Judgment :- This appeal arises out of the judgment and decree rendered in A.S.No.93 1975 and the memo of cross objection, which in turn arose out of the judgment and rendered in O.S.No.321 of 1989. Defendants 2 and 3 are the appellants herein. Plaintiffs and 4 and defendants 4 to 8 are the respondents. First plaintiff died, and his legal heirs also brought on record. Plaintiffs 1 to 4 filed O.S.No.321 of 1969 for partition and mesne profits. In order to understand the relationship between the parties, the geneological tree would be of great help. 2. Shamsuddin is the original owner of the suit properties. He executed a will Ex.A 15.8.1925 making certain bequests in favour of his wife, two sons and three daughters and endowed certain properties to religious trust. His youngest daughter Juleika Bibi was not born then. She was born after the execution of the will Ex.A-1. After she was born, again Ex.A-2 will was executed on 13.4.1927. The second will was stated to be a codicil, and modifies Ex.A-1 in certain manner. Under Ex.A-2 Shamsuddin made certain readjustments bequests already made under Ex.A-1 and also made bequests in favour of his new born daughter Juleika Bibi, besides dealing with the suit properties under Ex.A-2. In order to understand the disposition of the properties by the testator Exs. A-1 and A-2 should be read together. Shamsuddin purchased the suit properties dealt with in Ex.A-2 in 1926 under Ex.B 9 from Jamal Mohideen Sabib Co. which itself was in pursuance of an agreement to recovery comprised in an earlier sale deed executed by Saram Bibi to Jamal Mohideen Sahib in 1916 under Ex.B-18, Shamsuddin died in 1928 and Saram Bibi died in 1963. Saram Bibi executed a settlement deed under Ex.B-12 on 14.9.1955 in favour of the defendants. Yet another settlement deed was executed by Saram Bibi Ex.B-13 on 19.4.1962 in favour of defendants and Mohammed Sheriff. The suit properties are covered under these two settlement deeds. 3. The case of the plaintiffs is as under: Saram Bibi was entitled to enjoy the usufructs the suit properties during her life time without power of alienation and that her male heirs are entitled to take the suit properties absolutely after her life time. Their grandfather Mohammed Habibulla was managing the suit properties till his death in 1939. 3. The case of the plaintiffs is as under: Saram Bibi was entitled to enjoy the usufructs the suit properties during her life time without power of alienation and that her male heirs are entitled to take the suit properties absolutely after her life time. Their grandfather Mohammed Habibulla was managing the suit properties till his death in 1939. Thereafter, his two shons and Saram Bibi were possession of the suit properties in turns and that the tannery in S.No.378/B (suit item No.13) was put up in or about 1938 from the income of the suit lands. Saram Bibi and her son Mohammed Sheriff were in management of the land after the death of the father of the plaintiffs. They understood that the settlement deeds Exs.B-12 and B-13 were taken by Mohammed Sheriff in favour of his wife and sons viz., defendants, from Saram Bibi by fraudulent deceitful means and by exercise of coercion undue influence and therefore those settlement deeds will not confer any title on th defendants and they are not binding on the plaintiffs. the death of Saram Bibi they were entitled to a moiety of the suit properties while the moiety belongs to the defendants 1 to 3. Saram Bibi has sold a portion of the suit properties to defendants 6 and 7 and that the defendants have settled a portion of the suit properties on the 8th defendant for religious purposes. Hence the defendants 6 and 8 were impleaded as parties. On these pleadings, initially the plaintiffs filed the suit for partition claiming share in the suit properties. 4. Initially, it was the case of the plaintiffs that Saram Bibi had been given a life estate the suit properties without power of alienation and that her male heirs were to take the properties absolutely after her life time. The plaint was amended later on to the effect Saram Bibi was given only the usufructs from the suit properties for her life time and the suit properties devolved absolutely on her male heirs after her death. During pendency of the first appeal in 1976, the plaintiffs again amended the plaint claiming they and defendants 2 and 3 were each entitled to l/6th share either by testamentary intestate succession and they claim partition and separate possession of 4/6th share in suit properties. 5. During pendency of the first appeal in 1976, the plaintiffs again amended the plaint claiming they and defendants 2 and 3 were each entitled to l/6th share either by testamentary intestate succession and they claim partition and separate possession of 4/6th share in suit properties. 5. On the other hand, the case of the defendants is as under: The suit properties had been given absolutely to Saram Bibi under the will-Ex.A-2. The construction sought to be made the plaintiffs on this will is totally incorrect. Saram Bibi who had absolute right over the properties enjoyed them and that she has validly settled the suit properties severally on defendants and Mohammed Sheriff under the settlement deeds Exs.B-12 and B that these settlement deeds are valid and binding on the plaintiffs. According to defendants, it is not correct to state that the settlement deeds were executed under coercion, undue influence and fraud as alleged by the plaintiffs. They further submitted the challenge on these settlement deeds is an after thought not having been raised earlier under the notice Ex.A-6 issued by the plaintiffs. The plaintiffs are not entitled to partition prayed for. The defendants have effected improvements bona fide to suit item Nos.6 and The plaintiffs were estopped from claiming any right in the suit properties as their father in prior proceedings admitted the title of Saram Bibi and had disclaimed any interest in the suit properties. The wills show that the testator was not interested in giving right usufructs only in favour of Saram Bibi. The plaintiffs are estopped from going behind case as originally set out in the plaint. The defendants 6 to 8 remained exparte. defendants 4 and 5 claimed to be bona fide purchasers for value of a portion of suit No.9 from he defendants and pleaded that they have effected improvements thereon. 6. The third plaintiff examined himself as a witness. The plaintiffs have also examined Abdul Rehman on their side. So also, the second defendant examined himself as a witness. Three other persons were also examined on the side of the defendants. The plaintiffs Exs.A-1 to A-10 and the defendants filed Exs.B-1 to B-26. The trial court framed as many 13 issues. The third plaintiff examined himself as a witness. The plaintiffs have also examined Abdul Rehman on their side. So also, the second defendant examined himself as a witness. Three other persons were also examined on the side of the defendants. The plaintiffs Exs.A-1 to A-10 and the defendants filed Exs.B-1 to B-26. The trial court framed as many 13 issues. The judgment rendered by the trial court is summarised in the judgment of first appellate court as under: "The learned Subordinate Judge held that on a proper construction of Exs.A-1 and A wills, Sarama Bibi had absolute title to the suit properties and that it was neither a life estate nor a mere right to usufructs only, in the suit properties. Regarding the settlement deeds Exs.B-12 and B-13, he held that they were obtained by Mohammed Sheriff and appellants by practising fraud. He negatived the contention of the appellants that respondents were estopped from contending against the absolute estate of Saram Bibi in suit properties. He held that the settlement deed Ex.B-14 executed by the appellants favour of respondent No.9, defendant No.8 for religious purpose was not binding on respondents. He also held that the tannery building in suit item No.13 was constructed of the income from the suit properties. The learned Subordinate Judge however held Saram Bibi herself had alienated suit item No.8, (survey No.372) and certain other properties not covered by the suit to respondents No.7 and 8 defendants No.6 and 7 under Ex.B-11 in 1952 and that those properties cannot be held to be available for partition. these fidings, the learned Subordinate Judge passed a Preliminary decree for partition of the half share of respondents No. 1 to 4 in all the suit properties except suit item No.8 with a direction for future claimed in the plaint to be determined under O.20, Rule 18, C.P.C.” 7. As against this judgment and decree, the defendants 1 to 3 preferred an appeal the first appellate court. So also, aggrieved over the judgment and decree of the trial the plaintiffs 1 to 4 have filed cross objection to the extent to which the trial court rendered findings adverse to them and also against the dismissal of the suit regarding item No.8 S.No.372. So also, aggrieved over the judgment and decree of the trial the plaintiffs 1 to 4 have filed cross objection to the extent to which the trial court rendered findings adverse to them and also against the dismissal of the suit regarding item No.8 S.No.372. On considering the facts arising in this case, the first appellate court held under: Saram Bibi was not absolutely entitled to the suit properties, but had only interest to take the usufructs limited to her life time. Saram Bibi voluntarily executed settlement deeds Exs.B-12 and B-13 and they were duly executed and attested and they are valid. Notwithstanding the fact that Exs.B-12 and B-13 are true and valid, appellants do not get the suit properties absolutely to the exclusion of respondents/plaintiffs. The entire suit item No.8 in S.No.372 is available for partition plaintiffs 1 to 4 and defendants 2 and 3 the grandsons by. the two sons of Saram Bibi entitled to the suit properties on the cessation of her interest in the suit properties itself was to take effect but of the usufructs of the suit properties for her life time. Rehman and Mohammed Sheriff, two sons of Saram Bibi had no daughters. The plaintiffs to 4 and defendants 2 and 3 taking as residuaries are each entitle to l/6th share in the properties. Accordingly A.S.No.93 of 1975 was dismissed and the cross objection plaintiffs 1 to 4 was allowed, granting them the relief of partition of 4/6th share in suit properties. 8. It is against this judgment and decree of the first appellate court, defendants 2 and in appeal before this Court. 9. The learned senior counsel appearing for the appellants Mr.T.Raghavan, submitted under: A combined reading of the conditions contained in Exs.A-1 and A-2 wills postulate that Saram Bibi was given corpus of the properties itself absolutely and it correct to state that Saram Bibi had been given merely the right to enjoy the susufructs her life time in thesuit properties. Even if both the wills are read together it is not possible come to the conclusion that Saram Bibi was given only the right to enjoy the usufructs. fact the properties are given to Saram Bibi under the second will Ex.A-2 and therefore conditions stated in Ex.A-1 will cannot be relied upon to curtail the absolute right given the second will. fact the properties are given to Saram Bibi under the second will Ex.A-2 and therefore conditions stated in Ex.A-1 will cannot be relied upon to curtail the absolute right given the second will. The respondents had taken a plea initially that Saram Bibi was given interest in the suit properties and the corpus were given to her children. If that is so, Mohammedan Law, it will be deemed that Saram Bibi was given the suit properties absolutely. The respondents should not be permitted to change their stand and put forward a new plea that Saram Bibi was given only the right to enjoy the usufructs during her time. The recitals contained in Ex.A-2 would mean that Saram Bibi was given the properties absolutely to be enjoyed hereditorily. A plain reading of the recitals contained Ex.A-1 would go to show that Saram Bibi was given absolute right over the two acres of and the half of the amount realisable from M.K.Mohammed Basha Saheb. The conditions mentioned under ‘ C ” schedlue to Ex.A-1 would relate to only the mode of realizing income from the corpus. Nowhere in Ex.A-1 it is stated that Saram Bibi can enjoy usufructs only during her life time. In fact the sons of Shamsuddin were directed to have possession of the properties given to the female members till the life time of the sons that they can realise the income from the landed properties and pay the same to the members. Further, the absence of the vesting clause in Ex.A-1 would go to show that two acres of land was given to Saram Bibi absolutely. 10. In Ex.A-2 there was no recital to the effect that the properties were given to condition that she should enjoy the usufructs only during the life time. In fact, the properties were given under ExA-2 to be enjoyed heredictorily absolutely. Under the Mohammedan the mother will exclude the sons and therefore in the absence of vesting clause in Ex.A has got to be interpreted that the properties were given to Saram Bibi absolutely. It correct to state that Saram Bibi was given the mere right to enjoy the usufructs in the property because her husband would flitter away the estate. In fact, her father wanted give her back the property under Ex.A-2 will, which she couldnot obtain from Mohammed Saheb and Co.even though there was reconveyance clause in the sale deed. It correct to state that Saram Bibi was given the mere right to enjoy the usufructs in the property because her husband would flitter away the estate. In fact, her father wanted give her back the property under Ex.A-2 will, which she couldnot obtain from Mohammed Saheb and Co.even though there was reconveyance clause in the sale deed. Ex.B-24 the written statement filed by the two Saram Bibi in O.S.No.113 of 1943 would go to show that they accepted that Saram Bibi absolute right over the suit properties. If at all there is any condition attached with two of land under Ex.A-1, that would go to Juleika Bibi. Even in the suit notice Ex. A- the case of the plaintiffs that Saram Bibi was given only the right to enjoy the usufructs the suit property during her life time. It was therefore pleaded that under Ex.A- properties were given to Saram Bibi absolutely to be enjoyed herditorily. In circumstances it was pleaded that the findings of the first appellate court on this point be reversed and that of the trial court restored. 11. Ex.B-12 and B-13 settlements are valid documents executed by Saram Bibi. They binding on the plaintiffs/respondents herein. According to the averments in the plaint, understand that fraudulently and by deceitful means and by exercising coercion and influence Mohammed Seriff had taken the settlement deeds in favour of his wife and sons. According to the plaintiffs, these deeds were taken fraudulently for the purpose depriving the plaintiffs’ lawful share in the suit properties, undue influence, coercion fraud are legal pleas, therefore, the plaintiffs are expected to give full particulars and of the same as per the provisions contained in O.6, Rule 4, C.P.C. In the absence particulars, and details these allegations cannot constitute the legal plea of fraud and influence. The respondents did not given any details or particulars for these allegations. After the judgment was rendered by the trial court, the plaintiffs attempted to amend plaint to introduce the details for undue influence, coercion and fraud and therefore remains to be seen that the plaint is bereft of particulars on this aspect and hence plaintiffs/respondents are unable to substantiate their allegations on undue influence, coercion and fraud. Even in the suit notice Ex.A-6 only fraud was alleged, undue influence and coercion was not stated therein. Even in the suit notice Ex.A-6 only fraud was alleged, undue influence and coercion was not stated therein. It is not their case that Saram Bibi never executed ‘these settlement deeds. The fact that Saram Bibi did not appear before the Sub would not by itself invalidate the documents. Simply because the witnesses documents are close relations, it would not mean that there is any suspecious circumstances in the execution of those documents. It is only after having understood the contents documents Saram Bibi put her thumb impressions. Simply because those documents not registered in the place where Saram Bibi was residing that would not mean that suspicious circumstances in the registration. It is also not correct to state that since branch was excluded from getting the properties, the settlement deeds have become In fact, there is no prayer to set aside the settlement deeds. The tannery was purchased of the income from the suit properties. It was therefore pleaded that the settlement are vaild and binding on the plaintiffs/respondents. 12. On the other hand, the learned Senior Counsel Mr.M.R.Narayanasamy, appearing plaintiffs/respondents contended as under: Exs.A-1 and A-2 wills should be read Ex.A-2 wills subject to the conditions stated in Ex.A-1 will. A combined reading of wills would go to show that Saram Bibi was given only a right to enjoy the usufructs suit properties during her life time and the corpus was given to her male children. schedule ‘C’ to Ex.A-1 will, it is clearly stated that Saram Bibi was given right to enjoy usufructs during her life time. If the properties are not vested, it will revert back donor and it will devolve according to Mohammadan Law. The husband of Saram Bibi spend-thrift hence the father of Saram Bibi does not want to give any property daughter absolutely. While the properties were given to his sons Shamsuddin clearly that properties should go to them absolutely. This can be seen on a careful reading of will. In fact, Ex.B-9, property was originally sold by Saram Bibi and therefore her father not want to give this property to her absolutely so as to save the immovable properties the hands of the Saram Bibi’s husband. This can be seen on a careful reading of will. In fact, Ex.B-9, property was originally sold by Saram Bibi and therefore her father not want to give this property to her absolutely so as to save the immovable properties the hands of the Saram Bibi’s husband. It is the case from the beginning of the respondents herein that Saram Bibi was given only right to enjoy the usufructs in properties during her life time and after her life time the properties are given absolutely her male children. Even though it is not stated in Ex.A-2 that Saram Bibi had only enjoy the usufructs for her life time, that has got to be understood from the reading 1. In Ex.A-2 it is clearly stated that the property was given subject to all the stated in Ex.A-1 will. Hence Saram Bibi was given only the right to enjoy the usufructs from the suit properties till her life and the corpus was given to her male children after her life time. 13. Exs.B-12 and B-13 settlements are not binding upon the plaintiffs/respondents. settlements were executed under undue influence coercion and fraud. The averments stated in the plaint are sufficient to satisfy the provisions contained in O.6, Rule 4, Even if the pleadings in the plaint are not sufficient to give enough details an application filed to amend the pleadings and since the amendment can be allowed at any stage the appellate court ought to have allowed the amendment petition and permitted the plaintiffs amend the plaint. The originals of Exs.B-12 and B-13 were not produced before the court. they are in the Erode Bank as alleged the appellants ought to have summoned them, they did not do so. Even in the suit notice Ex.A-6, the case of the respondents herein that two settlement deeds were executed under suspicious circumstances. D.W.2 W.3 are the attestors. They are the close relatives of the appellants herein. Saram Bibi resident of Erode. The documents were registered at Mettupalayam. Saram Bibi was present before the Sub-Registrar for registration. Her power of attorney agents presented the documents for registration, but for registration Ex.A-10, she herself went to Registrar office. Saram Bibi affixed her thumb impression and it is not known as to whether she affixed her thumb impression after having understood the contents of the documents. Saram Bibi was present before the Sub-Registrar for registration. Her power of attorney agents presented the documents for registration, but for registration Ex.A-10, she herself went to Registrar office. Saram Bibi affixed her thumb impression and it is not known as to whether she affixed her thumb impression after having understood the contents of the documents. She is sufficiently an aged person, who could not look after her own affairs. There mention of Ex.B-12 in Ex.A-10, the partition deed executed in 1952. Hence she was aware of the settlement deed Ex.B-12. On the date when Ex.B-12 was executed, properties were already partitioned and therefore there is no property to give by way settlement. The plaintiffs/respondents herein are not parties to the settlements therefore they can ignore them and they need not file any suit to set aside these documents. The defendants/appellants wanted to rely on those documents and therefore the burden on them to prove that they are valid documents. Saram Bibi can exclude one branch of heir without assigning any valid reasons. It was therefore pleaded that the settlement Exs.B-12 and B-13 are executed under suspicious circumstances and hence invalid and binding upon the plaintiffs/respondents herein. It was therefore pleaded that the findings the first appellate court on this point may be reversed and that of the trial court restored. 14. I have heard the rival submissions. The learned senior counsel appearing on both relied upon various text books and authorities in order to support their respective contentions. I have carefully gone through the same. In the present appeal, the primary point for consideration pertains to the interpretation of the two wills Ex. A-1 and Initially in the plaint the plaintiffs/ respondents herein contended that under the said wills Saram Bibi was given only a life estate in the suit properties and the corpus is with the male children of her. Later on, by introducing an amendment the pleading amended to the effect that Saram Bibi was having only a right to enjoy the usufructs suit properties till her life time and the properties are vested in her sons. Later on, by introducing an amendment the pleading amended to the effect that Saram Bibi was having only a right to enjoy the usufructs suit properties till her life time and the properties are vested in her sons. If Saram given life estate in the suit properties, she would be entitled to take the properties absolutely in as much as the concept of life estate with the gift over to another is not to Mohammedan Law and person who is given such a life estate can take the properties absolutely, the gift over being void. Under the Mohammedan Law right to enjoy usufructs till the life time over the immovable properties is valid. 15. Thus according to the amended pleadings, the plaintiffs/respondents herein submitted that Saram Bibi was given only the right to enjoy the usufruts till her life time over the properties and the corpus is vested with her sons. Whatever might be the case put forward by the parties, it is ultimately the duty of the court to interpret the wills according terms contained therein. 16. It remains to be seen that the dispute is between the heirs of two sons of Saram The trial court held that Saram Bibi was given under Ex.A-2 will the corpus of the properties absolutely to be enjoyed hereditorily. On the other hand, the first appellate held that Saram Bibi was given only the right to enjoy the usufruct during her lifetime and she was not given the corpus absolutely to be enjoyed hereditorily as per the Exs.A-1 and A-2. The trial court held that the two settlement deeds Exs.B-12 and B not valid documents and hence not binding upon the plaintiffs. On the other hand, the appellate court held that the settlement deeds Ex.B-12 and B-13 are voluntarily executed documents and hence valid. 17. The fact remains that the suit properties are covered under the second will Ex.A 13.4.1927. The first will was executed by Shamsud-din on 16.8.1925. The suit properties not covered by Ex.A-1 will. It remains to be seen that Shamsuddin Rowther begot a female child Juleika Bibi after the execution of the first will Ex.A-1. Shamuddin Rowther acquired suit properties under Ex.B-9, in 1926 i.e., between the dates of Exs.A-1 and A-2. The first will was executed by Shamsud-din on 16.8.1925. The suit properties not covered by Ex.A-1 will. It remains to be seen that Shamsuddin Rowther begot a female child Juleika Bibi after the execution of the first will Ex.A-1. Shamuddin Rowther acquired suit properties under Ex.B-9, in 1926 i.e., between the dates of Exs.A-1 and A-2. It appears that in order to provide certain properties to his after born female child and in order to a disposition of the newly acquired properties shamsuddin executed a further will Ex.A-2. The facts reveal that Saram Bibi and her husband purchased the properties initially under Ex.B-4 in 1904 and that Saram Bibi had executed a gift in respect of her half share the properties in favour of her husband Habib-ulla Sahib under Ex.B-5 in 1910 directing to discharge certain debts due to Khader Mohidden Sahib and Co. under a mortgage. 1941 the husband of Saram Bibi, Habibulla Sahib giftd some properties to Saram Bibi Ex.B-6 stating that purchase had been made with the sridhana of Saram Bibi. Some properties were also gifted by Habibulla Saheb in favour of his wife Saram Bibi under Ex.B in 1915. In 1916 under Ex.B-8 Saram Bibi sold to Jamal Mohideen Sahib and Co., properties with an agreement reconvey the same within 10 years period. On 16.2.1926 the eve of the expiry of the said 10 years period Shamsuddin purchased the said properties from Jamal Mohideen Sahib Co., under Ex.B-9. It is under these circumstances Shamsuddin Rowther became the owner of the suit properties in 1926, which he dealt with under second will Ex.A-2. 18. It is correct in stating that both the wills Exs.A-1 and A-2 should be read together order to understand the terms of disposition and the intention of the testator. This because even the testator in his second will Ex.A-2 has stated so, as can be seen from following sentence occuring in Ex.A-2 will: 19. Therefore whatever might have been the stand taken by the appellants and respondents in the respective cases, ultimately the result of the appeal depends upon interpretation of the above said two wills. It is already mentioned that the disposition of suit properties were made under the second will Ex.A-2. Therefore whatever might have been the stand taken by the appellants and respondents in the respective cases, ultimately the result of the appeal depends upon interpretation of the above said two wills. It is already mentioned that the disposition of suit properties were made under the second will Ex.A-2. While making the disposition of suit properties under Ex.A-2 will the testator has stated in the relevant portion of Ex.A relating to Saram Bibi as under: In view of the above said conditions stipulated in the second will, it is necessary to see what the testator intended while making the bequest to Saram Bibi under Ex.A-2. Therefore, it becomes necessary to consider as to what are the conditions stipulated by the testator under Ex.A-1 will in so far as Saram Bibi is concerned. 20. Ex.A-1 will is dated 16.8.1925. In the said will properties were bequesthed to persons. Several bequeaths were made by the testator in favour of his sons, daughters, and for religious purpose in respect of a total extent of 18.75 acres in Odanthurai village besides other properties elsewhere. In the beginning of the said will Ex.A-1 it is stated under: In the above said will Ex.A-1, ‘C’ schedule relates to Saram Bibi. In schedule ‘C’ the testa directed Saram Bibi as to how she should enjoy the income from 2 acres of land. necessary recitals in the ‘C’ schedule are as under: 21. Thus under Ex.A-1, the daughters in serial Nos.3, 4 and 5 and his wife in serial were given the schedule mentioned properties with Sudanthira In the begin the will the testator stated that the properties should be taken by the legatees as conditions stated hereunder and under the schedule. In the matter of bequeathing properties the crucial words used are in Ex.A-1, in the Shedule ‘C’ it was further stipulated that Saram Bibi should subject conditions mentioned earlier taken the income from an undivided 2 acres of land 16.75 acres. Therefore, the conditions mentioned in schedule ‘C’ should be read along with the conditions stated in the prior portion of the will. Further the two Shamsuddin were directed to hold the properties under their possession till their life manage and collect the income from the lands given to their sisters and mother distribute the same to them according to the ratio given to them after deducting necessary expenses. Further the two Shamsuddin were directed to hold the properties under their possession till their life manage and collect the income from the lands given to their sisters and mother distribute the same to them according to the ratio given to them after deducting necessary expenses. The words would relate to the words Therefore, nowhere in the will Ex.A-1 it is stated that Saram Bibi is entitled to income from the said two acres of land only till her life time. While interpreting the will 1 the lower appellate court failed to consider the two important aspects viz., (1) portion of the will Ex.A-1 and (2) the fact that now here in the will it was stated that Bibi is entitled to enjoy the income from two acres of land only during her life time. 22. Under condition No.6 in the will Ex.A-1 Saram Bibi and her sister were directed to equal share in the amount of Rs.18,522.8.1 realisable from M.K.Mohammed Basha and In the schedule ‘C’ in Ex.A-1 Saram Bibi and her sister were directed to collect the amount and divide the same equally among themselves. It is significant to note that the sons not directed to collect this amount due from M.K.Mohammed Basha and sons, and same to their sisters. Only the income from the lands were directed to be collected sons and distribute the same to the female members of the family till the life time sons. Further it is pertinent to note that in the beginning of the will Ex.A-1, the testator stated that the legatees should take the properties given to them and enjoy the absolutely as can be seen from the words Immediately thereafter under condition No. 1, it is stated that These words clearly show that properties were given to the female heirs absolutely relevant to note that all the properties of Shamsuddin were disposed off under the will Ex.A 1. The said two acres of land mentioned in the ‘C’ schedule in Ex.A-1 was not given to other person, except to Saram Bibi. In some places, in Ex.A-1, it is stated that, and in some other places it is stated as and no other word is used restrict the meaning of these words, therefore, wherever the testator says enjoy properties would mean, absolute enjoyment of the properties. In some places, in Ex.A-1, it is stated that, and in some other places it is stated as and no other word is used restrict the meaning of these words, therefore, wherever the testator says enjoy properties would mean, absolute enjoyment of the properties. So also neither in ‘C’ schedule nor elsewhere in Ex.A-1 it was stated that Saram Bibi can enjoy the income from 2 acres of land only during her life time. Further in Ex. A-1, there is no vesting clause. Under Mohammedan Law the mother will exclude the sons. Therefore, under such circumstances, it has got to be understood that two acres of land was given to Saram absolutely. For all these, reasons, I have to come to the conclusion that under Ex.A Saram Bibi was given two acres of land out of 16.75 acres absolutely within the right to enjoy the income arising therefrom and her brothers were directed to take possession of the same during their time, manage and collect the income from the land and pay the same to her according to ratio given to her after deducting the necessary expenses and obtain a receipt from her. 23. The above interpretation of the will Ex.A-1 in so far as the property given to Saram is concerned finds support from what is stated in the second will Ex.A-2. It is already stated that in order to provide certain properties to Juleika Bibi, who was born after the execution of Ex.A-1 and also in order to dispose of the property purchased after the execution of Ex.A 1, the second will Ex.A-2 was written. In the second will Ex.A-2, the two acres of land half of the amount of Rs.18,522.8.1, realisable from M.K.Mohammed Basha Saheb and given to Saram Bibi under Ex.A-1 were taken away and given to Juleika Bibi. Thus Juleika Bibi got not only the properties given to Saram Bibi but also some other item of properties. Instead of the properties given under Ex.A-1 Saram Bibi was given under Ex.A- property purchased by Shamsuddin from M.Jamal Mohideen Saheb and Co., viz., 41.96 in Semur village, Erode. 24. As already pointed out that Saram Bibi had been given 2 acres of land absolutely can seen from the recitals contained in Ex.A-2. The rele- vant words are: The abovesaid words in Ex.A-2 clearly show that what given to Saram Bibi under Ex.A two acres of land absolutely. 24. As already pointed out that Saram Bibi had been given 2 acres of land absolutely can seen from the recitals contained in Ex.A-2. The rele- vant words are: The abovesaid words in Ex.A-2 clearly show that what given to Saram Bibi under Ex.A two acres of land absolutely. Further it is stated, Here also it is very clearly stated that Saram Bibi was given two acres of land absolutely. is further stated that Here also it is clearly mentioned as to what was given to Saram Bibi under Ex.A- property and not the income from the property. It is significant to note that nowhere Ex.A-2, it is stated that Saram Bibi’s right to enjoy the usufructs over two acres of taken away and given to Juleika Bibi. Now let us see an import clause found in Ex.A runs as under: 25. While interpreting this clause, the learned counsel for the defendants/appellants contended that Saram Bibi was given the corpus absolutely and hereditorily as per conditions contained in Exs.A-1 and A-2 wills. According to the learned counsel for plaintiff/respondents, Saram Bibi was given only the right to enjoy the usufructs till her time in the suit properties and the corpus is vested in her sons. According to the counsel for the respondents herein even though it was not stated in Ex.A-2 will that Bibi was given only the right to enjoy the usufructs till her life time, it has got understood as such, because the property given under Ex.A-2 was subject to the conditions contained in Ex.A-1. This interpretation given by the learned counsel for the respondents herein cannot be accepted, because it was not stated so in both the wills. The suit properties were given to Saram Bibi absolutely and hereditorily under Ex.A-2. It was already held two acres of land was given to Saram Bibi under Ex.A-1 absolutely. Further, the testator himself had stated in Ex.A-2 that two acres of land was given to Saram Bibi absolutely Ex.A-1. Therefore, even if the conditions contained in Ex.A-1 is applied to the properties given under Ex.A-2, Saram Bibi has got to take the suit properties absolutely hereditorily. Accordingly I hold that Saram Bibi was given the suit properties under will absolutely and hereditorily. In that view of the matter the findings given by the appellate court on this aspect are reversed and set aside. 26. Accordingly I hold that Saram Bibi was given the suit properties under will absolutely and hereditorily. In that view of the matter the findings given by the appellate court on this aspect are reversed and set aside. 26. Saram Bibi executed two settlement deeds under Exs.B-12 and B-13. Ex.B- 13.9.1955 was executed in favour of the appellants herein and Ex.B-13, dated 19.4.1962 was executed in favour of the appellants and Mohammed Sheriff. The respondents challenged these settlements as fraudulent. According to the respondents these settlement deeds are executed by fraudulent and deceitful means and by exercising coercion and influence. Mohammed Sheriff had taken two settlement deeds in favour of his wife and sons. According to the respondents herein these documents were fraudulently created the intention to deprive their lawful share. 27. The learned counsel appearing for the appellants herein contended that the mentioned plea as raised by the respondents herein in the plaint about the alleged undue influence and coercion is no legal plea at all inasmuch as no details therefore been given in the plaint as required under O.6, Rule 4, C.P.C. In the absence of the details the allegations in the plaint cannot in law constitute any plea of fraud, influence or coercion. In order to cure this patent defect that the respondents herein the first appellate court filed I.A.No.1784 of 1980, a petition to amend the plaint by the details of the alleged fraud, misrepresentation and undue influence and also that the settlement deeds are void ab initio. There is no plea of coercion in the amendment nor any details of coercion earlier alleged in the plaint. The details regarding alleged fraud, misrepresentation and undue influence as now given in this petition amendment are merely a reproduction of the reasonings given by the lower court judgment. However, considering the circumstances under which the above said I.A.No.1784 of 1980 was filed, the lower appellate court dismissed the same. It remains to be seen it is not open to the respondents herein to make any attempt to amend their pleadings the first appeal stage to fill up the lacuna pointed out by the trial court. However, considering the circumstances under which the above said I.A.No.1784 of 1980 was filed, the lower appellate court dismissed the same. It remains to be seen it is not open to the respondents herein to make any attempt to amend their pleadings the first appeal stage to fill up the lacuna pointed out by the trial court. In fact, this appeal was decide by the first appellate court by remanding the case and that was taken up in appeal before the High Court and the High Court set aside the first court’s judgment and remand the matter to the first appellate court for fresh disposal. amendment was not applied for at any earlier stages and it was sought to be introduced way of a petition filed on 27.10.1980 after the appellants commenced their arguments which they made a pointed reference to the omission in the plaint of the necessary particulars regarding the alleged fraud, undue influence and coercion as required under Therefore, the allegations with regard to undue influence, coercion and fraud appears bean after thought and made in the plaint without any details or particulars and also any basis. The first appellate court rightly pointed out that in the absence of any details particulars of the alleged coercion, undue influence and fraud as required under O.6, C.P.C. in the pleadings the defendants were not called upon by the pleadings to meet case of the alleged fraud, undue influence and coercion and that the plaintiffs cannot allowed to raise such plea at this belated stage. This view of the first appellate court to be quite correct on the basis of the earlier decisions on this point. Further, in the Ex.A-6 issued by the respondents, in November, 1968 there is no mention of the exercise undue influence or coercion on Saram Bibi in the execution of Exs.B-12 and B-13 only details of fraud mentioned therein was that Saram Bibi was made to execute settlement deeds alleging that the properties were her absolute properties. 28. Saram Bibi executed the settlement deeds under the originals of Exs.B-12 and D.W.I is the second appellant/second defendant. D.W.2 is the first appellant’s sister He has attested the original of Ex.B-12. He has spoken about the execution of the document by Saram Bibi and its due attestation. D.W.3 is the younger brother of the first appellate first defendant and also father-in-law of the third appellant third defendant. D.W.2 is the first appellant’s sister He has attested the original of Ex.B-12. He has spoken about the execution of the document by Saram Bibi and its due attestation. D.W.3 is the younger brother of the first appellate first defendant and also father-in-law of the third appellant third defendant. He has the original of Ex.B-13 and spoken about the due execution of Saram Bibi and-attesta There is nothing unusual in the attesting the settlement deeds. Simply because, they close relatives that itself would not invalidate the documents. 29. The third plaintiff examined himself as P.W.1. He is not personally award execution of the settlement deeds and his evidence is insufficient to show the exercise any fraud, undue influence and coercion by the appellants and Mohammed Sheriff on Bibi in execution of chase documents. The respondents contended that Saram Bibi was resident of Peria Agraharamat Erode and that the execution of those documents were Mettupalayam therefore that created a suspicion about the voluntary nature documents. It was shown that Saram Bibi herself was born at Mettupalayam and properties through her father and that properties were at Mettupalayam though husband’s place is Peria Agraharam. She used to visit Mettupalayam where the defendant was residing. He is related to her even prior to her marriage. The recitals in 12 are to the effect that Saram Bibi had agreed at the time of the marriage of the first defendant to give him properties and that it was in pursuance that promise that Ex.B-12 was executed. Therefore, the fact that the documents executed at Mettupalayam by itself would not create any suspicious circumstances. Bibi did not appear before the Sub-Registrar at Erode for registering the documents. special power of attornies Kamalludin and D.W.4 Asaraf Ali presented the documents 12 and B-13 for registration. Registering a document by special power of attorney by would not lead to any suspicious circumstances. In fact, the presumption is that the of the documents would have been read to her before obtaining her thumb impression the Sub-Registrar being a public officer would not have registered the documents observing the necessary formalities. Hence, no adverse inference can be drawn against voluntary nature of these documents. In fact, the presumption is that the of the documents would have been read to her before obtaining her thumb impression the Sub-Registrar being a public officer would not have registered the documents observing the necessary formalities. Hence, no adverse inference can be drawn against voluntary nature of these documents. Even though Saram Bibi does not know to read write, she fought her personal litigation in O.S.No.113 of l943 upto the level of High Therefore, she is a person of wordlywise capable of managing her own affairs. She divest herself of all her properties, but she made the settlement only in respect portion of her properties. She did not challenge this document during her life time. years after the execution of Ex.B-12, the settlement deed exhibit B-13 was executed respect of certain other items of properties. Even in this document she retained her reside in the properties and to collect certain amounts from the shops. After the execution Ex.B-12 she lived for 8 years. Saram Bibi was a party to Ex.A-10, which was executed March, 1962. She herself gone to the Sub-Registrar’s office, Kothagiri near Mettupalayam have the document registered. Therefore, it is stated that why should not she go to the registrar’s office at Erode for registering Ex.B-13 which was executed a month later. Bibi was living at Mettupalayam while executing Ex.B-13. Therefore, there is nothing in her giving special power of attorney in favour of Mohammed Ali for registering the of Ex.B-13 at Erode, without her travelling all the way from Mettupalayam to Erode. become these documents were executed in favour of her relations it would not be possible presume undue influence. It is contended by the respondents that in the absence mention of Ex.B-12 in Ex.A-10 partition deed entered among the members of her family the year 1938 would indicate that she was not aware of the execution of Ex.B-12. was arrangement of partition entered into between the sons of Abdul Kadar (brother Saram Bibi) Saram Bibi, Juleika Bibi and the grand-sons of Shamsuddin through his daughter. It refers to the will of 1925 under Ex.A-1 executed by shamsuddin and the of Shamsuddin and about a mediation by certain mediators in 1932 and through mediation the properties mentioned in schedule B in Ex.A-10 were agreed to be taken Saram Bibi. The suit properties are not of different from these properties. 30. It refers to the will of 1925 under Ex.A-1 executed by shamsuddin and the of Shamsuddin and about a mediation by certain mediators in 1932 and through mediation the properties mentioned in schedule B in Ex.A-10 were agreed to be taken Saram Bibi. The suit properties are not of different from these properties. 30. The appellants counsel pointed out that the agreement under Ex.A-10 should have brought about by the heirs of Shamsuddin to legalise the bequest by him under Exs.A A-2 in excess of legal heir and that no special significance can be attached to Ex.A far as it relates to Saram Bibi. It is to be seen that Ex.A-2 was not referred to in Ex.A the purpose of Ex.A-10 was not to distribute the properties among the heirs of Saram was therefore rightly pointed out by the first appellate court that the non mention of in Ex.A-10 would not lead to the conclusion that Ex.B-12 was executed under suspicious circumstances. 31. The learned counsel for the appellants pointed out that there is no prayer in the set aside the settlement deeds. Further it was submitted that the attack on Exs.B- 13 is barred by limitation. It was further submitted that since these documents were aside, they are binding upon the respondents herein. On the other hand, the learned for the respondents pointed out that the respondents herein are not parties to documents and hence they can ignore them and there is no necessity for them to set these settlement deeds. The learned counsel for the respondent further pointed out burden is on the persons who are relying on these settlement deeds to prove that they executed under valid circumstances. Hence it was submitted that the settlement deeds ab initio void. 32. The only contention raised by the respondents herein was that these documents invalid since they are executed under suspicious circumstances, which would invalidate contract. Therefore even according to the defence put forward by the respondents herein the settlement are void-able documents and not void documents. In such circumstances, the submission that the documents are void ab initio cannot be accepted. Voidable documents ought to been set aside, by the affected parties within three years from the date of knowledge these settlements as can be seen from Art.59 of the Limitation Act. Ex.B-12 was executed on 14.9.1955 and Ex.B-13 was executed on 19.4.1962. In such circumstances, the submission that the documents are void ab initio cannot be accepted. Voidable documents ought to been set aside, by the affected parties within three years from the date of knowledge these settlements as can be seen from Art.59 of the Limitation Act. Ex.B-12 was executed on 14.9.1955 and Ex.B-13 was executed on 19.4.1962. Saram Bibi died in the year 1963. attempt was made to set aside these documents. P.W.I admitted in his evidence that came to know about the execution of these settlement some months after the death Saram Bibi. But the suit was filed by the respondents herein only in the year 1969 that years after the death of Saram Bibi. It was already held that Saram Bibi had absolute over the suit properties. Therefore the respondents herein could not claim any right or over the suit properties without setting aside these documents by valuing the suit and by paying the requisite court fee thereon, subject to the law of limitation. Since respondents herein have not done this, they cannot be allowed to attack Exs.B-12 and settlement deeds on the ground of undue influence, coercion and fraud, or, circumstances invalidating a contract. Considering the facts and circumstances of the this aspect, I find that there is no infirmity in the findings given by the first appellate on this aspect, in upholding the validity of the settlement deeds. 33. Another submissions made by the learned counsel for the respondents herein was Saram Bibi cannot exclude one branch of legal heirs who are lawfully entitled to get in the suit properties. On the other hand, the learned counsel for the appellants contended that Saram Bibi’s right to dispose of her absolute properties according to her pleasure cannot be curtailed. According to the learned counsel for the appellants Saram is entitled to her properties absolutely and therefore she is entitled to dispose properties even in favour of a stranger and that cannot be validly questioned respondents herein. According to the learned counsel for the appellants Saram is entitled to her properties absolutely and therefore she is entitled to dispose properties even in favour of a stranger and that cannot be validly questioned respondents herein. In support of his contention, the learned counsel for the respondents relied upon a judgment of the Supreme Court in the case of Ram Piari v. Bhagvant, 1990 S.C. 1742, wherein the Supreme Court held as under: "Although freedom to bequeath one’s own property amongst Hindus is absolute extent and person, including rank stranger, yet to have testamentary capacity disposable mind what is required of propounder to establish is that the testator at disposition knew and understood the property he was disposing and persons who were beneficiaries of his disposition. Prudence, however, requires reason for denying benefit those who too were entitled to bounty of testator as they had similar claims on him. of it may not invalidate a Will but it shrouds the disposition with suspicion as it does any inkling to the mind of testator to enable the court to judge if the disposition voluntary act." 34. It remains to be seen that by producing overwhelming evidence the appellants that the settlement deeds were executed by Saram Bibi voluntarily without any interference by anybody. Further, the facts remain that Saram Bibi did not dispose of all her properties these settlement deeds and in fact the retained her rights over some of the properties enable her to lead her life comfortably during her old age. Therefore, in the absence suspicious circumstances, it cannot be said that one brach of legal heirs were without assigning any reasons. In fact, in one of the settlement deeds he said that in fulfil her earlier promise she executed the settlement. Under such circumstances, on above said decision of the Supreme Court will not render any assistance to the respondents herein to establish their case. 35. In fact, in one of the settlement deeds he said that in fulfil her earlier promise she executed the settlement. Under such circumstances, on above said decision of the Supreme Court will not render any assistance to the respondents herein to establish their case. 35. On this aspect, another decision relied on by the learned counsel or the respondents herein was that report in the case of Lakshmi Ammal v. T.Narayana, A.I.R. 1970 S.C. The only question that arose for consideration before the Supreme Court in that case "Whether the deed of settlement Ex.B-3 was executed in circumstances which rendered invalid and void." While deciding this question of facts, the Supreme Court held as under: "We are satisfied that Narasimha Bhatta who was of advanced age and was in a senility and who was suffering from diabetes and other ailments was taken by respondent No.1 who had gone to reside in the house at Sodhankur village a little earlier in a taxi with Lakshmiammal to the Nursing Home in Mangalore where he was got admitted patient. No draft was prepared with the approval or under the directions of Narasimha Bhatta nor were any instructions given by him to the scribe in the matter of drawing the document Ex.B-3. An application was also made to the Joint Sub-Registrar, Mangalore for registering the document at the Nursing Home by some one whose name has not disclosed nor has the application been produced to enable the court to find out the reasons for which a prayer was made that the registration be done at the Nursing Lakshmiammal the wife of Narasimha Bhatta who was the only other close relation present has stated in categorical terms that the document was got executed by suing pressure Narasimha Bhatta while he was of an infirm mind and was not in a fit condition to what he was doing. The hospital record was not produced nor did the doctor who attended on Narasimha Bhatta at the Nursing Home produce any authentic data or record to support their testimony. Even the will was not produced by respondent No.1 presumably because must have contained recitals about the weak state of health of Narasimha Bhatta. The hospital record was not produced nor did the doctor who attended on Narasimha Bhatta at the Nursing Home produce any authentic data or record to support their testimony. Even the will was not produced by respondent No.1 presumably because must have contained recitals about the weak state of health of Narasimha Bhatta. dispositions which were made by Ex.B-3 as already pointed out before, were altogether unnatural and no valid reason or explanation has been given why Narasimha Bhatta have given everything to respondent 1 and even deprived himself of the right to deal the property as an owner during his life time. All these facts and circumstances raised grave suspicion as to the genuineness of the execution of the document Ex.B-3 and it for respondent No.1 to dispel the same. In our opinion, he has entirely failed to do so the result that the appeal must succeed and it is allowed with costs in this Court. The decree of the High Court is set aside and that of the trial court restored." It remains to be seen that this decision was rendered on the peculiar facts appearing in case. On the other hand, the facts and circumstances appearing in the instant case entirely different and on facts the respondents herein were unable to prove that settlement deeds were executed under suspicious circumstances. Therefore, this decision also cannot render any help to the respondents herein to establish their case. 36. Thus on a careful consideration of the facts and circumstances arising in this case the evidence both oral and documentary, in the light of the judicial pronouncements supra, I hold that Saram Bibi voluntarily executed the settlement deeds Exs.B-12 and that they were duly executed and attested. Thus the respondents herein were unable establish that these settlements were executed under suspicious circumstances and undue influence, coercion and fraud. Therefore, the settlement deeds Exs.B-12 and B valid and binding on the plaintiffs/respondents herein. Accordingly, the appellants defendants are entitled to the suit properties absolutely according to the settlement Exs.B-12 and B-13. Therefore, the suit properties are not available for partition. 37. Another ground raised by the appellants in this appeal relates to item No.8 in the properties. This property is situated in S.No.372. The actual extent of suit item No.8 given in the plaint is 2.20 acres. Therefore, the suit properties are not available for partition. 37. Another ground raised by the appellants in this appeal relates to item No.8 in the properties. This property is situated in S.No.372. The actual extent of suit item No.8 given in the plaint is 2.20 acres. This property was said to be alienated by Saram Bibi Ex.B-11 in 1952 in favour of defendants 6 and 7. The respondents pointed out that actual extent alienated was only 59 cents under Ex.B-11, dated 10.9.1952 and not entirety of survey No.372. Since the trial court came to the conclusion that Saram Bibi absolute right over the suit properties, it held that the sale under Ex.B-11 is valid and property is not available for partition. Since the first appellate court came to the conclusion that Saram Bibi had only the right to enjoy the usufructs over the properties covered Ex.A-2, it held that Saram Bibi had no right to alienate the same. Accordingly, the appellate court pointed out that sale under Ex.B-11 will not be binding upon plaintiffs/respondents. 38. However, on facts this Court in the foregoing paragraphs came to the conclusion Saram Bibi had absolute right over the suit properties. If that is so, the sale executed Saram Bibi under Ex.B-11 in favour of defendants 6 and 7 is valid. Therefore, this is not available for partition to the respondents herein. 39. Another point in this appeal relates to tannery in Survey No.378/B. According appellants herein the first appellate court’ overlooked the material admissions made P.Ws.1 and 2 with reference to absolute ownership of tannery in S.No.378/B which was put up by Saram 1938 from and out of her income and that the said tannery ought to have been excluded from the claim of the parties. 40. The trial court pointed out that it is seen from the evidence that the tannery S.No.378/B was constructed only by Saram Bibi out of the income from the suit properties. According to the trial court Ex.B-10 also confirmed the same. Therefore, according to trial court the plaintiffs would be entitled to a share in the tannery item No.13 in the first appellate court has omitted to consider this point. It was already held by this that Saram Bibi had absolute right over the suit properties. Item No.13 in the plaint acquired out of the income from the properties belonging to Saram Bibi. It was already held by this that Saram Bibi had absolute right over the suit properties. Item No.13 in the plaint acquired out of the income from the properties belonging to Saram Bibi. Therefore, property is also not available for partition to the plaintiffs/respondents herein. 41. The plaintiffs/respondents herein also filed a suit O.S.No.1795 of 1978 against defendants 1 and 2, the appellants herein for an injunction restraining them from alienating any suit properties until the partitions are finally settled. The trial court granted injunction and decreed the suit. As against this A.S.No.90 of 1980 was filed before the appellate court. The first appellate court confirmed the judgment and decree of the court and dismissed A.S.No.90 of 1980. Now in view of the conclusions arrived at by Court, that Saram Bibi is entitled to the suit properties absolutely and hereditarily Exs.B-12 and B-13 settlement deeds are valid and binding upon the plaintiffs/respondents herein the decree granted in O.S.No.1785 of 1978 and confirmed in A.S.No.90 of 1980 no legs to stand. In that view of the matter, I hold that Saram Bibi had absolute right the suit properties as per the wills Exs.A-1 and A-2. Exs.B-l2 and B-13 settlement deeds valid and binding on the plaintiffs/respondents herein. Any contrary finding given by court’s below to the above said conclusion arrived at by this court stands vacated. Accordingly, the judgment and decree granted by the trial court and as modified by the appellate court stand reversed and set aside. 42. In the result, this second appeal is allowed and O.S.No.321 of 1969 stands dismissed. Considering the relationship between the parties, they are directed to bear their own costs. Appeal allowed.