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2022 DIGILAW 2607 (MAD)

K. Nirmala v. S. Anbunathan

2022-08-10

R.N.MANJULA

body2022
JUDGMENT (Prayer: These Appeals have been filed under Section 96 and Order 41 Rule 1 of C.P.C., to set aside the judgment and decree dated 14.09.2018 made in O.S.Nos.11665 & 11174 of 2010, on the file of the VI Additional Judge, City Civil Court at Chennai.) Common Judgment 1. These Appeal Suits have been filed to set aside the judgment and decree dated 14.09.2018 made in O.S.Nos.11665 & 11174 of 2010, on the file of the VI Additional Judge, City Civil Court at Chennai. 2. Heard the learned counsel for the appellant as well as the learned counsel for the respondents and perused the materials placed on record. 3. Despite there are three suit properties, the dispute revolves around the first item of the Schedule mentioned properties. 4. The appellant is the first defendant in both the suits. The plaintiff S.Anbunathan in O.S.No.11665 of 2010 and the plaintiff Kalavathi in O.S.No.11174 of 2010 are the brother and sister of the first defendant. For the sake of convenience, the parties are referred with their names. 5. The short facts of the case are as follows: The parents of both the plaintiffs and the first defendant were natives of Pondicherry; after some time, the parents came down to Chennai; the father of the plaintiffs viz., Subramanian joined as Salesman in R.M.Rao and Company in the year 1950; after some time, he bought the shop from its owners and developed the business; he had also run a shop by name Bagdad Stores on a partnership basis with one Balwant Singh, by adding his wife also as one of its partners; after some time, the plaintiffs' father purchased the shares of Balwant Singh as well. 5.1. 5.1. With the money the father earned, he purchased the suit properties; the first item of the suit property was bought in the name of the plaintiffs' mother, though it was financed by the father himself; a house was built in the first item of the suit property by the father; he also had lot of savings and fixed deposit in various Banks; during his life time, he settled three houses in the name of his three daughters and left one house for his son; Subramanian died on 21.02.1989 by leaving his wife Maragathavalli, one son Anbunathan and three daughters viz., Shanthi, Nirmala and Kalavathi; after the death of the father, the mother was in enjoyment of the first item of the suit property. 5.2. One of the daughters of Subramanian viz., Nirmala's husband Kuppusamy was working in Electricity Board and later, he left the job and joined BHEL; he discontinued his job in BHEL also and thereafter, tried a few business with the help of the plaintiffs' father and lost money; after the death of the father Subramanian, the mother Maragathavalli used to stay in every daughters' house in alternative regular period; however, Nirmala influenced the mother and got the fixed deposits and jewels from her and also got the third item of the suit property in the name of Nirmala's husband. 5.3. 5.3. Nirmala also influenced her mother to settle the first item of the suit property in her own name by excluding the other children; through a registered settlement deed dated 19.04.2010, the fact about the settlement deed came to the knowledge of the plaintiffs; thereafter, the other children of Maragathavalli (second defendant) enquired about it to Maragathavalli and she told that was not aware of the execution of the settlement deed; Nirmala could get the settlement deed from Maragathavalli by making some misrepresentation and coming to know about the existence of the settlement deed, the mother maragathavalli cancelled the same by way of executing the cancellation deed dated 03.05.2010; since the plaintiffs thought that the dispute is over with the cancellation of the settlement deed on 03.05.2010, Nirmala and her husband Kuppusamy came with rowdy elements and demolished the compound wall and gate; immediately, a complaint was lodged; when the police enquired Nirmala, they came to know about the fraudulent way in which another settlement deed was obtained by Nirmala on 03.05.2010 and 31.05.2010; hence, the plaintiffs have filed the suits to declare the settlement deeds dated 03.05.2010 and 31.05.2010 as null and void; the other siblings also sail along with the plaintiffs. 5.4. During the pendency of the suits, the mother Maragathavalli (second defendant) died; subsequently, the suit was amended for the relief of claiming partition in the suit properties; both the plaintiffs have sought the same relief by way of filing different suits. 6. The first defendant Nirmala has resisted the suit by stating that the first item of the suit property was purchased by her mother Maragathavalli from her own income. The mother had raised the wherewithal and purchased the first item of the suit properties by liquidating her Sreethana properties and jewels; hence, it cannot be claimed that the first item of the suit property was purchased in the name of the mother with the money provided by the father. 6.1. The contention of Nirmala before the Trial Court is that it is false to say that Nirmala influenced her mother to execute the settlement deed in her favour, since the mother lived with Nirmala. The mother Maragathavalli had executed the settlement deed out of love and affection towards Nirmala. The settlement deed was cancelled subsequently because there were some errors crept in the description of the property. The mother Maragathavalli had executed the settlement deed out of love and affection towards Nirmala. The settlement deed was cancelled subsequently because there were some errors crept in the description of the property. Thereafter, a subsequent settlement deed was executed by rectifying the mistakes. Hence, it is not right on the part of the plaintiffs to say that Nirmala had obtained the settlement deed by playing fraud or coercion. Since the mother had executed the settlement deed out of her own volition, Nirmala is entitled to the first item of the suit property and the plaintiffs and other defendants are not entitled to any share in the said property. The third item of the suit property was purchased by Nirmala's husband with his own income. It is false to say that Nirmala swindled the jewels and fixed deposits of her parents. Hence, both the suits should be dismissed. 7. The first defendant Nirmala had also filed a counter claim for seeking direction against the plaintiffs to vacate the portion of the first item of the suit schedule property and hand over the vacant possession to her. 8. On the basis of the above pleadings, the learned Trial Judge has framed the following issues: Issues framed in O.S.No.11174 of 2010: 1. Whether the suit properties are joint family properties? 2. Whether the plaintiff can claim any share in the suit properties? 3. Whether the plaintiff is entitled for the relief of declaration to the effect that the settlement deeds dated 03.05.2010 in Document No.1078/10 and Document No.5386/2010 dated 31.05.2010 as null and void? 4. Whether the plaintiff is entitled to the permanent injunction as prayed for? 5. Whether the first and second defendants are entitled to the relief of mandatory injunction directing the plaintiff to vacate and hand over vacant possession of item No.1 in the suit schedule property as prayed for in the written statement? 6. To what other reliefs the parties are entitled to? Issues framed in O.S.No.11665 of 2010: 1.Whether the suit is hit by doctrine of Resjudicata? 2.Whether the suit is barred by the law of limitation? 3.Whether this Court has pecuniary jurisdiction to try this Suit? 4.Whether all the suit properties are joint family properties? 5.Whether Item-1 of the suit schedule property is the self acquired property of the 2nd defendant? Issues framed in O.S.No.11665 of 2010: 1.Whether the suit is hit by doctrine of Resjudicata? 2.Whether the suit is barred by the law of limitation? 3.Whether this Court has pecuniary jurisdiction to try this Suit? 4.Whether all the suit properties are joint family properties? 5.Whether Item-1 of the suit schedule property is the self acquired property of the 2nd defendant? 6.Whether item-3 of the suit schedule property is the self acquired property of the 1st defendant? 7.Whether the plaintiff is entitled for the relief of declaration that the settlement deed dated 2.5.2010, as null and void? 8.Whether the release deed dated 31.05.2010 alleged to have been executed by the 2nd defendant in favour of 1st defendant is null and void? 9.Whether the plaintiff is entitled to partition and separate possession of the suit property as prayed for? 10.Whether the plaintiff is entitled for obtaining the accounts from 1st defendant from 1.3.89 to till date? 11.Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? 12.To what other relief the plaintiff is entitled to? 8.1. Since the parties and subject matter are same, joint trial was conducted in both the suits and the evidence was recorded in O.S.No.11174 of 2010. In the judgment of the Trial Court, the plaintiff in O.S.No.11174 of 2010 and the other plaintiff in O.S.No.11665 of 2010, were called as plaintiffs. The other defendants were denoted as defendants. 9. During the course of the trial, on the side of the plaintiffs, three witnesses were examined as P.W.1 to P.W.3 and Exhibits A1 to A37 were marked on the side of the plaintiffs. The first defendant was examined as D.W.1 and Exhibits B1 & B2 were marked. 10. At the conclusion of the trial and on considering the materials available on record, the learned Trial Judge decreed both the suits and dismissed the counter claim. Aggrieved over that, the first defendant Nirmala has preferred these appeals. 11. The first defendant was examined as D.W.1 and Exhibits B1 & B2 were marked. 10. At the conclusion of the trial and on considering the materials available on record, the learned Trial Judge decreed both the suits and dismissed the counter claim. Aggrieved over that, the first defendant Nirmala has preferred these appeals. 11. The learned counsel for the appellant submitted that the first item of the suit property was purchased in the name of the mother Maragathavalli purely out of her personal funds; since the other children did not take care of the mother Maragathavalli and she was dependant of Nirmala, she wanted the property to be enjoyed by Nirmala and in order to document her wishes, she executed the settlement deed dated 19.04.2010; since there were some errors crept in the said settlement deed, it was cancelled on 03.05.2010 and later, she executed another settlement deed in favour of Nirmala on the same day; hence, Nirmala is entitled to the first item of the suit property and the respondents can in no way claim any right over the same; the plaintiffs, assert that the property stood in the name of the mother was financed by the father, have got the burden to prove the same; since the property is the self acquired property of the mother, she can dispose the same at her will and pleasure and no one can question the same; in the absence of any evidence to show about the forgery or coercion, the plaintiffs cannot state that the settlement deed was obtained due to coercion; the mother was very much attached to Nirmala, she had executed the settlement deed in her favour; merely because the executant was old and the other parties are related with each other, the undue influence cannot be presumed. 12. In support of his arguments, the learned counsel for the appellant cited the following decisions: (i) 2019 (3) CTC 810 (Jamila Begum (D) thr. L.Rs.Vs. Shami Mohd. (D) thr.L.Rs.and another). (ii) 2020 4 L.W 655 (Govindbhai Chhotabhai Patel & Ors Vs. Patel Ramanbhai Mathurbhai). (iii) 2021 (4) CTC 314 (P.Saravanan Vs. M.Sivasubramanian and others). 13. In the case reported in 2019 (3) CTC 810 (Jamila Begum (D) thr. L.Rs.Vs. Shami Mohd. (D) thr.L.Rs.and another), the Hon'ble Supreme Court has made the following observations in Paragraph Nos.25,26 & 27: “25. (ii) 2020 4 L.W 655 (Govindbhai Chhotabhai Patel & Ors Vs. Patel Ramanbhai Mathurbhai). (iii) 2021 (4) CTC 314 (P.Saravanan Vs. M.Sivasubramanian and others). 13. In the case reported in 2019 (3) CTC 810 (Jamila Begum (D) thr. L.Rs.Vs. Shami Mohd. (D) thr.L.Rs.and another), the Hon'ble Supreme Court has made the following observations in Paragraph Nos.25,26 & 27: “25. Insofar as the plea that the documents are vitiated by undue influence, as rightly contended by learned senior counsel for the appellant, the plaint averments are vague. It is alleged by respondent No.1-plaintiff that Wali Mohd. had illicit relationship with appellant-Jamila Begum and that he was mentally infirm on the date of the alleged sale deed and that the sale deed was obtained by taking undue advantage of his infirmity and illicit relationship. 26. Insofar as the plea of undue influence, merely because the parties are related to each other or merely because the executant was old or of weak character, no presumption of undue influence can arise. Court must scrutinise the pleadings to find out that such plea has been made out before examining whether undue influence was exercised or not. 27. While considering the aspect of plea of undue influence and onus-probandi, in Subhas Chandr Das Mushib v. Ganga Prasad Das Mushib and Others AIR 1967 SC 878 , it was held as under:- “4. Under Section 16(1) of the Indian Contract Act a contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. This shows that the court trying a case of undue influence must consider two things to start with, namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor and (2) has the donee used that position to obtain an unfair advantage over the donor? 7. 7. The three stages for consideration of a case of undue influence were expounded in the case of Raghunath Prasad v. Sarju Prasad and Others ( AIR 1924 PC 60 ) in the following words: “In the first place the relations between the parties to each other must be such that one is in a position to dominate the will of the other. Once that position is substantiated the second stage has been reached — namely, the issue whether the contract has been induced by undue influence. Upon the determination of this issue a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. Error is almost sure to arise if the order of these propositions be changed. The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of these parties. Were they such as to put one in a position to dominate the will of the other?”” (ii) In the case reported in 2020 4 L.W 655 (Govindbhai Chhotabhai Patel & Ors Vs. Patel Ramanbhai Mathurbhai), the Hon'ble Supreme Court has observed in paragraph No.41 as follows: “41. The facts of the present case are akin to the facts which were before the Kerala High Court in Kannan Nambiar. The appellants have not denied the execution of the document but alleged forgery and fabrication. In the absence of any evidence of any forgery or fabrication and in the absence of specific denial of the execution of the gift deed in the manner held in Kannan Nambiar, the Donee was under no obligation to examine one of the attesting witnesses of the gift deed. As per evidence on record, the Donee was taking care of the Donor for many years. The appellants were residing in the United States but failed to take care of their parents. Therefore, the father of the appellants has executed gift deed in favour of a person who stood by him. We find that there is no error in the findings recorded by the High Court.” (iii) In the case reported in 2021 (4) CTC 314 (P.Saravanan Vs. Therefore, the father of the appellants has executed gift deed in favour of a person who stood by him. We find that there is no error in the findings recorded by the High Court.” (iii) In the case reported in 2021 (4) CTC 314 (P.Saravanan Vs. M.Sivasubramanian and others), the following observation has been made by this Court in paragraph No.28: “28. Law and Judgments are very clear on this issue. If any person say a property has been purchased in the name of family members from out of joint contribution of the family members, then, the person who assert that fact, should prove it. Both the plaintiff as well as the 1 st defendant were able to show their independent source of income for purchasing the property in their respective names. While the plaintiff has deposed that his maternal uncle and maternal grandmother financially assisted him to establish his finance business and cable T.V business. The 1st defendant able to establish that he got his retirement benefit after serving as professor in Kandasamy Kandar College, for nearly 30 years and from out of that money, he purchased the land mentioned in “C” schedule property and constructed the building availing loan. Since, the “C” schedule property stands exclusively in the name of 1st defendant and he has shown is independent source of income for purchasing the said property and improving it, the plaintiff can have no right or share in the said property. Though, the property in the name of the plaintiff not subject matter of the suit, it was shown as “C” schedule property in the earlier suit filed by the sisters and later withdrawn as not pressed. What applies to the present “C” schedule property, same analogy shall apply to the property in the name of the plaintiff also.” 14. The learned counsels for the respondents submitted that the mother Maragathavalli was fighting with her brothers for not giving her due shares in her parent's property and her shares were determined in late years only and hence the mother had no other income to purchase the first item of the suit property. The learned counsels for the respondents submitted that the mother Maragathavalli was fighting with her brothers for not giving her due shares in her parent's property and her shares were determined in late years only and hence the mother had no other income to purchase the first item of the suit property. On the other hand, the father had worked in a Company and thereafter, he switched over to the business and he earned lot of income; the property was purchased in the name of the mother just in the manner a husband normally does; since the mother did not have any income, it should be conveniently presumed that the property was purchased in the name of the mother with the income of the father. 15. The learned counsels for the respondents also submitted that the appellant Nirmala was depending on the mother because of the loss sustained by her husband in the businesses which he was running; in fact, by making use of the property as a collateral security, Nirmala's husband Kuppusamy had availed loan from the Bank; the other assets like fixed deposit of the father in the hands of the mother and the other jewels of the mother were also swindled by the appellant and she is accountable for them; when the respondents came to know about the settlement deed, they went and enquired the mother and the mother subsequently, cancelled the same; when the respondents believed that by virtue of the cancellation, the earlier settlement was revoked, to their surprise, Nirmala once again managed to create another settlement deed from the mother; in fact, the mother Maragathavalli was taking treatment for her paralytic stroke; taking advantage of her illness, the appellant managed to get the signatures of Maragathavalli and played fraud; since the respondents have proved about the fraud and coercion played by the appellant in getting the settlement deeds in her favour, the learned Trial Judge has rightly held that all the children of Subramanian and Maragathavalli, have got equal shares in the first item of the suit property by declaring the settlement deed in the name of the appellant as null and void; the mother had no reason to exclude the other children from inheriting the properties; hence, the judgment of the learned Trial Judge does not require any interference. 16. 16. The learned counsel for the second respondent through his written arguments submitted that the release deed in favour of Nirmala dated 31.05.2010, was not signed by the other legal heirs and that was created for the purpose of grabbing the suit property wholly upon the appellant herself; there cannot be any reason to cancel and execute the settlement deed on the very same day and that would show that the mother Maragathavalli was under the influence of Nirmala; the Doctor who was examined as P.W.2 has stated that Maragathavalli was not in fit state of mind and she was under treatment for paralytic stroke suffered before six months of her death. 17. It is to be noted that Maragathavalli did not file any written statement on her own and the property was also purchased with the income of the father of the appellant and the mother did not have any income of her own to make the purchase. Therefore, the learned Trial Judge has rightly decreed the suits and it does not require any interference. 18. Point for consideration: Are the settlement deed dated 03.05.2010 and the release deed dated 31.05.2010, executed in favour of Nirmala are valid or not? 19. The fact that the plaintiffs in both the suits and the first defendant are siblings, is not denied. The second defendant is the mother of the plaintiffs and the first defendant Nirmala, who is the appellant herein. When the appellant Nirmala claims that the first item of the suit property was purchased by her mother from and out of her income, the respondents denied the same. The contention of the respondents before the Court was that their both parents hailed from Pondicherry and after coming to Chennai, their father improved his business by being a partner in Bagdad Stores and thereafter, he became the full owner of Bagdad Stores and earned a lot of money. At the relevant point of time, since the children were very young, the father had chosen to purchase the property in the name of his wife Maragathavalli. At the relevant point of time, since the children were very young, the father had chosen to purchase the property in the name of his wife Maragathavalli. When the respondents have established that the mother did not have any income to purchase the property and she was only dependant on her husband, it can be safely concluded that the father who was doing roaring business in the name and style of Bagdad Stores, had supplied the finance for purchasing the first item of the suit property in the name of Maragathavalli. 20. Even according to the statement of the appellant during cross examination, herself and her husband were residing at Hyderabad as he was working in an Electricity Board. Thereafter, he switched over his job to BHEL and he had given up the subsequent job also. By having lost his job and money, the appellant came to reside with her parents. Despite the appellant claimed that the mother had purchased the property with her own income, in her evidence, she has stated that the mother Maragathavalli did not work in any private or public sector during her life time. The evidence would support the contention of the respondents / plaintiffs that their father was working in a reputed Company after shifting his family to Chennai and thereafter did business and earned fortune. The said fact was also not denied by the appellant in her evidence. 21. In fact, mother Maragathavalli had a dispute with her brothers with regard to her share in her parent's property. So, at the time when the property was purchased, the mother was not affluent to support the finance for purchasing the first item of the suit property in her name. So, the facts available on record would only confirm that the mother was dependant on her husband Subramanian and he had purchased several properties including the first item of suit property. Even for the sake of arguments, if it is taken that Maragathavalli had purchased the first item of the suit property with her own income, the appellant cannot claim any right over the same, until she proves the genuineness of the settlement deed executed in her favour. 22. The learned counsel for the appellant attracted the attention of this Court to the judgment of this Court reported in 2021 (4) CTC 314 (P.Saravanan Vs. 22. The learned counsel for the appellant attracted the attention of this Court to the judgment of this Court reported in 2021 (4) CTC 314 (P.Saravanan Vs. M.Sivasubramanian and others) to substantiate his point that a person who claims that the property was purchased in the name of a family member from and out of the joint family income, the burden is on the person to prove the same. But, in the case in hand, the plaintiffs did not claim any joint family income for purchasing the first item of the suit property. 23. The contention of the plaintiffs is that the father Subramanian alone was an earning member, when the children were young and the first item of the suit property was purchased from his fortune which he earned through his business; as it has been already observed that the plaintiffs have proved that the financial comfort was only with the father and the mother was just a dependant, hence the preponderance of probability would only lie in favour of the plaintiffs who asserted that though the property was purchased in the name of the mother, father alone had arranged the finance for the same. 24. The learned counsel for the appellant further cited the decision reported in 2019 (3) CTC 810 (Jamila Begum (D) thr.L.Rs. Vs.Shami Mohd. (D) thr. L.Rs and another) and submitted that the settlement which was executed in favour of the person need not be doubted, just because the other claimants happened to be the relatives of the executant. The relevant paragraphs have been extracted supra. The first and foremost requirement is to make sufficient pleadings about the alleged undue influence, thereafter to establish the circumstances in which the possibility of the executant kept under the influence of the beneficiary. 25. In the case in hand, the appellant in her capacity as a daughter, was residing with her mother. Despite the mother had other children, after the appellant came down from Hyderabad, she was with her mother. In fact, the mother had supported the appellant by standing as a guarantor for the Bank loan availed by the appellant's husband by mortgaging the first item of the suit property. It need not always be necessary that in order to dominate the will of the donor, the donee should always be in a position to dominate the donor. In fact, the mother had supported the appellant by standing as a guarantor for the Bank loan availed by the appellant's husband by mortgaging the first item of the suit property. It need not always be necessary that in order to dominate the will of the donor, the donee should always be in a position to dominate the donor. So far as the emotional relationship between the mother and the children is concerned, the Will of the mother can be easily influenced by any one of her children, if that child is seen by the mother in a less advantageous or unfortunate situation than the other children. The will of the mother can be influenced by earning sympathy than by dictation. 26. In the case in hand, as per the evidence of D.W.1, the appellant herein had got married in the year 1972. Before and after her marriage, she did not go for any job, but was depending on her husband. At the time of marriage, her husband was working as Junior Engineer in the Electricity Board. Thereafter, he gave up that job in order to work at BHEL, Hyderabad. At Hyderabad, he was working for a few years and thereafter, he gave up his job and then, he came down to Chennai and was living with her parents. During the year 1994, the husband of the appellant has started an export business and for which, the first item of the suit property was given as collateral security by her mother. Since, the Bank loan was not paid, the property came for auction and some how the property was redeemed. When the plaintiffs have claimed that all the children have contributed to discharge the loan and redeemed the property, the appellant claimed that she alone had repaid the whole loan and got back the property. 27. The fact remains that the property was utilised for the business of the appellant's husband and it faced the risk of getting auctioned at some point of time due to default in paying the loan. So, for some reason or other, the appellant was clinging with her mother. In such circumstances, no doubt the mother would have been under the influence of the appellant by having a sympathy on the appellant. So, for some reason or other, the appellant was clinging with her mother. In such circumstances, no doubt the mother would have been under the influence of the appellant by having a sympathy on the appellant. Despite the appellant claimed that the other children did not attend the mother and the mother disliked the other children, the above submission was not substantiated. When the other children came to know about the settlement deed and confronted the mother, she would have realized the disadvantage for the other children and cancelled the settlement deed on 03.05.2010. 28. The appellant has claimed that in the earlier settlement deed Ex.A10, there were some discrepancies occurred in narrating the boundaries and hence, the said settlement deed was cancelled on 03.05.2010 vide Exhibit A11. If really the earlier settlement deed had some errors, the executant would only rectify the same and will not cancel it and then execute another settlement deed. Though the another settlement deed dated 03.05.2010 was said to have been executed on 31.05.2010, the mother Maragathavalli is said to have executed another release deed in favour of the appellant. So, it is difficult to accept that the mother who had cancelled the settlement deed on 03.05.2010 had executed another settlement deed on the same day by making the cancellation meaningless. 29. The story did not stop there. There is a release deed dated 31.05.2010 also in favour of the appellant. If a fresh settlement deed was executed on 03.05.2010, there is no necessity for Maragathavalli to execute the release deed once again on 31.05.2010. The whole exercise would only show that the mother was used as a pawn in the hands of the appellant. The appellant has used the situation where the mother was sick. The P.W.2 doctor who treated Maragathavalli, has stated that during the relevant point of time, Maragathavalli was suffering from Paralytic Stroke. So, it is not known whether the signature of Maragathavalli was obtained on the very same day as seen in the impugned documents or whether the signature was already obtained and later made use of. 30. P.W.2 Doctor has produced Ex.A32 medical records to show that Maragathavalli was taking treatment for nearly six months prior to her death. 31. Maragathavalli died on 09.01.2011. The documents came into existence during the month of April and May 2010. 30. P.W.2 Doctor has produced Ex.A32 medical records to show that Maragathavalli was taking treatment for nearly six months prior to her death. 31. Maragathavalli died on 09.01.2011. The documents came into existence during the month of April and May 2010. The recitals of the cancellation deed also did not say that the cancellation was done due to some clerical error crept in the earlier settlement deed Ex.A10. The cancellation deed Ex.A11 would only state that after registration of settlement deed, mother had some reservation and further the earlier settlement deed was not acted upon. It was simply cancelled the settlement deed dated 19.04.2010. So the conduct of the appellant would only show that she had intended to grab the property from her mother by leaving the other legal heirs of the mother at lurch by making use of her proximity with the mother during her last days. 32. During the course of the arguments, the learned counsel for the appellant submitted that the mother herself has adopted the written statement filed by the first defendant and hence, the pleadings of the first defendant should be treated as the pleadings of the second defendant / mother as well. 33. Again, at the time when these suits were filed, the mother was still sick and was not in a position to attend the case on her own. The written statement was filed by the first defendant / appellant alone. The second defendant has not chosen to file any individual written statement. Had the second defendant filed a separate written statement and asserted the facts stated by the first defendant, it could be believed that the mother had supported the contentions of the first defendant. In the case in hand, the first defendant alone had filed the written statement. The mother was not examined as witness to support the pleadings of the first defendant. This would only show that the mother was not in a position to conduct the case on her own or to depose the evidence in favour of the first defendant. 34. The learned counsel for the respondents submitted that the physical features of the house in the first item of the suit property itself would show that the father intended to have it as four portions for the convenience and enjoyment of all the four children. 34. The learned counsel for the respondents submitted that the physical features of the house in the first item of the suit property itself would show that the father intended to have it as four portions for the convenience and enjoyment of all the four children. Though the appellant denied the above fact, she has admitted that one of the plaintiffs and the sister of the appellant Kalavathi was residing in the first floor portion of the house. The above facts would only show that the parents wanted the property to be enjoyed by all the children and not by only one child. 35. The further allegation of the appellant is that when she went to United States of America, none of the children had taken care of the mother and it is only the appellant's husband and his relatives had taken care of her. If the appellant and her husband continued to live with the mother, it would not have been convenient for others to go and visit the mother. If the appellant had chosen to go to United States of America by leaving her mother, she could have informed the other siblings to take care of the mother or she should have made some arrangement for the maintenance of the mother with whom her husband also resided. 36. At no point of time, it is proved satisfactorily that the mother had a kind of hatred to other children and she preferred to execute a Will in favour of Nirmala, the appellant herein, by disowning the entitlement of other children. Just because Nirmala had the opportunity of staying with the mother, she utilised those occasions and tried to create documents suiting to her convenience. 37. The learned Trial Judge has rightly dealt the issue and decreed the suit in favour of the plaintiffs. Being the children of Subramanian and Maragathavalli, all their children are entitled to get equal share in the first item of the suit property. Since the judgment of the learned Trial Judge does not suffer from any factual or legal infirmity, I do not find any reason for interference. 38. In the result, these Appeal Suits are dismissed and the judgment and decree passed by the learned VI Additional Judge, City Civil Court, Chennai dated 14.09.2018, in O.S.Nos.11665 & 11174 of 2010 is confirmed.