REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   1785          OF 2009 [Arising out of SLP (Civil) No. 5238 of 2008]

Bellachi (Dead) by LR …Appellant Versus

Pakeeran  …Respondent

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. Appellant is the plaintiff in Original Suit No. 36 of 2000 filed in

the Court  of Munsiff, Kasargod.  Defendant-respondent is her younger

brother.  

3. Subject  matter  of  the suit  was a deed of  sale  dated  7th October,

1999  executed  by  her  in  favour  of  the  respondent.    The  amount  of

consideration was shown therein to be a sum of Rs. 20,000/-.  Contention

of the appellant in the said suit was that the said deed of sale is vitiated by

misrepresentation, undue influence, fraud and collusion as she was made

to believe that she would obtain financial assistance by executing the said

document.  According to her, she had reposed complete faith and trust in

her brother who used to visit her place often.  

It was also her contention that when her husband was in bed due to

prolonged illness, she was taken away from her house and made to sign

some documents.   According to  her  she came to  know with  regard  to

execution of the aforementioned deed of sale when some officers of the

bank visited the suit land to take measurement thereof.  Respondent in his

written  statement  however  stated  that  the  deed  of  sale  was  executed

voluntarily by the appellant upon receiving the amount of consideration.

4. The learned Trial  Judge in view of rival pleadings of the parties

framed the following issues:

“(i) Whether the sale deed was validly executed in favour of the plaintiff?

(ii) Whether the alleged cause of action is true?”

5. Inter alia holding that the plaint does not satisfy the requirements

of Order VI Rule 4 of the Code of Civil Procedure as particulars of fraud,

undue influence were not pleaded and furthermore having regard to the

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fact that the plaintiff had admitted in her deposition that except once the

respondent had not visited her, the suit was dismissed.   

It was opined that the plaintiff had not been able to establish that

the defendant had been in such a position so as to dominate over her will

and /or the said deed of sale was executed by her under misrepresentation,

undue influence or collusion.  As regards execution of the sale deed, it

was stated as under :

“Order VI Rule 4 and Order VI Rule 2 of the Civil Procedure Code, makes it clear that there shall  be  specific  pleading  with  sufficient particular  regarding  the  fraud  or  undue influence  misrepresentation  etc.   which  is lacking in this case.  I have already stated that there  is  no  scope  for  any  collusion  in  the execution of Ext. B.5. At the same time there is no sufficient material to show that the defendant was in such a position so as to dominate the will of  the  plaintiff,  and  he  got  executed  Ext.  B5 under  fraud,  misrepresentation,  collusion  and undue influence.”

6. The first appellate court affirmed the said findings of the learned

Munsiff noticing that the appellant herself had deposed that the defendant

had left her house about fifteen years back and came to her house only

when her husband was ill.   

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Agreeing  with  the  conclusions  arrived  at  by  the  learned  Trial

Judge, it was held :  

“The execution of a document made to establish only  if  the  same  is  denied.   In  this  case  the plaintiff admitted the signature and also execution of  Ext.  B5  but  contended  that  it  was  obtained under undue influence, believing that she signed in papers necessary for getting government loan to  the  persons  laid  up  due  to  illness.   The evidence of DW1 and DW2 satisfactorily proved the  execution  of  Ext.  B5 deed.   Ext.  B2 to  B4 documents would show that immediately after the execution of Ext. B5 the defendant started paying basic tax.  In AIR 1976 SC 163 the Apex Court held  that  there  shall  be separate  pleading about undue  influence  and  the  general  allegation regarding  the  undue  influence  is  not  sufficient. Order VI Rule 4 and Order VI Rule 2 of Code of Civil Procedure make it clear that there shall be specific  pleading  with  sufficient  particular regarding  the  fraud  or  undue  influence, misrepresentation  etc.  and  absolutely  no  such specific pleadings are in this case and hence it has to be held that Ext. B5 was not  executed under fraud, misrepresentation or collusion.  But on the other  hand  the  oral  as  well  as  documentary evidence  show that  Ext.  B5 as  executed  by the plaintiff out of her free will and volition.  Hence it has to be held that the sale deed Ext. B5 was validly executed by the plaintiff  and hence it  is not liable to be set aside.       

7. The second appeal preferred by the appellant thereagainst has been

dismissed by the High Court by reason of the impugned judgment.   

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8. Mr.  P.V.  Dinesh,  learned  counsel  appearing  on  behalf  of  the

appellant, would urge that the courts below committed a serious error of

law in so far as they failed to take into consideration that the relationship

between the vendor and vendee being that of sister and brother and the

appellant being an  illiterate old aged lady, the onus of proof was upon

the defendant-respondent to show that the deed of sale was a genuine one

and the amount of consideration specified therefor had been received by

her.

It was furthermore urged that the respondent having not examined

the Registrar or any other person from the registration office in regard to

the  execution  of  the  aforementioned  deed  of  sale  and  passing  of  the

amount  of  consideration,  must  be  held  to  have  failed to  discharge  the

heavy onus placed on him.   

9. Mr.  Raghunath  appearing  on  behalf  of  the respondent,  however,

would support the impugned judgment.   

10. The jurisdiction of the High Court in terms of Section 100 of the

Code of Civil Procedure is limited.  It can interfere with the concurrent

findings  of  two courts  if  any substantial  question of  law arises  for  its

consideration.   Whether  the  respondent  despite  the  fact  that  he  was

brother  of  the  appellant  was  in  a  dominating  position  is  essentially  a

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question of fact.  Per se it does not give rise to a substantial question of

law.   

11. We have noticed hereinbefore that the Trial Court as also the first

appellate  court  inter  alia  held  that  the  very  basis  of  the  claim of  the

appellant was that the respondent had been very close to her and had been

visiting  her  quite  often  and  thus  was  a  man  of  trust  had  not  been

established.

12. Although the parties to the suit used to live together at one point of

time,  the  respondent  parted  with  her  company  15  years  prior  to  the

execution of the deed of sale.  He had visited her house only when her

husband fell ill.

13. A  concurrent  finding  of  fact  has  also  been  arrived  at  that  the

appellant was not a person wholly incapable of understanding things.  It

was furthermore held that the plaintiff had sufficient funds for her own

treatment as also for the treatment of her husband and thus the story that

she was made to believe that she would be rendered financial assistance

by some banks so as to enable her to meet the expenses for her husband’s

treatment, is not correct.   

It was, furthermore, noticed that her husband as also her daughter

(PW-2) were government employees.

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The said concurrent findings of the fact ordinarily are binding on

the High Court while exercising its jurisdiction under Section 100 of the

Code of Civil Procedure.

This Court in  Afsar Sheikh and Anr. Vs.  Soleman Bibi and Ors.

reported in [1976 (2) SCC 142] held as under :

“4. In  his  written  statement,  Afsar  defendant denied  the  allegations  of  fraud  and misrepresentation.  He  averred  that  his grandmother  was  the  sister  of  the  plaintiff’s mother.  The  defendant’s  father  died  when  he was an infant. The plaintiff brought him up as a son. Since his  very infancy, the defendant  has been  living  with  the  plaintiff,  managing  his affairs  and  treating  him  as  his  father.  The defendant  further  stated  that  the  plaintiff  has transferred 10 to 12 bighas of land to his natural son and an equal area to his second wife. Out of love  and  affection,  the  plaintiff  conferred  a similar benefit on the defendant and voluntarily executed the hiba-bil-ewaz after receiving from the donee  a  dhoti as  a  symbolic  consideration therefor. He denied that the plaintiff at the time of the gift was too old and infirm. According to him, the plaintiff was not more than 75 years of age.  He  further  averred  that  he  was  in possession  of  the  suit  lands  ever  since  the execution of the hiba.”

It was observed :

“20. It is well-settled that a question whether a person was in a position to dominate the will of another  and procured  a certain  deed by undue influence,  is  a  question  of  fact,  and  a  finding thereon  is  a  finding  of  fact,  and  if  arrived  at fairly,  in  accordance  with  the  procedure prescribed.  is  not  liable  to  be  reopened  in second  appeal  (Satgur  Prasad v.  Har  Narain Das;  Ladli Prasad Jaiswal v.  Karnal Distillery Co. Ltd. ).”

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14. It  is  not  the  case  of  the  appellant  that  the  finding  of  the  first

appellate court on the question of fraud, undue influence etc. is vitiated

by any illegality, omission or error or defect as envisaged under Section

100 of Code of Civil Procedure.

15. Section  16  of  the  Indian  Contract  Act  provides  for  as  to  what

constitutes  undue influence.   Relationship  between the parties so as  to

enable one of them to dominate the will of the other is a sine qua non for

constitution of undue influence.   

Findings of fact  as noticed hereinbefore have been arrived at  by

both the trial judge as also the first appellate court that the respondent

was not in a position to dominate the plaintiff’s will.

16. In  a  given  case  it  is  possible  to  hold  that  when  an  illiterate,

pardanashin woman executes a deed of sale, the burden would be on the

vendee to prove that it was the deed of sale was a genuine document. It is,

however, a registered document.  It carries with it a presumption that it

was executed in accordance with law.  Again a concurrent finding of fact

has  been  arrived  at  that  she  was  not  an  illiterate  woman or  she  was

incapable of understanding as to what she had done.   

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17. Mr. Dinesh has placed strong reliance upon a decision of this Court

in Mst. Sethani Vs. Bhana reported in [1993 Supp. (4) SCC 639] wherein

having regard to the fact had been arrived at from the courts below, it was

held :

“4. The facts are so glaring, still the onus to prove the issue has been over-emphasised. It is true that the initial  onus  to  prove  undue  influence  was  on  the plaintiff-appellant,  but  the  onus,  in  the  facts  and circumstances of the case, was easily discharged. It is the respondent who had obtained the sale deed in his favour way back on April 1, 1963 by a registered sale deed, which saw the light at a late stage of the trial. From the certified copy thereof it was evident that no consideration passed at the time of the sale. Nobody from the registration office was examined to explain  the  sale.  No  evidence  was  led  by  the respondent to discharge the onus that the sale deed was executed under no undue influence, even though the  vendor  was  old,  blind,  illiterate  and  a  tribal woman totally at the mercy of the respondent, with whom she was living till her death. The parties were so situated that Bhana-respondent was in a position to dominate the will of Putlibai and was in a position to obtain an unfair advantage over her. It is also in evidence  that  Putlibai  was  dependent  on  the respondent. The trial court had given cogent reasons to come to the finding that the sale deed was vitiated on account  of  the  condition  in  which  Putlibai  was put  due to her  relationship with Bhana-respondent, as well as the manner and nature of the transaction.  

The factual matrix involved in the aforementioned case was, thus,

absolutely different.   

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18. Furthermore both the courts below have held that the plaint does

not contained any particulars of undue influence, fraud etc.   

The law does not envisage raising of a presumption in favour of

undue influence.  A party alleging the same must prove the same subject

of course to just exceptions.  

In M. Rangasamy Vs.  Rengammal and Ors.  [(2003) 7 SCC 683],

this court has held as under:-

“Further, a perusal of the plaint shows that the execution of Exhibits B-6 and B-7 has, in fact, not been disputed by the plaintiffs.  The case set up by them is that the first defendant, exercising dominating influence over his grandmother, got the  two  settlement  deeds  executed  from  her exploiting her old age, dim eyesight and mental condition.  It has been further pleaded that the first defendant had a fiduciary relationship with his grandmother and, therefore, though normally it  would  be  for  a  person  who  pleads  undue influence to establish the said fact, but in view of this relationship, it is for the first defendant to  prove that  the gift  deeds were the result  of free  exercise  of  independent  will  by  the executant.”

The said decision will apply in all fours in this case.   

19. There is, thus, no merit in the appeal.  It is dismissed accordingly.

However, in the facts and circumstances of this case, there shall be no

order as to costs.

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………………………….J. [S.B. Sinha]

..…………………………J. [Dr. Mukundakam Sharma]

New Delhi; March 23, 2009

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