G. Ramanujam, J.
1. The plaintiff is the appellant. She filed a suit for a declaration of her title to the suit properties consisting of 8 items and for possession of the same from the defendants with mesne profits. The plaintiff claimed that the suit properties originally belonged to her mother, Alamelu Ammal, she having purchased the same with her own funds from one Venkatachala Padayachi, under a sale deed Exhibit A-2, dated 8th April, 1935,, for a sum of Rs. 500, 'that the plaintiff has become the stridhana heir of her mother, and that as the plaintiff was a minor at the time of her mother's death her father Kannuswami Padayachi and after his death the first defendant, her brother, bad been managing the suit properties on her behalf. The plaintiff alleged that neither her father, Kannuswami Padayachi nor her brother, the first defendant, had any right or interest over the suit properties, but that taking advantage of the fact that the plaintiff had just attained majority the first defendant obtained a registered release deed Exhibit A-7, dated 7th September, 1957, by exercise of coercion and undue influence. The plaintiff's case is that the said release deed Exhibit A-7, is void and inoperative, that the first defendant, taking advantage of the said release deed purported to have been executed by the plaintiff, had sold items 3 and 6 measuring in the aggregate 1 acre 11 cents to the third defendant, that similarly the second defendant also is an alienee of some of the suit items that the alienations made by the first defendant in favour of defendants 2 and 3 are not valid and binding on her, and that, therefore, she is entitled to have her title to the suit properties declared and to recover possession of the same from the defendants.
2. The first defendant appeared in Court on the first hearing date and endorsed on the plaint that the suit might be decreed as prayed for. The second defendant who is a minor acting through her mother as guardian remained ex parte. The third defendant alone contested the suit. He contended that the suit as framed is not maintainable, that it is also barred by limitation as it has not been filed within three years from the date of execution of the release deed by the plaintiff, that the suit properties were not the stridhana properties of the plaintiff's mother, Alamelu Ammal, that she had no wherewithal to purchase the properties, that the properties had been purchased by the first defendant's father, Kannuswami Padayachi for the benefit of the family benami, in the name of his wife, Alamelu Ammal, that Kannuswamy Padayachi alone, enjoyed the properties in his own right till his lifetime and thereafter the first defendant had been enjoying the same in his own right and that, therefore, the plaintiff cannot claim any right in the suit properties. According to the third defendant the release deed Exhibit A-7, was taken by the first defendant from the plaintiff only by way of abundant caution and to place the matter beyond controversy and it is binding on the plaintiff. He also alleged that he is a bona fide purchaser from the first defendant of items 3 and 6 for a consideration of Rs. 4,500 under Exhibit B-5, dated 21st April, 1962.
On these pleadings the trial Court considered in the main three issues namely : (i) whether the sale deed in favour of Alamelu Ammal, Exhibit A-2 was benami for the benefit of the joint family as alleged by the third defendant; (ii) if Exhibit A-2 is not benami, whether the release deed Exhibit A-7, dated 7th September, 1957, executed by the plaintiff is vitiated by misrepresentation, undue influence and coercion as alleged by the plaintiff and (in) whether the suit is barred by limitation. The trial Court held on a consideration of the evidence on record that Exhibit A-2 is not benami for the benefit of the joint family and that the suit it properties are the exclusive properties of Alamelu Ammal and not that of the joint family of her husband, Kannuswami Padayachi, and his son. On the question as to whether the release deed Exhibit A-7, is vitiated by misrepresentation, undue influence and coercion, the trial Court expressed the view that the same is void and inoperative as it has been brought about by the first defendant by exercising undue influence on the plaintiff when she was under his charge without any independent advice. On the third question the trial Court held that the suit as framed is not barred by limitation as in its view neither Article 58 of the Limitation Act of 1963, applied to the facts of this case, and that Article 65 prescribing the limitation of twelve years for recovery of possession alone applied to the facts of this case. In that view the trial Court decreed the plaintiff's suit as prayed for.
3. On appeal by the third defendant in respect of items 3 and 6 alone, the lower appellate Court agreed with the view of the trial Court on the first question that the suit properties have not been purchased for the joint family of Kannuswami and his son benami under Exhibit A-2, and that the properties were really that of Alamelu Ammal. On the second question, however, the lower appellate Court held that the release deed Exhibit A-7, was not vitiated by any misrepresentation or undue influence that, in any event, even if Exhibit A-7, is vitiated by undue influence and misrepresentation, still it is only a voidable document which has to be set aside within a period of 3 years, and that the suit not having been filed within three years from the date of the document, it is barred by limitation. The lower appellate Court, therefore not only allowed the appeal but dismissed the plaintiff's suit in entirety.
4. In this second appeal the plaintiff-appellant contends that the view taken by the lower appellate Court that the release deed Exhibit A-1, is not vitiated by undue influence and misrepresentation and that the suit is barred by limitation cannot be sustained and that the view of the trial Court in that regard is quite in accordance with law. Therefore, it has to be seen whether the finding of the lower Appellate Court on the questions of the validity and binding character of Exhibit A-7, and of limitation are correct.
5. As already stated, both the Courts have concurrently held that the suit properties are the separate properties of the plaintiff's mother Alamelu Ammal, and not that of the joint family. This being a concurrent finding it has to be accepted and therefore, the first defendant must be held to have no title to the suit property prior to the execution of the release deed by the plaintiff under Exhibit A-7.
6. The question whether Exhibit A-7 is vitiated by undue influence has to be considered in the light of the following facts. The plaintiff was admittedly a minor at the time when her mother Alamelu Ammal died. She was under the care and custody of her father Kannuswami, and after his death she was being looked after by her brother, the first defendant. Admittedly the plaintiff is not educated and she is only a marks-woman. The first defendant has taken Exhibit A-7, immediately after the plaintiff became a major and when she was completely under the care, protection and control of the first defendant without any opportunity of having independent advice. It is not in dispute that at the time when Exhibit A-7, was executed she was unmarried having just then attained majority. The plaintiff has alleged that the first defendant, taking undue advantage of the dominant influence which he had over her and after making some misrepresentation that the property belonged to the joint family, made her sign the said release deed, that she did not know the contents of the document when she signed the same. On these proved and undisputed facts, the trial Court held that the document is vitiated by undue influence. But the lower appellate Court has chosen to express the view that it is not so vitiated. But I am of the view that the view of the Trial Court that the document is vitiated by undue influence is correct.
7. In Narayandoss v. Buchiraj 53 M.L.J. 842 : A.I.R. 1929 Mad. 6, Venkatasubba Rao, J. had expressed the view that if there is a relation which gives rise to a confidence between the parties and if the person in fiduciary position obtains advantage, the Court can give relief to the party conferring the benefit unless the other party shows that he did not avail himself of the confidence which subsisted between the parties. The learned Judge also stated that even when a third party is involved the position is the same, that if it is shown that he was aware of the said confidential or fiduciary relation he is under the same disability as the party who occupied the position of confidence, that is to say, the Court gives relief to the party conferring the benefit without demanding proof of fraud or imposition or any specific act of undue influence. In Mariam Bibi v. Cassim Ebrahim A.I.R. 1939 Rang. 278, immediately after his daughters had attained the age of legal majority, their father obtained from them full and unconditional release in respect of their shares in their mother's property. On the question as to whether the release deed is vitiated by undue influence, the Court expressed the view that undue influence is to be inferred from the special relationship between the parties, quite apart from proof of actual fraud or unfair advantage, 'and that in law a special relationship of confidence does exist between parent and child, notwithstanding that the child is actually of age at the time when the transaction took place. In that case the following observations of Lord Landgale, M. R., in Archer v. Hudson (1845) 7 Beav. 551, have been quoted with approval.
Nobody has ever asserted that there cannot be a pecuniary transaction between a parent and a child, the child being of age; but everyone will affirm in this Court that if there be a pecuniary transaction between parent and child, just after the child attains the age of 21 years, and prior to what may be called a complete ' emancipation ' without any benefit moving to the child, the presumption is that an undue influence has been exercised to procure that liability on the part of the child.
In Abdul Malick Sahab v. Mi. Tusuf Sahib : AIR1961Mad190 a Division Bench of this Court considered; the scope of Section 16 of the Contract Act, with reference to a gift said to have been made by a child to a parent soon after attaining majority. In that case the Court expressed the view that the transactions in that case were in the nature of a bounty from a child to a parent are in equity looked upon with caution by Courts and it is the duty of the donee to prove that the gift was the result of free exercise of independent will, that the Court should be satisfied that the donor was acting independently without any influence from the donee, and that the mere existence of a fiduciary relationship of parent and child between the donee and the donor will raise a presumption of undue influence and it is on the donee to rebut the presumption.
8. In view of the above decisions and of the specific provisions contained in Section 16 of the Contract Act as also Section 59 of the Trust Act, the conclusion on the facts of this case is inescapable that the first defendant had obtained an advantage over the plaintiff when he was in a fiduciary relation to the plaintiff. Neither the first defendant nor the third defendant who claims under the first defendant had attempted to rebut the presumption of undue influence arising out of the first defendant's fiduciary relation. Therefore, the view taken by the lower appellate Court that Exhibit A-7, is not vitiated by exercise of undue influence cannot be accepted.
9. I am however, inclined to agree with the view taken by the lower appellate Court that the suit is barred by limitation. The lower appellate Court has taken the view that even if the document is vitiated by undue influence, still the said document is only voidable and not void ab initio, and that, therefore, the plaintiff must have the document set aside within three years from the date of the document. Section 19-A of the Contract Act says that when consent to an agreement is caused by undue influence, such an agreement is a contract voidable at the option of the party whose consent was so caused and such contract may be set aside either absolutely or upon such terms and conditions as to the Court may seem just. If Exhibit A-7, is held to be merely voidable it is necessary for the document to be set aside within a period of three years referred to in Section 59 of the Limitation Act, and a mere suit for declaration that the instrument is void and ineffective will not lie. Vide Mt. Azizunnissa v. Siraj Husain : AIR1935All507 . In cases where the instruments are voidable at the instance of a party, a suit to set aside or cancel the document must be filed within three years from the date of knowledge, that is, the date of the document. (Ramachandra v. Laxman , and Someshtaar Dutt v. Tribhutaan Dutt ) I have to, therefore held that the suit is barred by limitation even if it is treated as one for setting aside the release deed Exhibit A-7.
10. It is, however, contended by the appellant's learned Counsel that in any event the lower appellate Court erred in dismissing the entire suit even though the appeal before it related to items 3 and 6 alone. But I am of the view that the appellate Court was right in exercising its powers under Order 41, Rule 33, and dismissing the suit in entirety, in view of its finding that the suit is barred by limitation.
11. The result is, the second appeal is dismissed and the decree and judgment of the lower appellate Court are confirmed. There will be, however, be no order as to costs. No leave.