JUDGMENT. The question in this appeal is whether the settlement deed executed by the 1st defendant on August 29, 1959 is binding on him. Both the Courts below held that it was not. The plaintiff, who on the strength of the settlement sought and failed to obtain a declaration of her title to and injunction in respect of the suit properties, has come up to this Court in Second Appeal. The plaintiff is the elder sister of the first defendant. Their father and the plaintiff’s husband had died years ago. It is in evidence that the plaintiff was living with the first defendant for 20 years past managing his properties. She brought him up practically from his young age, and got him also married. The first defendant’s wife, the second defendant, is said to have contracted leprosy about four years prior to the settlement deed and at the time of its execution she had a daughter and another child in the womb. Six months after the settlement deed, the second defendant was delivered of a female child. The settlement deed was executed by the first defendant at Chidambaram where it was registered. The 'A' schedule properties, which consisted of the bulk of the properties owned by the first defendant, were settled by him absolutely on the plaintiff. The remaining properties were settled by him on the second defendant for life with the remainder to the first defendant’s daughter Neelavathi absolutely. There was a further provision that if Neelavathi predeceased her mother, the B schedule properties should be taken by the plaintiff herself absolutely. The settlement deed recited that pursuant thereto, the first defendant had delivered possession of A schedule properties to the plaintiff. Then came a provision which stated that since the second defendant was living with the first defendant and that though he had handed over the B schedule properties to her, she was bound to maintain him during his lifetime. The reason for the execution of the settlement deed was mentioned to be that A and B schedule properties had been acquired by the joint exertions of the first defendant’s father and the husband of the plaintiff. An additional reason, as stated in the settlement deed, was that as the second defendant was suffering from a skin disease, the first defendant might not be able to get any male child by her. An additional reason, as stated in the settlement deed, was that as the second defendant was suffering from a skin disease, the first defendant might not be able to get any male child by her. According to the plaintiff, the first defendant had been instigated by Duraiswami Odayar and Appavoo Pillai, who have given evidence on her side, to question the title of the plaintiff to the suit properties under the settlement deed and the first defendant, as a result, was attempting to trespass upon them. She, therefore, sought for a declaration of her title to and for an injunction restraining the first defendant from interfering with her possession of the properties. Both the defendants resisted the suit on various grounds. The first defendant denied having executed the settlement deed in favour of the plaintiff and averred that the plaintiff’s son and one Kuppuswami Odayan took him to different places presumably for consultation in connection with his wife’s skin disease and while at Chidambaram they procured a document from him the contents and nature of which he never agreed to. The first defendant maintained that the settlement deed was a fraudulent document got from him taking advantage of the confidential relationship and his mental weakness. According to him, he came to know only later that what he had been made to execute, was a settlement deed. The second defendant, while supporting the case of the first defendant further pleaded that the first defendant was not a normal man, that he did not know the distinction between good and bad, that he had been simply obeying the orders of the plaintiff all along, who was managing the properties right through and that, in the circumstances, the settlement was not executed by the first defendant with his free consent but was executed as a result of fraud and undue influence. In the light of the findings of both the Courts below, it is now common ground that the plaintiff, as a matter of fact was, in management of the properties covered by the settlement deed for over 20 years prior to the suit and that she brought up the first defendant after the death of his father and got him married. He was practically a do-little, leaving the entire responsibility of managing his. properties to the plaintiff. He was practically a do-little, leaving the entire responsibility of managing his. properties to the plaintiff. In fact, both the Courts below have recorded their impression that a look at the first defendant was enough to show that he was not in a position to manage and look after his lands. The second defendant was afflicted by leprosy and she had a minor daughter when the settlement deed was executed and another daughter was born to her six months after its execution. The findings of both the Courts below were also that the settlement deed was executed by the first defendant at Chidambaram after he had been taken from place to place by the plaintiff’s son and one Kuppuswami. The lower appellate Court went so far even to say that the first defendant was mentally imbecile. In the light of those circumstances both the Courts were inclined to think that the settlement deed was got executed by undue influence, misrepresentation, fraud and deceit. The Courts below derived further support for their view by reference to the extent and nature of the dispositions themselves in the settlement deed. The settlement deed reserved nothing for the first defendant who had completely denuded himself of all his properties by executing it. More than that, the bulk of the properties were given the plaintiff absolutely. In the event of the first defendant’s first daughter predeceasing her mother, even the remaining properties, covered by the B schedule to the settlement should be taken by the plaintiff absolutely. The second daughter was at the time of the execution of the settlement deed in the womb of her mother and the child was actually born six months after its execution. Nevertheless no provision was made for the child to be born. In addition the reasons given for the execution of the settlement deed were, as a matter of fact, found to be not true. Both the Courts below have found that the properties were not the joint acquisitions of the first defendant’s father and the husband of the plaintiff. Another recital in the settlement deed, as already noticed, was that because the first defendant had no hope of getting a son by the second defendant he was executing the settlement deed. But this reason evidently appeared to be not quite true because the first defendant must have known that the second defendant was pregnant at the time. Another recital in the settlement deed, as already noticed, was that because the first defendant had no hope of getting a son by the second defendant he was executing the settlement deed. But this reason evidently appeared to be not quite true because the first defendant must have known that the second defendant was pregnant at the time. These circumstances, according to the Courts, below, provided additional grounds for not upholding the settlement. Sri K. S. Naidu, the learned counsel for the appellant, pressed before me that although the defendants came to Court with a specific case that the settlement was vitiated by undue influence, actually in the evidence of the first defendant his case was that he executed the settlement deed under the belief that it was a power of attorney. The learned counsel further contended that even in respect of the case of undue influence there was absolutely no evidence in support of it. It was argued that it was for the first defendant who challenged the settlement on the ground of undue influence to establish that fact. On the other hand, the contention of Sri T. M. Krishnaswami Ayyar, the learned counsel for respondents 1 to 3, was that having regard to the position and relationship of the plaintiff and the first defendant and also to the fact that the first defendant was more or less a ward of the plaintiff who had brought him up and got him married, and that she was in management of his properties for over 20 years prior to suit, a presumption of undue influence arose and that in the circumstances it was for the plaintiff to establish that the first defendant had executed the settlement deed voluntarily and with a free mind. It is no doubt true, as contended by Sri K. S. Naidu, that the first defendant changed his version when giving evidence, from undue influence to misrepresentation. It is also true that the lower appellate Court was not quite right in thinking that the first defendant was mentally imbecile. The lower appellate Court formed that impression because in its opinion the trial Court was convinced about it by a look at the first defendant. Sri K. S. Naidu contended that a reading of the first defendant’s evidence would show that he was far from mentally imbecile. The lower appellate Court formed that impression because in its opinion the trial Court was convinced about it by a look at the first defendant. Sri K. S. Naidu contended that a reading of the first defendant’s evidence would show that he was far from mentally imbecile. Sri T. M. Krishnaswami Ayyar did not support the observation of the lower appellate Court that the first defendant was mentally imbecile. But the fact remains that his mental condition had to be assessed in the setting of the entire circumstances. Viewed in that manner, it appears to me that the first defendant was certainly under the influence of the plaintiff who did everything for him both in respect of his personal welfare and also of his properties, for long years. Sri K. S. Naidu adverted to the observations of the lower appellate Court that no provision was made for the maintenance of the first defendant and contended that this was entirely wrong. I do not entirely agree with him. The only provision made in the settlement deed is that during the lifetime of the second defendant she should maintain the first defendant. What was to happen, to the maintenance of the first defendant if the second defendant pre-deceased him, was not mentioned. Although Sri K. S. Naidu criticised the observation of the lower appellate Court, it was also right in making it that no provision was made in the settlement deed for any child to be born to the second defendant after its execution. It was pointed out by the learned counsel for the appellant that practically there was no evidence on the side of the defendants in support of their case of undue influence. But the question is whether in the circumstances of this case it was for them to establish that the settlement was vitiated by undue influence. Normally it would be for the person who pleads undue influence to establish the fact. But in this case, as contended by Sri T. M. Krishnaswami Ayyar, the circumstances in which the settlement deed was executed appear to be such as give rise to a presumption of undue influence. In support of his contention, the learned counsel for respondents 1 to 3, relied on a number of authorities. But it is only necessary to notice a few of them. In support of his contention, the learned counsel for respondents 1 to 3, relied on a number of authorities. But it is only necessary to notice a few of them. Narayana Doss Balakrishna Doss v. Buchraj Chordia Sowcar1, was a case in which at the instance of his maternal uncle the nephew executed a mortgage in favour of a third party. It was established in that case that the maternal uncle was constituted a trustee of the properties of the nephew and while being in such a confidential relationship, he prevailed upon the nephew to execute a mortgage. It was also found that the mortgagee was not unaware of the influence of the maternal uncle over his nephew. In those circumstances, Venkatasubba Rao, J., was of the view that it was for the mortgagee to establish that the mortgage was a fair and independent transaction. In the course of his judgment the learned Judge referred to various English cases decided by the Court of Chancery and formulated the principle that "where confidential relations exist those standing in such relations cannot entitle themselves to hold benefits unless they can show that the persons who have conferred the benefits had competent and independent advice." In Inche Noriah binte Mohamed Tahir v. Shaik Allie bin omar bin Abdullah Bahashuan2, the Privy Council held that where the relations between the donor and donee had at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor, the Court should set aside the voluntary gift, unless it was proved that in fact the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justified the Court in holding that the gift was the result of a free exercise of the donor’s will. In that case the appellant before the Privy Council sued to set aside a deed of gift of substantially all her properties executed by her in favour of the respondent, a nephew by marriage of the appellant. It was found that the appellant was wholly illiterate and was a feeble old woman unable to leave the house, relying entirely upon the respondent for everything and leaving the management of her affairs to him so that she had no knowledge of her own affairs. It was found that the appellant was wholly illiterate and was a feeble old woman unable to leave the house, relying entirely upon the respondent for everything and leaving the management of her affairs to him so that she had no knowledge of her own affairs. The circumstances showed that the appellant was totally and completely in the respondent’s hands. The Privy Council was of the view that the relations between the appellant and the respondent were amply sufficient to raise the pressumption of the influence of the respondent over the appellant and to render it incumbent upon him to prove that the gift was the spontaneous act of the appellant acting under circumstances which enabled her to exercise an independent will and which justified the Court in holding that the gift was the result of the free exercise of her will. The Privy Council referred to the decision in Allcard v. Skinner3, and quoted the following observations of Lord Justice Cotton as containing the principles which should govern such a case: "The question is: Does the case fall within the principles laid down by the decisions of the Court of Chancery in setting aside voluntary gifts executed by parties who at the time were under such influence as, in the opinion of the Court, enabled the donor afterwards to set the gift aside? These decisions may be divided into two classes: first, where the Court has been satisfied that the gift was the result of influence expressly used by the donee for the purpose; Secondly, where the relations between the donor and donee have at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor. In such a case the Court sets aside the voluntary gift, unless it is proved that in fact the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justify the Court in holding that the gift was the result of a free exercise of the donor’s will. The first class of cases may be considered as depending on the principle that no one shall be allowed to retain any benefit arising from his own fraud or wrongful act. The first class of cases may be considered as depending on the principle that no one shall be allowed to retain any benefit arising from his own fraud or wrongful act. In the second class of cases, the Court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent the relations which existed between the parties and the influence arising therefrom being abused." Tungabai Bhratar v. Yeshwant Dinkar1, which was also a case decided by the Privy Council was one in which a wife executed a mortgage in favour of a third party securing the debt of her husband. In dealing with the transaction, Lord Goddard observed: "It would certainly not be true to say that there is a presumption in every case where a wife confers a benefit on her husband without consideration. Equally it is not necessary in order to establish the presumption that the parties should stand in some particular category of relationship to each other." The Noble Lord while dealing with the manner in which the High Court had approached the question said: "It is unnecessary to decide whether there was actual fraud by the husband ; it is enough to show that the wife was acting under this influence and not as a free agent." Rama Patter v. Lingappa Gounder2, was also a case of undue influence in which too a third party was involved. The learned Judges while repelling an argument to the contrary, held that the principles followed by the Courts of Equity in England dealing with similar transactions were equally applicable in this country. One other case that may be noticed is the recent one in Abdul Malick Sahib v. Muhammed Yousuf Sahib3. It was there held that transactions in the nature of a bounty from a child to a parent were in equity looked upon with caution by Courts and it was the duty of the donee to prove that the gift was the result of free exercise of Independent will and the Court should be satisfied that the donor was acting independently without any influence from the donee. It was there further pointed out that the mere existence of the fiduciary relationship, of parent and child between the donee and the donor raised a presumption of undue influence and it was on the donee to rebut the presumption. An examination of the above cases would show that they fall under three classes: (1) Where a donee by exercising undue influence gets a gift executed in his favour; (2) Where the donee being in a confidential relationship with the donor gets a benefit in the form of a gift from the donor without the donee actually exercising any fraud or undue influence; and (3) where a document is executed in favour of a third party at the instance of a person who is in a position to dominate the will of or in a confidential relationship with the executant. Narayana Doss Balakrishna Doss v. Buchraj Chordia Sowcar,4 Tungabai Bhratar v. Yeshwant Dinkar1 and Rama Patter v. Lingappa Gounder2, were cases falling under the third class where a third party was involved, which is not the position here. The instant case will not fall under class (1) either, because there is no evidence in this case of the plaintiff herself having exercised any undue influence over the first defendant. But it seems to me that this will come under the second class above mentioned, which corresponds with the second class of cases noticed by Lord Justice Cotton in Allcard v. Skinner5 ; Mohamed Tahir’s case6, was of this type, and so too Abdul Malik Saheb v. Md. Yousuf Sahib7. In this case, the circumstances already mentioned clearly point to the fact that the first defendant was subject to the control of the plaintiff. She was completely in charge of the first defendant’s properties and in management thereof. She brought him up and got him married. There is no evidence of the first defendant having at any time interfered with the plaintiff’s management. There is also evidence that the first defendant was simply obeying the plaintiff. It seems to me that these circumstances raise a presumption that the settlement was not the result of the free will of the first defendant. The nature of the disposition also strengthens that conclusion. No transaction can be more improvident on the part of the first defendant than the settlement in question. It seems to me that these circumstances raise a presumption that the settlement was not the result of the free will of the first defendant. The nature of the disposition also strengthens that conclusion. No transaction can be more improvident on the part of the first defendant than the settlement in question. He denuded himself of all the properties and made little provision even for his own maintenance in the event of the second defendant pre-deceasing him. He gave more than the bulk of the properties to his sister and even the other properties covered by the settlement were to go to her absolutely on the happening of a certain event. What is more strikingly strange than all these is the fact that, although the first defendant must have known that the second daughter of his was then in the womb the settlement deed made no provision whatever for her. One of the reasons for executing the settlement was the fear on the part of the first defendant that he would not get a male child at all by the second defendant. This ex facie appears to me to be equally strange because as a fact the second defendant was enceinte at the time of the execution of the settlement. In the light of these circumstances, therefore, I consider that it was entirely for the plaintiff to establish that the settlement deed was executed by the first defendant of his own free will and with independent advice. Both the Courts below felt that all was not well with the settlement deed. In the background of things, they thought that the settlement deed must have been obtained not with the free will and consent of the first defendant. In any case, the Courts below were not satisfied that the plaintiff had established that the settlement was a fair transaction. Having regard to all the facts and circumstances,. I do not feel persuaded to disturb the conclusion of both the Courts below. The Second Appeal fails and is dismissed with costs. No leave. P.R.N. ------------- Appeal dismissed. Leave refused.