Judgment :- 1. The plaintiff, who is the first respondent before me, filed O.S. No. 123 of 1965 before the learned Subordinate Judge, Madurai. That was a suit in forma pauperis for a decree directing the defendants to hand over possession of the B schedule properties to the plaintiff, directing the defendants to render true accounts of the rents and other realisations from the B schedule properties from the year 1953, or in the alternative directing the defendants to pay mesne profits from 1953 in respect of the suit properties and for costs of the suit. 2. The allegations in the plaint are shortly as follows: One Adhimoolam Chettiar had two wives, i.e., Chinnammal and the plaintiff. He died in the year 1931. But, he had no sons. Through his elder wife Chinnammal, who died on 19th January 1952, he had two daughters Mariammal and Guruvammal, the defendants 1 and 2 respectively. Through the plaintiff, the second wife, he had a daughter Murugayee, the 3rd defendant. The said Adhimoolam Chettiar left behind him the B schedule properties. Items 1 and 2 of B schedule are the houses in Madurai town. Item 3 is a nanja land. After the death of Adhimoolam, the widows became entitled to the widows estate in the B schedule properties, and they are in possession and enjoyment of those properties. In 1938, when defendants 1 to 3 were aged 17, 11 and 10 respectively, a registered document dated 7th June 1938, Ex. A-4 came to be executed in favour of defendants 1 to 3 in respect of the B schedule properties became of coercion and undue influence of the 1st defendant. The main terms of the settlement deed are that the plaintiff and Chinnammal are to enjoy the suit properties till their life-time without any powers of alienation and aftarwares defendants 1 to 3 should take the B schedule properties. After the death of Chinnammal, the plaintiff being the survivor became entitled to those properties as per the provisions of the Hindu Law and also under the deed of settlement. After the death of Chinnammal, defendants 1 and 2 wanted to deprive the plaintiff of the B schedule properties and they began giving trouble to the plaintiff by setting up tenants against her. After the death of Chinnammal, defendants 1 and 2 wanted to deprive the plaintiff of the B schedule properties and they began giving trouble to the plaintiff by setting up tenants against her. Subsequently, defendants 1 and 2 joined together and enjoyed the suit properties under some pretext of an arrangement entered into between themselves to which the plaintiff is not a party. The plaintiff has been insisting defendants 1 to 3 to pay the income from the suit properties. They refused to pay the income from the suit properties to the plaintiff, whereupon she demanded the defendants to hand over possession and that was refused. The 4th defendant is a tenant in item 1 of the B schedule. Likewise, the 5th defendant is a tenant in item 2 while the 6th defendant is in possession of item 3 of the suit properties and that is why they have also been impleaded. Hence the suit. 3. The 3rd defendant and the tenants, namely, defendants 4 to 6 remained ex parte . In the written statement of the first defendant, which was adopted by the second defendant it was contended admitting the relationship set out by the plaintiff, that prior to his death, Adimoolam Chettiar wanted his wife to execute a settlement deed in favour of defendants 1 to 3, and in accordance with the directions a settlement deed, namely, Ex. A-4 was executed. That was the subject matter of the suit in O.S. 6 of 1939 filed by one of the reversioners, Venkatachalam Chettiar against the plaintiff and defendants 1 to 3 and Chinnammal. In that suit, the plaintiff attacked the execution of the settlement. In those proceedings, the plaintiff and Chinnammal stood by the document and affirmed the recitals therein. Therefore, the settlement deed is true and valid. There was no coercion or undue influence as alleged by the plaintiff. After the death of Chinnammal, the defendants in their own right, are collecting rents and enjoying the properties. Further, there was a family arrangement by which defendants 1 and 2 have been realising the rents from the tenants in occupation. The plaintiff is not entitled to the relief of recovery of possession. The suit itself had been engineered by one Gurusami Reddiar, who is staying with the plaintiff and the 3rd defendant. Further, there was a family arrangement by which defendants 1 and 2 have been realising the rents from the tenants in occupation. The plaintiff is not entitled to the relief of recovery of possession. The suit itself had been engineered by one Gurusami Reddiar, who is staying with the plaintiff and the 3rd defendant. Defendants 1 and 2 are not the agents of the plaintiff and she cannot claim any income from 1953 from items 1 and 2 of the B schedule properties. At best the plaintiff would be entitled to mesne profits for three years prior to suit provided her contentions are accepted. The suit is barred since the plaintiff was not in possession of the suit properties within a period of 12 years prior to the date of the filing of the suit and also because of adverse possession. 4. On these pleadings, the following issues were framed 1. Whether the plaintiff has subsisting title to the suit properties? 2. Whether the arrangement pleaded by the defendantes 1 and 2 is true, valid and binding on the plaintiff? 3. Whether the settlement deed, d. 7th June 1938 valid in law and not binding on the plaintiff? 4. Whether the arrangement pleaded by the defendants 1 and 2 is true, valid and binding on the plaintiffs. 5. Whether the defendants 1 and 2 had acquired title by adverse possession with refence to items 1 and 2? 6. Whether the plaintiff was in possession of the suit properties on the date of passing of the Hindu Succession Act? 7. Whether the plaintiffs limited rights had become enlarged as per S. 14 of the Hindu Succession Act? 8. Whether the plaintiff is entitled to recover possession or items 1 and 2 from defendants 1 and 2? 9. Whether the defendants are either trustees or agents of the plaintiff and as such are liable to render accounts to the plaintiff? 10. Whether the defendants 1 and 2 are liable to pay mesne profits, and if so, what amount? 11. Whether the defendants 1 and 2 have effected improvements and whether the plaintiff is bound to pay the same? 12. Whether the plaintiff it estopped from contending against the deed and the arrangement set forth by the defendants? 13. Whether the suit as framed is not maintainable? 14. To what relief, if any, is the plaintiff entitled? 5. 11. Whether the defendants 1 and 2 have effected improvements and whether the plaintiff is bound to pay the same? 12. Whether the plaintiff it estopped from contending against the deed and the arrangement set forth by the defendants? 13. Whether the suit as framed is not maintainable? 14. To what relief, if any, is the plaintiff entitled? 5. The learned Subordinate Judge found that Ex.A-4 is not a valid documents. It was effected by undue influence and coercion. It was not open to the widows, namely, the settlors to make partial surrender. The family arrangement pleaded by defendants 1 and 2 was not true, valid and binding on plaintiff. The plea of adverse possession had not been proved. By the application of S. 14 (1) of the Hindu Successions Act, 1956, the plaintiff became the absolute owner of the suit properties. On these findings, he decreed the suit., However, the determination of mesne profits was directed to be relegated to separate proceedings under O.XX, rule 12, C.P.C. Aggrieved by this decree, the defendants. 1 and 2 have come up in appeal. 6. Mr. R. Krishnamurthi, learned counsel for the appellants, took me though Ex. A-4, and he contends as follows—At the time of the execution of the document, namely, in 1938, the two widows of Adimoolam Chettiar had, under the then Hindu Law, what is known as widows estate. That widows estate was settled in favour of the appellants along with the 3rd defendant. Thereafter, the settlement proceeds to confer a right to collect income, on the settlors. If ever they continued in possession it should be term ed only as permissive occupation. That possession could not be called a possession within the meaning of S. 14(1) of the Hindu Succession Act, since what is contemplated under that section is possession attributable to widows estate and not to the terms of the document. This apart, it is not open to one of the settlors like the plaintiff to contend that she along with the deceased widow Chinnammal conveyed anything in favour of the settlees. She would be estopped from doing so. In support of this, reliance is placed on Mangal Singh v. Rattina A.I.R. 1967 S.C. 1786. The court below erred in distinguishing the decision of Ramanujam, J. reported in Rangammal v. Muthuraja 1970 2 M.L.J. 620. She would be estopped from doing so. In support of this, reliance is placed on Mangal Singh v. Rattina A.I.R. 1967 S.C. 1786. The court below erred in distinguishing the decision of Ramanujam, J. reported in Rangammal v. Muthuraja 1970 2 M.L.J. 620. That was a case wherein the settlor was in joint possession with the settlee. Even the learned Judge held it is not such possession which would enlarge into an absolute estate under S. 14(1) of the Hindu Succession Act. The learned counsel urged that in the case on hand, the appellants are in a much better position, since what could be enjoyed by the settlors is only the income from the suit properties. 7. The fact that the settlors are obliged to pay municipal taxes, kist, or effect repairs again would not mean that possession was retained by the settlors. More so, when the document clearly says a right in praesenti had been created under the last sentence of the document. 8. Mr. K. Venkataswami, learned counsel would submit that Ex. A-4 shows nothing more than to recite the position of law as it then stood in 1938. The fact that the settlors are to enjoy the properties and they are to pay the municipal tax, kist and to effect repairs would clearly suggest that they retained possession which was all available under the then law. Therefore, it should be construed that Ex. A-4 conveyed nothing in favour of the settlees. If the settlees got nothing under Ex. A-4, and possession continued with the settlors, that possession would enlarge into an absolute estate by the operation of S. 14(1) of the Hindu Succession Act. In the decision of Ramanujam, J. relied on by the appellants, there was a clause relating to restraint on alienation by the settlee. That makes a volume of difference. Therefore, the court below was right in distinguishing the same. Having regard to the restraint on alienation by the settlors under Ex. A-4, this conclusion is fortified when a reference to the other terms of the document is made, namely, restraint in alienation and the diverting of the property, on the death of the widows. Only then, the settlees would take the properties absolutely. Having regard to the restraint on alienation by the settlors under Ex. A-4, this conclusion is fortified when a reference to the other terms of the document is made, namely, restraint in alienation and the diverting of the property, on the death of the widows. Only then, the settlees would take the properties absolutely. When the concluding part of the document says that a right has been created it could be referable only to the interest created after the lifetime of the widows, and there is no question of any right being parted with in favour of the settlees. This apart, Ex. A-4 must be construed to be a will and not a settlement as it conveyed nothing at present. Reliance is placed on Ramaswami Naidu v. Gopalakrishna Naidu 90 L.W. 430 to support this issue. In any event, according to the learned counsel for the first respondent, Ex. A-4, as correctly found by the court below, is effected by fraud and undue influence. At the time of the execution of this deed, the first defendants husband being the only male member of the family was playing a dominant role and forced, coerced and brought undue influence over these widows to execute this document. To this finding, no exception could be taken. 9. Lastly, it is contended that to that part of the decree awarding mesne profits, no exception could be taken since assuming the settlement to be valid, the plaintiff has a right to collect the income till her death, and in so far as the same has been deprived by the conduct of the appellants she would be entitled to the mesne profits. This would be so notwithstanding the earth of the plaintiff during the pendency of this appeal. 10. Having regard to the above arguments, the following points arise for my determination—(1) What is the nature of Ex. A-4 and did the settless get any right under the document? (2) As per the terms of the document did the plaintiff retain possession which possession became enlarged under S. 14 (1) of the Hindu Succession Act (hereinafter referred to as the Act). (3) Is the document effected by fraud or coercion. (4) Is the plaintiff entitled to mesne profits? 11. Having regard to the points for determination set out above, it is but necessary to dwell at length on Ex. A-4. (3) Is the document effected by fraud or coercion. (4) Is the plaintiff entitled to mesne profits? 11. Having regard to the points for determination set out above, it is but necessary to dwell at length on Ex. A-4. That document is styled as a deed of settlement. It is also noteworthy that the document proceeds to recite that it came to be executed by the settlors, namely, the two widows of Adimoolam Chettiar only to fulfil the desire of their late husband. One of the points which requires to be noted even at this stage is it did not affect the natural course of inheritance in any manner. The reason why I mention this at this stage is, this will have a bearing in determining the question whether this document is effected by fraud or undue influence. Be that so, the settlors say that concerning the three items forming part of the schedule to the document, they would not alienate the property nor would they create any encumbrance but would merely enjoy the income therefrom during their lifetime. Tamil In 1938, namely, at the time of the creation of this document, under the then Hindu Law the two widows had, what is known as widows estate. It is not correct to state that it is a limited estate, because sometimes it connotes a different meaning, and it is even confused with limited estate under the English law. At that time a widow could enjoy the properties during her lifetime without any powers of altenation except under certain circumstances, the circumstances being for family necessities, discharge of antecedent debts, etc. This was compendiously referred to as widows estate which is peculiar to the Hindu Law. It also requires to be stated that this widows estate cannot be equated to absolute ownership The reason for this proposition is so obvious, and it does not require to be mentioned. However, why I am obliged to mention this is, because the learned Subordinate Judge had made a grievous error in saying that the plaintiff did not part with absolute right in one place of the judgment. The ri ght to possession and enjoyment during their lifetime was undeniable to the widows. When both the widows of Adimoolam Chettiar under Ex. A. 4, settled, they did convey this right. However, they ‘reserved’ a right to themselves to enjoy merely the income. The ri ght to possession and enjoyment during their lifetime was undeniable to the widows. When both the widows of Adimoolam Chettiar under Ex. A. 4, settled, they did convey this right. However, they ‘reserved’ a right to themselves to enjoy merely the income. From this what is sought to be con tended is that the right to enjoy the properties would be the right to possess. In fact, this is the sheet-anchor of the argument of Mr. K. Venkataswami. This approach of the learned counsel for the first respondent is rather lay than legal. Cartainly merely because a person has a right to collected the income, it does not mean there is a right to possession also. The test could be formulated lated in this way. Supposing one settleehad eased out the properties taking advantage of this provision in the document in favour of third parties, would it be open to the settlor to contend that she alone would be entitled to the lease? My answer would be ‘No’ because the stress throughout the document which read as a whole is, with regard to the enjoyment of the income from the properties. The fact that they undertook not to alienate or create encumbrances would mean nothing more than to say that with regard to this right of collecting the income no such thing would be done. I am alive to the recital that the restraint on alienation and creating encumbrances is only over the properties. It has to be remembered that over the property as such excepting the right as widows estate, namely, right to possess end enjoy during the lifetime, the settlors had no other right. The further fact that the settlors are to pay municipal taxes, kist or to effect repairs would not in any way affect the character of the document or convert their right to collect the income into one of possession. Unfortunately for the plaintiff no word is mentioned about possession. There is yet another reason why I should hold against the plaintiff-first respondent. If the document were to be construed, in the manner in which it is sought to be construed which construction has found favour before the trial court, the very document would be rendered a nullity. It is one of the cardinal principles of the rule of construction of solemn document that the document shall stand rather than perished. If the document were to be construed, in the manner in which it is sought to be construed which construction has found favour before the trial court, the very document would be rendered a nullity. It is one of the cardinal principles of the rule of construction of solemn document that the document shall stand rather than perished. In other words, this is to be found embodied in the maxim of ut res magis valeat quam parest. This would all the more be so when one of the executants comes forward and contends that she conveyed nothing. Under these circumstances she would be estopped from doing so, and Mr. R. Krishnamurthi is right in is submission in this regard. Therefore, I have no other option but to conclude that this document which had, in the concluding portion created a right in praesenti (Tamil) would mean that whatever rights the widows had they had parted with them. But the light to collect merely the income from the properties was reserved to themselves. Even otherwise, assuming that possession had been retained by them, it would be only a case of permissive occupation. In other words, the possession that was retained by the widows could be traced to the terms of the document and not to the possession under the widows estate. If that be so, such possession would not get enlarged into an abs olute right under S. 14(1) of the Act. The said section reads— “Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner; Explanation—In this sub-section ‘property’ includes both moveable and immoveable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.” Therefore, when the widows chose to remain in possession, albeit this document, they should be deemed to have given up their right to possession under the vidows estate and took possession under the terms of the document. The fact that the properties are to be obtained and held by the settlees absolutely after the lifetime of the settlors will not, in any way, enable the plaintiff to contend that they had retained possession as widows. 12. The decision of Ramanujam, J. reported in Rangammal v. Muthuraja 1970 2 M.L.J. 620 is on point. That was a case in which the settlor was in joint possession with the settlee, and yet the learned Judge, on a consideration of the various case-law, came to the conclusion that such possession cannot be equated to possession within the meaning of S. 14(1) of the Act, and, therefore, such limited estate would not enlarge into an absolute estate. The distinction sought to be placed by the learned counsel for the first respondent on this decision on the score that there was a restraint on the settlees seems to be without difference. I may also say that the court below was in error in distinguishing this decision. 13. In Mangal Singh v. Rattno A.I.R. 1967 S.C. 1876 their Lordships of the Supreme Court at page 1791 held— “We are unable to accept this contention as correct It is well settled that an alienation made by a widow or other limited heir of property inherited by her, without the consent of the next reversioners, though not binding on the reversioners is, nevertheless, binding on her sons 13 pass her own interest, (i.e. life interest,) to the alienee.” Having regard to this decision, I must hold that whatever may be the right of the reversioner to question the validity of the document, the plaintiff being one of the executants of the document would be bound by the terms of the document and she could not easily wriggle out of the same stating that she and Chinnammmal conveyed nothing in favour of the settlees. In Ramaswami Naidu v. Gopalakrishna Naidu 90 L.W. 430, V. Ramaswami, J. was dealing with a case where under the disposition clause the plaintiffs had to take the properties only on the death of the executant and they have to enjoy the properties absolutely only after her death. The learned Judge held that the clause restricting the powers of the executant would not enlarge their interest and make it a disposition in praesenti. Accordingly, he held it was a will. This decision is clearly distinguishable. The learned Judge held that the clause restricting the powers of the executant would not enlarge their interest and make it a disposition in praesenti. Accordingly, he held it was a will. This decision is clearly distinguishable. As I said above, a present right had been created which is clear from the last sentence of the document extracted above. That right is a right of possession in favour of the settlees subject to the ‘reservation’ of the right to collect and enjoy the income from the properties in favour of the settlors themselves. So it is not possible to construe Ex. A-4 as a will. 14. I will now proceed to deal with the question whether Ex. A-4 is effected by fraud or undue influence. The evidence of P.W.1, which undoubtedly is highly interested in chief-examination, is only the following—“Ex. A.4 settlement was executed at the instigation of the husband of the first defendant”. Rightly, the learned counsel for the first defendant in the court below did not choose to cross-examine having regard to the cursory nature of the evidence on this plea of fraud and undue influence. However, it is surprising to find that the learned Subordinate Judge states in paragraph 12 as folllows— “Ex. A.4 is attacked by the plaintiff by stating that it was obtained by the husband of the first defendant under coercion and compulsion and that it was not a free and voluntary one. The first defendant who is the best person to speak about Ex.A-4 who was then aged 17 years, was not examined by the defendants on the ground that she is a deaf lady. The only witness examined to speak about Ex. A-4 is D.W.1, who is the husband of the second defendant, He was married to the first defendant in the year 1942. He was not connected with the family at the time when Ex. A 4 was executed in the year 1938, However, he must have been aged only 12 years at the time of Ex. A.4. He stated that he was present at the time of execution of Ex. A-4. He could not have been present and understood the talks about Ex. A-4 in the year 1938. when it was executed, because he was aged only 12 years at that time. A.4. He stated that he was present at the time of execution of Ex. A-4. He could not have been present and understood the talks about Ex. A-4 in the year 1938. when it was executed, because he was aged only 12 years at that time. It is mentioned that Adimoolam Chettiar directed his wife to execute a settlement deed in favour of defendants 1 to 3. Such a direction need not have been given by Adimoolam Chettiar to his wives. If really he was interested in defendants 1 to 3, he could have himself executed the settlement deed. At the time when Adimoolam Chettiar gave directions to his wives, he was not sickly or keeping ill-health. He was hale and healthy. Therefore, there could not have been any necessity for Adimoolam Chettiar to give directions to his wives to execute the settlement deed, Ex. A-4. The oral directions are said to have been given just before his death in 1931. Ex. A-1 was executed by Chinnammal and the plaintiff only in the year 1938. There was a delay of 7 years to execute Ex. A-4. No reason was assigned by defendants 1 and 2 for such a long gap in executing Ex.A-4. The widows of Adimoolam Chettiar have no right to dispense with the properties of her husband absolutely under Ex. A-4, because they were only limited owners at that time. The settlement deed was not executed for legal necessity. It is pointed out by the plaintiffs that Ex. A 4 was executed at the instance of the first defendants husband. He was married to the first defendant about 3 or 4 years before Ex. A-4. At the time of Ex. A-4, there was no male member, in the family. So it is likely that the first defendants husband commanded good influence with the lady-folk. P.W.1 as plaintiff stated that he wanted to leave the first defendant unless Ex A-4 was executed. There was no rebuttal evidence on this aspect” I am constrained to remark that each one of the reasons given by the learned Subordinate Judge in coming to the conclusion that this document is effected by supervening elements like fraud and undue influence is totally untenable. Certainly, it is not the duty of the defendants to support the plaintiff when no evidence has been let in by her to rebut. Certainly, it is not the duty of the defendants to support the plaintiff when no evidence has been let in by her to rebut. Why the learned Subordinate Judge states that the first defendant ought to have been examined is understandable. No doubt, due to overanxiety, the defendants made D. W.1, the husband of the second defendant to tender testimony about this document. It has to be remembered that the himself came into the family 4 years after the document was executed. But that does not mean that the case of the plaintiff has to be accepted. It is elementary law that the person who alleges fraud or undue influence must prove those allegations by positive evidence. In this case, such evidence is woefully lacking. Therefore, there was nothing to be rebutted. Again, the finding that Adimoolam Chettiar could have himself executed the document, to say the least, is meaningless. No doubt, he could have. But, the question is whether the document is affected by these supervening elements. There is nothing wrong in a husband directing the wives to execute the settlement. It is not necessary that one should be sickly or unhealthy to give such directions. After all, as the father of his daughters he could only direct his wives to do so. Even the delay of 7 years to execute the document after the death of Adimoolam Chettiar will not, in any manner, affect the document. I am afraid the court below had not approved the matter in the correct perspective. More than above all these, the question one has to address oneself is, by the so-called fraud who is to gain, and how the natural course could be altered? To both these questions, I find the answer only in the negative. If it is a question of the first defendants husband playing fraud, he could have seen to it that all the properties were settled in favour of his wife to the exclusion of the other two daughters. Even under the wildest imagination, one could not have conceived in 1938 that a Law will be passed in 1956, to enlarge the limited estate of a widow into an absolute estate. 15. Even under the wildest imagination, one could not have conceived in 1938 that a Law will be passed in 1956, to enlarge the limited estate of a widow into an absolute estate. 15. Besides, in the prior proceedings, namely, O.S. 6 of 1939 filed by one of the reversioners, Venkatachalam Chettiar, against present plaintiff, defendants 1 to 3 and the deceased co-widow Chinnammal, they stood by the document and affirmed the recitals therein as clearly seen from Ex. B-1. Therefore, this contention seems to be highly farfetched. Hence, the plea of fraud or undue influence has to be stated only to be rejected. 16. In view of the foregoing, the points for determination are answered as follows: Ex.A-4 is only a settlement. Under that document, the settlors conveyed whatever right they had under the then Hindu Law in favour of the settlees reserving to themselves a mere right to collect and enjoy the income therefrom. The possession of the settlors is not possession within the meaning of S. 14(1) of the Act, and, therefore, it would not get enlarged. Ex. A.4, is not effected by coercion or undue influence. This leaves me to deal with the only question of mesne profits. As per the terms of Ex. A.4 the plaintiff is entitled to enjoy the income from the suit properties during her lifetime. As the survivor of Chinnammal, she alone would be entitled to enjoy the entire income. That cannot be denied to her. Therefore, that part of the decree will have to be necessarily sustained which, as directed by the court below, will be determined in separate proceedings. I make it clear that the first respondent-plaintiff would be entitled to mesne profits from 1962 as found by the court below till the date of her death. (She died pending this appeal and the third defendant has been brought on record as her legal representative). 17. In the result, this appeal will stand allowed except with regard to the mesne profits, as indicated above. The parties will bear their respective costs throughout.