the arguments of learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from the averments made in the body of the plaint and not from the prayer paragraph. The prayer only relates to the relief which the plaintiff seeks from the Court on the basis of the averments made in the earlier paragraphs. The appropriate relief that has to be prayed for by a plaintiff is very often decided by the counsel and not by the client. The client instructs the counsel on the facts. After setting out the facts, the counsel frames the relief that has to be obtained from the Court. It is always for the Court to decide whether on the averments made in the plaint and the evidence let in by the plaintiff, the relief prayed for by the plaintiff could be granted or not. The power of the Court to mould the relief according to the facts established by evidence cannot be disputed. The dictum of Natesan, J. in Lakshmi Ammal v. Sivakamu Natesan (1969) 82 L.W. 589, may be referred with advantage in this connection. The learned Judge observed as follows: It seems to me that neither of the parties, when they adduced evidence in this case, nor the courts below have kept before themselves the principles above set out from the decided cases in coming to their conclusion as to the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ramma went to the first defendant's house at Tiruttani in the first week of November 1976 and before that she was living with the plaintiff. Though it is contended by the defendants that Sundaramma went to Tiruttani in September, 1976, the fact that she was living with the plaintiff prior to her going to Tiruttani is not disputed. Whether she went to Tiruttani in September, 1976 or November, 1976 does not matter very much It is clear from the evidence that Sundaramma was living for some time with the plaintiff and for some time with the defendants. Nothing has been brought out in the evidence that Sundaramma had any quarrel with either the plaintiff or the defendants, or that she had any occasion to dislike one of them. There is absolutely no evidence with reference to the attitude of Sundaramma towards her other daughter Sujatha. The plaintiff has examined herself as P.W. 3 and her husband as P.W. 1. P.W. 2 is a person known to the family for about 15 years and he was living in the house opposite to that of the plaintiff. The defendants contended themselves with the examining of one of the attestors to the impugned document by name Rajarathnam and another person who claimed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he shall set out the same in the pleading itself. The object of the rule is to enable the opposite party to know what case he has to meet and thus to prevent a surprise at the trial. But, it must always depend upon the facts of each case as to what degree of particularity is required. Vide Philips v. Philips 4 Q.B.D. 127. The general rule that full particulars must be given in the pleading cannot be made applicable to a case where the concerned party is not in a position to know the full particulars. 19. Learned Counsel for the appellants relied upon the following decisions of the Supreme Court in support of the proposition that in the absence of full particulars in the pleading, the case of a party shall not be accepted: Bishundeo v. Seogani Rai [1951] 2 SCR 548, Ladli Parshad v. Karnai Distillery Co. [1964] 1 SCR 270, Subhas Chandra v. Ganga Prasad [1967] 1 SCR 331 and V.S. Vishwavidayalaya v. Rajkishore (1977) I LLJ 85 SC. In all those cases, the plea was fraud, undue influence and coercion. It is not necessary to refer to the aforesaid decisions in detail in view of the facts and circumstances of the present case which I will set out below. Learned Counsel for the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of power viz., N. Rajarathinam (D.W. 1) and M. Munnuswamy Reddy. The identifying witnesses before the Sub Registrar are the same attestors. Curiously, another special power of attorney purports to have been executed on 19.11.1976 in favour of the second appellant himself for the very same purpose of presenting the document dated 15.11.1976 for registration in the office of the Registrar at Madras. The later Power of Attorney, however, sets out the reason for executing the power of attorney while the same was absent in the earlier power of attorney. This document exhibits an anxiety to fill up the lacuna in the earlier one. This power of attorney purports to have been executed in the presence of the Sub Registrar at the residence of the appellants and once again the identifying witnesses are the same two persons. There is absolutely no evidence on record explaining as to why two special powers of attorney were executed for the same purpose appointing the same person as the agent. Both the powers of attorney and the appointment in execution of power are all typed in the same machine. While two of the documents bear the signature of the typist under the endorsement typed by , the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit the truth of his case. Speaking for the Judicial Committee, Lord Shaw observed thus: Their Lordships think it unnecessary to repeat the numerous details of the story, but, as it involves a general and important question of procedure and practice, they think it expedient to make the following reference to what occurred at the trial of this civil suit. At the Bar of the Board it was admitted by the respondents that she, Bhagwan, had been present in Court when the evidence was being taken, and that she did not go into the witness box, and was not examined as a witness on her own or her alleged son's behalf. Notice has frequently been taken by this Board of this style of procedure. It sometimes takes the form of a manoeuvre under which counsel does not call his own client, who is an essential witness, but endeavours to force the other party to call him, and so suffer the discomfiture of having him treated as his, the other party's own witness. This is thought to be clever, but it is a bad and degrading practice. Lord Atkinson dealt with the subject in Lal Kunwar v. Chiranji Lal (1910) 20 M.L.J. 182 : L.R. 37 IndAp 1 : I.L.R. All. 104, calling it a vicious practi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision. With regard to third parties, this may be right enough they have no responsibility for the conduct of the suit but with regard to the parties to the suit it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition. This passage was cited with approval by this Court in a recent decision Biltu Ram v. Jainandan Prasad Civil Appeal No. 941 of 1965 dt. 15.4.1968 (S.C). In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Mt. Bilas Kunwar v. Desraj Ranjit Singh 1915 29 M.L.J. 335 : (1915) 44 Ind. App. 202 : A.I.R. 1915 P.C. 96 : But it is open to a litigant to refrain from producing any documents that he considers irrelevant if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fails so to do, neither he nor the Court at his suggestion is entitled to draw an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illing to face the cross-examination by the plaintiff's counsel. 25. Of the two attestors, one has been examined and there is no explanation as to why the other has not been examined. D.W. 1 the attestor, who has been examined, is living in Old Bazaar Street, Tiruttani and he has got a bunk shop about five or six houses off the defendants' residence. He claims that he knows the defendants' family for about 20 years and that he has seen' Sundaramma several times. He states that he signed as a witness in Ex. B4 and Ex. B6. He speaks as if both Exs. B4 and B6 were executed on the same day, but actually Ex. B4 purports to have been executed four days after Ex. B6. He states that there was an advocate by name Venkatarathnam, who translated the document in Telugu and explained to the executant. That itself shows that Sundaramma did not know English and all the documents were typed in English. The said advocate Venkatarathnam has not been examined and there is no explanation therefore. The witness claims to have signed another document on the next day. But, we do not find any document dt. 16.11.1976. Significantly, the stamp paper for the last document was purchased on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndants are to the effect that Sundaramma was very much attached to the first defendant and her husband and her family members as the first defendant's husband was responsible to get the trusteeship transferred to Sundaramma by her husband Rangayya. The averments in the written statement may give an1 impression that Sundaramma was indebted to the first defendant's husband and would act according to his wishes. Whatever it may be, the evidence does not disclose that Sundaramma had more affection - towards one daughter than the other. Nothing has been brought it out in the evidence as to why Sundaramma should favour one daughter and her son to take over the trusteeship. 27. Having regard to the facts and circumstances of the case, the burden is on the defendants to prove the execution of the documents by Sundaramma. In view of the fact that Sundaramma died within a few days after the dates of the documents, her evidence regarding the same is not available to the Court. Nor can there be any evidence with regard to her conduct after the dates of the documents which would have been available if she had lived for long thereafter. Hence, in this case, the standard of proof requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any obje ..... X X X X Extracts X X X X X X X X Extracts X X X X
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