PONNAYYA MOOPANAR Vs. SUPPAMMAL

JUDGEMENT

(1.) The appellant sued for a declaration of his title to the properties in schedule A to the plaint on the cancellation of the settlement deed dated 15 September, 1939, executed by him in favour of defendants 1 to 4 and alleged to have been so executed by reason of fraud, misrepresentation, undue influence and coercion. The trial Court on the facts found that there were no materials to justify a conclusion that there was any fraud, undue influence, misrepresentation or coercion invalidating the settlement deed. It also found that the award made by the arbitrator, P.W. 9, on a reference by both parties regarding the dispute arising out of the settlement deed was invalid, not by reason of any misconduct of the arbitrator but because of the invalidity of the reference which, according to the learned Judge is not a complete reference, but only an agreement to make a reference at some future date. The plaintiff appeals.

(2.) The plaintiff was at the time of the suit aged about 50. His first wife died in 1935 and in 1936 he married a second wife. By the first wife he had three daughters and one son. The eldest daughter is the mother of the fourth defendant and the wife of one Chockalingam who figures prominently in the case. The second daughter is the first defendant who is the mother of the second defendant. The first defendant married a brother of this Chockalingam. The third daughter is the third defendant who herself married Chockalingam after her eldest sister's death. The son died on the 29 April, 1939 and it is his death which, it is alleged, upset the mind. of the plaintiff to such an extent as to make him amenable to improper influence.

(3.) At the time of the marriage of the plaintiff to his second wife there was a settle-ment in her favour of some property. The settlement now attacked was executed on the 15th September, 1939, that is to say, nearly five months after the death of the settlor's son. It is evidenced by Ex. P-1. On the following day the settlor executed a power of attorney in favour of his son-in-law Chockalingam with reference to certain charity properties which vested in the plaintiff and three days later there was a sale deed executed in favour of an alleged creditor. All the three documents were taken to the registry office on the same day; but there was some seven days delay in the registration of the settlement deed. About a fortnight later the plaintiff executed Ex. D-6 dated 11 October, 1939, whereunder he settled on his second wife certain Travancore properties not covered by Ex. P-1. On the 18 October 1939, the plaintiff- appellant executed a cancellation deed which was duly registered and thereafter, on the 25th October, he sent a notice to the defendants, Ex. P-5, in which he sets forth at considerable length his present case that he was wrongly influenced, tricked and defrauded when in a state of depression owing to his loss and improperly induced to execute a settlement deed. As the result of this notice there was contest over the patta transfer proceedings and we are informed that there was also pro-ceedings before the Magistrate under Section 144 of the Code of Criminal Procedure. On 18 January, 1940, Ex. P-6 was executed. This purports to be a muchilika in favour of the arbitrator, P.W. 9, executed by the settlor (plaintiff) and by the first and third defendants, his surviving daughters, by Chockalinga as father and guardian of the minor fourth defendant and by Arumuga Nainar as father and guardian of the minor second defendant. This document recites: There have been some disputes between individual No. 1 and individuals Nos. 2 to 5 in respect of the settlement deed which has been executed by individual No.1 of us in favour of individuals Nos. 2 to 5 in respect of the former's moveable and immoveable properties and which has been registered on 27 September, 1939 ... and in view of the unnecessary expenses and losses and trouble which may befall the family on account of the said disputes, we have wholeheartedly executed this muchilika in your favour, agreeing that we would file the necessary written records as well as written statements before you, with regard to the aforesaid disputes that you may examine us personally and also the said documents and statements, etc., that you may make an award according to your conscientious opinion and that we would abide by your decision and act accordingly. If any one of us should act in defiance of the award to be given by you in pursuance of the said muchilika we agree hereby that the one-sided award to be passed by you shall be final. We shall produce the said documents and the statements to be given by us, within one week from this day. In case any one of us should fail to produce before you the statement or records, or if we should fail to appear on the dates to be fixed by you or if we should fail to adduce proof through witnesses we shall be bound by and act according to the decisions to be given by you; and we have executed this muchilika agreeing hereby to the above terms....