IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 250 of 1999(Y)
1. IVY ABRAHAM
... Petitioner
Vs
1. ITTY
... Respondent
For Petitioner :SRI.T.P.KELU NAMBIAR (SR.)
For Respondent :SRI.R.RAMADAS
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :06/10/2009
O R D E R
HARUN-UL-RASHID, J. C.R
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A.S.Nos. 250& 251 of 1999
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Dated this the 20th day of November, 2009
JUDGMENT
The plaintiffs in O.S. Nos. 561/1994 and defendants 1 and 2 in O.S.
No. 629/1994 on the file of the Principal Sub Judge, Kottayam, are the
appellants in A.S. No.s 250 and 251 of 1999 respectively. These appeals
arise out of a common judgment in the said suits. O.S No. 629/1994 was
filed for a declaration that the sale deed No. 2625/1993 executed by the 1st
plaintiff in favour of the 1st defendant is null and void and for a perpetual
injunction to restrain the defendants 1 and 2 from trespassing upon the
plaint schedule property or effecting any transfer relating to the property
based on the above sale deed and for a decree of mandatory injunction
directing the 2nd defendant to return the blank cheques and stamped
papers delivered to him at the time of execution of the sale deed No.
2625/1993. The connected suit viz. O.S. 561/1994 is a suit filed by
defendant 1 and 2 in O.S No.629/1994 for a perpetual injunction
restraining the 1st plaintiff in O.S No. 629/1994 from trespassing upon the
plaint schedule property or obstructing their possession and peaceful
enjoyment of the same and from collecting the future rent of the building
and to direct the 1st defendant (plaintiff in O.S. No. 629/1994) to pay Rs.
33,250/- with future interest at 6% per annum which he has already
received from the tenant as rent amount. The court below jointly tried
A.S. Nos. 250 & 251 of 1999 -2
both suits, evidence was recorded in O.S No. 629/1994 and a common
judgment was passed. The court below decreed O.S. No. 629/1994. The
sale deed No. 2625/1993 (Ext.B4) executed by the 1st plaintiff in favour of
the 1st defendant is declared null and void and granted both prohibitory and
mandatory injunction as prayed for; and dismissed O.S No. 561/1994 .
The parties hereinafter are referred to as plaintiffs and defendants as
arrayed in O.S. No. 629/1994 and the exhibits are stated hereinafter as
produced and marked in O.S No. 629/1994.
2. The plaint schedule property in O.S. No. 629/1994 is 10 Cents
of land and a building situated thereon . . The 2nd plaintiff is the father of
the 1st plaintiff. The 1st plaintiff is the owner of the plaint schedule property
and the building by virtue of a settlement deed No. 2588/1979 of S.R.O. ,
Kottayam executed by the 2nd plaintiff. It is averred in the plaint that the
1st plaintiff became an alcoholic sometime in 1990 and was continued to be
so till July 1993. The 1st plaintiff was under treatment for alcoholic
dependence and Hypomania at “Total Response to Alcohol and Drug
Abuse” (TRADA) from 1991. The 1st plaintiff continued his treatment till
July 1993 at “TRADA. It is further pleaded that though his alcoholic
dependence was considerably reduced by treatment, his affective disorder
persisted and he was continuing treatment with Dr.Radhakrishnan , C.K.N.
Psychiatric Neuro Clinic, Changanassery for affective disorder and that
though he recovered from affective disorder and unsoundness of mind in
July 1994, he is still under treatment of Dr.Radhakrishnan. It is the
plaintiffs’ case that the 1st plaintiff started attending prayer meetings from
June 1992 to escape from alcoholism . Prayers were conducted by
A.S. Nos. 250 & 251 of 1999 -3
believers in residential houses. While so the 1st plaintiff got acquainted with
the 2nd defendant and developed intimacy with him According to the
plaintiffs the 1st plaintiff developed absolute confidence in 2nd defendant and
the 2nd defendant was his “Guru” in all matters . Some time in July 1993
there was a proposal to purchase a Coffee estate having an extent of 181
acres in Coorg for Rs.67 = lakhs. A group was formed for purchase of the
estate including the 1st plaintiff and 2nd defendant and the estate was
proposed to be purchased in October 1993. The 1st plaintiff had no money
to invest in estate deal and the 2nd defendant promised that he will provide
the necessary finance of Rs. 10 lakhs which was the contribution of the
1st plaintiff, provided the 1st plaintiff executed a sale deed in respect of plaint
schedule property in favour of the 1st defendant who is the wife of the 2nd
defendant. It is further averred in the plaint that the 2nd defendant also
undertake to cancel the said sale deed if he is not able to raise the
finance as agreed by him. The 2nd defendant also procured three blank
signed stamped papers and three signed cheque leaves from the 1st
plaintiff as a security for raising the loan. Believing the words of the 2nd
defendant, the 1st plaintiff executed the sale deed No. 2625/1993 dated
17.9.1993 in favour of the 1st defendant who is the wife of the 2nd
defendant. No amount was paid to the 1st plaintiff on execution of the sale
deed by the 1st defendant, though there is a recital of payment of
1,80,000/- nor was there any intention to pay the amount . According to
the plaintiffs the plaint schedule property and the building thereon is worth
Rs. 10 lakhs and further averred that the 1st plaintiff could not have
executed a sale deed for 1,80,000/- relating to the plaint schedule
A.S. Nos. 250 & 251 of 1999 -4
property but for the unsoundness of his mind due to affective disorder at
the time of execution of the document. It is further stated in the plaint that
the scheme for purchase of the estate did not fructify and therefore, the
proposed amount of Rs. 10 lakhs payable by the 2nd defendant to the 1st
plaintiff for the contribution to be made by him for the purchase of estate
became unnecessary. By July 1994 the 1st plaintiff had practically
recovered from his mental disorder and then only he realised the folly of
executing the document in favour of the 1st defendant and therefore he
approached the 2nd defendant for cancellation of the document. The 2nd
defendant refused to cancel the said sale deed. According to the plaintiffs,
the possession of the property had not been delivered as mentioned in the
sale deed The main building in the property was in the possession of the
3rd defendant as a lessee and the godown is in the possession of Messrs.
Thannickal Brothers. The keys of the building were not handed over to the
1st defendant as the possession of the building was with 2nd plaintiff and 3rd
defendant. It is further alleged that the sale deed No.2625/1993 is abinitio
void and as it was executed by the 1st plaintiff due to the unsoundness of
mind and affective disorder, and therefore he was not capable of
understanding the consequences of executing such a document and
forming a rational judgment as to its effects upon his interest. It is also
pleaded that defendants 1 and 2 had no means to pay Rs 1,80,000/- as
recited in the said document, that though the sale deed was executed, the
2nd plaintiff continued to receive the rent from the 3rd defendant and from
Thannickal Brothers, that there was a negotiation for settlement of the
matter, that in the course of negotiation the 2nd defendant demanded a
A.S. Nos. 250 & 251 of 1999 -5
sum of Rs. 2,70,000/- for cancelling the sale deed, that the 2nd plaintiff was
not aware of the above dealings and the impugned sale deed had been
executed without his knowledge or consent and that the 2nd defendant
tried to trespass upon the plaint schedule property. on the basis of the
above said facts OS No. 629/1994was filed for the reliefs mentioned in
the 1st paragraph of this judgment.
3. The defendants in their joint written statement contended
interalia that the sale deed is supported by consideration, that the
allegations in the plaint regarding the alcoholism and mental weakness
and infirmity are absolutely false, that the 1st defendant is in possession
and enjoyment of the plaint schedule property, that the 1st plaintiff had
never in alcoholic affection or in mental or physical weakness on account
of it and he was not affected by any disorder. It is contended that the 1st
plaintiff was capable of doing things properly understanding and evaluating
his actions. The defendants also denied the plaint allegation to the effect
that the 1st plaintiff fall under the influence of 2nd defendant and the 1st
plaintiff treated him as “Guru”. The sale deed executed by the 1st plaintiff
in favour of the 1st defendant is perfectly legal and valid and the 1st
defendant is the title holder of the plaint schedule property . The plaint
allegation that the 2nd defendant influenced the 1st plaintiff and that the 2nd
defendant agreed to arrange money for the share of the 1st plaintiff for
purchasing the above said coffee estate and the consequent procurement
of sale deed are denied. The defendants also refuted the allegation that
the 2nd defendant had obtained signed paper and signed blank cheque
from the 1st plaintiff. The defendants also pleaded that the sale deed
A.S. Nos. 250 & 251 of 1999 -6
No.2625/1993 was duly executed and registered on receiving Rs. 1.80
lakhs by the 1st plaintiff as consideration and the possession of property
had been delivered to the 1st defendant. According to them the 1st plaintiff
executed the document fully knowing the consequence of such document
and its effects on his interest and that there is nothing unconscionable in
the transaction and further denied the plaint averment that the property is
worth Rs.10 lakhs. The defendants also stated in the written statement
that the 1st plaintiff undertook to evict the 3rd defendant from the plaint
schedule building and hence the fact that the possession of the building
was retained by the lessee was not mentioned in the sale deed and the
defendants not attempted to collect rent from the 3rd defendant. In fact the
1st plaintiff agreed to collect the rent and agreed to pay it to the
defendants The defendants also alleged that the original title deed was not
handed over to the 1st defendant at the time of execution of the sale deed
and that the defendants were made to believe by the 1st plaintiff that the
original sale deed was irrecoverably lost.
4. The 3rd defendant filed a written statement stating that he is not
a necessary party to the suit, that he got the building from the 1st plaintiff
for a monthly rent of Rs. 3,500/- from 3.8.1993 onwards, that he is
regularly paying rent to the 1st plaintiff and that since the title of the
building is in dispute he did not pay the rent from 2.6.1994 It is also
averred that he is ready to pay the rent to the original owner of the plaint
schedule building.
5. The 1st defendant in O.S No. 629/1994 is the 1st plaintiff in
O.S. No. 561/1994. The second defendant in O.S. No. 561/1994 is the
A.S. Nos. 250 & 251 of 1999 -7
tenant who is the 3rd defendant in O.S No. 629/1994. O.S. No. 561/1994
was filed by defendants on the allegation that the defendants are trying
to interfere with and obstruct the possession of the plaintiffs over the
plaint schedule property and the building thereon and that the defendants
have no right or possession over the plaint schedule property and the
building thereon. They also prayed that the 1st defendant may be
restrained by a decree of permanent injunction from trespassing upon the
plaint schedule property, or obstructing the defendants’ peaceful
possession and enjoyment of the same and from collecting the future rent
of the building and to direct the tenant to pay Rs. 33,250/- with future
interest at 6% per annum.
6. The 1st defendant in O.S. No. 561/1994 filed written statement
raising almost the same allegations raised in the plaint in O.S No.629/1994
as plaintiffs.
7. The 2nd defendant in O.S.No. 561/1994 also filed written
statement adopting all the same contentions raised in O.S No. 624 of
1994 as 3rd defendant.
8. The evidence in these cases consists of the oral testimony of
PWs 1 to 5, DWs 1 to 4, Exts. A1 to A10, B1 to B14(a) and Exts. X1 to X3.
9. The trial court framed necessary issues The main issues
which arises for consideration are whether the sale deed No. 2625/1993 is
a sham document not supported by consideration, whether the said
document was brought into existence by exercise of fraud undue
influence and misrepresentation, whether the 1st plaintiff was not in a
sound state of mind to execute the said sale deed due to his affective
A.S. Nos. 250 & 251 of 1999 -8
disorder and whether the said sale deed is liable to be declared as null and
void and whether the plaintiffs are entitled to the decree of prohibitory and
mandatory injunction as prayed for. In the connected suit i.e O.S. No.
561/1994 the issues that arises for consideration are whether the 1st
defendant has got title over the plaint schedule property, whether the
defendants are in possession of the plaint schedule property and whether
the defendants are entitled to realise an amount of Rs. 33,250/- with
interest.
10. The plaint schedule property in both suits is one and the same.
The property is 10 of cents of land and a building with 9 rooms and an
outhouse. The plaint schedule property is situated near to Kottayam
town,facing a lane that deviates from the main road. The plaint schedule
property originally belonged to the 2nd plaintiff and by assignment, his
son, the 1st plaintiff became the owner of the property vide settlement
deed No. 2588/1979. Ext.A1 is the settlement deed. The building situated
in the plaint schedule property is occupied by Reshtra Deepika Limited ,
Kottayam on a rental arrangement from the 1st plaintiff The rent is Rs.
3,500./- per month There is a garage in the building below the ground
level and it is being used as a godown by the Thannickal brothers for a
monthly rent of Rs. 500/- The aforesaid facts are not in dispute. According
to the plaintiffs the sale deed No. 2625/1993 produced, and marked as
Ext.B4 ( the certified copy of the same was marked as Ext.A4) has not
been acted upon and never intended to be acted upon and it is vitiated by
fraud , undue influence and misrepresentation. The main averment in the
plaint is that Ext.B4 sale deed was executed by the 1st plaintiff in favour of
A.S. Nos. 250 & 251 of 1999 -9
the 1st defendant is null and void on the ground that the 1st plaintiff was
mentally infirm and was not capable of protecting his interest and it is a
sham document not supported by consideration. The defendants 1 and 2
resisted the suit and interalia contended that the 1st plaintiff was not
mentally infirm and was in sound state of mind and understanding the
things at the time of of execution of the Ext.B4 sale deed and that it was
executed by receiving valid consideration of Rs. 1.80 lakhs.
11. The case of the plaintiffs is that the 1st plaintiff was suffering
from affective disorder and unsoundness of mind due to alcoholism from
1990 onwards, that he was treated at TRADA an institution where alcoholic
addicts are treated and he was suffering from affective disorder even
after discharge from TRADA. After discharge the 1st plaintiff was under
the treatment of Dr.Radhakrishanan a Psychiatrist (PW4). As PW1 the
plaintiff testified before the court that he was mentally infirm and was
incapable of protecting his rights due to his affective disorder at the time of
executing the sale deed in question and that the document has not been
acted upon or intended to be acted upon. The 1st plaintiff tendered
evidence in terms of the plaint.
12. The 2nd defendant was examined as DW1. He testified before
the court that PW1 was in a sound state of mind and he was capable of
understanding the consequences of the execution of Ext.A4 sale deed in
favour of the 1st defendant and its effects on his rights and it is a valid
document supported by consideration mentioned in it.
13. PW2 is the father of PW1. PW5 is the brother of PW2 and
paternal uncle of PW1. PW4 is Dr. Radhakrishnan, a Psychiatrist. PW3 is
A.S. Nos. 250 & 251 of 1999 -10
a relative of PWs 1 ,2 and 5. Exts .A2 and A3 are the medical
certificates issued from TRADA in the name of PW1 and Ext.A5 series are
the prescriptions issued by PW4 and Exts.A6 to A8 and Exts.X1 to X3 are
the medical reports produced by PW4. The trial court relied on the
evidence of PW1 and the oral testimony of PW4 who is the Psychiatrist.
PW4 has categorically deposed that on 31.8.1993 he had advised PW1,
his father and the wife of PW1 that PW1 should be kept away from all
business. The trial court found that the said version of PW4 is
corroborated by the evidence of PWs 2 and 5 . Relying on the testimony of
PW4, the trial court held that PW1 was not capable of judging the
consequences of the transactions entered by him during the said period.
The trial court also held that no concrete evidence has been let in by
defendants to show that PW1 was not mentally infirm and unsoundness of
mind as a result of alcoholism at the time when he executed Ext.B4 sale
deed in favour of the 1st defendant. In paragraph 14 of the judgment, the
trial court concluded that from the evidence on record it is satisfactorily
established that PW1 was a person suffering from mental disease during
the period from 31.8.1993 to June 1994, that the evidence of PWs 1, 2, 4
and 5 and Exts.A2, A3, A5 to A8 and Exts.X1 to X3 conclusively proved
that PW1 was an alcoholic and he was undergoing treatment for
alcoholism and subsequently he was under the care of PW4 during 1992
-93.
14. It is the case of the 1st plaintiff that he had attended prayer
meetings during 1992-93 at the residences of Leelamma and Mathew
Varghese and that DW1 also used to attend prayer meetings. PW1 also
A.S. Nos. 250 & 251 of 1999 -11
testified that Dw1 developed intimacy with him and that he was under
DW1’s influence. DW1 also admitted that PW1 also attended the said
prayer meetings but denied the case of the 1st plaintiff that he developed
an intimacy with PW1 and PW1 was under his influence. The evidence of
PW1 shows that some time in July 1993, there was a proposal to
purchase an estate at Coorg worth Rs. 67.5 lakhs by a group of persons
including PW1 and DW1 and his contribution for the proposed purchase
was Rs. 10 lakhs. According to 1st plaintiff DW1 promised to raise money
for him provided he executed a sale deed relating to the plaint schedule
property in favour of his wife for the purpose of raising the amount from
some financiers by creating an equitable mortgage of the property . The
said allegation was denied by DW1. PW1 testified before the court that he
believed the representation of DW1 and executed the sale deed in favour
of his wife for the above said purpose without receiving any consideration.
The 1st plaintiff had also deposed that he entrusted three blank signed
cheques and three blank signed stamped papers with DW1 for the
purpose of raising the loan. According to PW1, Ext.B4 sale deed was
executed without any intention of transferring the property and the
possession of the property continued with PW2 who was receiving the
rent even after the execution of Ext.B4 sale deed. Relying on the oral
evidence of PW1 and PW2 the trial court concluded that the possession of
property has not been handed over, no consideration has been paid and
there was no intention to transfer the property to the defendants and
further held that the plaintiffs continued to receive the rent of the building
even after the execution of Ext.B4 sale deed from the 3rd defendant/ tenant
A.S. Nos. 250 & 251 of 1999 -12
and that the plaintiffs have also created a liability charged upon the plaint
schedule property with the Syndicate Bank, Kottayam. The court below
held that the conduct of the defendants in not applying for mutation or
change of name of the plaintiff in the Municipal records in the name of the
defendants immediately after the execution of the sale deed in favour of
the 1st defendant shows that aforesaid facts and evidence supports the
case of the plaintiffs
15. In paragraph 17, the trial court discussed the further
allegation of the plaintiffs that the defendants had no means to pay Rs.
1.80 lakhs as recited in Ext.B4 sale deed. The plaintiffs argued before
the trial court the the defendants have not explained and proved the
source for raising Rs.1,80,000/- and therefore it cannot be held that
Ext.B4 sale deed was supported by consideration. Besides the above
versions, the court below relied on the version of DW2, the scribe, to the
effect that he does not know the denomination of the notes given at the
time of execution of the sale deed. Disbelieving the versions of the
defendants the trial court concluded that there is absolutely no reliable
evidence on record to show that the defendants had the capacity to pay
Rs.1.80 lakhs on the date of execution of Ext.B4 sale deed and that they
have not paid the sale consideration mentioned in the sale deed to PW1.
In the above said circumstances the trial court held that Ext.B4 sale deed
was not supported by consideration.
16. The trial court in paragraph 18 of the judgment, considered the
point as to who is in possession of the property The trial court had taken
note of the fact that admittedly the rent was being paid by the 3rd
A.S. Nos. 250 & 251 of 1999 -13
defendant/tenant to the plaintiffs after the execution of the sale deed till
Ext.B12 notice dated 8.7.1994 issued by the 1st defendant to the 3rd
defendant/ tenant. The trial court observed that the failure of the
defendant to demand the rent from 3rd defendant after the execution of
Ext.B4 sale deed clearly shows that there was no intention to transfer the
property. The trial court also held that the possession of building all alone
continued with the plaintiffs and observed that it is difficult to believe that
the property fetching a rent of Rs.4,000/- per month is alleged to have
been offered to sell for Rs.1.80 lakhs situated in the heart of Kottayam
town. Hence the court below arrived at a conclusion that a reasonable
man cannot believed for a moment that 10 cents of land with a substantial
residential building having 9 rooms situated in the heart of Kottayam town
was sold for a consideration of 1.80 lakhs in the year 1993 and therefore
the transaction is obviously unconscionable . The trial court also opined
that if Ext.B4 sale deed is a genuine document and it was intended to be
acted upon , the plaintiffs would not have discharged the liability
outstanding with the South Indian Bank . It has come out in evidence that
there was encumbrance relating to the plaint schedule property with South
Indian Bank Limited which was cleared by the 2nd plaintiff during February
1994 and the plaintiffs got back Ext.A1 sale deed from the bank Another
circumstance relied on, in support of the plaintiffs’ case is that the
defendants did not effect mutation of the property in the 1st defendant’s
name for a period of 4 months from the date of execution of the sale deed
and they also did not apply for change of name in the registers maintained
by the Municipality till July 1994 . For these reasons the trial court held that
A.S. Nos. 250 & 251 of 1999 -14
Ext.B4 sale deed is a sham document and it had been executed without
any intention to came into effect.
17. Next question considered by the court below is whether
Ext.B4 sale deed was executed under fraud ,undue influence, and
misrepresentation practised by DW1 on PW1. The court below in
paragraph 20 concluded that the evidence on record clearly shows that
PW1 was mentally infirm and incapable of protecting his right and was not
capable of judging the consequences of the transaction entered into by
him. The court held that it is satisfactorily established through the
evidence of PW4 that PW1 was suffering from Hypomania and affective
disorder from 31.8.1993. and continued to be so till 18.12.1993. The trial
court believed the case set up by the plaintiffs that the 2nd defendant was
in a position to influence the mind of PW1 to take undue advantage on
the 1st plaintiff and that DW1 influenced PW1 to execute Ext.B4 sale
deed and the sale deed was executed in the circumstances alleged in the
plaint. The trial court also observed that no person will sell a property and
a building fetching a monthly rent of Rs. 4,000/- for Rs. 1.80 lakhs unless
he is acting under a delusion and he is not capable of judging the
consequences of the documents executed by him, The learned sub judge
in paragraph 20 of the judgment concluded that he has no hesitation to
hold that Ext.B4 sale deed was executed as a result of undue influence
exercised on PW1 by DW1 while PW1 was mentally unconscionable
and weak in mind and was incapable of judging the consequences of the
execution of the sale deed on account of his absolute faith in DW1 and
therefore Ext.B4 sale is vitiated by fraud and undue influence.
A.S. Nos. 250 & 251 of 1999 -15
18. Lastly the court below considered the question as to whether
Ext.B4 sale deed is void abinitio on account of unsoundness of mind of
PW1 at the document was executed. The trial court relied on the
evidence of PWs1, 2, and 4 and Exts A2, A3 and A5 series to conclude
that PW1 was alcoholic and that he had been admitted in TRADA for
treatment for alcohlism and was suffering from affective disorder and
Hypomania from 31.8.1993 to 31.12.1993. The trial court also relied on
Exts.A8, X1 and X2 to arrive at such a conclusion. Hence the trial court
concluded that PW1 is a person of unsound mind and is incapable of
judging the consequences of the transaction entered by him and hence
Ext.B4 sale deed executed by PW1 during the period of unsoundness of
mind is void ab initio.
19. The learned counsel for the defendants/appellants in A.S.
No.251/1999 contended that there is absolutely no evidence on record to
show that the 1st plaintiff was not in a sound state of mind at the time of
execution of Ext.B4 and the trial court ought to have held that the same
was executed by the 1st plaintiff in favour of the 1st defendant for valid
consideration. According to the defendants/appellants there was no
evidence on record to show that the 1st plaintiff was under the influence of
alcohol or mentally infirm at the time of execution of the said sale deed. It
is also contended that the trial court failed to take note of the fact that the
1st plaintiff is a business man and he was admittedly the Managing partner
of M/s Full Bright Electricals from 1990 till December 1994, that he was
managing the firm till December 1994, and that the 1st plaintiff executed
the sale deed fully knowing and understanding the contents of the sale
A.S. Nos. 250 & 251 of 1999 -16
deed. According to the defendants/appellants, the evidence on record
positively shows that the case put forward by the plaintiffs that the 1st
plaintiff was not in a sound state of mind at the time of execution of the
document is only a story cooked up for the purpose of the case and that
placing reliance by the trial court on the evidence of PWs 2 and PW5 who
are the father and paternal uncle of PW1 is wrong. The learned counsel
also pointed out that the trial court wrongly cast the burden of proof on
the defendants/appellants by stating that the defendants/appellants failed
to prove that the 1st plaintiff was in a sound state of mind at the time of
execution of the sale deed. According to the learned counsel merely
because the 1st plaintiff and the 2nd defendant used to attend the prayer
meetings, no presumption can be drawn that the 2nd defendant is capable
of dominating the will of the 1st plaintiff and that there is absolutely no
pleadings or proof to substantiate the contention of undue influence and
fraud He also drew this Court’s attention to Section 114 of the evidence
Act and contended that there is a presumption that the person executing
the document had the full knowledge of the contents of the document
unless it is proved that the executant is an illiterate person or a person
disabled from executing the document, that there is a presumption that all
formalities were properly and regularly done and that it is for the party
challenging the execution of the particular document to plead and prove
that fraud had been played on the Sub Registrar. The learned counsel also
pleaded that there is absolutely no evidence on record to show that the
plaint schedule property will fetch more than 1.80 lakhs.
A.S. Nos. 250 & 251 of 1999 -17
20. Section 12 of the Indian Contract Act deals with test of
soundness of mind for the purpose of contract. It provides that soundness
must exist at the time of making of the contract. The said section stipulates
that when a person is said to be of sound mind for the purpose of making
a contract if at the time when he makes it, he is capable of understanding it
and of forming a rational judgment as to its effects upon his interests.
Previous or subsequent mental disorder may not be material except to
create a suspicion of the likelihood of such disorder. The question whether
a contract is invalidated by unsoundness of mind does not depend merely
on the belief or disbelief of the witnesses examined before the court but
largely on the inference to be drawn from the evidence. The allegation of
unsoundness of mind must be established by proof, showing that the
person was incapable of understanding the business and of forming a
rational judgment as to the effect of the transaction on his interests.
Treatment of mental disorder under the law relating to mental health or a
finding that the person was incapable of managing property or
administering his affairs may constitute only prima facie evidence of mental
disorder.
21. It is a fact that the 1st plaintiff is an alcoholic addict and he was
admitted in TRADA ,a place where alcoholics are treated. It is not
disputed that the 1st plaintiff was subsequently under treatment of PW4 ,
the Psychiatrist for affective disorder. PW1 deposed that the stamp
papers are purchased by him and that he paid the fee to the scribe. He
testified that the 2nd defendant had exerted undue influence over him after
gaining confidence over him that the 2nd defendant compelled him to
A.S. Nos. 250 & 251 of 1999 -18
execute Ext.B4 sale deed and he executed the sale deed without receiving
consideration. PW1 again testified that he is the Managing Partner of”Full
Bright Electricals” and that he was managing the business from 1983 till
the business was stopped in March 1994. PW1 says that while he was
managing the affairs of the business till 1993 he used to sign the balance
sheet, the income tax statement etc and that he used to engage an
auditor for representing him before the income-tax office. He also
admitted that he went to the Sub-registrar’s Office for registration of Ext.B4
sale deed, that the consideration for the sale deed is 1.80 lakhs, that Ext.B4
sale deed was read over to him and that he understood the contents of the
sale deed and also realised the fact that the property is sold for a
consideration of Rs. 1.80 lakhs. He also admitted that after understanding
the contents of Ext.B4 sale deed he had put his signature in the presence
of the Sub- registrar. A definite question was put to him as to whether
anybody else compelled him to execute the sale deed he answered that
he do not know whether the document executed is a sale deed. PW1 also
deposed that at the time of execution of Ext.B4 sale deed the property was
under a mortgage with the bank as security. PW1 also testified that he
had actively participated in the negotiation for the purchase of coffee estate
at Coorg, that at his instance other persons have also joined with him
including DW1 for the purchase, that he held negotiations with the owner
of the said estate, that he understood that the purchase of the estate is a
profitable deal and that he was involved through out the negotiation. He
also admitted that the negotiation and the decision to purchase the estate
was during July 1993, that mutation and the Municipal assessments were
A.S. Nos. 250 & 251 of 1999 -19
changed in the name of the 1st defendant, that he did not pay land tax or
building tax after the execution of Ext.B4 sale deed and that he did not
enquire as to who is paying the land tax after the execution of Ext.B4 sale
deed. PW1 also testified that he did not sent any notice for cancellation of
the sale deed after the negotiation of the purchase of the estate was failed
but admitted that he did not complain before the police authorities about
the foulplay in the execution of Ext.B4 sale deed.
22. PW2 is the father of PW1 He testified that his son was
suffering from alcoholism and was under treatment at TRADA in 1993 and
was also suffering from mental disorder and that he has no information
regarding the execution of Ext.B4 sale deed. He admitted that after the
execution of Ext.B4 sale deed he did not remit the building tax and land tax
and that he never enquired who is making the payment. He also deposed
that when he approached the revenue authorities to pay the building tax
and rent tax they informed him that receipts would be given only in the
name of 1st defendant. PW3 who claims to be one of the mediators, also
supported the contentions of the plaintiffs to a certain extent.
23. PW4 is Dr. Radhakrishnan, the Psychiatrist. Ext.X1 is the
case sheet in the name of the 1st plaintiff maintained in his clinic. As per
Ext.X1, the treatment started from 2.8.1993. According to him, PW1 was in
a hypomania stage, that the patient has euphoric affects and that he was
not capable of judging the consequences of acts done by him. Ext.A2 is
the medical certificate issued by PW4 and Ext.A5 is the prescription. He
testified that on 9.9.1993 on examination of PW1 he noted that the
plaintiff’s sleep was improved and his appetite interaction bettered , that on
A.S. Nos. 250 & 251 of 1999 -20
20.9.1993 when PW4 attended the 1st plaintiff, he was keeping sober and
explained a lot about his business plans, that PW4 advised PW1’s father
and wife to restrict the business activities of PW1, that on 7.9.1993 the
patient had euphoric infection and therefore he increased the dosage of
medicine. During cross-examination PW4 testified that the 1st plaintiff was
not capable of making any contracts during the treatment period and that
as part of hypomania the patient will increase sociability. PW4 also
deposed that hypomania is an unsound state of mind and all psychic
patients will come under the term hypomania. To a definite question put
to him as to whether during 7.9.1993 to 20.11.1993 the 1st plaintiff was
capable of judging the transactions entered with others, PW4 answered
that the patient may have difficulties. Another question put to PW4 that is
it correct to say that the 1st plaintiff was discharged from TRADA after
completely cured. PW4’s answer was ‘yes’. PW4 also stated that euphoria
is a feeling of emotional and physical well-being, that it is not indicative of
mental disorder always. He also admitted that even if a patient is affected
with depression and mania there may be lucid intervals, that lucid intervals
can be ascertained from the conduct, behaviour and activities of the
patient. PW4 also admitted that during the period of lucid intervals the
patient may be normal and he can take decision knowing its consequences
To another question put to him as to whether the 1st plaintiff has a lucid
interval between 7.9.1993 and 20.9.1993, PW4 answered that he cannot
say whether there was any lucid intervals and usually he do not investigate
the aspect of lucid intervals during the treatment period of the patient.
PW4 also testified that if a person is affected with hypomania he can act
A.S. Nos. 250 & 251 of 1999 -21
effectively and successfully.
24. The evidence of PW1, PW2 (the 1st plaintiff’s father) PW5
(brother of PW2) and PW4 ( the psychiatrist) and the documentary
evidence viz. Exts. A2 and A3 medical certificates, Exts. A5 to A8 and
Ext.X1 to X3 reveals that PW1 was an alcoholic and he had undergone
treatment for alcoholism and he was under the treatment of PW4 during
1993. The question is whether the evidence recorded and relied on by the
trial court establishes that PW1 is a person suffering from mental disorder
on the date of execution of Ext.B4 sale deed, or not.
25. PW1 is aged 35 during 1997. He is a B.sc degree holder.
Ext.B4 sale deed was executed on 17.9.1993 During the said period PW1
was carrying on his business activities as the Managing Partner of “Full
Bright Electricals ” He has no case that he was not running the business
due to any mental disorder. I have already referred to his own versions as
PW1 testifying that that he was doing all activities in relation to his
business such as financial transactions, filing of returns, engaging the
auditor etc till the business was stopped in March 1994. PW1 admitted
that he had taken initiative for the purchase of a coffee estate at Coorg
with 10 persons including DW1. According to PW1, he, DW1 and others
had planned to purchase the estate at Coorg and the decision was taken in
July 1993. The estate is having an extent of 181 acres. The purchase
price was fixed at 67.5 lakhs It is stated by PW1 that the sale deed was
intended to be registered in October 1993. PW1 testified that on further
enquiry he found that the vendor has no saleable interest in the property
and therefore the said proposal was dropped in a few months. It is very
A.S. Nos. 250 & 251 of 1999 -22
important to note that the sale deed was executed on 17.9.1993. He has
no case that the said project was cancelled as on 17.9.1993. The 1st
plaintiff’s case is that the sale deed was executed for the purpose of
raising his share of money for the purchase of estate at Coorg. It is not
explained by PW1 that for what reason Ext.B4 sale deed was executed in
favour of the 1st defendant who is the wife of the 2nd defendant, at the
negotiation stage before a decision is taken as to whether the estate can be
purchased or not. If PW1 wanted to raise Rs.10 lakhs, the amount can be
raised by availing loan from the bank. It is not known the intention behind
the execution of Ext.B4 document by PW1 in favour of DW1 for the
purpose of raising Rs.10 lakhs. Moreover, the negotiation for purchase of
the estate continued after September 1993. If that be so, there is no
reason as to why the sale deed was executed without knowing the
outcome of the negotiations. According to PW1 the negotiation fails and
the project did not materialise, if that be the position nothing prevented the
1st plaintiff from demanding re-conveyance of the property and to get re-
conveyance if the property was conveyed for the reasons stated by him.
The suit was filed by the plaintiffs only after the suit for injunction as O.S.
No. 561/1994 was filed by the vendee and on receiving notice in the said
suit. From the evidence on record it has to be inferred that the story of
negotiation for the purchase of an estate is an afterthought and is pleaded
to suit the pleadings.
26. The 2nd defendant was examined as DW1. According to DW1
he got acquaintance with PW1 while PW1 attended the prayer meetings.
It is not in evidence as to how many days both of them attended prayer
A.S. Nos. 250 & 251 of 1999 -23
meetings together. DW1 is aged 39 during 1997 and PW1 is aged 35.
DW1 has no contact with PW1 before he met PW1 at the prayer meeting
held in one or two houses of the believers. Even though PW1 averred that
the relationship grew and he treated DW1 as his “Guru” in almost all
matters, DW1 denied the said averment. Both PW1 and DW1 are middle
aged men. It is not revealed as to how the relationship grew to a stage of
Guru-Disciple relationship. DW1 also denied the said allegations in the
plaint. No materials are before the court below to accept the plaintiff’s case
that the relationship between PW1 and DW1 has reached such a stage
and DW1 was capable of exerting undue influence on PW1. DW1 has
stated that PW1 was not mentally firm and was of sound state of mind and
was capable of understanding the consequences of execution of Ext.B4
sale deed and its effects on his rights and that Ext.B4 is a valid document
supported by the consideration . From the facts proved it can be safely
inferred that PW1 and DW1 are friends at the time of execution of Ext.B4
sale deed.
27. DW2 is M.K. Gopidas who is the scribe of Ext.B4 sale deed .
He testified that before the preparation of Ext.B4 sale deed the document
was read over to PW1, that all the details necessary for the preparation of
the sale deed was furnished by PW1, that he behaved like a normal
person, that he did notice any dysfunction or difficulty in PW1 and PW1
receiving the sale consideration from DW1. DW2 also deposed that as
scribe he was having 22 years of experience. He testified that before the
preparation of original of Ext.B4, a draft sale deed was prepared. He also
testified that PW1 said that original title deed was lost, in that situation he
A.S. Nos. 250 & 251 of 1999 -24
had prepared Ext.B4 sale deed after verifying the photocopy of the
original title deed and said that he had applied and received the
encumbrance certificate .
27. PW5 testified that PW1 is an alcoholic addict and has
undergone treatment for mental disorder under PW4, that plaint schedule
property is worth Rs. 10 lakhs in 1993, that the property is situated in the
heart of Kottayam town and that Ext.A9 property and the plaint schedule
property have equal importance. He also deposed that PW1 has started
“Full Bright Electricals” and managed the business from 1990 till its
closure. He supported the contention of the 1st plaintiff regarding the
negotiation for the purchase of the coffee estate at Coorg and the
subsequent events.
28. 3rd defendant is the tenant. He deposed that PW1 was
conducting “Full Bright Electricals” in the plaint schedule property, that PW1
was running the said business and that the 3rd defendant was paying rent
regularly by issuing cheques.
29. According to PW1 he was suffering from alcoholism and he
was treated at TRADA de-addiction centre from 1991. In August 1993 he
started treatment for affective disorder with PW4 Psychiatrist. Ext.X1 is the
case sheet produced by PW4, shows that PW1’s treatment started only
from 2.8.1993. Ext.B4 sale deed was executed on 17.9.1993. The relevant
portion of PW4’s testimony is referred supra. PW4 testified that PW1
was not abnormal in his business activities. PW4 never advised PW1 not
to involve in business transaction and that is also an indication that the
affective disorder for which he was treated during the relevant period
A.S. Nos. 250 & 251 of 1999 -25
does not prevent the 1st plaintiff from doing normal business activities.
PW4 further stated that PW1 was capable of making contracts during the
treatment period and he may have proper decision making capacity. To the
specific question put to PW4 as to whether during 7.9.1993 to 20.11.1993
PW1 was capable of judging the transaction entered with others, he
answered that the patient may have difficulties. PW4 also testified that
the patient may be absolutely normal at lucid intervals and that whether a
patient is normal or not can be ascertained from the conduct, behaviour
and activities of the patient. Lastly, PW4 testified that even in cases a
patient is affected with hypomania he can act effectively and successfully.
30. Going by the versions of PW4 , it cannot be said that PW1
was in a state of unsound mind on the date of execution of Ext.B4 sale
deed. At the instance and instructions of PW1 draft sale deed was drafted,
PW1 straightaway went to the scribe’s office, read and understood the
contents of Ext.B4 sale deed and then went to the Sub-Registrar’s office.
There again the Sub-registrar read over the contents of Ext.B4 sale deed
and PW1 understood the contents. PW1 deposed that DW2, the scribe,
had used to prepare documents for his family members. That is also an
indication of the fact that the scribe is not a stranger to the 1st plaintiff,
who was engaged in the preparation of Ext.B4 sale deed. The scribe
himself as DW2 testified that the necessary details for the preparation
of Ext.B4 was dictated by PW1 and the said testimony is also worthy to
mention.
31. For the purpose of examining the validity of Ext.B4 sale deed
the question to be examined is whether the person who executed the sale
A.S. Nos. 250 & 251 of 1999 -26
deed is capable of understanding it and is of forming a rational judgment
as to its effects upon his interest. There is no concrete evidence adduced
by the 1st plaintiff or his witnesses which will go to show that PW1 was not
in a state of sound mind on the date of execution of Ext.B4sale deed or on
previous days or subsequent days of execution. At the same time the
evidence on record clearly shows that PW1 was acting as a sound-minded
person during the period of execution of Ext.B4 The oral evidence of PW4
also does not show that PW1 is a person of unsound mind. The evidence
utmost shows that PW1 was suffering from some mental dysfunction.
PW4 stated that he can carry on his business activities as a normal man.
PW4 also testified that the disorder noticed by him is not a disorder of
permanent nature. The disorder noticed is temporary and subsequently he
is normal in all his activities. So the hypomania diognised by the
Psychiatrist(PW4) is not enough to conclude that the 1st plaintiff is
incapable of executing a document without understanding its contents and
not capable of forming a rational judgment as to its effects upon his
interest. The other circumstances which also leads to such a conclusion
are that the plaintiff did not examine any witness or witnesses to support
his case of mental incapacity as on the date of execution of Ext.B4 nor
PW1 has a case that he had consumed liquor on that date.
32. Section 35(2) of the Registration Act stipulates that the
Registering officer may in order to satisfy himself that the persons
appearing before him are the persons they themselves to be, or for any
other purpose contemplated by this Act, examine any one present in his
office. Section 35(3) (b) provides that if any such person appears to the
A.S. Nos. 250 & 251 of 1999 -27
registering officer to be a minor, an idiot or a lunatic and (c) provides that if
any person by whom the document purports to be executed is dead, and
his representative or assign denies its execution, the registering officer
shall refuse to register the document as to the persons so denying,
appearing or dead:
33. Section 67 of the Registration Act mandates that the
registering officer is bound to consider the objection raised on any of the
grounds stated below.
(a) that the parties appearing or about to appear before him are not
the persons they profess to be;
(b) that the document is forged;
(c) that the person appearing as a representative assign or agent
has no right to appear in that capacity
(d) that the executing party is not really dead, as alleged by the party
applying for registration;or
(e) that the executing party is minor or an idiot or a lunatic
34. At no point of time PW1 or his father or wife raised any
objection before any authority complaining the registration of Ext.B4
document due to any of the above reasons.
35. Section 12 of the Indian Contract Act provides that in case of
drunkenness or delirium from fever or other causes, the onus lies on the
party who sets up that disability to prove that it existed at the time of the
contract The questions of undue influence and of incapacity by reason of
unsoundness of mind must not be mixed up, as they do totally different
A.S. Nos. 250 & 251 of 1999 -28
issues. The understanding of a party to a contract required to uphold the
validity of transaction would depend on the nature of the transaction. It is
also stated therein that an instrument of conveyance executed by a
person incapable of understanding its effect, in the sense of its general
purport, is not on that account void though in the circumstances it may be
voidable by the conveyor or his representatives.
36. In the decision reported in Mt.Hasrabi & others Vs.Mt.Fatmabi AIR 1938 Nagpur 204, it was held that registration is a
solemn act, if there is a registration endorsement it shows that necessary
formalities required by law have been complied with. Consequently where
the effect of document registered is sought to be avoided by the party
executing the same by pleading insanity at the time of execution of the
same, the registration endorsement cannot be discarded or ignored in
deciding the issue about the mental condition of the party when the deed
was executed .
37. In Jai Narain and others Ve Mahabir Prasad and another
AIR 1926 Oudh 470 the Division Bench held that although an executant
of a deed might have been drinking hard and frequently of unsober and
unsound mind, yet it must be established that at the time when the deed
was executed he was of unsound mind.
38. In A.Pathu and others Vs. Khadeesa Umma and others
1990 (2) KLJ 115 it was held that there is the presumption under
Section114 of the Evidence Act that a person only puts signature in a
document in token of execution. Ordinarily, persons do not sign
A.S. Nos. 250 & 251 of 1999 -29
documents without intending to execute them. That is the common
course of human conduct or the common course of their public or private
business. If any person wants to rely on any special circumstance, which
abrogates the common course of public or private business; he must
allege and prove it for the purpose of shifting the burden.
39. The trial court in paragraph 17 of its judgment considered the
question as to whether the defendants have the means to pay Rs. 1.80
lakhs as recited in Ext.B4 sale deed and held that there is absolutely no
reliable evidence on record to show that the defendants in O.S No.
629/1994 were having an amount of Rs. 1.80 lakhs with them on the
date of execution of Ext.B4 sale deed and therefore concluded that Ext.B4
sale deed is not supported by consideration. In paragraph 18, the trial
court also discussed the adequacy of consideration for the sale
transaction and held that the property is situated in the heart of Kottayam
town, that the building in the property fetched rental value of Rs. 4,000/-
per month and therefore the transaction is obviously unconscionable In this
context.
40. Section 16(3) of the Indian Contract Act is relevant for
consideration. Section 16(3) is extracted as follows:
(3)” where a person who is in a position to dominate
the will of another, enters into a contract with him, and the
transaction appears, on the face of it or on the evidence
adduced, to be unconscionable , the burden of proving that
such contract was not induced by undue influence shall be
upon the person in a position to dominate the will of the
other.
A.S. Nos. 250 & 251 of 1999 -30
41. Two factors must be proved for the operation of subsection (3)
of Section 16 of the Indian Contract Act. First is that a person was in a
position to dominate the will of another and secondly the transaction
appears on the face of it or on the evidence adduced to be unconscionable.
If either of these two conditions are not fulfilled the presumption of undue
influence will not arise and the burden will not shift; and proof of the actual
use of the dominating position will be required.
42. In this case PW1 and DW1 are strangers to each other. The
only acquaintance pleaded in the plaint is that they were made known to
each other at the prayer meeting occasions. I have already stated that it is
not proved in this case that DW1 is in a position to dominate the will of
PW1, in order to use that position to obtain an unfair advantage over the
other. Apart from the bald averments in the plaint there is nothing on
record to show that DW1 is in a position to dominate the will of PW1, at
the same time the evidence on record shows that PW1 executed Ext.B4
sale deed at a time when he is in a sound state of mind. The second limb
of Section 16(3) is not attracted in the context that the first limb stands not
proved. On merit also the second limb under Section 16(3) is not
attracted in this case. There is no evidence on record to show that the
transaction appears on the face of it or on evidence adduced to be
unconscionable. It has come out in evidence that the plaint schedule
property is not facing any main road. The property is facing a lane which
leads from the main road. It is not correct to say that the property is located
in the heart of Kottayam town. 10 cents of land and an old building is the
subject matter of the suit. The transaction took place during 1993. So it
A.S. Nos. 250 & 251 of 1999 -31
cannot be said that there is evidence to show that the transaction
appears on the face of it or on evidence to be unconscionable . The oral
interested testimonies of PW1 and PW2 is that the property is worth more
than 10 lakhs. But there is no evidence to prove that the property fetches
such value. The market value of the property was fixed at Rs. 1,05,580/-
in the plaint for the purpose of valuation of the plaint. Ext.A9 sale deed
was relied on by the court below for concluding that the transaction is
obviously unconscionable. Neither the vendor nor the vendee of Ext.A9
sale deed was examined. The exact location of Ext.A9 property is not
known nor the circumstances that lead to the execution of Ext.A9 sale
deed . It is not known whether Ext.A9 property is facing the main road in
the Kottayam town or not. The question of unconscionableness of the
transaction arises only when a transaction was carried out at the instance
of a person who is in a position to dominate the will of another. The
relationship of PW1 and DW1 are not in such a way that one of the
parties is in a position to dominate the will of the other and to use that
position to obtain an unfair advantage from the other. In a case where
one person who uses his dominant position to obtain an unfair advantage
over the other, Section 16(c) provides that the burden of proving that
such contract was induced by undue influence shall be upon the person
in a position to dominate the will of the other. Section 16(3) speaks about
the burden of proof. The question whether the transaction is
unconscionable or not depends firstly upon the person who is in a
dominant position over the other. Here the relationship between the
parties to contract is not of confidential or fiduciary nature . PW1 is not an
A.S. Nos. 250 & 251 of 1999 -32
illiterate or a weak-minded person at the relevant period. He was the
managing partner of a business firm . He himself has deposed that he was
managing the affairs of the firm. Neither the plaintiff nor his witness has a
case that the 1st plaintiff is of unsound mind in every activity other than
the execution of the Ext.B4 sale deed. The question of
unconscionableness comes for consideration only when it is determined
that the relationship between the parties is in such a way that one is in a
position to dominate the will of the other and not other wise. In this case
the relationship between the parties is not like the nature pleaded by the 1st
plaintiff. So long as there is no such relationship the question of
unconscionableness did not come for consideration Moreover there is no
evidence to prove that the transaction in dispute is unconscionable for any
reasons, hence the reasons stated by the trial court are untenable.
43. The findings of the trial court that no consideration has been
paid on the execution of Ext.B4 sale deed and PW1 had no intention to
transfer the plaint schedule property to the defendants in O.S. No.
629/1999 nor the defendants have any intention to purchase the property
and therefore Ext.B4 sale deed is a sham document and it had been
executed without any intention to come into effect are unsustainable in
law and facts. DW1 testified the fact that the property is occupied by a
tenant, that the property is in his possession and his wife after the
execution of Ext.B4 sale deed and that PW1 handed over the copy of the
settlement deed, No.2588/1979 (prior title deed), the property tax receipt
for the year 1993-94 encumbrance Certificate etc. Ext.B5 is the said
settlement deed and Ext.B6 is the tax receipt for the period 1993-94.
A.S. Nos. 250 & 251 of 1999 -33 According to defendants the property was mutated in the name of the 1st
defendant after the execution of the sale deed . Ext.B8 Pokkuvaravu
receipt shows that requisite fee was remitted for mutation proceedings.
Ext.B9 is the receipt for payment of property tax and Exts.B10 and B11
are Certificate issued by Kottayam Municipality and the building tax receipt
during the year 1993-94. The encumbrance certificate shows that the
property is free from encumbrance. . DW1 also deposed that PW1 agreed
to evict the tenant within six months from the date of the Ext.B4 sale
deed and this is also one of the reason why the rent was agreed to be
collected by the plaintiffs for 6 months and agreed to pay to the
defendants. DW1 also testified that he has collected the income from the
coconut trees standing in the property. In such circumstances the finding
by the trial court to the effect that no consideration has been paid on the
execution of Ext.B4 sale deed, that the said sale deed is a sham document
and that Ext.B4 had been executed without any intention to come into
effect are unsustainable in law and facts.
44. The trial court also held that Ext.B4 sale deed was executed as
a result of undue influence exercised over PW1 by DW1, and PW1 was
mentally unconscionable and weak in mind and was not capable of judging
the consequences of the execution of the sale deed and on account of his
absolute faith in DW1. Therefore, the court below held that Ext.B4 sale
deed is vitiated by fraud and undue influence. I have gone through
paragraphs 2, 3, 4, 5 and 6 of the plaint. The averments are to the effect
that the 1st plaintiff was not capable of judging the consequences of the
execution of document and of forming a rational judgment as to its
A.S. Nos. 250 & 251 of 1999 -34
effects on his interest. The further material averment in the plaint is that
the 1st plaintiff was alcoholic and of unsound mind and the 2nd defendant
was in a position to take undue advantage over the 1st plaintiff. I have
already found that the relationship of the parties is in such a way that one
is not in a position to dominate the will of the other and therefore PW1 is
not under such influence of DW1. PW1 failed to prove that DW1 is in a
position to influence PW1 nor there is evidence to prove that the
relationship is in such a way that DW1 is in a position to exercise undue
influence over PW1. It is for the 1st plaintiff to prove that there is influence
and that such influence is undue in the language of law. The principle can
be applied only in a case where the influence is acquired and abused,
where confidence is repossessed and better” .
45. On an appreciation of the evidence on record, I find that the
decrees and judgments passed by the trial court are liable to be set aside.
It has also come out in evidence that the defendants have no house of
their own. It is natural that the defendants have decided to purchase the
plaint schedule property. The building stands in the property according to
DW1 is 60 years old. The property is lying by the side of a narrow line.
There is no evidence to show that the transaction is unconscionable.
Moreover the said question does not arise for consideration. It is evident
from the above facts and circumstances that the relationship of the parties
is normal, that PW1 was not mentally infirm and was not incapable of
protecting his rights, that PW1 was capable of judging the consequences of
the transaction entered by him during the relevant period and was
capable of forming a rational judgment as to its effects upon his interest.
A.S. Nos. 250 & 251 of 1999 -35
This Court is of the firm view that Ext.B4 sale deed executed in favour of
the 1st defendant is a valid document.
46. In the result, the judgments and decrees passed by the trial
court are set aside. O.S. 629/1994 is dismissed O.S No. 561/1994 is
allowed A decree for perpetual injunction is passed restraining the 1st
defendant in O.S. No. 561/1994 from trespassing into the plaint schedule
property and from interfering with the possession and enjoyment of the
plaintiffs therein. The 2nd defendant is directed to attorn rent to the
plaintiffsin O.S. No. 561/1994 if he is still in possession and enjoyment of
the building as a tenant. The plaintiffs are allowed to realise Rs. 33,250/-
with interest at 6% from the date of suit till realisation from the 1st defendant
and his assets. O.S No. 561/1994 is decreed with costs throughout. A.S.
No. 250/1999 and A.S No. 251/1999 are allowed with costs.
(HARUN-UL-RASHID, JUDGE)
es.
A.S. Nos. 250 & 251 of 1999 -36
HARUN-UL-RASHID, J.
---------------------------
A.S. Nos. 250 & 251 of 1999
----------------------------
JUDGMENT
1st September, 2009