GROVER, J - (1.) THE Judgment of the court was delivered by
(2.) THIS is an appeal by special leave from a judgment and decreeof the Kerala High court whereby the appeal preferred by respondent No. 1herein was allowed and the suit was dismissed. The following pedigree tablewill be helpful in understanding the facts :(For pedigree see next page.) JUDGEMENT_159_3_1970Image1.jpg The suit out of which the appeal has arisen was instituted in the nameof Narasimha Bhatta who was stated to be of weak intellect by his next friendand daughter Adithiamma for a declaration that the will, dated 30/09/1955, said to have been executed by him was invalid and also for the cancella-tion of the deed of settlement, dated 13/12/1955, which had also beenexecuted by Narasimha Bhatta in favour of the first respondent and for otherincidental reliefs.The case as laid in the plaint was that the plaintiff, who was of advancedage, was suffering from diabetes for a long time and his physical and mentalcondition was very weak. Respondent No. 1 was at first unsuccessful in gettinga will executed by him by which he bequeathed almost all his properties tothe said respondent. In December 1955 he was taken to Mangalore by respondent No. 1 and there the latter managed to get executed Ex. B-3 by him. By this deed of settlement the entire properties which were considerable were given to respondent No. 1, the plaintiff reserving only a life interest for himself besides making some provision for the maintenance of his wife Lakshmiamma. Respondent No. 1 was able to obtain benefits under the settlement deed for himself owing to the weak intellect and old age of the plaintiff. A declaration was thus claimed that the will and the settlement deed were null and void and were not binding on the plaintiff. Respondent No. 1 contested the suit. He denied the existence of the will and maintained that the deedof settlement was not executed under undue influence or when the plaintiff was in a weak state of mind. Anumber of issues were framed on the pleadings of the parties. TheTrial court by its judgment, dated 31/03/1959, decreed the suit holdingthat the will was invalid and that the deed of settlement Ex. B-3 was alsoinvalid. It was held that the plaintiff was a person of weak intellect and wasnot in a position to take care of himself and manage his affairs properly on thedate of the execution of the aforesaid documents. The respondent preferred anappeal to the High court. After hearing the parties the High court directedthat the evidence of three persons, two of whom were doctors and the thirdwas a document writer, should be recorded by the Trial court and the recordsubmitted to it. After the receipt of the record the appeal was againg heard.During the pendency of the appeal the plaintiff died on 8/10/1959 and161his widow Lakshmiamma and two daughters, Adithiamma and Parmeswariamma, were impleaded as legal representatives by an order, dated 30/11/1959. The High court reversed the judgment of the court below holding that the gift contained in Ex. R-3 was a spontaneous act of the plaintiff andhe had exercised an independent will in the matter of its execution.
(3.) IT appears that before the High court the decision of the Trial courtrelating to the will was not challenged. At any rate since the will was neverproduced the sole question which we are called upon to decide is whetherthe deed of settlement Ex. B-3 was executed in circumstances which renderedit invalid and void. IT was stated in this document that on 30/09/1955 a will had been executed by the executant but he considered it advisableto execute a settlement deed in respect of his immovable and movableproperties and also for the discharge of his debts etc. This, it was staled.was being done in supersession of the will. IT was stated that respondent No. 1had been nursing the executant and looking after him and therefore he wasconferring full rights over his properties on him subject to certain conditions. He was to have full right to enjoy the said properties and collect theirincome till his lifetime. After his death Narayana Bhatta was entitled totake possession of his properties and get the Pattas executed in his name andhe was to have absolute and perpetual rights in them. Lakshmiamma wasto be maintained by Narayana Bhatta. If she found it inconvenient to livewith him he was to pay to her annually till her death two candies of Arecawhich was to be the first charge on the properties. If he failed to givearecanuts on the due dates he was to pay the price thereof at the prevailingmarket rate together with interest @ 5 % per annum. Certain debts werementioned which were intended to be paid off by the executant but if thatwas not done Narayana Bhatta was to discharge them. The following portionof the deed may be reproduced "Besides only the right of enjoying the properties till my lifetimeand collecting their income and using the same for myself, I have noother right, title or interest whatsoever over the propel ties. I have noright to cancel this deed for any other reason, and such right also I havecompletely lost and to this intent this deed of settlement, has been executed by me out of my free will and pleasure." The first noticeable feature is that the deed of settlement on the faceof it was an unnatural and unconscionable document. Narasimha Bhatta madenegligible provision for his wife who was his third wife, the first two havingdied before he married her. She was left mainly to the mercy of respondentNo. 1. Admittedly there was a residential house and no provision was maderegarding her right to reside in that house till her death. Apparently therewas no reason why he should have left nothing to his two daughters or to hisother grand-children and give his entire estate to only one grandson namelyrespondent No. 1.;