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2017 DIGILAW 1277 (ALL)

CHANDRAWATI DEVI v. RAJDHARI

2017-05-12

SIDDHARTHA VARMA

body2017
JUDGMENT Hon’ble Siddhartha Varma, J.—This is a plaintiff’s second appeal. A suit was filed by the plaintiff stating that the defendant No. 4, who was his son-in-law had got executed two sale-deeds dated 8.7.1977 and 12.8.1977 by fraud, misrepresentation and by exercising undue influence. The sale-deeds were to be cancelled owing to the fact that the plaintiff had no intention to sell his property to the defendant No. 4 and to the defendant Nos. 1, 2 and 3 who were the brothers of defendant No. 4 and as there was no application of mind by the plaintiff, it could be said that there was no due execution of the sale-deed. Further, the ground for cancellation of sale-deed as was given out in para 12 of the plaint was that the defendant No. 4, being the son-in-law of the plaintiff enjoyed his confidence to an extent that he began to dominate his will which inveigled him to put his signature on the sale-deed. The other grounds which were taken in the suit for the cancellation of the sale-deed were that it was without consideration and without any permission of the consolidation authorities. The Trial Court decreed the suit and found that the respondent No. 4 being a son-in-law of the plaintiff dominated the will of the plaintiff and got the sale-deed executed. The First Appellate Court however, allowed the appeal and dismissed the suit. Aggrieved by the decision of the First Appellate Court, the legal heirs and representatives of the plaintiff have filed the instant second appeal which was admitted on the following substantial questions of law: “(i) Whether according to Section 114 of the Indian Evidence Act the defendants-respondents being in and having enjoyed the active confidence of the plaintiff was in burden to proof that the impugned sale-deeds had been executed in good faith which was not discharged by the defendant respondents Ist set and this important aspect of case was not considered by the Lower Appellate Court? (ii) Whether the Lower Appellate Court committed error in law in not drawing adverse inference under Section 114 of the Indian Evidence Act against defendants-respondents Ist set who withheld the material witnesses and inasmuch as they failed to produce any independent witness to prove the execution, genuineness and correctness of the impugned sale-deeds? (ii) Whether the Lower Appellate Court committed error in law in not drawing adverse inference under Section 114 of the Indian Evidence Act against defendants-respondents Ist set who withheld the material witnesses and inasmuch as they failed to produce any independent witness to prove the execution, genuineness and correctness of the impugned sale-deeds? (iii) Whether the defendants-respondents failed to discharge the burden of proof as contemplated under Sections 101, 102 and 111 of Indian Evidence Act? (iv) Whether the Lower Appellate Court committed error of law in allowing the appeal and dismissing suit of plaintiffs-respondents without setting aside the categorical findings recorded by Trial Court?” 2. The appellants submitted that the plaintiffs suit for cancellation of the sale-deeds dated 8.7.1977 and 12.8.1977, on the grounds as had been mentioned in paragraph-12 of the plaint, had to be decreed. The First Appellate Court without reversing the findings of fact as had been arrived at by the Trial Court had allowed the First Appeal and had wrongly found that there existed no fiduciary relationship between the plaintiff and the respondent/defendant No. 4 and that the plaintiff had duly executed the sale after getting a proper consideration. The learned counsel submitted that in fact the respondent No. 4 being a son-in-law of the plaintiffs stayed with him and cajoled him into putting his signatures on the deed without him understanding as to what document he was actually putting his signatures on. As, owing to the fiduciary relationship the faculty of the plaintiff to decipher between right and wrong had got numbed, he had to be put at par with a Pardanshin Lady and the burden to prove due execution by the plaintiff lay on the defendant No. 4. The appellants, however, also submitted that there was no requirement to sell the property in question and no sale consideration passed to the plaintiff and, therefore, the sale-deeds deserved to be cancelled. 3. In reply, learned counsel for the defendant-respondents has submitted that the Trial Court dealt with the issue regarding the fiduciary relationship of the defendant No. 4 and the plaintiff and the consequent misuse of his position to exercise undue influence over the plaintiff in a very perfunctory manner. 3. In reply, learned counsel for the defendant-respondents has submitted that the Trial Court dealt with the issue regarding the fiduciary relationship of the defendant No. 4 and the plaintiff and the consequent misuse of his position to exercise undue influence over the plaintiff in a very perfunctory manner. In fact, there was evidence on record that the defendant No. 4 was not in a dominating position at all and that he never misused his relationship with the plaintiff to defraud him and that further he never accompanied him to any of the various offices, where it has been alleged that the plaintiff used to go alongwith the defendant No. 4. Thus, the respondents have submitted that the substantial questions of law as have been framed by this Court do not in fact, raise any question of law and that the second appeal is concluded by findings of fact. 4. I have gone through the records of the case and have heard the counsel for the parties. I am unable to agree with with the counsel for the appellants. The First Appellate Court reversed the findings of fact as had been arrived at by the Trial Court very categorically and found (i) The plaintiff had admitted his signatures on the impugned sale-deed. (ii) The plaintiff had retired from the service of a Headmaster and, therefore, had sufficient understanding. (iii) The plaintiff before the execution of the sale-deed had sought permission from the Settlement Officer, Consolidation, clearly revealing his intention as well as the necessity for the execution of the sale-deed. (iv) On the sale-deed which is a registered one, the Sub-Registrar’s endorsement regarding payment of consideration of the plaintiff was there, a rebuttable presumption not denied by the plaintiff. (v) The plaintiff had not sold his property only to the defendant No. 4 who was a son-in-law of his but had also sold some of his property to Pauni, another son-in-law. (vi) The plaintiff himself had admitted in the Revenue Court about the execution of sale-deeds to his sons-in-law. (vii) The defendant No. 4 had been actually put in physical possession over the plot in question and the possession after the execution of the sale-deed over the plots in question had been admitted. (viii) There was no fiduciary relationship between the plaintiff and the defendant No. 4. 5. (vii) The defendant No. 4 had been actually put in physical possession over the plot in question and the possession after the execution of the sale-deed over the plots in question had been admitted. (viii) There was no fiduciary relationship between the plaintiff and the defendant No. 4. 5. The above findings as have been rendered by the First Appellate Court definitely go to show that Section 111 of the Indian Evidence Act was not attracted. The plaintiff was a well educated person in a good mental health and, therefore, understood every bit of his action. The plaintiff could have only succeeded if he had been able to prove that the defendant No. 4 was in a dominating position and that he put to wrong use the confidence which the plaintiff had reposed in him. This the plaintiff has not been able to establish. The feeble attempt of the plaintiff to show that the defendant No. 4 was in a dominating position and, therefore, had got his signatures on the sale-deed by his undue influence gets absolutely frustrated by the fact that the plaintiff had also executed a sale-deed in favour of another son-in-law of his by means of a registered sale-deed, which was there on record as paper No. 46-ka. 6. In paragraph 9 of Daya Shanker v. Smt. Bachi and others, AIR 1982 Allahabad 376, it has been stated : “The word ‘fiduciary’ as contained in the Webster’s New International Dictionary connotes “a person in trust, a person or thing holding something in trust”. The other mean-ing given in the dictionary is “of or pertaining to a trust, pertaining to or of the nature of trusteeship.” Thus, whenever it is brought to the notice of the Courts that a person on account of some reason of the nature indicated above was not in a position to exercise his independent will, the Courts always insist on placing the burden of proof on the person who was in such advantageous position to establish that he did not abuse his position. The principle was originally confined to cases of pardahnashin ladies who manifestly suffered from such inhibition and limitation. The principle was originally confined to cases of pardahnashin ladies who manifestly suffered from such inhibition and limitation. Gradually the area covered by this rule was enlarged and it was extended to females who, though not strictly observing pardah, yet were prone to labour under such infirmities and handicap by virtue of their lesser experience of the world and their inability to cope with the complexities of life.” 7. And thus the fact remains that the plaintiff would have to prove in the first place beyond all doubt that the relationship of the defendant No. 4 was such that he could have misused his position to exercise undue influence over the plaintiff who was totally under his control. In the instant case, when the plaintiff himself executed a sale-deed (46-ka) to another son-in-law of his, it could not be said that he was under any influence of the defendant No. 4 and that all actions of his only went to the advantage of the defendant No. 4 and to the disadvantage of his other progeny. This apart, the fact that the appellant was a well educated Headmaster and had made all endeavours to sell his land by taking due permission from the Settlement Officer, Consolidation and because of such other surrounding circumstances, it becomes certain that he was a person who had his own independent mind and the relationship with the plaintiff and defendant No. 4 was not such which could be misused by the defendant No. 4. The sale-deeds were thus duly executed and no fault can be found in their execution. Furthermore, in the absence of a further relief of possession the suit itself was barred by Section 34 of the Specific Relief Act as has been laid down in Vinay Krishna v. Keshav Chandra and another, AIR 1993 SC 957 . 8. The appeal is concluded by findings of fact and is, accordingly, dismissed.