{"id":205995,"date":"1975-11-06T00:00:00","date_gmt":"1975-11-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/afsar-sheikh-and-anr-vs-soleman-bibi-and-ors-on-6-november-1975-2"},"modified":"2017-10-05T14:53:23","modified_gmt":"2017-10-05T09:23:23","slug":"afsar-sheikh-and-anr-vs-soleman-bibi-and-ors-on-6-november-1975-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/afsar-sheikh-and-anr-vs-soleman-bibi-and-ors-on-6-november-1975-2","title":{"rendered":"Afsar Sheikh And Anr vs Soleman Bibi And Ors on 6 November, 1975"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Afsar Sheikh And Anr vs Soleman Bibi And Ors on 6 November, 1975<\/div>\n
Equivalent citations: 1976 AIR 163, \t\t 1976 SCR (2) 327<\/div>\n
Author: R S Sarkaria<\/div>\n
Bench: Sarkaria, Ranjit Singh<\/div>\n
           PETITIONER:\nAFSAR SHEIKH AND ANR.\n\n\tVs.\n\nRESPONDENT:\nSOLEMAN BIBI AND ORS.\n\nDATE OF JUDGMENT06\/11\/1975\n\nBENCH:\nSARKARIA, RANJIT SINGH\nBENCH:\nSARKARIA, RANJIT SINGH\nCHANDRACHUD, Y.V.\nGUPTA, A.C.\n\nCITATION:\n 1976 AIR  163\t\t  1976 SCR  (2) 327\n 1976 SCC  (2) 142\n\n\nACT:\n     Contract Act  (9 of 1872) s. 16-Undue influence-Court's\napproach in  a case  where a transaction is sought to be set\naside on ground of undue influence.\n     Code of Civil Procedure (Act 5 of 1908), O. 6 rr. 2 and\n4-Plea of  fraud and  misrepresentation-Court spelling out a\nplea of undue influence-Property.\n     Code of  Civil Procedure  (Act 5 of 1908), ss. 100, 101\nand 103-High Court's power under in second appeal.\n\n\n\nHEADNOTE:\n     The predecessor-in-interest  of the respondents filed a\nsuit for  a declaration\t that the  Hiba-bil-Ewaz executed by\nhim  was   void\t  and\tinoperative   due   to\t fraud\t and\nmisrepresentation proceeding from the appellant (donee), the\nallegation being  that the  appellant represented it to be a\ndeed of cancellation of a will.\n     The trial court and the first appellate court dismissed\nthe suit. In second appeal, the High Court remanded the case\nto the\tfirst appellate court holding that the finding given\nby the\tcourt below  that the  plaintiff  had  executed\t the\ndocument after\tknowing its  contents was  not sufficient in\nlaw to\tthrow out  the plaintiff's case, because, in view of\nthe  allegations  in  the  plaint  that\t the  appellant\t was\nassisting him  in the management of his property and that as\na result  thereof the  plaintiff had developed confidence in\nthe appellant  which  was  abused  by  him  by\tgetting\t the\ndocument executed  in his  favour by  the plaintiff,  it was\nincumbent on the court to find out whether the done was in a\nposition to  dominate the  will of  the donor. After remand,\nthe first  appellate court  again dismissed  the suit.\tIn a\nfurther second\tappeal, the High Court allowed the appeal on\nthe ground  that the  written  statement  of  the  appellant\ncontained a clear admission of intimate relationship between\nthe parties  indicative of the possibility of dominating the\nwill of\t the plaintiff\tby the\tappellant, and consequently,\nthe onus  had shifted  on the  appellant to  show  that\t the\nplaintiff had  access to  independent advice,  and since the\nappellant did  not produce  any such evidence, the plaintiff\nshould have  been taken to have proved that the document was\nvitiated by the undue influence of the appellant.\n     Allowing the appeal to this Court.\n^\n     HELD :  The finding of the first appellate court to the\neffect that  the plaintiff  had failed\tto  prove  that\t the\nappellant was  in a  position to  dominate his\twill was not\nwrong or  unreasonable. In  any case, it did not suffer from\nany  illegality,  omission,  error  or\tdefect\tsuch  as  is\nreferred to  in s.100(1)  C.P.C. It is a finding of fact and\nthe High  Court in  second appeal,  had no  jurisdiction  to\ninterfere with it even if it appeared to be erroneous to the\nHigh Court, the error not being of the kind indicated in the\nsub-section. [338 C-D]\n     (1) The  High Court  in second appeal has tried to make\nout a  new case\t for the plaintiff, of undue influence which\nwas neither  pleaded adequately\t in the\t plaint nor  put  in\nissue nor  raised in  the trial court or the first appellate\ncourt on the first occasion. [332 D-E]\n     (a)  The\tpleas  of   undue   influence,\t fraud\t and\nmisrepresentation are  in law  distinct categories  and\t are\nsomewhat inconsistent  with one another. In view of 0 6, r.4\nread  with   0.6,  r.2,\t C.P.C.\t they  are  required  to  be\nseparately  pleaded   with  specificity,  particularity\t and\nprecision. [332 H-333 A]\n328\n     (b) The specific case set up in the plaint was that the\ndocument  was\tvitiated  by   fraud  and  misrepresentation\npractised by the appellant. [332 E]\n     (c)  A  general  allegation  in  the  plaint  that\t the\nplaintiff was  a simple\t old man of 90 years who had reposed\ngreat confidence  in the  appellant was totally insufficient\nto amount  to an  averment of  undue influence\tof which the\nHigh Court  could take\tnotice. Apart  from this general and\nnebulous allegation  no particulars  of undue influence were\npleaded. Even  the mere\t relationship between  the plaintiff\nand the\t appellant (appellant was the grandson of the sister\nof the\tmother of  the plaintiff)  was not disclosed. It was\nnot particularised  how the  appellant was  in a position to\ndominate the  will of  the  plaintiff,\tin  what  manner  he\nexercised that influence, and how it was `undue' influence.\n\t\t\t\t\t  [332 E-G; 333 A-C]\n     (a) All that has been said in the written statement was\nthat the  relationship subsisting  between the plaintiff and\nthe appellant  was marked by love and affection and was skin\nto that\t of father  and son.  This  pleading  could  not  be\nreasonably construed  as an  admission\tthat  he  was  in  a\nposition to dominate the will of the plaintiff. Normally, it\nwould be  the father  and not  the son\twho would  be  in  a\nposition of  dominating influence. In spelling out a plea of\nundue  influence   for\tthe   plaintiff\t  by   an   inverted\nconstruction of\t the appellant's  written statement the High\nCourt  over-looked  the\t principle  of\tthe  maxim  secundum\nallegataet probata  that the plaintiff could succeed only by\nwhat he had alleged and proved. [333 D-G]\n     (2)(a) The\t law relating to undue influence is the same\nas that\t embodied in s. 16, Indian Contract Act, 1872. Under\ns. 16(1) the Court must consider two things, namely, (i) are\nthe relations  between the  donor and  donee such  that\t the\ndonee is  in a\tposition to dominate the will of the donor ?\nand (ii)  has the  donee, in  fact, used  that\tposition  to\nobtain an  unfair advantage over the donor ? Under s. 16(3),\nif the\tperson seeking\tto avoid a transaction on the ground\nof undue  influence, establishes  that the  person  who\t had\nobtained the benefit was in a position to dominate his will,\nand that  the transaction  was\tunconscionable,\t the  burden\nshifts on  the party  who had  obtained the  benefit to show\nthat the  transaction was  not induced\tby undue  influence.\nTherefore, there  are three  stages to\tbe considered by the\nCourt, in a case of undue influence in the order specified :\n(i) Whether  the party seeking relief on the ground of undue\ninfluence has  proved that the relations between the parties\nare such  that one  is in a position to dominate the will of\nthe other;  (ii) it is not sufficient for the person seeking\nrelief to show merely that the relations of the parties have\nbeen such  that one  naturally relied  upon  the  other\t for\nadvice and  that the other was in a position to dominate the\nwill of\t the first  in giving  it. That\t is, making out mere\ninfluence is  not sufficient  and  something  more  must  be\nproved so  as to  render the  influence `undue'\t in law; and\n(iii) if  the transaction appears to be unconscionable, then\nthe burden  of proving\tthat it\t was not  induced  by  undue\ninfluence lies\tupon the  person who  was in  a position  to\ndominate the will of the other.\n\t\t\t\t\t       [334 F-336 B]\n     Subhash Chandra  v. Gana  Prasad [1967] 1 S.C.R. 331 at\n334; Raghunath\tPrasad v.  Sarju  Prasad  51  I.A.  101\t and\nPoosathurai v.\tKappanna Chattiar  and others,\t47  I.A.  1,\nfollowed.\n     (b) The  High  Court  in  the  present  case,  did\t not\nconsider the  propositions in  the order  indicated and\t was\nthus led to a wrong decision. [336 B]\n     (c)  The\tfirst  appellate   court  after\t  a  careful\nexamination of\tthe evidence  found  the  first\t two  stages\nagainst\t the  plaintiff.  It  has  held\t that  although\t the\nrelationship between  the donor\t and the  donee was intimate\nlike  that   of\t father\t and  son  characterised  by  mutual\ncordiality and affection, the donee was not in a position to\ndominate the  will of  the donor, that the appellant did not\nexercise any  undue influence  on the plaintiff and that the\nHiba-bil-Ewaz was  voluntarily\texecuted  by  the  plaintiff\nafter understanding  its contents  and effect.\tThe evidence\nshows that  (i) Though\tthe plaintiff was an old man, he was\nquite fit  to  look  after  his\t own  affairs  and  that  he\ndeliberately overstated\t his age  in the  plaint. (ii) There\nwas nothing to show that his mental capacity was temporarily\n329\nor permanently\taffected or  enfeebled by  old age  or other\ncause so that he could not understand the nature of the deed\nand the\t effect and consequences of its execution. [336 B-C,\nE-G]\n     (iii) The\tscribe gave  evidence that  the document was\nprepared according  to the  instructions of the plaintiff in\nthe presence  of the attesting witnesses and that he read it\nout to\tthe plaintiff  who accepted  it as  correct and then\naffixed this thumb mark. [337 B-C]\n     (iv) The  attesting witness corroborated the scribe and\nthe  trial   court  and\t  the  first   appellate  court\t had\nconcurrently   found   that   these   two   witnesses\twere\nrespectable, independent and disinterested persons, and that\ntheir evidence was credit-worthy. [337 D-E]\n     (v) The  scribe of\t the document  which  cancelled\t the\nregistered will\t did not,  in his  evidence, state  that the\nappellant  was\tpresent\t when  that  deed  was\twritten\t and\nexecuted, and  so, the\tappellant could\t not have  come into\npossession of  the cancellation deed to enable him to induce\nby misrepresentation or undue influence the execution of the\nHiba-bil-Ewaz. [337 F-G]\n     (vi) The  plaintiff in  his evidence refused to concede\nthat he\t had brought up the appellant as a son from his very\ninfancy and  that the  latter used  to look after his lands,\nthus destroying\t the slender basis from which the High Court\nspelt out  fiduciary relationship.  But\t assuming  that\t the\nHiba-bil-Ewaz was  induced by the influence of the appellant\nin whom\t the plaintiff\treposed confidence  such as a father\ndoes in\t his son,  it had not been proved that the influence\nwas undue. There is no presumption of undue influence in the\ncase of\t a gift\t to a  son even when made during the donor's\nillness and a few days before his death. [336C-D, H-377B]\n     Halsbury's Laws  of England, 3rd Edition, Volume 17, p.\n674, referred to.\n     (3) The  first appellate  court also held that the gift\nwas acted  upon by  the parties,  that the appellant entered\ninto possession\t of the\t gifted land,  and that\t it was\t the\nplaintiff's natural  son who did not like the property being\ngiven to  the appellant\t that was responsible for the filing\nof the suit. [337 G-338 B]\n     (4)(a) The\t High Court was incompetent in second appeal\nto reverse  the findings  of fact recorded, after remand, by\nthe first  appellate court.  The scope\tof the powers of the\nHigh Court  to interfere in second appeal with the judgments\nand decrees of the courts below is indicated in ss. 100, 101\nand 103,  C.P.C. The  effect of\t ss. 100  and 101  is that a\nsecond appeal is competent only on the ground of an error in\nlaw or\tprcedure and not merely on the ground of an error on\na question  of fact, however, gross or inexcusable the error\nmay seem to be. Section 103 enables the High Court in second\nappeal\twhere  the  evidence  on  record  is  sufficient  to\ndetermine an issue of fact necessary for the disposal of the\nappeal, only;  (a) if  the lower  appellate  court  has\t not\ndetermined that\t issue of  fact, or (b) if it has determined\nthat issue  wrongly by\treason of  any illegality,  omission\nerror or defect such as is referred to in s. 101.\n\t\t\t\t\t       [333 G-334 C]\n     Msi. Durga\t Chaudhrani v.\tJawahar Singh  17  I.A.\t 122\n(P.C.) referred to.\n     (b) It is well settled that a question whether a person\nwas in\ta position  to dominate\t the  will  of\tanother\t and\nprocured a  certain deed by undue influence is a question of\nfact and  a finding  thereon is\t a finding  of fact,  and if\narrived\t at   fairly  in   accordance  with   the  procedure\nprescribed it is not liable to be reopened in second appeal.\n[334 C-D]\n     Satgur Prasad  v. Har Narain Das, 59 I.A. 147 and Ladli\nParshad Jaiswal\t v. The Karnal Distillery Co. Ltd.,<\/a> [1964] 1\nS.C.R. 270, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 898 of
\n1968.\n<\/p>\n
     From the  Judgment and  Decree dated  the 9th November,
\n1967 of the Patna High Court in Appeal from Appellate Decree
\nNo. 779\/65.\n<\/p>\n
330<\/span><\/p>\n
     Sarjoo Prasad and S. N. Prasad for the Appellants.
\n     B. P. Singh for the Respondent.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     SARKARIA, J.-This\tappeal by  special leave is directed
\nagainst a  judgment, dated  November 9,\t 1967, of  the Patna
\nHigh Court  decreeing the  plaintiff’s suit  after reversing
\nthe judgment of the Additional District Judge, Dumka.\n<\/p>\n
     One Ebad  Sheikh, the  predecessor-in-interest  of\t the
\nrespondents  herein  instituted\t a  suit  in  the  Court  of
\nSubordinate Judge  at Pakur  in 1960  for a declaration that
\nthe Hiba  bil-Ewaz, dated February 9, 1959, executed by him,
\nwas void  and inoperative due to fraud and misrepresentation
\nproceeding from\t the donee, Afsar Sheikh, original defendant
\nNo. 1  (appellant No.  1 herein).  Ebad\t claimed  a  further
\ndeclaration, confirming\t his possession\t over the suit lands
\nwhich were  the subject\t of the Hiba. In the alternative, he
\nprayed for possession thereof.\n<\/p>\n
     The plaintiff’s  case as laid in the plaint, is that he
\nis an  illiterate, simple  villager, aged about 90 years. On
\nApril 2,  1957, one  Saifuddin fraudulently got executed and
\nregistered a  will, dated April 2, 1957, by the plaintiff in
\nfavour of  the former  and his\twife in\t respect of the suit
\nlands. When  this fraud\t was discovered by the plaintiff, he
\nbrought it  to the  notice  of\tAfsar-appellant,  a  distant
\nrelation who  was in  his confidence and used to help him in
\ncultivation of\this lands. Afsar Sheikh on February 3, 1959,
\ntook the  plaintiff to\tPakur for execution and registration
\nof a deed cancelling the Will. A cancellation deed was drawn
\nup and\texecuted by  the plaintiff,  but  it  could  not  be
\npresented for  registration on\tthat date on account of some
\ndelay. On  February 9,\t1959, Afsar again took the plaintiff
\nto Pakur  and represented  that the  cancellation deed which
\nwas prepared  on February  3, 1959,  had been  misplaced and
\nlost, and  consequently it  was necessary to execute a fresh
\ndeed of cancellation. With this misrepresentation, Afsar got
\nexecuted  and  registered  in  his  favour  a  Hiba-bil-Ewaz
\npurporting to be a transfer of 12 1\/2 Bighas of lands by the
\nplaintiff. Thereafter,\tAfsar sold some of the land which he
\nhad obtained  under the Hiba-bil-Ewaz to defendant-appellant\n<\/p>\n
2. This\t sale-deed executed  by Afsar  was bogus and without
\nconsideration and  did not  confer any\ttitle or interest on
\nthe transferee.\n<\/p>\n
     In his  written statement,\t Afsar, defendant denied the
\nallegations of\tfraud and misrepresentation. He averred that
\nhis grandmother was the sister of the plaintif’s mother. The
\ndefendant’s father died when he was an infant. The plaintiff
\nbrought him  up as  a  son.  Since  his\t very  infancy,\t the
\ndefendant has  been living  with the plaintiff, managing his
\naffairs and  treating  him  as\this  father.  The  defendant
\nfurther stated\tthat the  plaintiff has transferred 10 to 12
\nBighas of  land to  his natural son and an equal area to his
\nsecond wife.  Out  of  love  and  affection,  the  plaintiff
\nconferred a similar benefit on the defendant and voluntarily
\nexecuted the Hiba-bil-Ewaz after receiving from the donee
\n331<\/span>
\na dhoti as a symbolic consideration therefor. He denied that
\nthe plaintiff  at the  time of\tthe gift  was  too  old\t and
\ninfirm. According to him, the plaintiff was not more than 75
\nyears of  age. He  further averred that he was in possession
\nof the suit lands ever since the execution of the Hiba.\n<\/p>\n
     After considering the pleadings, the trial court framed
\nthree Issues.  Issue No.  2 as recast on August 8, 1961, was
\nas follows :\n<\/p>\n
\t  “Is the Hiba-bil-Ewaz void and inoperative, having
\n     been fraudulently\tobtained by  defendant 1st party, as
\n     alleged by\t the plaintiff? Was it executed bona fide by
\n     the plaintiff out of his own free will and given effect
\n     to so as to confer valid title upon defendant 1st party
\n     with respect to the lands in suit?”<\/p><\/blockquote>\n
     The trial\tcourt found  that  there  was  no  fraud  or
\nmisrepresentation on the part of Afsar. If further held that
\nthe done  was in  possession of\t the gifted lands ever since
\nthe gift. In the result, it dismissed the suit.\n<\/p>\n
     Aggrieved, the  plaintiff preferred  an appeal  to\t the
\nDistrict Judge,\t who by\t his judgment,\tdated July  3, 1962,
\ndismissed the  same, and  affirmed the findings of the trial
\ncourt.\n<\/p>\n
     The plaintiff  carried a  second  appeal  to  the\tHigh
\nCourt. The  appeal was\theard by  a learned Single Judge who
\nheld that “the mere finding as given by the court below that
\nthe plaintiff  in the present case had executed the document
\nafter knowing its contents is not sufficient in law to throw
\nout the\t plaintiff’s case” because in view of the allegation
\nin the plaint “that defendant No. 1 was assisting him in the
\nmanagement of  his property and that as a result thereof the
\nplaintiff had  developed confidence in him, which, according
\nto the\tplaintiff, was\tabused in getting the document dated
\n9-2-59, executed  by the plaintiff”, it was incumbent on the
\ncourt below  to find out whether the donee was in a position
\nto dominate  the will  of the donor in giving advice. In the
\nopinion of the learned Judge, if the trial court had come to
\nthe conclusion\tin favour  of the  allegations made  by\t the
\nplaintiff then\tthe onus  in that case would have shifted to
\ndefendant No.  1 to  establish that  he did  not  abuse\t his
\nposition  and\tthat  the   deed  of   Hiba-bil-Ewaz  though
\nunconscionable on the very face of it, was not brought about
\nby any\tundue influence\t on his part. By his judgment, dated
\nOctober 16, 1963, he remanded the case to the District Judge
\n“for a\tfresh hearing on the material already on the record”
\nfor recording  findings as to whether Afsar had obtained the
\nHiba-bil-Ewaz  by   exercising\tundue\tinfluence  over\t the
\nplaintiff, whether  consideration had  been  given  for\t the
\nHiba-bil-Ewaz and  whether the\talleged donee  had  been  in
\npossession of the gifted lands.\n<\/p>\n
     After the\tremand, the Additional District Judge, Dumka
\nby his\tjudgment, dated\t June 18,  1965, again\taffirmed the
\nfindings of the trial court. He further found that there was
\nnothing to show that
\n332<\/span>
\nAfsar was  in  a  position  to\tdominate  the  will  of\t the
\nplaintiff  or\thad  got   the\tHiba-bil-Ewaz\texecuted  by
\nexercising undue influence.\n<\/p>\n
     Against this  judgment, dated  June 18,  1965,  of\t the
\nAdditional District  Judge, the\t paintiff preferred a Second
\nAppeal in  the High  Court. This  appeal came up for hearing
\nbefore another\tlearned Judge  who  by\this  Judgment  dated
\nNovember 19,  1967, allowed  the  same\tand  set  aside\t the
\njudgments of  the courts  below,  on  the  ground  that\t the
\nwritten\t statement   of\t the  defendant\t contained  a  clear
\nadmission  of  intimate\t relationship  between\tthe  parties
\nindicative of  the “possibility”  of dominating\t the will of
\nthe plaintiff  by defendant  No. 1 and consequently the onus
\nhad shifted  on the defendant to show that the plaintiff had
\naccess to  independant advice.\tSince the  defendant did not
\nproduce any  evidence to  show that  he had  refrained\tfrom
\ndominating the\twill of the plaintiff in obtaining the Hiba-
\nbil-Ewaz, “the\tplaintiff should  have been  taken  to\thave
\nproved that  the document was vitiated by undue influence of
\ndefendant No.  1”. The\tlearned Judge did not, in terms, set
\naside the  concurrent finding  of the  courts below on Issue
\nNo. 2 relating to fraud and misrepresentation.\n<\/p>\n
     Against the  judgment of the High Court, the defendants
\nhave come in appeal before us.\n<\/p>\n
     We have  heard the\t learned Counsel  on both  sides and
\ncarefully scrutinised the record. We are of opinion that the
\njudgment of  the High  Court, cannot be upheld as it suffers
\nfrom manifest errors.\n<\/p>\n
     The High Court has tried in Second appeal to make out a
\nnew case  for the plaintiff on the ground of undue influence
\nwhich was  neither pleaded adequately in the plaint, nor put
\nin issue.\n<\/p>\n
     The specific  case set  up in  the plaint\twas that the
\nHiba-bil-Ewaz  in   question  was   vitiated  by  fraud\t and
\nmisrepresentation practised  by Afsar  defendant. It  was in
\nthat context  it was  stated in\t a  general  way,  that\t the
\nplaintiff was  a simple, illiterate man of 90 years, and had
\ngreat confidence  in Afsar,  and “the  parties used  to help
\neach other  in\trespective  cultivation”.  Apart  from\tthis
\ngeneral and nebulous allegation, no particulars of a plea of
\nundue influence\t were pleaded.\tEven the  near\trelationship
\nbetween the  plaintiff and  Afsar was  not disclosed. It was
\nnot particularised  how Afsar  was in a position to dominate
\nthe will  of the plaintiff, in what manner he exercised that
\ninfluence, how the influence, if any, used by Afsar over him
\nwas “undue”, and how and in what circumstances the Hiba-bil-
\nEwaz was an `unfair’ or unconscionable transaction. In short
\nno material  particulars showing  that the  transaction\t was
\nvitiated by  undue influence  were pleaded.  Rather somewhat
\ninconsistently with  a\tplea  of  undue\t influence,  it\t was
\nalleged\t  that\t  the\tHiba\twas   tainted\t by   fraud,
\nmisrepresentation and deceit practised by Afsar.\n<\/p>\n
     While it  is  true\t that  `undue  influence’,  `fraud’,
\n`misrepresentation’ are\t cognate vices\tand  may,  in  part,
\noverlap in  some cases, they are in law distinct categories,
\nand are in view of Order 6, Rule 4, read
\n333<\/span>
\nwith Order  6, r.2, of the Code of Civil Procedure, required
\nto be separtely pleaded, with specificity, particularity and
\nprecision. A  general allegation  in the  plaint,  that\t the
\nplaintiff was  a simple\t old man  of ninety  who had reposed
\ngreat confidence in the defendant, was much too insufficient
\nto amount  to an  averment of  undue influence\tof which the
\nHigh Court could take notice, particularly when no issue was
\nclaimed and  no contention  was raised\ton that point at any
\nstage in  the trial  court, or,\t in the\t first\tround,\teven
\nbefore the first appellate court.\n<\/p>\n
     The High  Court has  tried to spell out a plea of undue
\ninfluence  by  referring  to  paragraph\t 7  of\tthe  written
\nstatement in  which the\t defendant inter-alia stated that he
\nwas “looked after and brought up by the plaintiff as his son
\nand he\tbecame very much attached to the plaintiff and since
\nhis infancy  till the  middle of  this year  this  defendant
\nalways lived with the plaintiff and used to treat him as his
\nfather helped  him and\tlooked after  all his affairs.” This
\nparagraph, according to the learned Judge, contains “a clear
\nadmission of  the  intimate  relationship  between  the\t two
\nindicative of  the position  of dominating  the will  of the
\nplaintiff by defendant No. 1”\n<\/p>\n
     We are,  with due\trespect, unable\t to appreciate\tthis
\nantic construction put on the defendants’ pleading. All that
\nhas  been   said  in  the  written  statement  is  that\t the
\nrelationship  subsisting   between  the\t plaintiff  and\t the
\ndefendant was  marked by love and affection, and was akin to
\nthat  of   father  and\t son.  Normally,  in  such  paternal
\nrelationship, the  father, and not the son, is in a position
\nof dominating  influence. The defendant’s pleading could not
\nbe  reasonably\t construed  as\t an  admission,\t  direct  or
\ninferential, of\t the fact  that he  was\t in  a\tposition  to
\ndominate the  will of  the plaintiff. In spelling out a plea
\nof undue  influence  for  the  plaintiff  by  an  `inverted’
\nconstruction of\t the defendants’  pleading, the\t High  Court
\noverlooked the\tprinciple conveyed  by\tthe  maxim  secundum
\nallegataet probata, that the plaintiff could succeed only by
\nwhat he\t had alleged  and proved. He could not be allowed to
\ntravel beyond  what was\t pleaded by him and put in issue. On
\nhis failure  to prove  his case\t as alleged, the court could
\nnot conjure up a new case for him by stretching his pleading
\nand reading  into it  something which  was not there, nor in
\nissue,\twith   the  aid\t of  an\t extraneous  document.\tThus
\nconsidered,  the  High\tCourt  was  in\terror  when  by\t its
\njudgment, dated\t October 16,  1963, it\tremanded the case to
\nthe first  appellate Court with a direction to determine the
\nquestion of undue influence “on material already on record.”\n<\/p>\n
     Be that as it may, the High Court was not competant, in
\nsecond appeal,\tto reverse  the finding\t of  fact  recorded,
\nafter the  remand, by  the first  appellant  Court,  to\t the
\neffect, that  Afsar was\t not in\t a position  to dominate the
\nwill of\t the plaintiff,\t and he\t did not  exercise any undue
\ninfluence on  the plaintiff  to\t obtain\t the  Hiba-bil-Ewaz,
\nwhich  was  voluntarily\t executed  by  the  plaintiff  after
\nunderstanding its contents and effect.\n<\/p>\n
334<\/span><\/p>\n
     The scope\tof the powers of the High Court to interfere
\nin second  appeal with judgments and decrees of courts below
\nis indicated  in ss.  100, 101, and 103 of the Code of Civil
\nProcedure. Broadly,  the effect\t of ss.\t 100 and  101,\tread
\ntogether, is  that second  appeal is  competent only  on the
\nground of  an error  in law  or procedure, and not merely on
\nthe ground of an error on a question of fact. The High Court
\nhas no\tjurisdiction to\t entertain a  second appeal  on\t the
\n“ground of  a erroneous\t finding of  fact, however  gross or
\ninexcusable the error may seem to be” (Mst. Durga Choudhrani
\nv. Jawhar  Singh) (1). Section 103 enables the High Court in
\nsecond\tappeal,\t  where\t the   evidence\t on  the  record  is
\nsufficient, to\tdetermine an issue of fact necessary for the
\ndisposal of the appeal only-\n<\/p>\n
\t  (a)  if  the\t lower\tappellate   Court  has\t not
\n\t       determined that issue of fact, or\n<\/p><\/blockquote>\n
\t  (b)  if it  has determined  that issue  wrongly by
\n\t       reason of  any illegality,  omision, error or
\n\t       defect much  as is referred to in sub-section
\n\t       (1) of Section 100.<\/p><\/blockquote>\n
     It is well settled that a question whether a person was
\nin a position to dominate the will of another and procured a
\ncertain deed  by undue influence, is a question of fact, and
\na finding  thereon is  a finding  of fact  and if arrived at
\nfairly, in  accordance with the procedure prescribed, is not
\nliable to be reopened in second appeal (Satgur Prasad v. Har
\nNarain\tDas;(2)\t  Ladli\t Prashad   Jaiswal  v.\t The  Karnal
\nDistillery Co. Ltd.<\/a>(3).\n<\/p>\n
     Bearing in\t mind the  provisions of  s. 103  read\twith
\ns.100(1), the  further question to be considered is: Was the
\nfinding of  the first  appellate Court on the point of undue
\ninfluence vitiated  by an  illegality,\tomission,  error  of
\ndefect such  as is  referred to in s. 100(1)? For reasons to
\nbe stated  presently, the answer to this question must be in
\nthe negative.\n<\/p>\n
     The law  as to  undue influence  in the  case of a gift
\ninter vivos  is the same as in the case of a contract. It is
\nembodied in  s. 16  of the  Indian Contract Act. Sub-section
\n(1) of\ts. 16 defines ‘undue influence’ in general terms. It
\nprovides that  to constitute  ‘undue  influence’  two  basic
\nelements must  be cumulatively present. First, the relations
\nsubsisting between  the parties\t are such  that one  of\t the
\nparties is  in a position to dominate the will of the other.
\nSecond, the party in dominant position uses that position to
\nobtain an  unfair  advantage  over  the\t other.\t Both  these
\nconditions must\t be pleaded with particularity and proved by
\nthe person seeking to avoid the transaction.\n<\/p>\n
     In view of this sub-section, the Court trying a case of
\nundue influence\t of the kind before us, must, to start with,
\nconsider two  things, namely,  (1) are the relations between
\nthe donor and the donee such that the donee is in a position
\nto dominate  the will  of the  donor? and  (2) has the donee
\nused that position to obtain an
\n335<\/span>
\nunfair advantage  over the  donor ?  (Subhas Chandra v. Gana
\nPrasad). (1)
\n     Sub-section (2)  of s.  16 is illustrative as to when a
\nperson is  considered to  be in\t a position  to dominate the
\nwill of\t the other.  It gives  three illustrations of such a
\nposition, which\t adapted to  the facts\tof the present case,
\nwould be  (a) whether  the donee  holds a  real or  apparent
\nauthority over\tthe  donor,  (b)  whether  he  stands  in  a
\nfiduciary relation to the donor, or (c) whether he makes the
\ntransaction  with   a  person\twhose  mental\tcapacity  is
\ntemporarily  or\t permanently  affected\tby  reason  of\tage,
\nillness or mental or bodily distress.\n<\/p>\n
     Sub-section (3)  contains a rule of evidence. According
\nto this\t rule, if a person seeking to avoid a transaction on
\nthe ground of undue influence proves-\n<\/p>\n
\t  (a) that  the party  who had\tobtained the benefit
\n     was, at  the material  time, in  a position to dominate
\n     the will of the other conferring the benefit, and\n<\/p><\/blockquote>\n
\t  (b) that the transaction is unconscionable,
\nthe  burden   shifts  on   the\tparty\tbenefitting  by\t the
\ntransaction to\tshow  that  it\twas  not  induced  by  undue
\ninfluence.  If\t either\t of  these  two\t conditions  is\t not
\nestablished the\t burden will not shift. As shall be disussed
\npresently, in  the instant  case the first condition had not
\nbeen established, and consequently, the burden never shifted
\non the defendant.<\/p><\/blockquote>\n
     In Subhas\tChandra case  (ibid), this Court quoted with
\napproval the  observations of the Privy Council in Raghunath
\nPrasad v.  Sarju Prasad(2)  which expounded three stages for
\nconsideration of  a case  of undue influence. It was pointed
\nout that  the first  thing to  be considered is, whether the
\nplaintiff or  the party asking relief on the ground of undue
\ninfluence has  proved that the relations between the parties
\nto each other are such that one is in a position to dominate
\nthe will of the other. Upto this point ‘influence’ alone has
\nbeen made  out. Once  that position  is\t substantiated,\t the
\nsecond stage has been reached -namely, the issue whether the
\ntransaction has\t been induced by undue influence. That is to
\nsay, it\t is not sufficient for the person seeking the relief
\nto show\t that the  relations of\t the parties  have been such
\nthat the one naturally relied upon the other for advice, and
\nthe other  was in  a position  to dominate  the will  of the
\nfirst in giving it. “More than mere influence must be proved
\nso as  to render  influence in\tthe  language  of  the\tlaw,
\n‘undue’ (Poosathurai  v. Kappanna  Chettiar and\t others).(3)
\nUpon a\tdetermination of  the issue  at the  second stage, a
\nthird point  emerges, which is of the onus probandi”. If the
\ntransaction appears  be unconscionable,\t then the  burden of
\nproving that it was not induced by undue influence is to lie
\nupon the  person who  was in a position to dominate the will
\nof the other.\n<\/p>\n
336<\/span><\/p>\n
     “Error is\talmost sure  to arise  if the order of these
\npropositions  be  changed.  The\t unconscionableness  of\t the
\nbargain is  not the  first thing to be considered. The first
\nthing to be considered is the relations of the parties. Were
\nthey such  as to  put one in a position to dominate the will
\nof the other”.\n<\/p>\n
     In the present case the High Court did not consider the
\npropositions in the order indicated above, and this led to a
\nwrong decision.\n<\/p>\n
     In the  case before  us, after a careful examination of
\nthe evidence  on record, the first appellate Court found the
\npoints to be considered at the first two stages, against the
\nplaintiff. It  held that  although the\trelationship between
\nthe donor  and the  donee was  intimate, like that of father
\nand son\t characterised by  mutual cordiality  and affection,
\nthe donee  was not in a position to dominate the will of the
\ndonor. No less a witness than the donor himself, as R.W. 10,
\nemphatically maintained in cross-examination : “Afsar worked
\nsometimes as  my labourer  on wages  and I  don’t understand
\nwhat confidence\t has got  to do\t with it.” He intransigently
\nrefused to  concede even  the stark fact-which was otherwise
\nfound fully  established-that he  had brought  up Afsar as a
\nson from  his very infancy and the latter used to look after
\nthe former’s lands.\n<\/p>\n
     Thus, even\t the slander  shred in the plaint from which
\nthe High  Court tried  to  spell  out  a  whole\t pattern  of
\nfiduciary relationship between the parties and a position of
\ndominant influence  for Afsar, was torn and destroyed by the
\nplaintiff himself in the witness-stand.\n<\/p>\n
     In the  context of\t the first-stage  consideration, the
\nDistrict Judge found on the basis of the evidence on record,
\nthat although  the plaintiff  was  an  old  man-and  he\t had
\nintentionally, far overstated his ageyet he was quite fit to
\nlook after  his affairs.  On this  point, the District Judge
\naccepted the  version of  the plaintiff’s own witness (PW 7)
\nwhich was  to the  effect, that\t the plaintiff himself yokes
\nthe bullocks,  and unaided  by\tanybody\t else,\tploughs\t his
\nlands. In  the face of such evidence, the District Judge was
\nright in  holding  that\t Ebad  plaintiff,  though  old,\t was
\nphysically fit\tto  carry  on  his  affairs.  There  was  no
\nevidence to  show that\tthe mental capacity of the donor was
\ntemporarlly or\tpermanently affected or enfeebled by old age
\nor other  cause, so  that he could not understand the nature
\nof deed or the effect and consequences of its execution. The
\nmere fact  that he  was illiterate  and old, was no proof of
\nsuch mental  incapacity. None of the circumstances mentioned
\nin sub-section\t(2) of\ts. 16, had been proved from which an
\ninference could be drawn that the donee was in a position to
\ndominate the will of the donor.\n<\/p>\n
     The failure  of the  plaintiff to prove this element of
\n‘undue infuence’,  which was  to be  considered at the first
\nstage, would itself lead to the collapse of the whole ground
\nof “undue influence”.\n<\/p>\n
     Assuming for  the sake  of argument that the “Hiba-bil-
\nEwaz was  induced by  influence of Afsar, in whom the former
\nreposed confidence  such as  a father does, in his son, then
\nalso it had not been proved that
\n337<\/span>
\nsuch  infiuence\t  was  ‘undue’.\t As  a\trule  “there  is  no
\npresumption of\tundue influence\t in the\t case of a gift to a
\nson…… although made during the donor’s illness and a few
\ndays before  his death”. (Halsbury’s Laws of England 3rd Ed.
\nVol. 17, p. 674).\n<\/p>\n
     The District  Judge has held (as per his judgment dated
\n18-6-1965) that\t the plaintiff executed the Hiba-bil-Ewaz of
\nhis own\t free will  after understanding\t the contents of the
\ndeed.\n<\/p>\n
     Indeed, the evidence of the deed writer, DW 6, who knew
\nEbad for about 5 years previously, was to the effect that he
\nhad scribed  the deed  (Hiba-bil-Ewaz) according  to  Ebad’s
\ninstructions in\t the presence of the attesting witnesses. DW
\n6 then\tread out  the contents\tof the\tdeed  to  Ebad,\t who
\naccepted the  same to  be correct  and then  thumbmarked it.
\nThis  account\tof  the\t  witness  was\t not  challenged  in
\ncrossexamination.\n<\/p>\n
     D.W. 7  is an attesting witness of the deed. He was the
\nSarparch of  Birkiti Gram  Panchayat. He  had  come  to\t the
\nRegistration Office  at Pakur on that day in connection with
\nhis own\t business. He  was known  to Ebad.  According to the
\nwitness, it  was Ebad, the donor,- and not the donee-who had
\nrequested the witness to attest the deed. The witness stated
\nthat it\t was Ebad  who told  him that  he was gifting 12-1\/2
\nbighas of  land to  Afsar in  token consideration of a Dhoti
\ngiven by  the latter.  The witness  corroborated the scribe,
\nthat  the   deed  had\tbeen  drawn   up  according  to\t the
\ninstructions given by Ebad.\n<\/p>\n
     The first two courts have concurrently found that these
\nwitnesses are  respectable,  independent  and  disinterested
\npersons, and  their evidence  is entirely creditworthy. They
\nalso accepted  the evidence of DW 3, DW 4 and DW 5 regarding
\nthe giving  of Dhoti  as consideration\tfor the\t Hiba by the
\ndonee to the donor.\n<\/p>\n
     PW 4  was another\tdeed-writer,  who  had\tscribed\t the
\ncancellation  deed  (Ex.  1),  admittedly  executed  by\t the
\nplaintiff on  3-2-1959 to  revoke the  will. The plaintiff’s
\ncase was  that on  3-2-1959, it\t was Afsar  who took  him to
\nPakur and  got the cancellation deed executed, and took hold
\nof that deed, and thereafter by a misrepresentation that the
\ndeed had  been lost,  got  on  9-2-1959,  the  Hiba-bil-Ewaz
\nexecuted. The  core of\tthis story  was gouged\tout  by\t the
\nplaintiff’s  own   witness,  PW\t  4,  who  had\tscribed\t the
\ncancellation deed.  PW 4  did not  swear to  the presence of
\nAfsar defendant\t on 3-2-59  at Pukar  when the\tcancellation
\ndeed Ex.  1 was\t written and  executed. In view of this, the
\nfirst appellate\t court, was right in holding, in concurrence
\nwith the  trial court,\tthat Afsar never accompanied Ebad to
\nPukar on 3-2-1959, and he not having come into possession of
\nthe cancellation  deed, no  occasion for him arose to induce
\nby misrepresentation or undue influence the execution of the
\nHiba-bil-Ewaz in question.\n<\/p>\n
     The  first\t  appellate  Court   further  came   to\t the
\nconclusion that this gift was acted upon by the parties, the
\ndonee entered  into possession\tof the gifted land, that the
\nplaintiff’s natural  son Moktul\t who since  long before\t the
\ngift, had been living separately from him, started residing
\n338<\/span>
\nwith the  plaintiff, and,  according to\t the plaintiff’s own
\nadmission, Moktul,  sometime prior  to the  suit (which\t has
\nbeen filed  about one  year after the execution of the Hiba)
\nconvened a Panchayat in the Mosque, to consider why the land
\nshould be  given to  defendant 1,  and since then the troube
\narose which led to the institution of the suit.\n<\/p>\n
     In short, the District Judge who was the final court of
\nfact, after a survey of the entire evidence on record, found
\nthat Afsar  was not  in a  position to\tdominate the will of
\nEbad Sheikh  and that the execution of the Hiba-bil-Ewaz was
\nnot induced by undue influence.\n<\/p>\n
     We\t have\tdiscussed  the\tevidence  of  the  important
\nwitnesses in  some detail  to show  that on  the material on
\nrecord, the  finding of\t the first  appellate court  to\t the
\neffect, that the plainiff had failed to prove that defendant
\n1 was  in a  position to dominate his will, was not wrong or
\nunreasonable. In  any case,  it\t did  not  suffer  from\t any
\n“illegality, omission,\terror or  defect such as is referred
\nto in  sub-section (1)\tof section 100”. It was a finding of
\nfact  and   the\t High\tCourt  in   second  appeal,  had  no
\njurisdiction to interfere with the same, even if it appeared
\nto be  erroneous to the High Court, the error not being of a
\nkind indicated in section 100(1).\n<\/p>\n
     Since the\tplaintiff had  failed  to  substantiate\t the
\nfirst element essential to the proof of undue influence, the
\nHigh Court  was wrong in holding that the burden had shifted
\non the\tdefendant to  show that\t the Hiba-bil-Ewaz  was\t not
\ninduced by undue influence.\n<\/p>\n
     For these\treasons we  allow the  appeal, set aside the
\njudgment of the High Court and dismiss the suit, but, in the
\ncircumstances of  the case,  leave the parties to bear their
\nown costs throughout.\n<\/p>\n
V.P.S.\t\t\t\t\t     Appeal allowed.\n339<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-205995","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAfsar Sheikh And Anr vs Soleman Bibi And Ors on 6 November, 1975 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/afsar-sheikh-and-anr-vs-soleman-bibi-and-ors-on-6-november-1975-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Afsar Sheikh And Anr vs Soleman Bibi And Ors on 6 November, 1975 - 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