Harilal, J.
The 1st plaintiff, who had instituted the suit, is an octogenarian as well as widower, having the 2nd plaintiff alone as his children. The plaint 'A' schedule landed property and a palatial residential building therein belong to him by virtue of Ext.A1 sale deed. After the death of his wife, he became mentally as well as physically weak and in order to avoid his loneliness, he started to stay in an 'Ashramam' at Neyyattinkara. The defendants are his neighbours residing in adjacency. While he was staying in the 'Ashramam' they began to frequently visit him and supply food, taking advantage of his loneliness as well as mental and physical weakness. Gradually, by ostensible expression of love and affection, in abundance, they have dominated his mind and in the result, they have prevailed over his will and wish and managed to get executed Ext.A7 sale deed in favour of the 1st defendant with respect to item A.S.553/99 :2:
No.1 of 'A' schedule and Ext.A2 Will bequeathing item No.2 of 'A' schedule in favour of the defendants No.2 and 3. Hence, the plaintiffs prayed for a decree setting aside Ext.A7 sale deed and Ext.A2 Will, declaring the 1st plaintiff's title over item No.2 of plaint 'A' schedule and for recovery of item No.2 of plaint 'A' schedule and plaint 'B' schedule or in the alternative of Rs.10,000/-.
2. The defendants denied the undue influence, alleged to have been exerted by them to get the sale deed and Will executed. According to them, actually, they had purchased the property for a consideration of Rs.1,40,000/-. But, in the sale deed, the consideration is shown as Rs.60,000/-, for the purpose of reducing stamp duty and the 1st plaintiff himself deposited Rs.1,40,000/-, in his account in the Indian Overseas Bank, Neyyattinkara Branch, on the same date of execution itself. The 1st plaintiff had voluntarily executed the sale deed as well as the Will with his free and conscious mind, after understanding A.S.553/99 :3:
the consequences thereof. They had no domination over the 1st plaintiff's mind; nor did they obtain any property or right under undue influence. Thus, the defendants prayed for dismissal of the suit.
3. Heard the learned counsel for the appellant and the learned counsel appearing for the respondents, who have advanced arguments in support of their respective contentions.
4. Going by the judgment, it stands admitted by the plaintiffs that even though the 1st plaintiff has prayed for setting aside Ext.A7 Registered sale deed and Ext.A2 Will, subsequently the Will has been revoked by the 1st plaintiff himself by way of executing a fresh Will and thereby the relief sought for with respect to the Will has become infructuous. Therefore, the question that looms large in this appeal is whether the 1st plaintiff had succeeded in proving that Ext.A7 sale deed was caused to be executed by the undue influence exerted by the A.S.553/99 :4:
defendants.
5. In order to prove the undue influence alleged as a cause for execution of the sale deed, the plaintiffs have pleaded that the defendants were in a dominating position over the 1st plaintiff, so as to prevail over the will and wish of the 1st plaintiff, in exclusion of the interest of his daughter. So, the point to be considered is, can it be inferred from the evidence on record that the defendants were in a dominating position over the 1st plaintiff so as to prevail over his will and wish, in exclusion of the interest of his daughter. Though it was strongly contended that the 1st plaintiff was physically and mentally weak, it has come out in evidence, during his cross-examination, that he used to travel a long distance to different places of worship such as Guruvayoor, Tiruchendur etc., and it is fortified by the recitals in Ext.B1 Diary. Had he been so physically weak, he could not have frequently A.S.553/99 :5:
travelled such a long distance. So, it is inferable that he was not so physically weak as depicted by the plaintiffs.
6. Admittedly, the plaintiffs and the defendants are not relatives and there is no friendship other than neighbourliness. Indisputably, the defendants are residing near the plaint schedule property. In a case where undue influence is alleged as a vitiating element for setting aside a registered document, it is trite law that the burden is heavy on the plaintiffs to prove the relationship or the circumstances in which the defendants could prevail over the will of the plaintiffs. Undue influence usually arises in contract made between the relatives or persons in a fiduciary position. In the instant case, in the plaint itself, the 1st plaintiff has admitted that in the year 1982, he along with his family, shifted their residence to the newly built up house of his son-in-law at Sreekanteswaram, his wife died on 24/10/1987 and on A.S.553/99 :6:
23/4/1992 the 1st plaintiff left his daughter and son-in-law at Sreekanteswaram and started staying in an 'Ashramam' and the sale deed was executed in 1992. The 1st plaintiff has no case that the defendants have maintained their relationship or acquaintance with him during the period when he was residing with his daughter till 23/4/1992.
7. On a conjoined reading of the aforesaid dates, it stands undisputed that the Will was executed within 62 days after leaving the house of the daughter. The admitted case of the 1st plaintiff is that the defendants began to visit him when he was residing in the 'Ashramam'. Unless there is a strong evidence, it is very difficult to believe that within 62 days the defendants had attained a dominating position over the 1st plaintiff, and prevailed over his will in exclusion of the interest of his daughter, so as to execute Ext.A7 sale deed in favour of the defendants. It is trite law that to prove the undue influence, the A.S.553/99 :7:
plaintiffs must prove that: (i) the defendants were in a position to dominate the will of the 1st plaintiff.
(ii) The defendants had obtained an unfair advantage by using that position. In the instant case, there is no evidence to prove the facts constituting the aforesaid proposition of law and the sequence of events inferable from the dates referred above gives rise to an inference that there was no sufficient occasion to develop a close relationship or opportunity to prevail over the will of the 1st plaintiff so as to obtain a sale deed from the 1st plaintiff, in exclusion of the interest of his daughter.
8. Admittedly, the 1st plaintiff is neither blind nor illiterate. The 1st plaintiff has no case that he is mentally unsound or incapable to read or understand his own acts and deeds. There is no sufficient evidence to prove that within a short span of time by expressing love and affection or supplying food, the defendants have prevailed over the will of the 1st A.S.553/99 :8:
plaintiff who was residing in an 'Ashramam' where he was provided with food and accommodation. The 1st plaintiff has no case that he was at loggerheads with his daughter during the time when he executed the sale deed. More over, no evidence was forthcoming to prove that the 1st plaintiff had any hate or dissension or discontent with his daughter so as to execute a sale deed, with respect to the property, wherein the residential house is situated, contrary to the interest of his daughter.
9. Even though P.W.3 was examined to prove his physical and mental weakness, it has come out in his cross-examination that he is an interested witness set up by the plaintiffs and no reliance can be placed on his evidence. More over, it has come out in evidence that when he disposed the plaint schedule property by way of sale deed in favour of the defendants, he was very much conscious of the consequences thereof, because he had willfully A.S.553/99 :9:
excluded two rooms in the ground floor from the sale deed with abundant caution, considering his own future need. Had the defendants prevailed over the will of the 1st plaintiff, the entire plaint schedule property would have been obtained by them. That apart, on the date of sale deed itself, he had deposited Rs.1,40,000/- which he had obtained from the sale consideration, in his bank account.
10. In order to prove undue influence alleged as a cause for execution of sale deed, the plaintiffs have pleaded that the consideration shown in Ext.A7 sale deed is totally inadequate. The consideration shown in Ext.A7 is Rs.60,000/- only and the property would have fetched Rs.5 lakhs, is the case of the plaintiffs.
11. Per contra, the defendants contended that the actual consideration was Rs.1,40,000/-. But Rs.60,000/- was shown as consideration in the sale deed, for the purpose of reducing stamp duty and registration charge. In order to substantiate the A.S.553/99 :10:
above contention, the defendants contended that on the date of sale deed itself, the 1st plaintiff had deposited Rs.1,40,000/- received from the sale in the bank. Ext.X6 deposit receipt which is marked as Court Exhibit, shows that as alleged by the defendants, the 1st plaintiff had deposited Rs.1,40,000/- in his bank account, on 25.6.1992, the date of sale itself. The registration of Ext.A7 was at 2.30 p.m. and it could be inferred that the registration was effected after the receipt of Rs.1,40,000/-. Certainly, he might have made the deposit before 2 O'clock, the closing time of the bank operation. Though the 1st plaintiff had made an attempt to prove that he had received a sum of Rs.1,40,000/- by way of sale consideration of his photographic materials, no evidence was adduced to substantiate any source other than the sale consideration of Ext.A7, for making such a deposit in the bank on 25.6.1992. That apart, P.W.2 was also examined to show another source of income. But that A.S.553/99 :11:
attempt was also ended in futility. P.W.2 was examined and he testified that he had borrowed Rs.90,000/- from P.W.1 and repaid the same on 18.6.1992. As rightly noted by the court below, P.W.1 has no such case when he was confronted with the source of Rs.1,40,000/-. So also, no documentary evidence was adduced to prove the said transaction, besides the interested testimony of P.W.2 who is none other than an employee of the same Department wherein the 2nd plaintiff and her husband are working. It can be reasonably inferred that P.W.2 was none other than a tutored witness. In the absence of any material to prove the said borrowal and repayment on 18.6.1992, the court below is justified in rejecting his evidence. Thus, the court below is further justified in believing the defendants' case that the actual consideration was Rs.1,40,000/-. The value of the property reported by the Commissioner is less than the amount claimed by the 1st plaintiff and he failed to establish any kind A.S.553/99 :12:
of material irregularity in the Commission Report. Though P.Ws.8 and 9 were examined to prove that the property conveyed, as per Ext.A7, ought to have fetched more value, their evidence also cannot be relied on in the absence of any evidence to show that their properties are also similarly situated as that of the plaint schedule property. This Court is of the view that even if the sale consideration is inadequate, it is not a sufficient ground to set aside the sale deed. Thus, the entire attempt to prove the inadequacy of consideration ended in futility.
12. The 1st plaintiff has miserably failed to prove any evidence which would give rise to an inference that the defendants were in a dominating position so as to prevail over the will of the 1st plaintiff enabling to obtain the sale deed in exclusion of the interest of his only daughter. On the other hand, the defendants had succeeded in proving that Ext.A7 was executed on payment of Rs.1,40,000/- as consideration and the A.S.553/99 :13:
same was adequate amount at that time.
13. We have already noticed that Ext.A2 Will was revoked subsequently by Ext.A4 Will executed afresh. It appears that thereafter the 1st plaintiff amended the plaint with a prayer to declare his title to item No.2 of the plaint schedule property and for recovery of possession of the said property and the articles scheduled in plaint 'B' schedule from the defendants. Admittedly, the defendants have not claimed any title or possession over item No.2 of plaint 'A' schedule. More over, the defendants themselves have admitted that subsequent to the revocation of the Will executed in their favour, the 1st plaintiff is having title to item No.2 of the plaint 'A' schedule. So, in fact, there is no necessity for a further declaration as there is no claim on the title of item No.2 of the plaint 'A' schedule. No evidence was adduced to prove that plaint 'B' schedule properties were kept by him in the rooms in the building situated in plaint 'A' A.S.553/99 :14:
schedule or the articles described in plaint 'B' schedule are now in the possession of the defendants. As regards the recovery of possession, as rightly found by the court below, it cannot be granted in view of the specific admission of P.W.1 that he is in actual possession and enjoyment of item No.2 of plaint 'A' schedule and he continues to exercise possession over item No.2 of plaint 'A' schedule. Thus, the 1st plaintiff is neither entitled to get a declaration of his title to item No.2 of plaint 'A' schedule; nor is he eligible for a decree of recovery of possession, as rightly held by the court below.
This appeal is devoid of merits and dismissed accordingly.
V.CHITAMBARESH, Judge.
K.HARILAL, Judge.
okb/-29.9