Ramaprasada Rao, J.
1. These two appeals arise out of the common judgment rendered by the learned Subordinate Judge of Coimbatore in O. S. No. 114 of 1970 on his file. S. P. Veerbadra Chettiar, the common ancestor, died on 22-2-1951 leaving behind him. his wife, the second defendant and three daughters. Maragathammal, is his eldest daughter, who is not a party to this litigation, who married an advocate by name P. Rajappan. The first defendant P. Saraswathi Ammal married the brother of P. Rajappan and he is Dr. Punnaivanam, Rajappan was examined as D. W. 7 in the case. The plaintiff Latchmi Ammal alias Lakshmi Kantam, is the third daughter. Veerabadra Chettiar's wife Nagalakshrni Ammal, is the mother of the plaintiff, the first defendant and Maragathammal and is the second defendant in the suit. The plaintiff came to Court to set aside the sale deed Ex. B-2 dated 29-6-1964 executed by her mother (second defendant) and herself in respect of the suit properties which sale was in favour of her own sister, the first defendant. Veerabadra Chettiar left a will Ex. B-6 dated 22-1-1950. He left considerable properties. Under the said will, a life-estate was created in favour of the second defendant and a vested remainder was created in favour of his three daughters in equal moieties. The second defendant was also given the power to distribute the properties equally amongst her children. A family arrangement (which was styled as a partition deed) was entered into under Ex. B-7 dated 27-2-1952. In that partition deed the second defendant retained for herself a life estate in all the immovable properties and acting as the mother and natural guardian of the first defendant, and the plaintiff, she partitioned the suit properties equally amongst her children. To this deed Maragathammal was also a party. There were no disputes between the mother and her daughters till about 1964 when it became necessary for the mother to perform the marriage of the plaintiff. The plaintiff's case is that the two sons-in-law (the husband of Maragathammal and the husband of the first defendant) engrafted themselves in the family and were completely influencing the affairs of the family. The plaintiff would touch upon the bickerings in the family about the sharing of the properties and would allege that her mother always made out that she would have her marriage duly performed with the funds left by Veerabadra Chettiar without recourse to the properties which the plaintiff should ultimately take as the remainderman and she also made it open that in case she were to die before the marriage of the plaintiff, the elder sister will arrange to perform the marriage of the plaintiff with such funds. She would also vaguely allege that the 2nd defendant did not give out existence of the will Ex. B-6 and attacks the partition deed as an unfair transaction. Her specific case is that she was only five years old at the time of her father's death, and therefore, she was completely under the influence of her mother and her sisters and her brothers-in-law. She would say that she was inexperienced and unaccustomed to the ways of the world and she was completely a tool in their hands and it was in this atmosphere that she had to accept the brother of D. W. 7 as her husband. The marriage was performed on 10-6-1965. But on 29-6-1964 her mother and her brothers-in-law dominated her, exercised undue influence and coerced her to be a party to a so-called sale deed Ex. B-2 dated 29-6-1964, the contents of which and purport of which she could not understand till 1969, when she came to know that it was a pucca sale of one of her properties allotted to her in the partition deed Ex. B-7 and that she was unjustly deprived of the same. She complains that Ex. B-2 is a sham sale and that the properties which were worth more than Rs. 40,000/- were sold for a sum of Rs. 10,000/- and this ridiculous low price said to have been paid as consideration by the first defendant for the purchase of the suit properties is by itself an indication that the plaintiff was unduly influenced by her mother and sisters inthe transaction. There was no need to sell the properties at all, as the family was possessed of considerable sums and in fact, the money left by Veerbadra Chettiar as also the income from the properties would be sufficient to celebrate her marriage without recourse to a sale of the suit properties as was done. She pleads ignorance about the sale and asserts that she is entitled to ignore the document. In those circumstances, she filed the present suit for a cancellation of the sale deed Ex. B-2. Her alternative case is that if the Court comes to the conclusion that any amount was justifiably paid under Ex. B-2 that amount should be treated as a debt and the debt should be deemed to have been wiped out on account of the first defendant as purchaser being in possession of the properties from 29-6-1964. In this sense the plaintiff claims that she would be entitled to redeem the property without any further payments. Ex. A-1 dated 9-8-1969 is the suit notice and Ex. A-2 dated 20-8-1969 is the reply. Not being satisfied with the reply given by defendants 1 and 2, as according to the plaintiff it contains false allegations, the present suit was filed.
2. The first defendant's case is that Veerabadra Chettiar executed a will Ex. B-6. In answering the vague allegations that there was no will of Veerabadra Chettiar, the first defendant would refer to certain proceedings initiated by her mother to obtain a succession certificate from the court of the District Munsif, Coimbatore (O. P. No. 37 of 1951 on the file of that court) to collect some outstandings due to the estate of her husband. In those proceedings, the will was produced and therefore, the story that there was no will of Veerabadra Chettiar as exhibited under Ex. B-6 is a fanciful one. She refers to the partition deed Ex. B-7 under which her mother retained a life estate in the properties and divided the vested interests among her three daughters to be taken by them absolutely after her lifetime. She effected such a partition at the instance of the well-wishers of the family and in order to give effect to the desire and wishes of her husband. As per the above document, the plaintiff obtained a vested interest in the suit properties and a half share in a property in the Variety Hall Road. She claims that the mother treated the plaintiff well and educated her in a convent and that she finally appeared for the Pre-University Examination also in a college, shows that she could never have been coerced into accepting the transactions relating to the suit properties, as she was able to form her own judgment in such matters. There were no misunderstandings and the marriage was brought about with the consent of the plaintiff and that the plaintiff knowing fully well that it would be advantageous to sell the suit properties, she willingly executed the sale deed which was duly attested by respectable people and registered openly in the office of the concerned Sub-Registrar. According to this defendant, the price of Rs. 10,000/- was fair and that there was no need to indulge in any unfair transaction against the plaintiff in the year 1964.
3. The second defendant practically adopts the statement of the first defendant and adds that she was never under the influence of her daughters or her sons-in-law and denies that her husband ever left any cash from and out of which she could perform the marriage of the plaintiff. Her case is that she had to celebrate the marriage of her first daughter and that of the plaintiff only with the monies borrowed and with the money realised by the sale of certain shares and properties. It was in that connection she had to sell the suit properties in order to perform the plaintiff's marriage. The plaintiff is an educated girl, who could form her own judgment and she having willingly joined as an executant in the sale deed, she cannot complain about it. She also added that the plaintiff is not entitled to claim possession of the properties as she is only entitled to a vested remainder after her life. The case that the price paid is low is incorrect because what was sold included her life interest in the properties and it was never made out that the sale was for a low price or for an unjust consideration. She would also plead that the suit is barred by limitation and denies that the plaintiff came to know of the sale deed only in February 1969 and this allegation was made only to avoid the bar under the law of limitation.
4. On the above pleadings, the following issues were framed;
1. Whether the sale deed dated 29-6-1964 was executed on account of undue influence ?
2. Whether late S. P. Veerabadra Chettiar executed a will on 22-1-1950 in respect of his properties ?
3. Whether the sale deed dated 29-6-1964 was executed by the plaintiff in pursuance of her right title conferred by fine said will and, the deed of partition dated 27-2-1952?
4. Whether the suit is not correctly valued for purposes of court-fees and jurisdiction ?
5. Whether the plaintiff is entitled to possession of the properties ?
6. Whether the plaintiff is entitled to any and if so what mesne profits ?
7. Whether the plaintiff is entitled to a decree for redemption as an alternative relief ?
8. To what relief is the plaintiff entitled.
5. Additional issues framed as per order in I. A. No. 177 of 1971 dated 12-3-1971.
1. Whether the suit is barred by limitation as contended by the defendants ?
6. The trial court held that Ex. B-2 is vitiated because the plaintiff should be deemed to have been unduly influenced to be a party to the transaction and that such influence was exercised by her mother, her sister and her brothers-in-law. It however, finds that Ex. B-6 is genuine and finds that the story of the plaintiff that there was no will of Veerbadra Chettiar is false. On the ground that the document could be avoided by the plaintiff, the trial Court held that Ex. B-2 is not binding upon the plaintiff, but dismissed the suit on the ground that she cannot get any of the reliefs asked for in the plaint. It negatived the relief for redemption claimed as an alternative relief by the plaintiff, as that contention was not even seriously pursued during trial. In fact, it held almost all other issues against the plaintiff. The plaintiff appeals in A. S. No. 102 of 1973 complaining that though the lower Court dismissed the suit in view of the peculiar situation in which the plaintiff was placed it ought to have incorporated its finding that the sale under Ex. B-2 stands cancelled in the decree and that not having been done, she is prejudiced by it. A. S. No. 84 of 1972 is by the first defendant against the judgment and decree of the court below, which set aside the sale in her favour of the suit properties under Ex. B-2.
7. The case of the learned Advocate General appearing for the appellant in A. S. No. 84 of 1972 is that no particulars of undue influence are given either in the plaint or in the course of her examination in the witness box and that there is absolutely no evidence to show that the plaintiff was under the dominating influence of her mother or her sister or her brothers-in-law and the very fact that the plaintiff set up an alternative case such as the existence of another will and to treat the consideration paid as a loan and enable her to redeem the properties and having ultimately accepted in this Court that Exs. B-6 and B-7 are genuine documents, the plaintiff's case is rippling with inconsistencies and, therefore, the finding of the court below that Ex. B-2 is vitiated is absolutely baseless. Lastly, the learned Advocate General contends that the suit is barred by limitation.
8. On the other hand, Mr. Thiagarajan, learned counsel appearing for the first respondent would strenuously contend relying upon a catena of decisions that Ex. B-2 is an unenforceable instrument. After having referred to the oral evidence in this case, he would mainly rely upon the alleged inexperience of the plaintiff and her young age besides the alleged low price paid for the (fair) price and would attempt to sustain the finding of the court below that the properties were sold for a song.
9. The plaintiff obviously came to Court with an inconsistent plea and contradictory stories. She would pretend that there was another will executed by Veerabadra Chettiar. She would try to sustain it in the trial Court, but would not even argue or refer to it in this Court and would accept Exs. B-6 and B-7 as valid instruments under which she obtained a title to the suit properties. Apart from this, her vehement case in the court below was that Ex, B-6 was not the will of her father and, therefore, Ex. B-7 is not supportable at all. But in the appeal, there is no whisper about such a challenge as against Ex. B-6 and Ex. B-7.
10. Civil Courts trying domestic litigations like the one under consideration ought to be very slow in accepting the case of a litigant, who is prepared to change his stand like a chameleon and bolster up theories according to convenience. It is fundamental that in a case where a plaintiff abandons her case at any stage of the conduct of her own suit and practically accepts the opponent's case, since it is more convenient and suitable to her then it would be unjust and indeed unusual to allow the plaintiff to choose a different plane of action and practically claim the relief on the facts pleaded and proved by the opponent. She cannot approbate and reprobate and compel the Court to accept; her case after an open exhibition of her inconsistence. We are referring to such conduct on the part of the plaintiff at this stage only to show that it is not open to the plaintiff as a party to the litigation to allege one set of facts as against the other side and after being confronted with a denial of such facts by the opponent make a volte-face and attempt to sustain the case of the plaintiff on the facts alleged by the opponent and seek for relief on such an inconsistent stand. This attitude of the plaintiff has to be borne in mind before we go deep into her case about undue influence.
11. The plea of undue influence as raised in the pleadings rests upon the following facts urged by the plaintiff. According to the plaintiff she came to understand that the defendants have taken undue advantage of the dominant position which they and the first daughter and the husbands of both the sisters occupied with reference to her and it was in that atmosphere she was compelled to execute the challenged sale deed. The second objection is that the consideration said to have been paid under the document is ridiculously low, the third contention is that the document is a sham one not intended to be acted upon. To further this contention, the plaintiff would allege that she was told that the mother was taking a loan and that she should attest the document and she believed her mother and signed the same. She would also add that the document on the face of it is unconscionable and gives the first defendant unfair advantage. But the telling irreconcilable part of it is that in the alternative, the plaintiff accepts the document partially and she is prepared to redeem the properties without payment of the consideration mentioned therein, if the Court ultimately holds that the money was lent under the document. She claims that she is not liable to pay any amount for such redemption, since the first defendant was in possession and enjoyment of the properties till the date of suit. In a case where a litigant intends to overlook and bypass a registered document under which prima facie certain rights have become vested and under which third parties have acquired indefeasible rights, then the challenging party should be in a position to give such particulars about such undue influence which should form the basis of her complaint. The primary ground on which the plea of undue influence is founded is based on relationship. It is axiomatic that mere proof of relationship however near it may be, is not sufficient for a Court to assume that one relation was in a position to dominate the will of the other. Such bonds of kinship which are universally felt should not be mistaken as equivalent to saying that one kinsman could unduly influence the other in the circuit of such bondage. Even if any advice is given it may be influence but not undue influence. The tie of relationship need not necessarily be used unwisely, injudiciously and unhelpfully so as to gain an unfair advantage by the relation who is advising the other relation. Particularly in a Hindu family a widowed mother, who would rather be fairly and affectionately inclined to an unmarried daughter would not make undue preferences in favour of a married one who has already been provided for and who was well set in life. The sentiment, the traditional features of a Hindu Home, the love and affection of a mother towards her natural and last child which is a always in one way unless there are very extraneous circumstances to assume otherwise should always prompt a Court to raise the reasonable presumption that any advice or influence which a parent brought to bear on his own child is not to gain an advantage for herself or to see that an unfair advantage is gained by another child of hers in preference to the challenging child. There is also one other important and salient feature which ought to be established on materials pleaded and acts established that the 'bargain is tainted by undue influence' and it is unconscionable that it could reasonably be said that the person to obtain unfair advantage for himself and so as to cause injury to the person sought relying upon his authority or aid. It is only after such particulars are made available and a reasonable proof thereof has been given, the onus probandi would shift on the so-called 'person of domination'. Until then the burden is on the complainant to establish it is so.
12. In the instant case, the particulars given are not so appealing and telling. It is essential that in a case where fraud, undue influence or coercion is put at the forefront the complaining party should set forth the facts in full and give such essential particulars instead of making general allegations. That this is the legal requirement as provided for in Order 6, Rule 4, C.P.C. is reiterated by the Supreme Court in Subhas Chandra v. Ganga Prosad : 1SCR331 . The Supreme Court said that the Court must scrutinize the pleadings to find out that a plea has been made out and that full particulars thereof have been given before examining Whether undue influence was exercised or not. In the light of this, the pleadings and the evidence let in should be scrutinized.
13. Before doing so, it would be convenient to refer to the plaintiff herself and her ability and capability. She had her early education in an Anglo Indian School and studied up to Pre-University Class in the Nirmala College, Coimbatore. She is, therefore, an educated lady and not an illiterate or a person, who could be said to be incapable of acting on her own. In cases where a person suffers from an infirmity or backwardness, then standards of proof regarding undue influence or coercion may be slightly different. The case cited by the learned counsel for the respondent in Nibaran v. Nirupama AIR 1921 Cal 131 deals with the transaction of a Pardanashin lady. They divided the decisions on the subject under two groups as follows:
'...... First, cases where the person who seeks to hold the lady to the terms of her deed is one who stood towards her in fiduciary character or in some relation of personal confidence; and secondly, cases where the person who seeks to enforce the deed was an absolute stranger and dealt with her at arm's length. In the former class of cases, the Court will act with great caution and will presume confidence put and influence exerted; in the latter class of cases, the Court will require the confidence and influence to be proved intrinsically'.
A fortiori therefore, in a case where the challenging litigant is capable and literate and the parties are parent and child, the Courts, must be doubly careful and would certainly demand strict proof of the misuse of confidence and influence said to have been exercised by the other party when the other party is none else than the mother. P. Ws. 1, 2 and 3 do not convincingly refer to any unfair practice indulged in by the mother when she joined with the plaintiff to sell the property to the sister of the plaintiff. P. W. 4, the plaintiff's father-in-law, does not even wisper about undue influence having been exercised by the mother or any other member of the family. He would only ask us to draw some inference from surrounding facts. He would say that Dr. Punnaivanam, the husband of the first defendant took active part in arranging the marriage of the plaintiff and that the husband chosen was according to the choice of the plaintiff herself and that considerable sums were spent for her marriage. It is in this background of total lack of particulars of undue influence that we should read the evidence of P. W. 5, the plaintiff herself. She admits that she might have read the document Ex. B-2. This necessarily means that she has read it, since there is no denial of it. Her case is that she was not aware that she was executing a sale deed. Her specific particulars which she gives in the witness box about the practice of undue influence are that her mother, the second defendant, her elder sister, the first defendant, and Punnaivanam, the husband of the first defendant, informed her that another family house had been brought to sale in Court auction and that in order to save the property she must sign the document. There is no corroboration about this extraordinary version. The first defendant as D. W. 6 speaking to the contrary would say that the property had to be sold in order to secure money for purpose of the marriage of the plaintiff and since she was inclined to purchase the property she bargained for and fixed a fair price of Rs. 10,000/- and purchased the property under Ex. B-2. No doubt the mother whose act has been challenged and who is obviously in an embarrassing position, did not choose to get into the box. D. W. 5 is characterised by the lower court as a respectable person. He deposed that Ex. B-2 was read over and after it was so read over only, the plaintiff signed Ex. B-2, But the trial Judge thought that D. W. 5 should have expressed an opinion besides having spoken the truth. He was of the view that D. W. 5 should have specifically stated that the plaintiff signed the document after knowing the true nature of it. We are unable to share the view of the trial court in this behalf. When once a person placed in the position of the plaintiff who is not an illiterate and who could be said to have such experience in life and matters to understand things it is very difficult to infer that the plaintiff has discharged her burden. She would say in the witness box that she signed because she wanted to avoid a sale of another property of the family. She improves her case in the witness box so as to satisfy the legal requirement about the particulars of undue influence by saying that she believed her mother and her elder sister and signed the document. She would pretend that she signed as a witness to some document. She also would say that there was no necessity for sale, since there were family jewels and other monies of her father which was available for celebrating her marriage. The document is of the year 1964. Her mother was sending her regularly some amounts by way of pocket money and there was therefore no ill-feelings or any difference of opinion in the family. It is only in 1969, when she was in Coimbatore, she came to know that her property has been sold. Excepting for this evidence that it was P. W. 3 who told her about it no other speak about it, P. W. 3 was examined on 23-3-1971 and P. W. 5 was examined on 24-3-1971. There is no consistent version which is acceptable even as regards the information said to have been given by P. W. 3 in 1969. P. W. 3 would not specifically refer to the meeting at Coimbatore in 1969, whilst P. W. 5 the plaintiff refers to it very vaguely. In the suit notices which were exchanged under Exs. A-4 and A-2 there is no specific reference to the plaintiff having been unduly influenced by her mother. One other important feature Which has to be borne in mind in the instant case is that the plaintiff should be deemed to have understood the challenged deed and signed it. The plea of non est factum is therefore not available to her. She says 'PADITTHU ERUKKALAM' but she does not say ' PADIKKAVILLI'. The fair assumption is that she read it, understood it and signed it. To quote the observations of the Privy Council in Martin Cashin v. Peter j. Cashin AIR 1938 PC 103 :
'In a case where the person executing the deed is neither blind nor illiterate, Where no fraudulent misrepresentation is made to him, where he has ample opportunity of reading the deed and such knowledge of its purport that the plea of non est factum is not open to him, it is quite immaterial whether he reads the deed or not. He is bound by the deed because it operates as a conclusive bar against him not because he has read it or understands it, but because he has chosen to execute it'.
Mr. Thiagarajan referred to various decisions. Narayanadoss Balakrishna Doss v. Buchrai Chordia Sowcar 53 MLJ 842 : AIR 1928 Mad 6 ; Rama Patter v. Lingappa Gounder : AIR1935Mad726 ; Mannankatti Ammal v. Vaiyapur Udayar 1961 2 MLJ 367 ; Abdul Malick Sahib v. Md. Yousuf Sahib : AIR1961Mad190 and other cases to show that this is a case where the plaintiff should be deemed to have been unduly influenced. In all those cases the following principles were laid down.
'(1) Where confidential relations exist, those standing in such relations cannot entitle themselves to hold benefits unless they can show that the persons who have conferred the benefits had competent and independent advice. In this case, neither does the age nor the capacity of the person conferring the benefit affect the principle'.
'(2) Age and capacity are considerations which may be important in cases where no confidential relation exists'.
There can be no quarrel relating to such accepted and general proposition. But each case has to depend upon its facts. In the instant case, the parties are parent and child. The document was executed at a time when the marriage negotiations of the plaintiff were going on. According to us, the plaintiff understood that it was sale of her property for consideration. The story that there were other moveable properties such as jewels and cash which ought to have been sufficient for the conduct of her marriage though spoken to vaguely has not been established. No such evidence has been placed before us either. The normal circumstance of securing competent and independent advice would not enter for consideration in this case because it was all arranged in a family council in which there was no distrust or mistrust as between the one and the other. What was sold did not belong to the plaintiff at all on the date of sale. She had only a bare right of expectancy; it may be a vested right. The subject-matter of the sale was not fully appreciated by the trial court. Both life interest of the mother as well as the ultimate remainder vested in the plaintiff were act (sic) of the second defendant after freely exercisingher independent will and mind. The case relied on by Tyagarajan in Lancashire Loans Ltd. v. Black 1934 1 KB 380 which, of course, is a case as between a daughter and a mother, is certainly distinguishable. There, the daughter, who did not understand the transaction, signed the document at the request of her mother. The only advice which the daughter received was that of a Solicitor, who also acted for the mother and the money-lenders, who duped the daughter and who prepared the documents. It was in those circumstances the Court of Appeal held that the daughter was under the undue influence of her mother when she entered into the transaction in question and as the money-lenders had notice of the facts which constituted undue influence on the part of the mother, the transaction must be set aside. The facts of our case are entirely different.
14. Learned counsel for the first respondent rests his case in the alternative on the inadequacy of consideration which was more or less the sole ground on which the lower Court found a case of undue influence. The Court thought that the price paid under Ex. B-2 was ridiculously low. We have already referred to the fact that the plaintiff came to Court with inconsistent plea and she was not able to substantiate her case of undue influence, by concrete evidence. The sale is both the life estate and the vested remainder. But the lower court did not have this in mind and went on evaluating the property on some uncertain evidence regarding the income which it fetched and came to the conclusion that the price paid was ridiculously low, and therefore, the document should be set aside. Ex. A-17 dated 3-3-1965 furnished data with reference to some other property but said to be similar. This was proved by P. W. 2, who asserts that the suit land would fetch an annual rent of Rs. 5,000/-. Reliance is also placed on Ex. A-37 which is a diary said to have been written by the second defendant. Apart from the fact that this diary appears to be a book, which cannot be relied upon in a Court of law, the entry therein does not show that the amount mentioned therein related to one year's period only. But according to the Court below Ex. A-41 dated 1'4-12-1950 and Exs. A-60 dated 25-1-1962 and A-61 provided clinching evidence about the income. The mother was a party to Exhibits A-60 and A-61. The lower Court accepted the materials furnished under Exs. A-41, A-60 and A-61 and came to the conclusion that the annual rent yield from the property would be about Rs. 3,500/- to Rs. 4,250/-. Prima facie it appears that a sale of a property for a sum of Rs. 10,000/- when its annual yield is in the range of Rs. 3,000/- to Rs. 4,000/-is not a fair transaction. But as we said, the second defendant, who is a party to Ex. B-2 had a life-interest over the property and she was selling her life-interest also under it. The second defendant is still alive. The document is of the year 1964, Even now she is reported to be hale and healthy. For six years, therefore, that is, six years before the suit, she lost her annual income of Rs. 4,000/- subsequent to the institution of the suit, she has lost another like sum. In cases where it is necessary to take subsequent events into consideration, the Court is not powerless to view those events also and weigh the reality of the situation or the equity of the bargain. If the mother has lost Rs. 48,000/- so far which ought to form part of the consideration, then the property should be deemed to have been sold for a sum of Rs. 60,000/- in 1964. This is not an unfair price even if the annual yield was about Rs. 4,000/-. This was not borne in mind by the learned Judge. The lower Court apparently was of the view that it was the plaintiff and the plaintiff alone who was entitled to the property on the date of sale and it is in that light, it considered the issue whether the price paid was ludicrously low. The plaintiff's case is that the property could have fetched only a sum of Rs. 40,000/-. Even on the date of suit, the consideration which should be deemed to have passed under the sale was very near that amount. But this is not all. The entirety of the transaction must be taken into consideration and the necessity for the sale, are all factors which should necessarily be borne in mind before a transaction could be set aside on the ground that the price paid therein is so low that it could be said to have been tainted by undue influence. In A. S. No. 644 of 1972 this Division Bench held :
'When once it is proved that the properties in question were sold for a consideration by the vendor without being influenced either by coercion or by undue influence then the question as to why he had sold the property may not loom large. More so in the instant case when the father of the vendor himself had attested the said document ... ... ...'
For the above reasons, we are unable to share the view of the trial court that Ex. B-2 should automatically fail and be held as an inoperative document on the only ground that prima facie the consideration is not adequate.
15. The plaintiff cannot succeed on one other specific ground which affects the very maintainability of her suit. The plaintiff was born on 2-8-1945. Ex. B-2 sale was executed on 29-6-1964. Her marriage was on 10-6-1965 and the plaint was presented to set aside the sale under Ex. B-2 on 22-2-1970, She tries to get over the plea of limitation by saying that she came to know that Ex. B-2 was a sale only in 1969. There is no reliable evidence at all on this. The lower court was influenced by the only fact that the mother and Dr. Punnaivanam did not get into the box. The finding of the court below that she came to know of the true nature of the document only in 1969 should be accepted, is not based on any acceptable material. We have already referred to the fact that the plaintiff examined as P. W. 5 says that she knew about it from P. W. 3 while she was in Coimbatore. P. W. 3 himself does not whisper about this. Then the question is whether the suit instituted in 1970 to set aside a document executed in 1964 is in time. When once the document is a registered one and the plaintiff herself attended the Sub-Registrar's Office and accepted the nature of the transaction and when according to us she must have acquainted herself with the recitals of the document she should have understood it as a sale of her interest in the property. Therefore, the facts entitling her to have the instrument set aside became known to her even on 29-6-1964. She has invented the year 1969 as the year when she first became known of such facts. This story is unbelievable. Even in the notice Ex. A-1 she would not set out the necessary particulars as to how she came to know about the unfairness of the transaction only in 1969. We have repeatedly referred to the fact that the plaintiff came forward with a case that there was a second will and she was unable to prove it. She would assert that the will Ex. B-6 was not duly executed by her father. She made a faint attempt to prove it. She would not even accept the partition deed Ex. B-7 when she came to Court. But in appeal she accepts that Exs. B-6 and B-7 are valid. She does not press her case about the existence of a second will but is satisfied with the judgment of the court below and would only ask this Court to incorporate in the decree the finding of the court below that Ex. B-2 is vitiated by undue influence and is unenforceable. Such being the attitude of the plaintiff and in the absence of any evidence which could be accepted to show that it was only in 1969 that she came to know that Ex. B-2 was a sale of her interest in the property, we are unable to accept the said version of the plaintiff. We find that she had knowledge about the sale even in 1964 and she not having taken any action within three years from the date of such execution, the suit is barred under Art. 59 of the Indian Limitation Act, 1963.
16. On the ground that what was sold was the life-interest and the ultimate remainder of the plaintiff in the property and that the price, therefore, paid therein cannot be said to be inadequate, for the mother parted with her life-interest, the value of which is considerable and on the ground that the mother cannot be said to have exercised any undue influence over her daughter and lastly on the ground that the suit itself should be held to be barred by limitation, we accept the dismissal of the suit made by the court below and would also hold that the plaintiff has failed to prove that Exhibit B-2 has to be set aside or cancelled on the ground that her mother or any of her near relations unduly influenced her to be a party to it.
17. The appeal, A. S. No. 84 of 1972 is, therefore, allowed; but there will be no order as to costs. In the circumstances, the request of the appellant in A. S. 102 of 1973 that the decree should be modified as prayed for by her cannot be countenanced and A. Section 102 of 1973 is dismissed. There will be no order as to costs. But the appellant in A. S. No. 102 of 1973 shall pay the court-fee payable to the Government.