1. On the question whether the deed of gift executed by Bhagirathi Ammal in favour of the first defendant is voidable on the ground that it was obtained by undue influence, we agree entirely with the finding of the learned Subordinate Judge that to such case has been made out. We have been taken through the entire evidence, in order to find out whether any proof has been given of undue influence. But beyond some very vague statements there is really nothing which can be taken to be evidence of undue influence. Beyond the fast that the second defendant, father of the first defendant, was the manager of this lady's property for about three years before the execution of the document in question, Exhibit VII, there is nothing to show that he had any particular influence with the lady, mush less that he dominated her will so as to influence her to execute a deed of gift in favour of the son. The law requires that the plaintiff who sets up undue influence must, to start with, establish that there was active confidence between the person executing the document and the person under whose influence the document is said to have been executed. There is no evidence in this case from which any such active confidence can be inferred. The learned Counsel for the appellant wanted to make out a case of undue influence by picking up some facts here and there from the evidence of witnesses for the defense; for instance, he wanted to show that the lady was misled as to her being able to adopt the son of one of the Gnatis, and that she made the gift in question in favour of the first defendant partly owing to that misapprehension which, it is said, was brought about by the second defendant, or at any rate at his instance. But no such case was suggested in the plaint or in the issues or in the evidence of the plaintiff. Reliance was placed on the fact that the first defendant and the second defendant lived in the house of this lady and that there was nobody else to advise her as to the disposition which she wanted to make of her property. But this lady had no near relations. The plaintiff and other reversioners were hardly in any touch with her and visited her but very rarely, and it was natural under those circumstances that she should invite some of her remote relations, like the second defendant, to live with her. The first defendant was apparently born in the house and was brought up by her, and it may be presumed that she was much attached to this boy. That in itself would be sufficient to account for the gift made in bis favour.
2. The case put forward by the plaintiff really was that at the time of the execution of the deed of gift, this lady was not in a proper state of mind, and that she was unconcious at the date of the execution of the document. The evidence adduced in support of this case is very meagre and extremely unreliable. On the other hand, the evidence on the side of the defence, which is of a reliable character, shows that she knew as to what she was about although she might have been ill. There was a doctor who attended on her, and he has given evidence that she was not at any time unconscious, and the deed was got registered by her three or four days afterwards by the Sub Registrar in her own house. The Sub-Registrar says that she acknowledged execution of the document, and we find no reason whatever for doubting the honesty of this witness or of the retired Sheristadar, Venkata Rao, who was in attendance on her and used to advise her from time to time. We have also got the affidavit filed by her the day before she died, i.e., about ten months after execution of the deed of gift, in which she acknowledged that she had made the gift in favour of the first defendant. We have also the fact that during all these ten months after the execution of Exhibit VII, the plaintiff or the second witness for the plaintiff, who was also a reversioner, did not take any step to impeach the document, which must have been known to them and was certainly known to second witness for the plaintiff, for he put in an application before the Sub-Registrar objecting to the registration of the document. He has now gone over to the plaintiff's side and is supporting his case by saying that the lady was unconscious on the date of the execution of the document as well as on the date it was registered. In our opinion, this witness is unworthy of belief. Nor can we attach any value to the evidence of the fourth and fifth witnesses for the plaintiff. The Sub-Registrar's evidence shows that the statement of the plaintiff's second witness that on the first day he (the Sub-Registrar) refused to register the document because he was satisfied that the lady was not in a proper state of mind, is entirely false. He did not register the document because some of the Survey Nos. of the properties dealt with had not been given and owing to some other similar defeats. We hold that no undue influence has been proved, and it is not shown that Bhagirathi Ammal executed the document in question without knowing what it was about.
3. The next argument was that the learned Trial Judge was wrong in not appointing a Commissioner to examine the books of account filed by the defendants, so that it might be ascertained how much of the property was acquired by Bhagirathi Ammal before her son's death, and how much after that date. The learned Judge points out that although the plaintiff was asked to renew his application after the oral evidence had been closed, be did not comply with that order, and allowed the ease to be disposed of on such evidence as was on record. He had ample time given to him, and it was his own fault if he did not avail himself of the opportunity. We may also mention in this connection that the plaintiff does not in his plaint suggest that any property was bought during the lifetime of the woman's son and that, therefore, she was not authorised to dispose of the property. No such issue was raised either to that effect. Any way he failed to prod use any evidence to prove that any property was bought with the accumulation of the income derived during Bhagirathi Animal's son's lifetime.
4. Mr. Madhavan Nair, appearing for the appellant, also argued that in law a Hindu widow is not entitled to dispose of the surplus income as she chooses and that any property bought with the surplus income must be presumed to be accretions to her husband's estate unless it is proved otherwise. But the law has long been settled to be the contrary in this Presidency, and it would be enough to refer to a Full Bench decision of this Court Subramanian 'Chetti v. Arunachelam Chetti 28 M.P 1, on this point.
5. The result is that the appeal must be dismissed with costs. There will be two sets of costs payable by the appellant--one to defendants Nos. 1 and 6 and the other to defendants Nos 3 and 4.