Judgment : The plaintiffi’s the appellant herein. The averments in the plaint are briefly as follows: The plaintiff and the defendant are the sons of one Manickam Pillai. They constituted a Hindu undivided joint family, owning and possessing extensive immovable properties. The family was managed by Manickam Pillai till 1953 and the management of the family estate was taken over the defendant as the eldest malt member of the family from 1953. The two sisters of the plaintiff and the defendant were already given in marriage, during the life time of Manickam Pillai. When the father died in 1953 the plaintiff was aged about 18years and the defendant was aged about 33 years. The defendant, taking advantage of the emotional upheaval of the adoles-cent of the plaintiff, treated the plaintiff as puppet in his hand. The marriage of the defendant was celebrated by the father at the cost of the joint family funds. There are four children to the defendant. The eldest was graduated from Regional Engineering College and after graduation he was sent to United States of America for further studies at the cost of the joint family. The second and third sons are having collegiate education. The fourth son is doing medical education. The marriage of the plaintiff with his sister’s daughter was performed at the expenses of his sister’s husband. The defendant was having his family at Trichy for about 15 years and then he shifted it to Madras finally. He was serving in several stations in the Agriculture Department and he was incurring expenses for dual establishment. The salary drawn by him could not be sufficient to cater to the copious and luxurious needs of his family. It is only from the earning and income from the joint family properties, the defendant, was meeting out his family expenses and was also advancing loan to several persons in the name of benamidhars. In 1960 when the Government envisaged the programme of land ceiling the defendant having become apprehensive hustled to draw a partition deed in respect of a portion of the properties of the joint family in order to evade the net of the proposed Land Ceiling Act. But it was not intended to be operative and the same was only for the purpose of avoiding the Land Ceiling Act. But it was not intended to be operative and the same was only for the purpose of avoiding the Land Ceiling Act. A document purporting to be a partition deed was executed by the plaintiff only and for the purpose of shielding against the on-slaught of the Land Ceiling Legislation. It was never the intention of the parties to cause severance of the status of the Hindu undivided family and this family continued to be joint. The plaintiff was subjecting himself to the rigour of discipline which the defendant imposed on him and the plaintiff has never had any say either in the matter of administration of the family affairs or in other areas of action. He had sent a lawyer’s notice on 10. 1975 to the defendant demanding partition, for which the defendant has sent a frivolous reply. The defendant in his reply has stated that severance of status has taken place between the parties by means of partition agreement of the year 1957 and the partition deed of the year 1960. There had never been any partition of the family properties either by metes and bounds or by severance in status. The family continued to be joint despite the so-called partition agreement. The parties had been in possession and enjoyment of the properties as co-parceners jointly. The defendant attempts to banish the plaintiff from the suit properties in the guise of the said documents. Both the parties have jointly executed sale deeds in the year 1958. Mortgages from various parties for unpaid sale consideration of the joint family properties were obtained and the unpaid sale consideration was collected by the defendant as Manager of the Hindu undivided family estates. He had also purchased properties in the joint names of both parties in 1961, and it has been disposed of in the year 1970 and the sale proceeds were collected by the defendant. In 1964, the defendant purchased property in the name of the plaintiff and the sale deed originally was written in the name of the defendant and subsequently altered in the name of the plaintiff. The family properties were mortgaged to the Cooperative Land Development Bank. The property referred to in D schedule have been alienated by the defendant. The alienations were fixed by the defendant and the sale price of the properties was negotiated only by him. The family properties were mortgaged to the Cooperative Land Development Bank. The property referred to in D schedule have been alienated by the defendant. The alienations were fixed by the defendant and the sale price of the properties was negotiated only by him. The sale price received were taken only by the defendant. The defendant has purchased building properties in the name of the plaintiff and the sale consideration was paid out of the joint family funds. The plaintiff has been residing in the ancestral house all these years. The entire house belongs to the parties as well as to their brother-in-law viz.,Muthukumaraswamy.When one Murugesam Pillai fall into arrears of lease amount a mortgage deed was obtained in the name of the defendant from the said Murugesam Pillai for the lease arrears due to the joint family. The landed properties were never managed by the plaintiff at any point of time. The landed properties in South Arcot District were under the cultivation of lessee, the said Murugesam Pillai. The lands in Natham village were in the collective farming with the lands of Muthukumaraswamy Pillai and one Ramanatha Ayyar. It was under the agency of Muthukumaraswamy Pillai,who used to render his accounts to the defendant. In respect of the lands in Kongarayannallur village, it was cultivated by one Sambandam Pillai. The lease amounts were collected by the defendant, and he embarked in the process of disposing or alienating bulk of the items of the properties both his share as well as the share of the plaintiff. He is, therefore, liable to render account to the plaintiff the earnings and income arising out of the joint family estate inclusive of the cash left by their father. He is also accountable for the investments made in the his name. The suit is for partition of the “B, C, E and F” Schedule properties. Since all the properties in ‘D’ schedule have been alienated by the defendant no partition is required in respect of the same. In respect of Items 1 to5 of the ‘E’ schedule properties,which are belonging to the parties as well as their brother-in-law Muthukumaraswamy in equal moities the plaintiff is entitled to l/4th share in the same. 2. Since all the properties in ‘D’ schedule have been alienated by the defendant no partition is required in respect of the same. In respect of Items 1 to5 of the ‘E’ schedule properties,which are belonging to the parties as well as their brother-in-law Muthukumaraswamy in equal moities the plaintiff is entitled to l/4th share in the same. 2. The defendant in his written statement has stated as follows: The plaintiff and defendant are divided not only in status, but they have already partitioned the joint family properties by an agreement dated 20.7.1957. The partition was confirmed by means of a registered partition deed dated 31. 1960. Both the agreement of partition and the registered partition deed were written and executed out of free will, consent, and with full knowledge with regard to all family properties and separate properties of this defendant. No family property was left undivided. The parties began to enjoy their respective shares from the time, of division separately. Since the plaintiff has not asked for any relief for cancellation of the valid partition deed, the suit is liable to be dismissed in limini. Since the family properties, were already divided and acted upon, there is no necessity for any fresh partition. The parties have taken legal proceedings for collection of rent of their share of properties separately. The properties purchased, without the knowledge and consent of the defendant,at Kongarayanallur, was sold and the sale proceeds also were divided between the parties. There was neither re-union nor joint family after valid partition. Even before the death of the father, the defendant got large extent of properties from his maternal grand-father under a will executed and registered by him on 11. 1924. They are landed properties and a portion of house at Natham. They are self acquired properties of this defendant. The plaintiff is now living in a portion of the said house with the permission of the defendant. It is false to state that the plaintiff was acting according to the wishes of the defendant. It is also false to state that the marriage was celebrated at the expenses of the joint family and the marriage of the plaintiff was celebrated at the expenses of his father-in-law. It is false to state that the plaintiff was acting according to the wishes of the defendant. It is also false to state that the marriage was celebrated at the expenses of the joint family and the marriage of the plaintiff was celebrated at the expenses of his father-in-law. The partition agreement and the partition deed were not made to avoid the proceedings of the anticipated Land Ceiling Act, as the family never owned large extent of lands to attract the provisions of the Land Ceiling Act. The properties were looked after by the brother-in-law of the plaintiff since the defendant was away from the village. Misunderstanding arose between the parties after the death of the father,and a partition was effected. After division, the properties purchased by this defendant by himself were under the management of the plaintiff and his father-in-law. The plaintiff and his father-in-law are liable to account in respect of the income from the properties in Natham allotted to the plaintiff. The plaintiff is in possession of his properties even today. No mortgage was taken for the alleged unpaid sale consideration by the defendant. It is false to say that the defendant purchased properties in the name of the plaintiff. It is false to say that certain properties were not included in the partition. It is not true to say that the entire sale price of D schedule properties is with the defendant. The defendant sold only his share of the property. The defendant did not collect any lease amount of the plaintiff. The relationship of the parties got much strained due to the interference of their brother-in-law Muthukumaraswamy Pillai, who became the father-in-law of the plaintiff. The suit is barred by time. Item No.7 of the property was already partitioned by metes and bounds. Items 1 to 6 and 1.54 acres in R.S.No.255/6 are the self acquired properties of the defendant. The defendant is also the owner of 31cents of natham jari and trees in R.S.No. 194/1A and also half the house with site, trees etc. in R.S.No.l94/lA measuring 56cents. The properties described in ‘E’ schedule were not the joint family properties. These properties were obtained by the defendant under the will for his benefit. The moveables mentioned in ‘F schedule were not in existence. The suit is liable to be dismissed. 3. in R.S.No.l94/lA measuring 56cents. The properties described in ‘E’ schedule were not the joint family properties. These properties were obtained by the defendant under the will for his benefit. The moveables mentioned in ‘F schedule were not in existence. The suit is liable to be dismissed. 3. On the above pleadings the court below, after trial, has held that the plaintiff is not entitled to any of the reliefs and dismissed the suit. Aggrieved over the same, the plaintiff has come forward with this appeal. 4. The point for consideration is: whether the plaintiff is not entitled to partition and separate possession as prayed for in the plaint? 5.Point: According to the plaintiff, the suit proper-ties are the joint family properties of himself and his brother the defendant and he is entitled to one-fourth share in E schedule and half of the ‘B’ schedule properties. The defendant resists the same by contending that in 1957 there was an agreement for partition entered into between the plaintiff and himself and it was subsequently ratified by means of a document dated 11. 960 and as per the terms of the unregistered partition agreement under Ex.B-37 confirmed by the registered partition deed under Ex.B-38 all the joint family properties had been divided between them and there is no other property available for partition among them. The plaintiff contends that the partition deed has been brought into existence to get over the rigour of the Land Ceiling Act which was about to be introduced in the Year 1960 and it was not acted upon at any time and the property has been possessed and enjoyed by the brothers as a joint family property even after the partitiondeeddated31. 1960. .6. The learned counsel appearing for the appellant would argue that in the partition deed, none of the properties which were jointly sold by the plaintiff and the defendant under Exs.A-5, A-6 and A-7 are shown as joint family properties and it may be noted that even at the time of the agreement for partition under Ex.B-37 also, these properties were not considered as joint family properties since they were not shown in the partition agreement and that would go to show that the partition agreement is a document brought into existence to give a colour of reality to the partition deed under Ex.B-38. The documents under Ex.A-5, Ex.A-6 and Ex.A-7 have come into existence after the partition agreement. If they were the joint family properties of both the brothers, there is no reason as to why these properties were not shown in the agreement for partition. It would only go to show that Ex.B-37 is a document which has come into existence to give a colour of reality to Ex.B-38. Ex. A-8 is a copy of the sale deed in favour of the plaintiff and the defendant of the year 1961 and it may be noted that the property purchased by the brothers on 23. 1961 jointly after the alleged partition dated 31. 1960 has been sold by them jointly subsequently on 210. 1970 as evidenced by Ex.A-9. This would also go to show that the theory of partition by metes and bounds said to have been effected on 31. 1960 cannot be true since the brothers have jointly purchased and conveyed the property mentioned in Exs.A-8 and A-9. Ex.A-10 is a sale deed executed by one Ramadurai Iyer in favour of the plaintiff and the defendant and there arc two sale deeds in it. This purchase is of the year 1960 and according to the plaintiff the consideration for the same has been paid only by the defendant. It is worth while to note that in one of the sale deeds, the name of the defendant has been written and it has been struck off and the name of the plaintiff has been written in it, even though the stamp paper stands in the name of the defendant. It only indicates that the claim of the defendant that there was a severance in status subsequent to the partition agreement dated 20.7.1957 cannot be true since there is no necessity for the brothers going for a purchase on the same date. The defendant’s case is that their brother-in-law who is incidentally the father-in-law of the plaintiff had purchased the properties under Exs.A-23,A-24andA-29 and he has not demanded back the amount due to him from his brother-in-law who was managing the affairs of the defendant’s lands. The defendant’s case is that their brother-in-law who is incidentally the father-in-law of the plaintiff had purchased the properties under Exs.A-23,A-24andA-29 and he has not demanded back the amount due to him from his brother-in-law who was managing the affairs of the defendant’s lands. The fact that the sale deeds in Exs.A-23, A-24 and A-29 have been purchased by the plaintiff in his name from out of the amount due to the defendant also goes to show that the claim of the defendant that there was a partition in the year 1960 cannot be true since there was no necessity for such a sale in favour of the plaintiff being effected with the help of the amount due to the defendant if there was really a partition. Ex. A-30 is a letter written by the defendant to one Pavadai Pillai in which the defendant has instructed the addressee viz., Pavadai Pillai to make a purchase in the name of the plantiff. It is to be noted that the defendant who had earlier stated in his evidence that he had not instructed anybody to make purchase in the name of the plaintiff, had to concede to the recitals in Ex.A-30 when it was put to him during cross-examination. If really there was a partition among the brothers as early as 1960, there appears to be no necessity for the defendant to give instructions to Pavadai Pillai to have the sale deed in the name of his brother. As I have already observed, the defendant has admitted that he had not taken any steps for recovery of any of the amount spent by his brother-in-law for purchasing the properties in the name of the plaintiff. It cannot be the case if there was a division between the brothers as claimed by the defendant. 7. According to the defendant, in his written statement, the plaintiff had played a fraud and got a loan sanctioned in his name when he wanted to purchase a motor and pumpset. But, in his evidence, he has stated that he has borrowed the amount due under Ex. A-11 mortgage as a principal borrower and the defendant is only a surety. In Ex.A-11 mortgage not only the plaintiff and defendant are the mortgagors but their sons are also shown as mortgagors. But, in his evidence, he has stated that he has borrowed the amount due under Ex. A-11 mortgage as a principal borrower and the defendant is only a surety. In Ex.A-11 mortgage not only the plaintiff and defendant are the mortgagors but their sons are also shown as mortgagors. If the defendant borrows money as a principal borrower as claimed by him is it not enough that the plaintiff affixes his signature as a surety? The joining of the children of the plaintiff and also the children of the defendant also in the mortgage deed under Ex.A-11 would show that the defendant only wants to gain some support for this theory of division between the brothers by putting forward a case of fraud in his written statement and giving evidence as principal borrower and surety in his evidence as principal borrower and surety in his evidence which are not in conformity with each other. .8. As regards the necessity for executing the agreement of partition, it is the case of the defendant that they have entered into this agreement under Ex.B-37 at the instance of their mother who wants to give a status to the plaintiff in the society and to boost up his status in the marriage market. But the marriage of the plaintiff has taken place five years thereafter viz., 1962. If the intention of the execution of Ex.B-37 agreement is only to give a status to the plaintiff, then there is no necessity for effecting a registered partition deed in the year 1960. The reason given by the defendant for executing the agreement under Ex.B-37 instead of supporting the case of defendant that in pursuance of the said agreement, the partition deed has come into effect only shows that without any reason whatsoever, Ex.B-37 had come into existence subsequently and not on the date of the execution of the same. It is to be noted that the defendant was employed in the Agricultural Department as an Officer and it was a period when there was much talk about the introduction of the Land Ceiling Act, Therefore, the contention of the plaintiff that in order to escape the rigour of the Land Ceiling Act, the partition deed has been brought into existence cannot be brushed aside as unworthy of acceptance. .9. .9. The lower court has found fault with the plaintiff for not examining the attestor to the document to show that the partition deed has come into existence only for the purpose of avoiding the rigour of Land Ceiling Act and it was not acted upon. But, it is the specific case of the plaintiff that the document under Ex.B-38 was signed by him at the instance of his brother when he was residing along with his brother in Pollachi. The document has been registered through a Power of Attorney in South Arcot District. It would only go to show that the defendant was having control over the plaintiff and his affairs. In fact, P.W.1 has stated in his evidence that the plaintiff would not even sit before him out of respect. When the defendant is enjoying so much respect and regard from the plaintiff, there is no reason as to why the version of the plaintiff that he had signed the document under Ex.B-37 without knowing the contents of the same cannot be accepted. It maybe that it is a well established principle of law that a Hindu family is presumed to be joint and undivided until the contrary is proved and the presumption of jointness is not an absolute one. It is also a well established rule that the burden of proving that any particular property is joint family property is in the first instance upon the person who claims it as co-parcenery property, but it is also to be noted that the question whether the property is joint family property or not has to be decided on the facts of each case and there cannot be a uniform law. The presumption in Hindu Law, is that a family is joint. There can be a division in status among the members of a joint Hindu family by definement of shares which is technically called “division in status” or an actual division among them by allotment of specific property to each of them which is described as “division by metes and bounds.” The defendant claims division in status as per the agreement under Ex.B-37 and it has to be negatived on account of the joint execution of the sale deeds under Exs.A-5 to A-7 and A-9 and joint | purchase under Ex.A-8. 10. 10. It has been laid down in the decision reported in Rukhmabai v. Lala Laxminarayan, A.I.R. 1960 S.C. 335:1960 S.C.J. 433, that, though prima favie a document clearly expressing the intention to divide brings about a division in status it is to a party to prove that the said document was a sham and nominal one not intended to be acted upon but was conceived executed for an ulterior purpose. Therefore, the plaintiff cannot be estopped from putting forward a case that the partition deed under Ex.B-38 was a sham and nominal document not intended to be acted upon but was conceived and executed with an ulterior object of defeating the provisions of the Land Ceiling Act. When we consider the case on hand, it cannot be stated that the plaintiff has to prove the case and the defendant need not establish that there is a division. The plaintiffs specific case is that on account of the undue influence exercised by his brother, he had been a party to the partition deed. In such circumstances, when the plaintiffs case is based on Sec.16 of the Contract Act, even though ordinarily on us of proving undue influence is on the plaintiff who sets up that plea in view of the fact that the defendant is a person who is standing in the position of active confidence of the plaintiff, it is for him to prove good faith of the transaction. The case on hand is an exception to the general rule that the onus of proving undue influence ordinarily rests on the party who sets up that plea, since it is for the defendant who is enjoying the respect and regard from the plaintiff to establish that there was good faith. But the defendant has not discharged his burden to the satisfaction of the Court. It has been laid down in the decision reported in A.Venkappa Bhatta v. Gangamma,A.I.R. 1988Ker. 133, that, where the partition deed is brought about by undue influence and misrepresentation, the party to such deed cannot be estopped from filing a suit for partition and the bona fides and good faith on the part of the party seeking to enforce the document must be proved by the party who relies upon the document. 133, that, where the partition deed is brought about by undue influence and misrepresentation, the party to such deed cannot be estopped from filing a suit for partition and the bona fides and good faith on the part of the party seeking to enforce the document must be proved by the party who relies upon the document. It has been held in the above decision, that “Where the proof of good faith was not forthcoming from the defendants particularly from the kartha of family and the elder brother of plaintiff’s husband and was in a position to dominate the Will of the plaintiff who was an illiterate person it could be stated that the partition deed was brought about by undue influence and misrepresentation and that it was not intended to be acted upon.” In the present case, the defendant has not shown that the document under Ex.B-38 was brought into existence out of good faith, the plaintiff is a person against whom the defendant can dominate his will and there is no reason as to why the case of the plaintiff that on account of the undue influence exercised by his brother he was a party to the partition deed. Therefore, I am of opinion that the finding of the lower court that the plaintiff has not established that there was no division as claimed by him by examining the attestors to the document is not tenable. In this connection, it is worthwhile to consider the case of the defendant with regard to the marriage of the plaintiff. According to the defendant, he has spent about Rs.12,000 for the marriage expenses of the plaintiff in the year 1962. He has also stated that a sum of Rs.5,000 was collected by the plaintiff from the tenant Arunachalam. If there was a division between the brothers as claimed by the defendant in 1960, it has not been explained by the defendant as to why he should spend Rs.12,000 towards the marriage of his brother who is already divided and why he should allow the plaintiff to appropriate the arrears of Rs.5,000 collected by him from one Arunachalam. It is not the case of the defendant that he had lent Rs.12,000 to the plaintiff for celebrating the marriage and permitting the plaintiff to appropriate the amount collected from Arunachalam. It is not the case of the defendant that he had lent Rs.12,000 to the plaintiff for celebrating the marriage and permitting the plaintiff to appropriate the amount collected from Arunachalam. But it is the specific case of the defendant that he has spent Rs.12,000 for the marriage of the plaintiff. It would go to show that the partition deed has not been acted upon and there was no division between the plaintiff and the defendant by metes and bounds as claimed by the defendant. 11. There is another circumstance against the defendant which would show that the theory of division pleaded by the defendant cannot be true. According to the plaintiff, the lessee Arunachalam who is in arrears of rent had executed a mortgage in favour of the defendant to cover the lease arrears of his father. It is to be noted that this mortgage is in the name of the defendant. It is highly improbable that a land-owner would advance money on a mortgage to the lessee who is already in arrears. The trial court has found fault with the plaintiff for not examining Arunachalam. But the circumstances of the case would show that the defendant as a prudent man would not have advanced the amount under the mortgage to Arunachalam when Arunachalam is in arrears of lease and arrears of his father and had agreed to discharge the same. The circumstances warrant the examination of Arunachalam only by the defendant and not by the plaintiff as expected by the trial Court. Therefore, I am of opinion that the version of the plaintiff that Arunachalam had executed the mortgage towards the lease arrears and it is an indication of the continuation of the joint family is well-founded since the defendant does not dispute that the plaintiff was asked to collect the arrears from the said Arunachalam. The transactions which had taken place subsequent to the mortgage debt would thus indicate that the case of the plaintiff that the partition deed has not been acted upon,stands proved and the contention of the defendant that subsequent to Ex.B-38, there was no joint family property to be divided among them cannot be accepted at all. 12. Now let us consider whether the defendant was having and exercising any undue influence over the plaintiff. 12. Now let us consider whether the defendant was having and exercising any undue influence over the plaintiff. The learned counsel appearing for the appellant brings to the notice of this Court, some of the correspondence exchanged between the parties to show that the defendant was dominating over the plaintiff and the plaintiff was only acting as per the instructions of the defendant. Ex. A-15 is the letter by one Arumugham, through whom properties of the plaintiff were sought to be sold. The writer of Ex.A-15 has informed the plaintiff that the defendant has instructed him to make arrangements for the sale of the properties in the name of the plaintiff and therefore the intending purchasers have purchased the stamps and if the plaintiff comes to Kothangudi, the documents could be completed and registered. This letter would indicate that even in respect of the properties of the plaintiff, it was only the defendant who was deciding as to whom it is to be sold and when. 13. We have already referred to Ex.A-30 in which the defendant has given directions to Pavadai Pillai to purchase lands both in the name of himself and in the name of the plaintiff. In Ex.A-31, the defendant had advised the plaintiff to go to Kothangudi and arrange for the sale of the land and negotiate with Arunachalam, who is in arrears of rent in an amicable manner for collecting it. He had also advised the plaintiff to get a pronote if Arunachalam offers to execute the same and advised him not to demand a pronote from him. This letter shows that the plaintiff was instructed not only as to how he should behave in collecting the rental arrears from Arunachalam and how he should convey the property. 14. In Ex.A-34 the defendant has advised the plaintiff to increase production in their field by following scrupulously scientific methods. In this letter, the defendant has not distinguished the lands belonging to them as the plaintiffs land and the defendant’s land. In Ex.A-35 he had advised the defendant to send rice to Trichy through A.B.T. and it shows that the yield from the fields were shared by both of them. In this letter, the defendant has not distinguished the lands belonging to them as the plaintiffs land and the defendant’s land. In Ex.A-35 he had advised the defendant to send rice to Trichy through A.B.T. and it shows that the yield from the fields were shared by both of them. In Ex.A-38 the defendant has found fault with the plaintiff for not sending the copy of the order of the R.D.O. and advised the plaintiff to file a suit against one Kunchithapatham,who has borrowed money from him after getting the pronote made over. The fact that the promisee had advised his brother to get the pronote executed by a third party made over in his favour and file suit would indicates that it was not in the interest of both and of the defendant and not treating the plaintiff as a divided brother. In Ex.A-39 he had advised the plaintiff to behave in an intelligent manner and not to hurry up when he is transacting the sale of some of their lands and advised the plaintiff not to have any transaction with one Kaliamoorthy as he was not a good man. In the very same letter, he had advised the plaintiff not to make arrangements in respect of a patta manai and to be careful in having transactions with Kannaiyan. In this letter, the defendant has also advised the plaintiff that there should not beany lending business and he should not have loan transaction, even if the other man is a honest man. I am of opinion that the plaintiff being a graduate, there is no necessity for the defendant for such an advise, if really there was division between the brothers. .15. In Ex.A-40 he had asked the plaintiff to make arrangements for the sale of Kothangudi and Kongarayanallur lands. Kothangudi lands are said to have been partitioned between the brothers even on 31. 1960. If it were so,why a divided brother ask his brother to make arrangements for the sale of the properties allotted to him in the partition under Ex.B-38 is not known. In Ex. A-42 the defendant has advised the plaintiff to receive the entire consideration at the time of registration of the sale deed and not to agree to receive the consideration at a later date and advised him that he must be careful in money transactions. In Ex. A-42 the defendant has advised the plaintiff to receive the entire consideration at the time of registration of the sale deed and not to agree to receive the consideration at a later date and advised him that he must be careful in money transactions. In Ex.A-42, the defendant has written that the money advanced to Kunchithapatham of Kumarakudi is their money and the plaintiff should file a suit against him since the promisee has not settled the borrowing. In the same letter he has written that they should get the money finally. When the money said to have been lent to Kunchithapatham is described as their own money and when the defendant says that they should get the money finally, it goes to show that there was no division by metes and bounds between the plaint iff and the defendants as claimed by him. In Ex.A-43 the defendant has stated that there is no responsible person to see their interest and the plaintiff alone is there to attend to their work personally and it is further stated by him that it is enough if the plaintiff simply follows his instructions, guidance and advice. In this letter the defendant has also stated that Arunachalam should be pressed for the settlement of the accounts which are long pending. This letter under Ex.A-43 makes it abundantly clear that the defendant was guiding factor for the plaintiff and the plaintiff was only acting as per the instructions given by the defendant to him. .16. Ex.A-55 is a letter, in which the defendant has repeatedly stated that the plaintiff is loosing his enthusiasm and on account of the same both of them are incurring mental agony, monetary loss and ridiculed by others and only if they try and try, they can get things done in their favour. In this letter also the defendant has stated that considering the welfare of the family, some times he had expressed his anger towards the plaintiff and if the plaintiff heeds to the advice given by him, it would give benefit to their family. In this letter the defendant had also expressed that they will have strength only in jointness and advised the plaintiff to have discussions with one Krishnamurthy Pillai and come to an amicable settlement, failing which, he may have to pay some amount to the said Krishnamurihy Pillai. In this letter the defendant had also expressed that they will have strength only in jointness and advised the plaintiff to have discussions with one Krishnamurthy Pillai and come to an amicable settlement, failing which, he may have to pay some amount to the said Krishnamurihy Pillai. In this letter also the defendant has stated in unequivocal terms that they are living together and were functioning together in all their transactions irrespective of the partition deed executed between them. In Ex. A-57 the defendant had expressed his confidence that the plaintiff would have made necessary arrangements for collecting the arrears of the yield in their fields. In Ex. A-58 the defendant has asked the plaintiff to retain 30-35 bags of paddy for his use and he wants to discuss certain things in that regard with him. He had also advised as to how he should engage labourers for harvest. It is not as if the plaintiff is a person who cannot take care of his interest on his own accord, the defendant has been giving instructions after instructions in Ex.A-58 which would show that the theory of division pleaded by him cannot be true. In Ex.A-59 he has stated that for lazy men whenever if they give anything they will describe him as a good man and they want to be helped at the instance of the plaintiff and the defendant and lazy men do not care about the difficulties of themselves and therefore they should work hard and improve and it is better for their future. In this letter the defendant has also written that the plaintiff should write the accounts by himself and it will give experience to him to ensure larger income to them. In this letter also the defendant has only used,‘we"us’ etc. which are plural and which do not show any distinction between them and it does not show that there could be any division between them. In Ex. A-60 the defendant has instructed the plaintiff to remit certain amount in his Savings Bank Account at Trichy and it shows that there cannot be any division between the brothers. Ex.A-61 is another letter in which the defendant had stated that he shall try to purchase a motor as per the wish of the plaintiff and has requested the plaintiff to send the yield to him. Ex.A-61 is another letter in which the defendant had stated that he shall try to purchase a motor as per the wish of the plaintiff and has requested the plaintiff to send the yield to him. In this letter the defendant had also written that if money is expected by the R.D.O., the same maybe given. This letter under Ex.A-61 shows that the desire of the plaintiff to purchase some motor has been approved by the defendant and it cannot be the case, if there was a division between them. If there was really any division, the defendant could write that the plaintiff can purchase the Motor as per his wise and he need not give an undertaking that he shall try to purchase the motor as per the desire of the plaintiff. Above all, in this letter the plaintiff also been induced to pay-money to the R.D.O., if necessary and I am of opinion that nobody would write a letter to a person who is not under his control to pay money to a Revenue Official if he expects the same,after ascertaining his desire from reliable people. This letter advising the plaintiff even to resort to payment of money to the R.D.O.would not have been written by the defendant, if they have already been divided and are living separately. It cannot be stated that as an elder member of the family, the defendant, was writing these letters to the plaintiff since the tenor of these letters clearly show everything was done by the plaintiff only as per his desire and the plaintiff had no independent right to take any decision on any matter. .17. In Ex.A-64 the defendant has described the kitchen garden as their kitchen garden in plural indicating that they were living together. In Ex.A-66 the defendant has described the tenant as a chronic defaulter dragging a case for more than twelve years and there is huge arrears of rent and has advised the plaintiff to explain every thing to the tenant and also their sufferings and pinpricks and request him for vacating 1 am of opinion that if the plaintiff was a person who was acting independently, without the advice of the defendant, as claimed by the defendant at present, there is no necessity for such advises. The plaintiff has been asked to attend R.D.O.court also. In Exs. The plaintiff has been asked to attend R.D.O.court also. In Exs. A-67, A-68 and A-69 also the defendant has only written giving advice to the plaintiff as to how the plaintiff should behave for the welfare of both of them. I am of opinion that the correspondence between the plaintiff and the defendant which have been extracted above, as an example by themselves show that the theory put forward by the defendant that the plaintiff and himself had separated with each other even in the year 1960 cannot be true. The conduct of cases before the Rent Control courts, collection of arrears by the plaintiff alone and the despatch of rice for the house of the defendant by the plaintiff all indicate that there is no division by metes and bounds as claimed by the defendant. Further the plaintiff is always residing in item No.9 of ‘B’ schedule, which is claimed by the defendant as his own property. If there was a division between the brothers in the year 1960 as claimed by him why should the plaintiff be allowed to reside there, without paying any rent has not been explained by the defendant. When all these facts are considered, I am of opinion that the reasons given by the defendant on whom the burden lies for proving that there was no undue influence exercised by him towards the plaintiff are neither convincing nor acceptable. As per the decision reported in Ladli Parshad Jaiswal v. The Karnal Distillery Company Limited, Karnal and others, (1964) 2S.C.J. 12, whether a particular trans-action was vitiated on the ground of undue influence is primarily a question of fact. Their Lordships have held that a transactions may be vitiated on the ground of undue influence where the relations between the parties are such that one of them is in a position to dominate the will of the other and he uses his position to obtain an unfair advantage over the other. In the present case, the defendant is an elder brother of the plaintiff and the correspondence between them transactions that they have entered into agreements with third parties, all go to show that the will of the defendant was dominated over the will of the plaintiff and as such there was undue influence exercised by the defendant over the plaintiff is well established. As per Sec. 16 of the Contract Act, a person is deemed to be in a position to dominate the will of another-where he holds a real or apparent authority over the other; or where he stands in a fiduciary relation to the other. The relationship between the defendant and the plaintiff establishes that the requirement of Sec.16 of the Contract Act have been satisfied to hold that there was undue influence exercised by the defendant over the plaintiff. .18. When once we held that the defendant is exercising undue influence over the plaintiff we come to the next question whether the case of the defendant whether the partition deed under Ex.B-38should be set aside by the plaintiff before seeking partition. The answer is in the negative since any document brought into existence by exercising undue influence is only a void document and not a voidable one and therefore, there is no necessity for setting aside the document under Ex.B-38 before seeking partition. In this connection, I would like to refer to the decision reeported in Kaka Hajee Md. Ishaque Sahib v. Kaka Md. Saddiq Sahib and others, (1970)1 M.L.J. 207 , wherein it has been held that the law on the subject of cancellation of instruments is fairly clear and that where the transaction is only a sham and nominal one, not intended to be given effect to and where the transactions is void in law they need not be cancelled before any claim is made. Therefore, the argument of the learned counsel appearing for the respondent that the plaintiff should have asked for setting aside the agreement for partition under Ex.B-37 and the partition deed under Ex.B-38 are not tenable and we need not set aside them. .19. We have seen that the defendant was exercising undue influence over the plaintiff and that even though the plaintiff has signed the partition agreement and the partition deed, the defendant has not established that they have been acted upon. The defendant among other grounds, would contend that the plaintiff’s claim in respect of items No.1 to 6and 9 to 16 of B schedule and the entire E schedule cannot be sustained since he has got them under the will executed in favour of himself and Muthukumarasway by Govinda Pillai. The plaintiff resists the same by contending that the will has not been proved by examining any of the attestors. The plaintiff resists the same by contending that the will has not been proved by examining any of the attestors. The Will having been executed in the year 1924, it cannot be stated that anybody will be alive to prove the genuineness of the same. The copy of Will filed in the court viz., Ex.B-39 suffers an infirmity. In that, there is no description of any property conveyed in favour of the legatees by the testator. My discussion supra with regard to the correspondence between the plaintiff and the defendant will show that irrespective of the fact that the defendant has been given certain properties they were not separately dealt with by the defendant. The kist in respect of the defendants properties have been paid by the plaintiff and receipts have been obtained by him. Even though the lease deeds under Exs.B-22 and B-23 and the pattas under Exs.B-34 to B-36 and B-40 stand in the name of the defendant, the properties, were looked after by the plaintiff alone as per the instructions given by the defendant. It will be seen from the recitals in the various letters referred to above in respect of Natham as well as Kongaraya Nallur properties in E schedule, the defendant, has given instructions. For example Ex.A-40. According to the learned counsel appearing for the appellant, even if the properties which are claimed by the defendant as his separate properties acquired by him under will Ex .B-39 is considered as probable the conduct of the defendant in not exercising any separate enjoyment of the above properties and managing these properties along with other properties belonging to the joint family, with the help of the plaintiff would show that the doctrine of blending would apply to hold that these properties also were treated as joint family properties. We have already seen that as far as Kothangudi, Poorthangudi and Natham properties are concerned, even though there was a partition agreement and a partition deed under Exs.B-37 and B-38, they were not acted upon and that they were all only sham and nominal documents and the parties to the suit have enjoyed them in common. We have already seen that as far as Kothangudi, Poorthangudi and Natham properties are concerned, even though there was a partition agreement and a partition deed under Exs.B-37 and B-38, they were not acted upon and that they were all only sham and nominal documents and the parties to the suit have enjoyed them in common. So also the properties in item Nos.1 to6 and 9 to16 in B schedule and E schedule were also enjoyed by the plaintiff and the defendant jointly, and the defendant who claim them as legatee was enjoying and managing the same for the benefit of himself and the plaintiff by blending it with the other joint family properties. Therefore, I am of opinion that the plaintiff cannot be estopped from claiming partition in respect of the properties which the defendant claims to have acquired under the will of Govinda Pillai on account of the blending of these properties by the defendant with the other ancestral properties. In that view I am of opinion that the plaintiff is entitled to partition and separate possession of the entire suit schedule properties as prayed for by him in the plaint. 20. The learned counsel appearing for the respondent argued that the partition deed has been executed in the year 1960 and the suit has been filed only in the year 1978; but the plaintiff is not a minor and therefore, the suit is barred by limitation. The learned counsel appearing for the appellant would on the other hand argue that since Ex.B-38 is a sham and nominal document not acted upon by the parties, the period of limitation starts running only from the date of denial of partition demanded by the plaintiff and the defendant having issued a reply notice under Ex.A-4 on 111. 1975 the suit is in time and it is not barred as contended by the defendant. The plaintiff and the defendant having lived together amicably even after the execution of the void document under Ex.B-38 which is nan est. As per Art.95 of the Limitation Act, the period of limitation of three years will start from the date of the wrong being committed to the plaintiff. The defendant has sent a reply under Ex.A-4 on 111. 1975 in which he has pleaded partition by metes and bounds and has committed the wrong to the plaintiff. As per Art.95 of the Limitation Act, the period of limitation of three years will start from the date of the wrong being committed to the plaintiff. The defendant has sent a reply under Ex.A-4 on 111. 1975 in which he has pleaded partition by metes and bounds and has committed the wrong to the plaintiff. Therefore, it is only from the date of the reply notice under Ex.A-4 the period of limitation has to be calculated and if it is so calculated, the suit is well within three years time and is therefore not barred by limitation. .21. Considering the above materials, I am of opinion that the plaintiff is entitled to partition and separate possession of the suit schedule properties as prayed for by him in the plaint and the judgment and decree of the trial court is liable to be set aside and the suit has to be decreed as prayed for. The point is answered accordingly. 22. In the result, the appeal is allowed setting aside the decree and judgment of the trial court and decreeing the suit as prayed for. There will be a separate enquiry under O.20, Rule 12 of Civil Procedure Code to decide the mesne profits. In the circumstances of the case, parties are directed to bear their own costs.