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Afsar Sheikh And Anr vs Soleman Bibi And Ors on 6 November, 1975

Supreme Court of India
Afsar Sheikh And Anr vs Soleman Bibi And Ors on 6 November, 1975
Equivalent citations: 1976 AIR 163, 1976 SCR (2) 327
Author: R S Sarkaria
Bench: Sarkaria, Ranjit Singh
           PETITIONER:
AFSAR SHEIKH AND ANR.

	Vs.

RESPONDENT:
SOLEMAN BIBI AND ORS.

DATE OF JUDGMENT06/11/1975

BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
CHANDRACHUD, Y.V.
GUPTA, A.C.

CITATION:
 1976 AIR  163		  1976 SCR  (2) 327
 1976 SCC  (2) 142


ACT:
     Contract Act  (9 of 1872) s. 16-Undue influence-Court's
approach in  a case  where a transaction is sought to be set
aside on ground of undue influence.
     Code of Civil Procedure (Act 5 of 1908), O. 6 rr. 2 and
4-Plea of  fraud and  misrepresentation-Court spelling out a
plea of undue influence-Property.
     Code of  Civil Procedure  (Act 5 of 1908), ss. 100, 101
and 103-High Court's power under in second appeal.



HEADNOTE:
     The predecessor-in-interest  of the respondents filed a
suit for  a declaration	 that the  Hiba-bil-Ewaz executed by
him  was   void	  and	inoperative   due   to	 fraud	 and
misrepresentation proceeding from the appellant (donee), the
allegation being  that the  appellant represented it to be a
deed of cancellation of a will.
     The trial court and the first appellate court dismissed
the suit. In second appeal, the High Court remanded the case
to the	first appellate court holding that the finding given
by the	court below  that the  plaintiff  had  executed	 the
document after	knowing its  contents was  not sufficient in
law to	throw out  the plaintiff's case, because, in view of
the  allegations  in  the  plaint  that	 the  appellant	 was
assisting him  in the management of his property and that as
a result  thereof the  plaintiff had developed confidence in
the appellant  which  was  abused  by  him  by	getting	 the
document executed  in his  favour by  the plaintiff,  it was
incumbent on the court to find out whether the done was in a
position to  dominate the  will of  the donor. After remand,
the first  appellate court  again dismissed  the suit.	In a
further second	appeal, the High Court allowed the appeal on
the ground  that the  written  statement  of  the  appellant
contained a clear admission of intimate relationship between
the parties  indicative of the possibility of dominating the
will of	 the plaintiff	by the	appellant, and consequently,
the onus  had shifted  on the  appellant to  show  that	 the
plaintiff had  access to  independent advice,  and since the
appellant did  not produce  any such evidence, the plaintiff
should have  been taken to have proved that the document was
vitiated by the undue influence of the appellant.
     Allowing the appeal to this Court.
^
     HELD :  The finding of the first appellate court to the
effect that  the plaintiff  had failed	to  prove  that	 the
appellant was  in a  position to  dominate his	will was not
wrong or  unreasonable. In  any case, it did not suffer from
any  illegality,  omission,  error  or	defect	such  as  is
referred to  in s.100(1)  C.P.C. It is a finding of fact and
the High  Court in  second appeal,  had no  jurisdiction  to
interfere with it even if it appeared to be erroneous to the
High Court, the error not being of the kind indicated in the
sub-section. [338 C-D]
     (1) The  High Court  in second appeal has tried to make
out a  new case	 for the plaintiff, of undue influence which
was neither  pleaded adequately	 in the	 plaint nor  put  in
issue nor  raised in  the trial court or the first appellate
court on the first occasion. [332 D-E]
     (a)  The	pleas  of   undue   influence,	 fraud	 and
misrepresentation are  in law  distinct categories  and	 are
somewhat inconsistent  with one another. In view of 0 6, r.4
read  with   0.6,  r.2,	 C.P.C.	 they  are  required  to  be
separately  pleaded   with  specificity,  particularity	 and
precision. [332 H-333 A]
328
     (b) The specific case set up in the plaint was that the
document  was	vitiated  by   fraud  and  misrepresentation
practised by the appellant. [332 E]
     (c)  A  general  allegation  in  the  plaint  that	 the
plaintiff was  a simple	 old man of 90 years who had reposed
great confidence  in the  appellant was totally insufficient
to amount  to an  averment of  undue influence	of which the
High Court  could take	notice. Apart  from this general and
nebulous allegation  no particulars  of undue influence were
pleaded. Even  the mere	 relationship between  the plaintiff
and the	 appellant (appellant was the grandson of the sister
of the	mother of  the plaintiff)  was not disclosed. It was
not particularised  how the  appellant was  in a position to
dominate the  will of  the  plaintiff,	in  what  manner  he
exercised that influence, and how it was `undue' influence.
					  [332 E-G; 333 A-C]
     (a) All that has been said in the written statement was
that the  relationship subsisting  between the plaintiff and
the appellant  was marked by love and affection and was skin
to that	 of father  and son.  This  pleading  could  not  be
reasonably construed  as an  admission	that  he  was  in  a
position to dominate the will of the plaintiff. Normally, it
would be  the father  and not  the son	who would  be  in  a
position of  dominating influence. In spelling out a plea of
undue  influence   for	the   plaintiff	  by   an   inverted
construction of	 the appellant's  written statement the High
Court  over-looked  the	 principle  of	the  maxim  secundum
allegataet probata  that the plaintiff could succeed only by
what he had alleged and proved. [333 D-G]
     (2)(a) The	 law relating to undue influence is the same
as that	 embodied in s. 16, Indian Contract Act, 1872. Under
s. 16(1) the Court must consider two things, namely, (i) are
the relations  between the  donor and  donee such  that	 the
donee is  in a	position to dominate the will of the donor ?
and (ii)  has the  donee, in  fact, used  that	position  to
obtain an  unfair advantage over the donor ? Under s. 16(3),
if the	person seeking	to avoid a transaction on the ground
of undue  influence, establishes  that the  person  who	 had
obtained the benefit was in a position to dominate his will,
and that  the transaction  was	unconscionable,	 the  burden
shifts on  the party  who had  obtained the  benefit to show
that the  transaction was  not induced	by undue  influence.
Therefore, there  are three  stages to	be considered by the
Court, in a case of undue influence in the order specified :
(i) Whether  the party seeking relief on the ground of undue
influence has  proved that the relations between the parties
are such  that one  is in a position to dominate the will of
the other;  (ii) it is not sufficient for the person seeking
relief to show merely that the relations of the parties have
been such  that one  naturally relied  upon  the  other	 for
advice and  that the other was in a position to dominate the
will of	 the first  in giving  it. That	 is, making out mere
influence is  not sufficient  and  something  more  must  be
proved so  as to  render the  influence `undue'	 in law; and
(iii) if  the transaction appears to be unconscionable, then
the burden  of proving	that it	 was not  induced  by  undue
influence lies	upon the  person who  was in  a position  to
dominate the will of the other.
					       [334 F-336 B]
     Subhash Chandra  v. Gana  Prasad [1967] 1 S.C.R. 331 at
334; Raghunath	Prasad v.  Sarju  Prasad  51  I.A.  101	 and
Poosathurai v.	Kappanna Chattiar  and others,	47  I.A.  1,
followed.
     (b) The  High  Court  in  the  present  case,  did	 not
consider the  propositions in  the order  indicated and	 was
thus led to a wrong decision. [336 B]
     (c)  The	first  appellate   court  after	  a  careful
examination of	the evidence  found  the  first	 two  stages
against	 the  plaintiff.  It  has  held	 that  although	 the
relationship between  the donor	 and the  donee was intimate
like  that   of	 father	 and  son  characterised  by  mutual
cordiality and affection, the donee was not in a position to
dominate the  will of  the donor, that the appellant did not
exercise any  undue influence  on the plaintiff and that the
Hiba-bil-Ewaz was  voluntarily	executed  by  the  plaintiff
after understanding  its contents  and effect.	The evidence
shows that  (i) Though	the plaintiff was an old man, he was
quite fit  to  look  after  his	 own  affairs  and  that  he
deliberately overstated	 his age  in the  plaint. (ii) There
was nothing to show that his mental capacity was temporarily
329
or permanently	affected or  enfeebled by  old age  or other
cause so that he could not understand the nature of the deed
and the	 effect and consequences of its execution. [336 B-C,
E-G]
     (iii) The	scribe gave  evidence that  the document was
prepared according  to the  instructions of the plaintiff in
the presence  of the attesting witnesses and that he read it
out to	the plaintiff  who accepted  it as  correct and then
affixed this thumb mark. [337 B-C]
     (iv) The  attesting witness corroborated the scribe and
the  trial   court  and	  the  first   appellate  court	 had
concurrently   found   that   these   two   witnesses	were
respectable, independent and disinterested persons, and that
their evidence was credit-worthy. [337 D-E]
     (v) The  scribe of	 the document  which  cancelled	 the
registered will	 did not,  in his  evidence, state  that the
appellant  was	present	 when  that  deed  was	written	 and
executed, and  so, the	appellant could	 not have  come into
possession of  the cancellation deed to enable him to induce
by misrepresentation or undue influence the execution of the
Hiba-bil-Ewaz. [337 F-G]
     (vi) The  plaintiff in  his evidence refused to concede
that he	 had brought up the appellant as a son from his very
infancy and  that the  latter used  to look after his lands,
thus destroying	 the slender basis from which the High Court
spelt out  fiduciary relationship.  But	 assuming  that	 the
Hiba-bil-Ewaz was  induced by the influence of the appellant
in whom	 the plaintiff	reposed confidence  such as a father
does in	 his son,  it had not been proved that the influence
was undue. There is no presumption of undue influence in the
case of	 a gift	 to a  son even when made during the donor's
illness and a few days before his death. [336C-D, H-377B]
     Halsbury's Laws  of England, 3rd Edition, Volume 17, p.
674, referred to.
     (3) The  first appellate  court also held that the gift
was acted  upon by  the parties,  that the appellant entered
into possession	 of the	 gifted land,  and that	 it was	 the
plaintiff's natural  son who did not like the property being
given to  the appellant	 that was responsible for the filing
of the suit. [337 G-338 B]
     (4)(a) The	 High Court was incompetent in second appeal
to reverse  the findings  of fact recorded, after remand, by
the first  appellate court.  The scope	of the powers of the
High Court  to interfere in second appeal with the judgments
and decrees of the courts below is indicated in ss. 100, 101
and 103,  C.P.C. The  effect of	 ss. 100  and 101  is that a
second appeal is competent only on the ground of an error in
law or	prcedure and not merely on the ground of an error on
a question  of fact, however, gross or inexcusable the error
may seem to be. Section 103 enables the High Court in second
appeal	where  the  evidence  on  record  is  sufficient  to
determine an issue of fact necessary for the disposal of the
appeal, only;  (a) if  the lower  appellate  court  has	 not
determined that	 issue of  fact, or (b) if it has determined
that issue  wrongly by	reason of  any illegality,  omission
error or defect such as is referred to in s. 101.
					       [333 G-334 C]
     Msi. Durga	 Chaudhrani v.	Jawahar Singh  17  I.A.	 122
(P.C.) referred to.
     (b) It is well settled that a question whether a person
was in	a position  to dominate	 the  will  of	another	 and
procured a  certain deed by undue influence is a question of
fact and  a finding  thereon is	 a finding  of fact,  and if
arrived	 at   fairly  in   accordance  with   the  procedure
prescribed it is not liable to be reopened in second appeal.
[334 C-D]
     Satgur Prasad  v. Har Narain Das, 59 I.A. 147 and Ladli
Parshad Jaiswal	 v. The Karnal Distillery Co. Ltd., [1964] 1
S.C.R. 270, referred to.



JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 898 of
1968.

From the Judgment and Decree dated the 9th November,
1967 of the Patna High Court in Appeal from Appellate Decree
No. 779/65.

330

Sarjoo Prasad and S. N. Prasad for the Appellants.
B. P. Singh for the Respondent.

The Judgment of the Court was delivered by
SARKARIA, J.-This appeal by special leave is directed
against a judgment, dated November 9, 1967, of the Patna
High Court decreeing the plaintiff’s suit after reversing
the judgment of the Additional District Judge, Dumka.

One Ebad Sheikh, the predecessor-in-interest of the
respondents herein instituted a suit in the Court of
Subordinate Judge at Pakur in 1960 for a declaration that
the Hiba bil-Ewaz, dated February 9, 1959, executed by him,
was void and inoperative due to fraud and misrepresentation
proceeding from the donee, Afsar Sheikh, original defendant
No. 1 (appellant No. 1 herein). Ebad claimed a further
declaration, confirming his possession over the suit lands
which were the subject of the Hiba. In the alternative, he
prayed for possession thereof.

The plaintiff’s case as laid in the plaint, is that he
is an illiterate, simple villager, aged about 90 years. On
April 2, 1957, one Saifuddin fraudulently got executed and
registered a will, dated April 2, 1957, by the plaintiff in
favour of the former and his wife in respect of the suit
lands. When this fraud was discovered by the plaintiff, he
brought it to the notice of Afsar-appellant, a distant
relation who was in his confidence and used to help him in
cultivation of his lands. Afsar Sheikh on February 3, 1959,
took the plaintiff to Pakur for execution and registration
of a deed cancelling the Will. A cancellation deed was drawn
up and executed by the plaintiff, but it could not be
presented for registration on that date on account of some
delay. On February 9, 1959, Afsar again took the plaintiff
to Pakur and represented that the cancellation deed which
was prepared on February 3, 1959, had been misplaced and
lost, and consequently it was necessary to execute a fresh
deed of cancellation. With this misrepresentation, Afsar got
executed and registered in his favour a Hiba-bil-Ewaz
purporting to be a transfer of 12 1/2 Bighas of lands by the
plaintiff. Thereafter, Afsar sold some of the land which he
had obtained under the Hiba-bil-Ewaz to defendant-appellant

2. This sale-deed executed by Afsar was bogus and without
consideration and did not confer any title or interest on
the transferee.

In his written statement, Afsar, defendant denied the
allegations of fraud and misrepresentation. He averred that
his grandmother was the sister of the plaintif’s mother. The
defendant’s father died when he was an infant. The plaintiff
brought him up as a son. Since his very infancy, the
defendant has been living with the plaintiff, managing his
affairs and treating him as his father. The defendant
further stated that the plaintiff has transferred 10 to 12
Bighas of land to his natural son and an equal area to his
second wife. Out of love and affection, the plaintiff
conferred a similar benefit on the defendant and voluntarily
executed the Hiba-bil-Ewaz after receiving from the donee
331
a dhoti as a symbolic consideration therefor. He denied that
the plaintiff at the time of the gift was too old and
infirm. According to him, the plaintiff was not more than 75
years of age. He further averred that he was in possession
of the suit lands ever since the execution of the Hiba.

After considering the pleadings, the trial court framed
three Issues. Issue No. 2 as recast on August 8, 1961, was
as follows :

“Is the Hiba-bil-Ewaz void and inoperative, having
been fraudulently obtained by defendant 1st party, as
alleged by the plaintiff? Was it executed bona fide by
the plaintiff out of his own free will and given effect
to so as to confer valid title upon defendant 1st party
with respect to the lands in suit?”

The trial court found that there was no fraud or
misrepresentation on the part of Afsar. If further held that
the done was in possession of the gifted lands ever since
the gift. In the result, it dismissed the suit.

Aggrieved, the plaintiff preferred an appeal to the
District Judge, who by his judgment, dated July 3, 1962,
dismissed the same, and affirmed the findings of the trial
court.

The plaintiff carried a second appeal to the High
Court. The appeal was heard by a learned Single Judge who
held that “the mere finding as given by the court below that
the plaintiff in the present case had executed the document
after knowing its contents is not sufficient in law to throw
out the plaintiff’s case” because in view of the allegation
in the plaint “that defendant No. 1 was assisting him in the
management of his property and that as a result thereof the
plaintiff had developed confidence in him, which, according
to the plaintiff, was abused in getting the document dated
9-2-59, executed by the plaintiff”, it was incumbent on the
court below to find out whether the donee was in a position
to dominate the will of the donor in giving advice. In the
opinion of the learned Judge, if the trial court had come to
the conclusion in favour of the allegations made by the
plaintiff then the onus in that case would have shifted to
defendant No. 1 to establish that he did not abuse his
position and that the deed of Hiba-bil-Ewaz though
unconscionable on the very face of it, was not brought about
by any undue influence on his part. By his judgment, dated
October 16, 1963, he remanded the case to the District Judge
“for a fresh hearing on the material already on the record”
for recording findings as to whether Afsar had obtained the
Hiba-bil-Ewaz by exercising undue influence over the
plaintiff, whether consideration had been given for the
Hiba-bil-Ewaz and whether the alleged donee had been in
possession of the gifted lands.

After the remand, the Additional District Judge, Dumka
by his judgment, dated June 18, 1965, again affirmed the
findings of the trial court. He further found that there was
nothing to show that
332
Afsar was in a position to dominate the will of the
plaintiff or had got the Hiba-bil-Ewaz executed by
exercising undue influence.

Against this judgment, dated June 18, 1965, of the
Additional District Judge, the paintiff preferred a Second
Appeal in the High Court. This appeal came up for hearing
before another learned Judge who by his Judgment dated
November 19, 1967, allowed the same and set aside the
judgments of the courts below, on the ground that the
written statement of the defendant contained a clear
admission of intimate relationship between the parties
indicative of the “possibility” of dominating the will of
the plaintiff by defendant No. 1 and consequently the onus
had shifted on the defendant to show that the plaintiff had
access to independant advice. Since the defendant did not
produce any evidence to show that he had refrained from
dominating the will of the plaintiff in obtaining the Hiba-
bil-Ewaz, “the plaintiff should have been taken to have
proved that the document was vitiated by undue influence of
defendant No. 1”. The learned Judge did not, in terms, set
aside the concurrent finding of the courts below on Issue
No. 2 relating to fraud and misrepresentation.

Against the judgment of the High Court, the defendants
have come in appeal before us.

We have heard the learned Counsel on both sides and
carefully scrutinised the record. We are of opinion that the
judgment of the High Court, cannot be upheld as it suffers
from manifest errors.

The High Court has tried in Second appeal to make out a
new case for the plaintiff on the ground of undue influence
which was neither pleaded adequately in the plaint, nor put
in issue.

The specific case set up in the plaint was that the
Hiba-bil-Ewaz in question was vitiated by fraud and
misrepresentation practised by Afsar defendant. It was in
that context it was stated in a general way, that the
plaintiff was a simple, illiterate man of 90 years, and had
great confidence in Afsar, and “the parties used to help
each other in respective cultivation”. Apart from this
general and nebulous allegation, no particulars of a plea of
undue influence were pleaded. Even the near relationship
between the plaintiff and Afsar was not disclosed. It was
not particularised how Afsar was in a position to dominate
the will of the plaintiff, in what manner he exercised that
influence, how the influence, if any, used by Afsar over him
was “undue”, and how and in what circumstances the Hiba-bil-
Ewaz was an `unfair’ or unconscionable transaction. In short
no material particulars showing that the transaction was
vitiated by undue influence were pleaded. Rather somewhat
inconsistently with a plea of undue influence, it was
alleged that the Hiba was tainted by fraud,
misrepresentation and deceit practised by Afsar.

While it is true that `undue influence’, `fraud’,
`misrepresentation’ are cognate vices and may, in part,
overlap in some cases, they are in law distinct categories,
and are in view of Order 6, Rule 4, read
333
with Order 6, r.2, of the Code of Civil Procedure, required
to be separtely pleaded, with specificity, particularity and
precision. A general allegation in the plaint, that the
plaintiff was a simple old man of ninety who had reposed
great confidence in the defendant, was much too insufficient
to amount to an averment of undue influence of which the
High Court could take notice, particularly when no issue was
claimed and no contention was raised on that point at any
stage in the trial court, or, in the first round, even
before the first appellate court.

The High Court has tried to spell out a plea of undue
influence by referring to paragraph 7 of the written
statement in which the defendant inter-alia stated that he
was “looked after and brought up by the plaintiff as his son
and he became very much attached to the plaintiff and since
his infancy till the middle of this year this defendant
always lived with the plaintiff and used to treat him as his
father helped him and looked after all his affairs.” This
paragraph, according to the learned Judge, contains “a clear
admission of the intimate relationship between the two
indicative of the position of dominating the will of the
plaintiff by defendant No. 1”

We are, with due respect, unable to appreciate this
antic construction put on the defendants’ pleading. All that
has been said in the written statement is that the
relationship subsisting between the plaintiff and the
defendant was marked by love and affection, and was akin to
that of father and son. Normally, in such paternal
relationship, the father, and not the son, is in a position
of dominating influence. The defendant’s pleading could not
be reasonably construed as an admission, direct or
inferential, of the fact that he was in a position to
dominate the will of the plaintiff. In spelling out a plea
of undue influence for the plaintiff by an `inverted’
construction of the defendants’ pleading, the High Court
overlooked the principle conveyed by the maxim secundum
allegataet probata, that the plaintiff could succeed only by
what he had alleged and proved. He could not be allowed to
travel beyond what was pleaded by him and put in issue. On
his failure to prove his case as alleged, the court could
not conjure up a new case for him by stretching his pleading
and reading into it something which was not there, nor in
issue, with the aid of an extraneous document. Thus
considered, the High Court was in error when by its
judgment, dated October 16, 1963, it remanded the case to
the first appellate Court with a direction to determine the
question of undue influence “on material already on record.”

Be that as it may, the High Court was not competant, in
second appeal, to reverse the finding of fact recorded,
after the remand, by the first appellant Court, to the
effect, that Afsar was not in a position to dominate the
will of the plaintiff, and he did not exercise any undue
influence on the plaintiff to obtain the Hiba-bil-Ewaz,
which was voluntarily executed by the plaintiff after
understanding its contents and effect.

334

The scope of the powers of the High Court to interfere
in second appeal with judgments and decrees of courts below
is indicated in ss. 100, 101, and 103 of the Code of Civil
Procedure. Broadly, the effect of ss. 100 and 101, read
together, is that second appeal is competent only on the
ground of an error in law or procedure, and not merely on
the ground of an error on a question of fact. The High Court
has no jurisdiction to entertain a second appeal on the
“ground of a erroneous finding of fact, however gross or
inexcusable the error may seem to be” (Mst. Durga Choudhrani
v. Jawhar Singh) (1). Section 103 enables the High Court in
second appeal, where the evidence on the record is
sufficient, to determine an issue of fact necessary for the
disposal of the appeal only-

(a) if the lower appellate Court has not
determined that issue of fact, or

(b) if it has determined that issue wrongly by
reason of any illegality, omision, error or
defect much as is referred to in sub-section
(1) of Section 100.

It is well settled that a question whether a person was
in a position to dominate the will of another and procured a
certain deed by undue influence, is a question of fact, and
a finding thereon is a finding of fact and if arrived at
fairly, in accordance with the procedure prescribed, is not
liable to be reopened in second appeal (Satgur Prasad v. Har
Narain Das;(2) Ladli Prashad Jaiswal v. The Karnal
Distillery Co. Ltd.
(3).

Bearing in mind the provisions of s. 103 read with
s.100(1), the further question to be considered is: Was the
finding of the first appellate Court on the point of undue
influence vitiated by an illegality, omission, error of
defect such as is referred to in s. 100(1)? For reasons to
be stated presently, the answer to this question must be in
the negative.

The law as to undue influence in the case of a gift
inter vivos is the same as in the case of a contract. It is
embodied in s. 16 of the Indian Contract Act. Sub-section
(1) of s. 16 defines ‘undue influence’ in general terms. It
provides that to constitute ‘undue influence’ two basic
elements must be cumulatively present. First, the relations
subsisting between the parties are such that one of the
parties is in a position to dominate the will of the other.
Second, the party in dominant position uses that position to
obtain an unfair advantage over the other. Both these
conditions must be pleaded with particularity and proved by
the person seeking to avoid the transaction.

In view of this sub-section, the Court trying a case of
undue influence of the kind before us, must, to start with,
consider two things, 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
335
unfair advantage over the donor ? (Subhas Chandra v. Gana
Prasad). (1)
Sub-section (2) of s. 16 is illustrative as to when a
person is considered to be in a position to dominate the
will of the other. It gives three illustrations of such a
position, which adapted to the facts of the present case,
would be (a) whether the donee holds a real or apparent
authority over the donor, (b) whether he stands in a
fiduciary relation to the donor, or (c) whether he makes the
transaction with a person whose mental capacity is
temporarily or permanently affected by reason of age,
illness or mental or bodily distress.

Sub-section (3) contains a rule of evidence. According
to this rule, if a person seeking to avoid a transaction on
the ground of undue influence proves-

(a) that the party who had obtained the benefit
was, at the material time, in a position to dominate
the will of the other conferring the benefit, and

(b) that the transaction is unconscionable,
the burden shifts on the party benefitting by the
transaction to show that it was not induced by undue
influence. If either of these two conditions is not
established the burden will not shift. As shall be disussed
presently, in the instant case the first condition had not
been established, and consequently, the burden never shifted
on the defendant.

In Subhas Chandra case (ibid), this Court quoted with
approval the observations of the Privy Council in Raghunath
Prasad v. Sarju Prasad(2) which expounded three stages for
consideration of a case of undue influence. It was pointed
out that the first thing to be considered is, whether the
plaintiff or the party asking relief on the ground of undue
influence has proved that the relations between the parties
to each other are such that one is in a position to dominate
the will of the other. Upto this point ‘influence’ alone has
been made out. Once that position is substantiated, the
second stage has been reached -namely, the issue whether the
transaction has been induced by undue influence. That is to
say, it is not sufficient for the person seeking the relief
to show that the relations of the parties have been such
that the one naturally relied upon the other for advice, and
the other was in a position to dominate the will of the
first in giving it. “More than mere influence must be proved
so as to render influence in the language of the law,
‘undue’ (Poosathurai v. Kappanna Chettiar and others).(3)
Upon a determination of the issue at the second stage, a
third point emerges, which is of the onus probandi”. If the
transaction appears be unconscionable, then the burden of
proving that it was not induced by undue influence is to lie
upon the person who was in a position to dominate the will
of the other.

336

“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 the parties. Were
they such as to put one in a position to dominate the will
of the other”.

In the present case the High Court did not consider the
propositions in the order indicated above, and this led to a
wrong decision.

In the case before us, after a careful examination of
the evidence on record, the first appellate Court found the
points to be considered at the first two stages, against the
plaintiff. It held that although the relationship between
the donor and the donee was intimate, like that of father
and son characterised by mutual cordiality and affection,
the donee was not in a position to dominate the will of the
donor. No less a witness than the donor himself, as R.W. 10,
emphatically maintained in cross-examination : “Afsar worked
sometimes as my labourer on wages and I don’t understand
what confidence has got to do with it.” He intransigently
refused to concede even the stark fact-which was otherwise
found fully established-that he had brought up Afsar as a
son from his very infancy and the latter used to look after
the former’s lands.

Thus, even the slander shred in the plaint from which
the High Court tried to spell out a whole pattern of
fiduciary relationship between the parties and a position of
dominant influence for Afsar, was torn and destroyed by the
plaintiff himself in the witness-stand.

In the context of the first-stage consideration, the
District Judge found on the basis of the evidence on record,
that although the plaintiff was an old man-and he had
intentionally, far overstated his ageyet he was quite fit to
look after his affairs. On this point, the District Judge
accepted the version of the plaintiff’s own witness (PW 7)
which was to the effect, that the plaintiff himself yokes
the bullocks, and unaided by anybody else, ploughs his
lands. In the face of such evidence, the District Judge was
right in holding that Ebad plaintiff, though old, was
physically fit to carry on his affairs. There was no
evidence to show that the mental capacity of the donor was
temporarlly or permanently affected or enfeebled by old age
or other cause, so that he could not understand the nature
of deed or the effect and consequences of its execution. The
mere fact that he was illiterate and old, was no proof of
such mental incapacity. None of the circumstances mentioned
in sub-section (2) of s. 16, had been proved from which an
inference could be drawn that the donee was in a position to
dominate the will of the donor.

The failure of the plaintiff to prove this element of
‘undue infuence’, which was to be considered at the first
stage, would itself lead to the collapse of the whole ground
of “undue influence”.

Assuming for the sake of argument that the “Hiba-bil-
Ewaz was induced by influence of Afsar, in whom the former
reposed confidence such as a father does, in his son, then
also it had not been proved that
337
such infiuence was ‘undue’. As a rule “there is no
presumption of undue influence in the case of a gift to a
son…… although made during the donor’s illness and a few
days before his death”. (Halsbury’s Laws of England 3rd Ed.
Vol. 17, p. 674).

The District Judge has held (as per his judgment dated
18-6-1965) that the plaintiff executed the Hiba-bil-Ewaz of
his own free will after understanding the contents of the
deed.

Indeed, the evidence of the deed writer, DW 6, who knew
Ebad for about 5 years previously, was to the effect that he
had scribed the deed (Hiba-bil-Ewaz) according to Ebad’s
instructions in the presence of the attesting witnesses. DW
6 then read out the contents of the deed to Ebad, who
accepted the same to be correct and then thumbmarked it.
This account of the witness was not challenged in
crossexamination.

D.W. 7 is an attesting witness of the deed. He was the
Sarparch of Birkiti Gram Panchayat. He had come to the
Registration Office at Pakur on that day in connection with
his own business. He was known to Ebad. According to the
witness, it was Ebad, the donor,- and not the donee-who had
requested the witness to attest the deed. The witness stated
that it was Ebad who told him that he was gifting 12-1/2
bighas of land to Afsar in token consideration of a Dhoti
given by the latter. The witness corroborated the scribe,
that the deed had been drawn up according to the
instructions given by Ebad.

The first two courts have concurrently found that these
witnesses are respectable, independent and disinterested
persons, and their evidence is entirely creditworthy. They
also accepted the evidence of DW 3, DW 4 and DW 5 regarding
the giving of Dhoti as consideration for the Hiba by the
donee to the donor.

PW 4 was another deed-writer, who had scribed the
cancellation deed (Ex. 1), admittedly executed by the
plaintiff on 3-2-1959 to revoke the will. The plaintiff’s
case was that on 3-2-1959, it was Afsar who took him to
Pakur and got the cancellation deed executed, and took hold
of that deed, and thereafter by a misrepresentation that the
deed had been lost, got on 9-2-1959, the Hiba-bil-Ewaz
executed. The core of this story was gouged out by the
plaintiff’s own witness, PW 4, who had scribed the
cancellation deed. PW 4 did not swear to the presence of
Afsar defendant on 3-2-59 at Pukar when the cancellation
deed Ex. 1 was written and executed. In view of this, the
first appellate court, was right in holding, in concurrence
with the trial court, that Afsar never accompanied Ebad to
Pukar on 3-2-1959, and he not having come into possession of
the cancellation deed, no occasion for him arose to induce
by misrepresentation or undue influence the execution of the
Hiba-bil-Ewaz in question.

The first appellate Court further came to the
conclusion that this gift was acted upon by the parties, the
donee entered into possession of the gifted land, that the
plaintiff’s natural son Moktul who since long before the
gift, had been living separately from him, started residing
338
with the plaintiff, and, according to the plaintiff’s own
admission, Moktul, sometime prior to the suit (which has
been filed about one year after the execution of the Hiba)
convened a Panchayat in the Mosque, to consider why the land
should be given to defendant 1, and since then the troube
arose which led to the institution of the suit.

In short, the District Judge who was the final court of
fact, after a survey of the entire evidence on record, found
that Afsar was not in a position to dominate the will of
Ebad Sheikh and that the execution of the Hiba-bil-Ewaz was
not induced by undue influence.

We have discussed the evidence of the important
witnesses in some detail to show that on the material on
record, the finding of the first appellate court to the
effect, that the plainiff had failed to prove that defendant
1 was in a position to dominate his will, was not wrong or
unreasonable. In any case, it did not suffer from any
“illegality, omission, error or defect such as is referred
to in sub-section (1) of section 100”. It was a finding of
fact and the High Court in second appeal, had no
jurisdiction to interfere with the same, even if it appeared
to be erroneous to the High Court, the error not being of a
kind indicated in section 100(1).

Since the plaintiff had failed to substantiate the
first element essential to the proof of undue influence, the
High Court was wrong in holding that the burden had shifted
on the defendant to show that the Hiba-bil-Ewaz was not
induced by undue influence.

For these reasons we allow the appeal, set aside the
judgment of the High Court and dismiss the suit, but, in the
circumstances of the case, leave the parties to bear their
own costs throughout.

V.P.S.					     Appeal allowed.
339



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