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2014 DIGILAW 871 (GAU)

Minati Sen v. Rabindra Sen

2014-09-12

S.TALAPATRA

body2014
S. Talapatra, J. 1. This is an appeal under Section 100 by the plaintiffs under Section 100 of the C.P.C. questioning the legality of the reversal judgment dated 28.08.2007 delivered by the Additional District Judge, Kailashahar, North Tripura in Title Appeal No. 27 of 2006. 2. The appellant and the respondent No. 3 filed the suit being Title Suit No. 27 of 2006 for declaration that the schedule deeds are illegal, effects of fraud and collusion, void and not binding upon the plaintiffs and further that the plaintiffs are entitled to 1/2 share in the properties described under the schedule of the property. By 3(three) registered gift deeds under No. 1-617, 1-618 & 1-619 dated 10.03.1986, described in the second schedule, Rashamoy Sen, the father of the appellant, gifted the entire suit land described in the first schedule to Rabindra Sen, his only son, the respondent No. 1. Their allegations in the plaint are that on exercising of undue influence and fraud their three uncles made their father to execute the gift deeds in a clandestine manner. Even their mother namely Malati Sen, respondent No. 4, was in the dark and the plaintiffs gathered the knowledge of existence of gift deeds only on 06.04.2005 when their husbands searched and obtained the certified copies of the said gift deeds dated 10.03.1986. It is not in the controversy that the donor, their father, died on 09.08.1986. The appellant have questioned the validity of the deeds on another ground that at the relevant point of time the respondent No. 1 was minor and his acceptance of the gift deed is not tenable in law in view of the provisions of the Indian Contract Act, 1872. That apart, the appellant and the respondent No. 3 have asserted in the plaint that at the relevant point of time their father was suffering from serious ailments. The allegations of fraud are exclusively directed against the respondent No. 2, who is the full blood brother of the donor and two other brothers namely, Bidhan Chandra Sen and Biresh Sen who attested the deeds of gift as the witness. Even it has been asserted that their mother, respondent No. 4 was not apprised nor was she asked to attest the deeds of gift as the witness. Even it has been asserted that their mother, respondent No. 4 was not apprised nor was she asked to attest the deeds of gift as the witness. Moreover, it has been asserted that the donor had without making any arrangement for maintenance of his wife and the plaintiffs purportedly executed the questioned deeds of gift. 3. The respondent Nos. 1 & 2 filed a joint written statement controverting the allegations made in the plaint and stated that on contemplating the uncertainty of his life, the donor had executed the deeds of gift in favour of the respondent No. 1 as he was the only male member in his family and was competent to take responsibility of maintenance of his family. The respondent No. 1 at such age had also looked after the property of his father and on consultation with respondent No. 4, his father, the donor had executed the deeds of gift on 10.03.1986 appearing in the District Sub Registry and in witness of his three brothers as stated. After death of his father the respondent No. 1 had taken the responsibility of maintenance of his mother and sisters and arranged marriage of his sisters after selling out some parts of the land described in the in the first schedule. But after some times the appellant and the respondents No. 3 & 4 started pressurizing the respondent No. 1 to give them huge amount of money, on umpteen occasions. After selling out the land he had paid a huge sum to the respondent No. 4. For purpose of having the factual prospective of the case, it may be mentioned that for the plaintiffs 6(six) witnesses including the appellant and the respondent No. 4 were adduced along with 7(seven) documents including the mutation report (Exbt. 1), the questioned deeds of gift dated 20.03.1986 (Exbt. 3, 4 & 5), a certificate in proof of age of the respondent No. 1 (Exbt. 7) whereas the respondent No. 1 adduced 3(three) witnesses. Apart from examining him, the respondent No. 1 examined the respondent No. 2 and one Hrisikesh Das in support of his contention. The following issues were framed for purpose of adjudication of the suit: (i) Has the suit any cause of action? (ii) Has the suit is barred by limitation? (iii) Whether the plaintiffs are entitled to get the decree as prayed for? The following issues were framed for purpose of adjudication of the suit: (i) Has the suit any cause of action? (ii) Has the suit is barred by limitation? (iii) Whether the plaintiffs are entitled to get the decree as prayed for? (iv) To what other relief/reliefs are the parties entitled? 4. On appreciating the evidence, the trial Judge, the Civil Judge, Jr. Division, Kailashahar, North Tripura decreed the suit by discarding the objection as to the limitation and holding that it is hardly believable that a father would gift voluntarily his entire property in favour of a minor son when his wife and two minor daughters were alive and no arrangement for their maintenance was made. In addition thereto, the trial Judge has disbelieved the evidence led by the respondent No. 1. The trial Judge has placed paramount importance to the notice of mutation issued to the donor when he was no more in the world. The judgment dated 05.05.2006 delivered in Title Suit No. 27 of 2005 whereby the contentions of the plaintiffs were accepted, has been assailed by the respondent No. 1 filing an appeal under Section 96 of the C.P.C. in the court of the District Judge, North Tripura, Kailashahar. The said appeal being Title Appeal No. 27 of 2006 was in due course of time transferred to the court of the Additional District Judge, North Tripura, Kailashahar for disposal. By the impugned judgment dated 28.08.2007, the first appellate court reversed the findings of the trial court holding inter alia that there is no disability for the minor to accept the gift deeds and the minor by putting his signature on the deeds of gift had accepted it at the time of execution. Therefore, there cannot be any finding the minor did not accept the deeds of gift except that the minor, the respondent No. 1 had placed the deeds of gift before the settlement authorities for mutation without inordinate delay. Thus, the finding of the trial court that the deeds of gift are void in terms of the provisions of Sections 122 of the Transfer of Properties Act has been interfered with. Thus, the finding of the trial court that the deeds of gift are void in terms of the provisions of Sections 122 of the Transfer of Properties Act has been interfered with. Apart that, the first appellate court held that for cancellation of any registered instrument the suit has to be instituted in terms of Section 31 of the Specific Relief Act, 1963 which provides that any person against whom a written instrument is void or voidable and who has reasonable apprehension that such instrument if allowed outstanding may cause him serious injury may sue to have it adjudged void or voidable and the court may in his discretion so adjudge it and order it to be delivered up and cancelled. Sub Section 2 of Section 31 of the Specific Reliefs Act further postulate that if the instrument is registered under the Registration Act, the court shall also send a copy of the decree to the officer in whose office the instrument has been so registered and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation. 5. The only question that was agitated in the first appellate proceeding has been formulated as under: Whether the defendant No. 1 being minor on the date of execution of the Gift Deeds can be held to have legally accepted the property gifted to him? 6. The first appellate court holding that there is no legal impediment for the minor to accept the deeds of gift inasmuch as the donee is the only son of the donor has observed that even implied acceptance of the gift by the minor would be adequate to presume the validity of the gift. 7. At the time of admitting this appeal by the order dated 12.02.2008 the following substantial question of law has been formulated: "Whether the manner of proof of the deed of gift being core question in the suit was rightly adopted by the court below?" 8. The appellant, as a matter of fact, has not approached this Court for recasting the substantial questions of law or for agitating further substantial questions of law. At the outset, this Court feels persuaded to observe that from the memorandum of appeal no ground as regard to the proof of the deed of gift appears to have been taken by the appellant. At the outset, this Court feels persuaded to observe that from the memorandum of appeal no ground as regard to the proof of the deed of gift appears to have been taken by the appellant. The grounds are primarily structured on: (I) The suspicious circumstances enveloping the execution of the gifts deed could not be dispelled by the respondent No. 1. Even the scribe of the deeds was not produced. (II) The provisions of Section 123 of Transfer of Properties Act has not been complied with. For purpose of reference, Section 123 of Transfer of Properties Act is reproduced hereunder: "123. Transfer how affected-For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument singed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of immovable property, the transfer may be effected either by a registered instrument singed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered. 9. Mr. D.K. Biswas and Mr. S.P. Dutta Purkayastha, learned counsel appearing for the appellant have made lengthy arguments even travelling beyond the grounds of objection contending that the peripheral submissions are for purpose of supporting the basic grounds as taken in the appeal. 10. The submissions made by the learned counsel appearing for the appellant may be encapsulated as under: (a) Since there is a serious question as to the voluntariness of the donor in executing the deeds of gift, the respondent No. 1 is under obligation to prove the good faith in transaction. The burden of proving the good faith is on the party who is posited with the active confidence in terms of the provisions as laid down in Section 111 of the Indian Evidence Act. But the respondent No. 1 has failed to prove the good faith in the transaction. The materials to deduce fraud have been placed in the plaint having regards to the provisions of Order VI Rule 4 and 10 of the C.P.C. Fraud is a condition of mental process. But the respondent No. 1 has failed to prove the good faith in the transaction. The materials to deduce fraud have been placed in the plaint having regards to the provisions of Order VI Rule 4 and 10 of the C.P.C. Fraud is a condition of mental process. To buttress such contention, reliance has been placed on Lakshmi Amma and another vs. Telengana Narayana Bhatta, reported in AIR 1970 SC 1367 where it has been held that: "The first noticeable feature is that the deed of settlement on the face of it was an unnatural and unconscionable document. Narasimha Bhatta made negligible provision for his wife who was his third wife, the first two having died before he married her. She was left mainly to the mercy of respondent No. 1. Admittedly there was a residential house and no provision was made regarding her right to reside in that house till her death. Apparently there was no reason why he should have left nothing to his two daughters or to his other grand-children and given his entire estate to only one grandson namely respondent No. 1." (b) According to the appellant, in terms of the Section 23 of the Indian Contract Act, 1872 where it has been provided that the consideration or object of an agreement is lawful unless it is forbidden by law or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the parson or property of another; or the Courts regards it as immoral, or proposed to public policy, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. The transaction in question according to the appellant is not only fraudulent but offends the public policy incorporated in Section 28 of the Hindu Adoptions and Maintenance Act, 1956. Section 28 of the Hindu Adoptions and Maintenance Act, 1956 postulates as under: "28. Every agreement of which the object or consideration is unlawful is void. The transaction in question according to the appellant is not only fraudulent but offends the public policy incorporated in Section 28 of the Hindu Adoptions and Maintenance Act, 1956. Section 28 of the Hindu Adoptions and Maintenance Act, 1956 postulates as under: "28. Effect of transfer of property on right to maintenance: Where a dependent has a right to receive maintenance out of an estate, and such estate or any part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right or if the transfer is gratuitous; but not against the transferee for consideration and without notice of the right." It has been further asserted that even the transaction has been made in contravention of the public policy as provided in Section 39of the Transfer of Properties Act, 1882 which reads as under: "39. Transfer where third person is entitled to maintenance: Where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immoveable property, and such property is transferred, the right may be enforced against the transferee, if he has notice [thereof] or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands." In support of such contentions, reliance has been placed on a decision of the apex court in Rattan Chand Hira Chand vs. Askar Nawaz Jung (DEAD) by LRs and Others, reported in (1991) 3 SCC 67 where it has been held: "18. It is true that as observed by Burrough, J. in Richardson vs. Melish: (1824) 2 Bing 229 public policy is 'an unruly horse and dangerous to ride' and as observed by Cave, J. in Re Mirams: (1891) 1 QB 594, it is 'a branch of the law, however, which certainly should not be extended, as judges are more to be trusted as interpreters of the law than as expounders of what is called public policy'. But as observed by Prof. Winfield in his article 'Public Policy in the English Common Law'. But as observed by Prof. Winfield in his article 'Public Policy in the English Common Law'. "Some judges appear to have thought it [the unruly horse of public policy] more like a tiger, and refused to mount it all, perhaps because they feared the fate of the young lady of Riga. Others have regarded it like Balaam's ass which would carry its rider nowhere. But none, at any rate at the present day, has looked upon it as a Pegasus that might soar beyond the momentary needs of the community." All courts have at one time or the other felt the need to bridge the gap between what is and what is intended to be. The courts cannot in such circumstances shirk from their duty and refuse to fill the gap. In performing this duty they do not foist upon the society their value judgments. They respect and accept the prevailing values, and do what is expected of them. The courts will, on the other hand, fail in their duty if they do not rise to the occasion but approve helplessly of an interpretation of a statute or a document or of an action of an individual which is certain to subvert the societal goals and endanger the public good. 19. The contract such as the present one which is found by the city civil court as well as the High Court to have been entered into with the obvious purpose of influencing the authorities to procure a verdict in favour of the late Nawab was obviously a 'carrier' contract. To enforce such a contract although its tendencies to injure public weal is manifest is not only to abdicate one's public duty but to assist in the promotion of a pernicious practice of procuring decisions by influencing authorities when they should abide by the law. To strike down such contracts is not to invent a new head of public policy but to give effect to its true implications. A democratic society is founded on the rule of law and any practice which seeks to subvert or circumvent the law strikes at its very root. When the court discountenances such practice, it only safeguards the foundation of the society. Even assuming, therefore, that the court finds a new head of public policy to strike down such practice, its activism is not only warranted but desired." 11. When the court discountenances such practice, it only safeguards the foundation of the society. Even assuming, therefore, that the court finds a new head of public policy to strike down such practice, its activism is not only warranted but desired." 11. For purpose of demonstrating undue influence and fraud from the testimony of PW-4, Malati Sen in particular, the reference has been made to Sections 16 & 17of the Indian Contract Act, 1872 as preface to the submission in this regard. Fore purpose of reference, the provisions of Sections 16 & 17 of the Indian Contract Act, 1872 are reproduced hereunder: 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 under influence shall be open the person in a position to dominate the will of the other. Nothing in the sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872). 17. Nothing in the sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872). 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. 12. Having referred to the testimony of PW-4, it has been submitted that the three brothers of the donor were in a dominant position to exert undue influence on the donor. They dominated the will of the donor and used their dominant position to obtain an unfair advantage when the mental capacity of the donor was affected by reason of age, illness or mental or body distress. Thus, the deeds of gift were unconscionable. In support of such contention, reliance has further been placed Krishna Mohan Kul alias Nani Charan Kul and another vs. Pratima Maity and Others, reported in (2004) 9 SCC 468 where it has been held as under: "12. As has been pointed out by the High Court, the first appellate court totally ignored the relevant materials and recorded a completely erroneous finding that there was no material regarding age of the executant when the document in question itself indicated the age. The court was dealing with a case where an old, ailing illiterate person was stated to be the executant and no witness was examined to prove the execution of the deed or putting of the thumb impression. It has been rightly noticed by the High Court that the courts below have wrongly placed the onus to prove execution of the deed by Dasu Charan Kul on the plaintiffs. There was challenge by the plaintiffs to the validity of the deed. The onus to prove the validity of the deed of settlement was on Defendant 1. It has been rightly noticed by the High Court that the courts below have wrongly placed the onus to prove execution of the deed by Dasu Charan Kul on the plaintiffs. There was challenge by the plaintiffs to the validity of the deed. The onus to prove the validity of the deed of settlement was on Defendant 1. When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, then burden is on him to prove such fraud, undue influence or misrepresentation. But when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, and he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the court watches with jealousy all truncations between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position. This principle has been ingrained in Section 111 of the Indian Evidence Act, 1872 (in short 'the Evidence Act'). The rule here laid down is in accordance with a principle long acknowledged and administered in the Courts of Equity in England and America. This principle is that he who bargains in a matter of advantage with a person who places confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The rule here laid down is in accordance with a principle long acknowledged and administered in the Courts of Equity in England and America. This principle is that he who bargains in a matter of advantage with a person who places confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The transaction is not necessarily void ipso facto nor is it necessary for those who impeach it to establish that there has been fraud or imposition, but the burden of establishing its perfect fairness, adequacy and equity is cast upon the person in whom the confidence has been reposed. The rule applies equally to all persons standing in confidential relations with each other. Agents, trustees, executors, administrators, auctioneers, and other have been held to fall within the rule. The section requires that the party on whom the burden of proof is laid should have been in a position of active confidence. Where fraud is alleged, the rule has been clearly established in England that in the case of a stranger equity will not set aside a voluntary deed or donation, however improvident it may be, if it be free from the imputation of fraud, surprise, undue influence and spontaneously executed or made by the donor with his eyes open. Where an active, confidential or fiduciary relation exists between the parties, there the burden of proof is on the donee or those claiming through him. It has further been laid down that where a person gains a great advantage over another by a voluntary instrument, the burden of proof is thrown upon the person receiving the benefit and he is under the necessity of showing that the transaction is fair and honest. 13. The further reliance placed on Sona Bala Bora and Others vs. Jyotindra Bhattacharjee, reported in (2005) 4 SCC 501 where the apex court has held as under: 18. It is true that the respondent asserted in evidence that at the time he purchased the land Bhogirath was a normal man and did not suffer from any mental defect. At the same time in cross-examination he said that: 'I got examined Shri Bora by doctor to determine whether he had any mental insanity. He was examined in the mental hospital only for half an hour and obtained certificate of his normalcy. At the same time in cross-examination he said that: 'I got examined Shri Bora by doctor to determine whether he had any mental insanity. He was examined in the mental hospital only for half an hour and obtained certificate of his normalcy. I got him examined because I came to know from some people that Shri Bora was suffering from mental insanity. Being satisfied I purchased the property.' 19. Therefore, it was the admitted case that Bhogirath was at least reputed to be insane which was why the respondent thought it necessary to have him medically examined before he purchased the property. It is in this background that the first appellate court had examined the facts and had held that the respondent should have produced the doctor who certified that Bhogirath was mentally normal. 20. It cannot be disputed that a contract of sale like any other contract would be vitiated if the consent of either party is given by a person of unsound mind as provided in Section 11 of the Contract Act, 1872. Under Section 12 of that Act, a person is said to be of sound mind for the purpose of making the contract, if at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests. A person of unsound mind is thus not necessarily a lunatic. It is sufficient if the person is incapable of judging the consequences of his acts. Black's Law Dictionary says: 'As a ground for voiding or annulling a contract or conveyance, insanity does not mean a total deprivation of reason, but an inability, from defect of perception, memory, and judgment, to do the act in question or to understand its nature and consequences.' 14. For further elucidation, a reference to the decision of a larger Bench of Allahabad High Court in Nutan Kumar and others vs. IInd Addl. District Judge Banda reported in AIR 1994 Allahabad 298, has been made where it has been enunciated that an agreement offending a statute or public policy or forbidden by law is not merely void but it is invalid from nativity. It cannot become valid even the parties thereto agree to it. 15. District Judge Banda reported in AIR 1994 Allahabad 298, has been made where it has been enunciated that an agreement offending a statute or public policy or forbidden by law is not merely void but it is invalid from nativity. It cannot become valid even the parties thereto agree to it. 15. The concept that an agreement may be void in relation to a specified person and may be valid or voidable between the parties thereto is not applicable to an agreement the very formation whereof law interdicts; or which is of such a character that, if permitted, it would frustrate provisions of law; or is fraudulent; or involves or implies injury to the person or property of another; or the court regards it as immoral or opposed to public policy. Neither party can enforce said agreement. No legal relations come into being from an agreement offending a Statute or public policy. 16. From the other side, Mr. S.M. Chakraborty, learned senior counsel appearing for the respondents No. 1 and 2 has refuted the submissions of the counsel for the appellant contending that the execution of the deeds of gift without undue influence of fraud has been adequately proved by the respondent No. 1. Non-examination of the scribe cannot be treated as nondisclosure of relevant circumstances leading to the execution of the deeds of gift. He has further submitted that those deeds of gift do not offend any public policy at all. A reading of Section 23 of the Indian Contract Act vis-a-vis Section 28 of the Hindu Adoption and Maintenance Act is totally irrelevant in the context of the case inasmuch as the estate appearing in Section 28 of the Hindu Adoption and Maintenance Act has to be read together as the estate from where the dependants had a right to receive maintenance. The estate of the donor had never created a right in favour of the dependants to receive maintenance. Mr. Chakraborty, learned senior counsel has reiterated the objection as to the maintainability of the suit in view of Article 58 of the Limitation Act. Article 58 describes that the limitation would be three years to obtain any other declaration from the date when the right to sue first accrues since he has denied that there is any fraud or mistake. Section 17 of the Limitation Act will have no application in any manner. Article 58 describes that the limitation would be three years to obtain any other declaration from the date when the right to sue first accrues since he has denied that there is any fraud or mistake. Section 17 of the Limitation Act will have no application in any manner. Thus, the element of knowledge has no role to play in determining the day when the right to sue first accrues. He has also supported the observation made by the first appellate court that by not filing the suit under Section 31 of the Specific Relief Act, the suit is not sustainable. Mr. Chakraborty, learned senior counsel has relied a decision of the apex court in K. Balakrishnan vs. K. Kamalam and others appreciated by the first appellate court reported in AIR 2004 SC 1257 . The following passages have been pressed in support of his contention: 14. A minor in law suffers from certain specified disabilities. A minor is not competent to enter into a contract. Section 11of the Contract Act states- "11. Who are competent to contract-Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting any law to which he is subject.' 15. A minor suffers disability from entering into a contract but he is thereby not incapable of receiving property. The Transfer of Property Act does not prohibit transfer of property to a minor. Section 122 of the Transfer of Property Act defines 'Gift' thus: "122. Gift" defined-"Gift is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called in the donor, to another, called the donee, and accepted by or on behalf of the donee. Acceptance when to be made-Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the done dies before acceptance, the gift is void." 20. The last part of S. 127, underlined above, clearly indicates that a minor donee, who can be said to be in law incompetent to contract under S. 11 of the Contract Act is, however, competent to accept a non-onerous gift. Acceptance of an onerous gift, however, cannot bind the minor. The last part of S. 127, underlined above, clearly indicates that a minor donee, who can be said to be in law incompetent to contract under S. 11 of the Contract Act is, however, competent to accept a non-onerous gift. Acceptance of an onerous gift, however, cannot bind the minor. If he accepts the gift during his minority of a property burdened with obligation and on attaining majority does not repudiate but retains it, he would be bound by the obligation attached to it. 21. Section 127 clearly recognises the competence of a minor to accept the gift. The provision of law is clear and precedents clarify the position. See the decisions of Judicial Commissioner in the case of Firm of Ganeshdas Bhiwaraj vs. Suryabhan [1917 XIIIth Nag LR 18): Munni Kunwar vs. Madan Gopal (1916 (XXXVIII) ILR All 62 at 69]; and Firm of Geneshdas Bhiwaraj v. Suryabhan (1917 Vol 39 Ind Cas 46). 23. Section 122 (quoted above and underlined) covers the case of a minor donee being a person under legal disability. The Section, therefore, employs the expression 'accepted by or on behalf of donee.' 26. Where a gift is made in favour of a child of the donor, who is the guardian of the child, the acceptance of gift can be presumed to have been made by him or on his behalf without any overt act signifying acceptance by the minor. In the instant case, mother who is the natural guardian gifted the property to her minor son in the year the 1945. The donee was an educated lady of 16 years of age, capable of understanding and living jointly with the donor. Knowledge of the execution of the gift would have been derived in normal circumstances, by the minor, being beneficiary, sooner or later after its execution. Knowledge of gift deed to both the parents as natural guardians and the donee is sufficient to indicate acceptance of gift by the minor himself or on his behalf by the parents. The gift deed was revoked by her mother much after its execution as late as in the year 1920. By that time, the donee had become major and he never repudiated the gift. We have examined the terms of the gift deed. The gift deed was revoked by her mother much after its execution as late as in the year 1920. By that time, the donee had become major and he never repudiated the gift. We have examined the terms of the gift deed. Non-delivery of possession of the gifted property, non-exercise of any rights of ownership over it, and failure by the donee, on attaining majority, in getting his name mutated in official records are not circumstances negativing the presumption of acceptance by the minor during his minority or on his attaining majority. The donor had reserved to herself, under the terms of gift deed, the right to manage, possess and enjoy the property during her lifetime. Since the possession and enjoyment of the property including management of the school were retained by the donor during her lifetime, the acceptance of the ownership of the property gifted could be by silent acceptance. Such acceptance is confirmed by its non-repudiation by his parents and by him on attaining majority. As is the evidence on record, mother-the donor was herself the natural guardian of the minor donee. The father was also a guardian and had knowledge of the gift. He also did not repudiate the gift on behalf of the donee. The donee himself was of 16 years of age and could understand the nature of beneficial interest conferred on him. He also had knowledge of the gift deed and on attaining majority did not repudiate it. These are all circumstances which reasonably give rise to an inference, if not of express but implied acceptance of the gift. Where a gift is made by parent to a child, there is a presumption of acceptance of the gift by the donee. This presumption of acceptance is founded on human nature. A man may be fairly presumed to assent to that to which he in all probability would assent if the opportunity of doing so were given to him. 31. As seen above, in the case of a minor donee receiving a gift from her parents, no express acceptance can be expected and is possible, and acceptance can be implied even by mere silence or such conduct of the minor donee and his other natural guardian as not to indicate any disapproval or repudiation of it. 31. As seen above, in the case of a minor donee receiving a gift from her parents, no express acceptance can be expected and is possible, and acceptance can be implied even by mere silence or such conduct of the minor donee and his other natural guardian as not to indicate any disapproval or repudiation of it. [See Shankuntala Devi vs. Amar Devi (1986 Him Pra 109); and Narayani Bhanumathi vs. Lelitha Bai (1973 Ker LT 961)]. [Emphasis added] 17. Having scrutinized the records and appreciated the rival contentions as projected by the learned counsel appearing for the parties, it has come to the fore that the substantial question as formulated by the order dated 12.02.2008 is not even relevant in the context of the case inasmuch as the deeds of gift have been introduced in the evidence by the appellant without any objection from the respondent Nos. 1 and 2. The questions based on which the suit has been instituted as to whether the deeds of gift executed by Rasamoy Sen were executed under undue influence or on exercising fraud and also whether the deeds of gift offend any public policy incorporated in the statutory provisions, such as Section 28 or execution of such deeds is forbidden by any law. The allegations of exerting undue influence are against respondent No. 2 and his two brothers namely, Bidhan Ch. Sen and Biresh Sen, who are even not impleaded as the parties. It is beyond the pale of controversy that neither the respondent No. 2 nor his brothers are beneficiaries of the questioned deeds of gift. 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 dominant the will of the other and uses that position to obtain an unfair advantage over the others. The plaintiffs did not lay any evidence to show that the respondent No. 2 was in a position to dominate the will of the donor or his other two brothers had occupied such position. Moreover, there is no element of unfair advantage from the said transaction. For purpose of fraud, what has been demonstrated is that the existence of the deeds of gift was concealed from the plaintiffs or from their mother (PW-4). Moreover, there is no element of unfair advantage from the said transaction. For purpose of fraud, what has been demonstrated is that the existence of the deeds of gift was concealed from the plaintiffs or from their mother (PW-4). The plaintiffs, however has admitted that the donee, the respondent No. 1 had applied for the mutation of the land as gifted by his father within a short while and the record of right was accordingly mutated. Even though the plaintiffs have raised certain questions as to the irregularity in the mutation proceeding but this Court finds that such challenge cannot be raised in a civil suit but to be raised before the appropriate authorities under the Tripura Land Reforms and Land Revenue Act, 1960. To that extent, the finding of the first appellate court is absolutely correct. The plaintiffs or other interested persons would have definitely searched the records in the settlement office. It appears that the dispute broke out when the mother (PW-4) started living separately and there was some bitterness in the relation between the respondent No. 1 and his mother. Even after death of the donor the plaintiffs or other legal heirs did not approach the settlement authority for mutation of their names in the settlement records as the legal heirs of the donor. But they have not done so at the relevant and expected time. There cannot be any controversy that the suit was filed almost after 19 years from the death of their predecessor, the donor. In this context, the allegation of the fraud or its discovery cannot be believed by this Court. Even there is no evidence as to the testamentary capacity of the donor or the nature of illness he was suffering from. The respondent No. 1 has led evidence how the transactions of executing the deeds had taken place. It is no more res integra that when fraud or misrepresentation or undue influence is alleged by a party in a suit, normally the burden is on him to prove such fraud, undue influence or misrepresentation. But when a person is in a fiduciary relationship with another and the latter in is a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position as he has to prove that there was fair play in the transaction. But when a person is in a fiduciary relationship with another and the latter in is a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position as he has to prove that there was fair play in the transaction. In other words, the transaction was genuine and bonafide. But in the case in hand the respondent No. 1 is not in a fiduciary relation neither was he in a position to dominate his father. At that time he was minor. As such, the ratio of Krishna Mohan Kul has no relevance. 18. In Subhas Chandra Das Mushib vs. Ganga Prosad Das Mushib and others, reported in AIR 1967 SC 878 , the apex court has held that circumstance that a grandfather had gifted a portion of his properties to his only grandson a few years before his death is not the unconscionable transaction. It has been further held that merely became the parties were related to each other, no presumption of undue influence can arise unless there is evidence to the contrary. 19. The other questions as raised by the appellant that the said transaction offends the public policy embodied in Section 28 of the Hindu Adoption and Maintenance Act, 1956 or Section 39 of the Transfer of Property Act, 1882 vis-a-vis Section 23 of Indian Contract Act, 1872 are bereft of substance. In Gherulal Parakh vs. Mahadeodas Maiya and others, reported in AIR 1959 SC 781 the apex court has elucidated this aspect of the matter. It has been held in Gherulal Parakh that: "Neither any authority is cited nor any legal basis is suggested for importing the doctrine of Hindu Law into the domain of contracts. Section 23 of the Contract Act is inspired by the common law of England and it would be more useful to refer to the English Law than to the Hindu Law texts dealing with a different matter. Anson in his Law of Contract states as p. 222 thus: 'The only aspect of immorality with which the Courts of have dealt is sexual immorality.....' Halsbury in his Laws of England, 3rd Edition, Vol. 8, makes a similar statement, at p-138. Anson in his Law of Contract states as p. 222 thus: 'The only aspect of immorality with which the Courts of have dealt is sexual immorality.....' Halsbury in his Laws of England, 3rd Edition, Vol. 8, makes a similar statement, at p-138. 'A contract which is made upon an immoral consideration or for an immoral purpose is unenforceable, and there is no distinction in this respect between immoral and illegal contracts. The immorality here alluded to is sexual immorality.' In the Law of Contract by Cheshire and Pifoot, 3rd Edn., it is stated at p. 279: 'Although Lord Mansfield laid it down that a contract contra bonos mores is illegal, the law in this connection gives no extended meaning to morality, but concerns itself only with what is sexually reprehensible.' In the book of the India Contract Act by Pollock and Mulla it is stated at p. 157: "The epithet 'immoral' points, in legal usage, to conduct or purposes which the State, though disapproving them, is unable, or not advised, to visit with direct punishment." The learned authors confined its operation to acts which are considered to be immoral according to the standards of immorality approved by Courts. The case law both in England and India confines the operation of the doctrine to sexual immorality. To cite only some instances: settlements in consideration of concubinage, contracts of sale or hire of things to be used in a brothel or by a prostitute for purposes incidental to her profession, agreements to pay money for future illicit cohabitation, promises in regard to marriage for consideration, or contracts facilitating divorce are all held to be void on the ground that the object is immoral. 20. No immoral aspects as related to the deeds of gift have surfaced. The element of unconscionability also depends on peculiar facts and circumstances of a particular case, but in the present case the donor has gifted his entire property to his only son. Hence, it cannot be said that such gift is unconscionable only for the reason that no provision has been made for his wife or minor daughters. The dependants had no right to receive maintenance out of that estate or any part thereof. Hence, it cannot be said that such gift is unconscionable only for the reason that no provision has been made for his wife or minor daughters. The dependants had no right to receive maintenance out of that estate or any part thereof. In this regard, it is required to be observed that a Hindu wife in terms of Section 18 of the Hindu Adoption and Maintenance Act is entitled to be maintained by her husband during her lifetime. Similarly, the legitimate and illegitimate children may claim maintenance from their father so long as the child is minor. They do not have any right on the estate of the husband or the father for purpose of maintenance but Section 22 of the Hindu Adoption and Maintenance Act, 1955 has guaranteed rights of the dependants providing that where the dependants have not obtained by testamentary or inter se succession, any share in the estate of a Hindu dying after the commencement of the Act, the dependent shall be entitled, subject to the provision of the Act, to maintenance from those who take the estate. Even there is no right or provision for the appellant or the respondent No. 4 or for other legal heirs from that estate that has been gifted to the respondent No. 1 they would be entitled to maintenance in terms of provisions of Hindu Adoption and Maintenance Act. Thus, it cannot be stated that the deeds of gift offend the public policy as claimed. 21. The challenge as to the acceptance of the deeds of gift by a minor has been correctly taken care of by the first appellate court. Since the deeds created a non-onerous gift, there is no disability for the minor to accept such deed. A minor donee who can be said to be in law incompetent to contract under Section 11 of the Contract Act, is, however, competent to accept a non onerous gift but acceptance of an onerous gift however, cannot bind the minor. If he accepts the gift during his minority of a property, burdened with obligation and on attaining majority does not repudiate but retains it, he would be bound by the obligation attached to it. 22. This Court will not decide the issue of limitation inasmuch as the issue of limitation decided on the prima facie materials placed in the plaint. If he accepts the gift during his minority of a property, burdened with obligation and on attaining majority does not repudiate but retains it, he would be bound by the obligation attached to it. 22. This Court will not decide the issue of limitation inasmuch as the issue of limitation decided on the prima facie materials placed in the plaint. There cannot be any amount of hesitation that some allegation of fraud and discovery of fraud even though not very specifically, has been made in the plaint. Moreover, when this Court has been considering the appeal on all aspects of the merit, it may not be necessary to revisit that challenge at this stage. That apart, Mr. Chakraborty, learned counsel is substantially correct that the suit ought to have been filed under Section 31 of the Specific Relief Act. But non filing of the suit under Section 31of the Specific Relief Act may not always be fatal as when the documents in question are found to be void one, the question of seeking its cancellation may not arise at on all occasions. It is only when a document is a voidable one that is valid until it is declared as void, the question of seeking its cancellation would arise. In this case, the declaration as sought by the plaintiffs is for declaring the deeds of gift as void ab initio and as such, that aspect of the matter does not warrant any serious consideration. 23. Having held so, this appeal merits dismissal and accordingly, it is dismissed. The impugned judgment and the decree drawn are hereby affirmed. Prepare the decree accordingly. Send down the LCRs thereafter.