JUDGMENT
S.A. Bobde, J.
1. This Second Appeal is by the defendant No.2. The suit was filed by his sister, the respondent No. 1 Shobha. The suit is for partition and separate possession of several properties referred to in the plaint. The details of the properties are set out in the judgment of the two Courts below and hence are not reproduced here. The plaintiff (present respondent No. 1) claimed partition of l/3rd share in the property belonging to her deceased father. The share is claimed from the defendant No. 1 (present respondent No. 2), and the defendant No. 2 (present appellant), who are the uncles of the plaintiff. The defendant No. 3 (present respondent No. 3) is a purchaser of the suit property.
2. In brief, the case of respondent No. 1 is that her parents died long ago and she was brought up by her uncles, defendant Nos. 1 and 2. They settled her marriage and made arrangement for incurring expenses for the marriage. She claimed that three days before the marriage i.e. 20th May, 1974 the appellant told her that he did not have money for performing the marriage. She, therefore, got anxious and told defendant No. 2 that in no case should her marriage be cancelled. Thereupon, according to respondent No. 1, the appellant told her that he would send some papers which she may sign. Accordingly, on the same day a peon came to her along with some documents which the plaintiff neither read nor understood. According to respondent No. 1, these documents were signed on the pretext that they are for the purpose of her marriage which was to be performed on 23rd May, 1974. Her case is that she subsequently came to know that the documents were a Partition Deed and Sale Deed in favour of Shriram Namdeorao Patil, respondent No. 3. She, therefore, filed this suit for a declaration that the Sale Deed and the Partition Deed have been obtained by playing a fraud upon her and they are not binding.
3. The trial Court framed several Issues. Issue Nos. (viii) and (ix) read as follows:–
(viii) Does plaintiff prove that defendant No. 2 had committed fraud in getting her signatures on those documents ?
(ix) Does plaintiff prove that she had not received the cash consideration of Rs. 8,500/- from the defendant No. 3 and had not sold out any land to the defendant No. 3?
These issues have been answered in the negative. Thus the trial Court found that no fraud has been committed on the plaintiff and she had received consideration for the sale of the land. Nonetheless, the trial Court granted the declaration to her on the ground that undue influence has been practiced upon her by the appellant and therefore the documents cannot be acted upon. The respondent No. 1 filed an appeal against that judgment. The lower Appellate Court also held that the Partition Deed dated 20th May, 1974 and the Sale Deed dated 20th May, 1974 in favour of the defendant No. 3 is the outcome of the undue influence over the respondent No. 1 by the appellant. The lower Appellate Court, therefore, dismissed the appeal.
4. The present Second Appeal has been admitted. The following grounds have been considered as substantial questions of law that arise for consideration:–
1. That, inasmuch as a partition came to be effected on 20th May, 1974, marked as Exh. 69, which was duly registered to which the plaintiff was one of the executants and on that very date she sought to execute a sale-deed, Exh. 68 in favour of the defendant No. 3, it is evident that this being the state of affairs the Courts below were not entitled to negative the case of partition particularly when Issue No. 6 read – “Does the plaintiff prove that on 20th May, 1975 at about 8 to 9 p.m. defendant No. 2 had obtained her signatures on certain papers without making her understand as to why her signatures were obtained and under some pretext that money was needed for celebrating her marriage which was to be performed on 23rd May, 1974?”
was answered in the negative, no decree in her favour on the claim as sought, could be made.
2. That having negatived the case of fraud as against Issue No. 8, which reads, – “Does the plaintiff prove that defendant No. 2 had committed fraud in getting her signatures on those documents?”
and there being no case of undue influence having been put in issue, the Courts below were not justified in granting a decree to the plaintiff on the basis of the alleged undue influence which was never put in issue.
3. That, where a party seeks to lay a claim on the basis of fraud and undue influence and where fraud is established there could be no undue influence and where undue influence is established there could be no fraud, it is clear that in such a situation there could not be any case made out for any undue influence whatsoever and particularly when the case of undue influence was never an issue between the parties, no decree whatsoever could be passed in favour of the plaintiff affecting the registered document which had duly been executed.
5. A reading of the judgments of both the Courts below clearly reveal that the plaintiff’s case has been one of fraud played upon her by the appellant. This plea of fraud has been specifically negatived. The trial Court has in fact held that it must be presumed that the plaintiff was aware of the contents of the documents and there was no fraud at all. The trial Court further held that there was no fraud whatsoever in obtaining the respondent No. 1’s signature on the documents and that in fact she was made aware of the fact that it was a Partition Deed. However, the execution of the Sale Deed, the trial Court came to the conclusion that even though she signed the Sale Deed, which was presented to the Registrar, it was due to pressure on her to sign the document and to give admission before the registrar that she had received consideration. The trial Court, thereafter, examined the issue from the point of view of undue influence and held that the appellant exercised undue influence on respondent No. 1 to sign the document of Partition and the Sale Deed.
6. In the appeal filed by the appellant before the first Appellate Court, the finding of the trial Court that the documents were executed by respondent No. 1 under undue influence was upheld. Mr. Chandurkar, the learned Counsel for the appellant, referred to the plaint, and also the judgments of the Courts below and submitted that the plaintiff’s case was squarely one of fraud having been practised upon her. He submitted that therefore the Courts below were not entitled to give any finding that the impugned Partition Deed and the Sale Deed were vitiated by undue influence. According to the learned Counsel the ground of fraud is distinct in law as well as in fact from the ground of undue influence and no finding of undue influence could have been recorded by the Courts below when it was not pleaded. There is great force in the submission made by the learned Counsel for the appellant. Section 16 of the Indian Contract Act defines undue influence as follows :–
16. “Undue influence” defined — (1) a contract is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the Will of the other and uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the Will of another —
(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or (b) where he makes a contract, with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(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.
On the other hand Section 17 of the Act defines fraud as follows:–
17. “Fraud” defined — “Fraud” means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:–
(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it; (4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent.
7. It is obvious that there is a substantial and important difference between the two. Undue influence essentially consists of a situation where one of the parties is in a position to dominate the Will of the other and uses that position to obtain an unfair advantage over the other. The essential element of fraud is the intention to deceive another party by keeping him in dark. Thus it is an essential element of fraud that the party on whom it is practised is kept in the dark or is deceived about something and thus induced to do what he or she would not have otherwise done. On the other hand, when a party is said to have exercised undue influence on another the element of deceit is not necessary factor, in fact undue influence can be said to be exercised where a party influences the other by a reason of his position to do something by dominating the Will of the other. It is not necessary in a case of undue influence that a person whose Will is dominated is deceived as to what he or she is asked to do. The pleading must necessarily set out the difference between the two. Order VI, Rule 4 of the Code of Civil Procedure reads as follows :–
4. Particulars to be given where necessary. In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.
8. Thus it is absolutely necessary for the plaintiff to set out the particulars of fraud or undue influence or breach of trust, etc. Obviously, these particulars would be different in each case. In the present case, it is clear that respondent No. 1, plaintiff, had pleaded fraud and her pleadings were to that effect. This being the case, I am of view that the Courts below fell into a serious error in rendering a finding that the deeds were vitiated on account of undue influence; having negatived the plea of fraud. In this view of the matter, I find that the judgments of the Courts below are unsustainable.
9. The Second Appeal is therefore allowed. The respondent No. 1’s suit is hereby dismissed. However, in the circumstances of the case, there shall be no order as to costs.