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TMI Blog1968 (1) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... the two plots was taken in the name of the appellant. At about the time Ex. 45 was executed it is alleged by the appellant that her husband Shiddappa was dominating her will and persuaded her to execute the gift deed in respect of plots 407/1 and 409/1 of Tadavalga village. The appellant was taken to Bijapur by her husband on January 16, 1938 and there Ex. 45 was written and she was made to sign it. The document was registered on January 18, 1938 at Indi. The appellant believed that the document, Ex. 45 related to only plots nos. 407/1 and 409/1 of Tadavalga village. She was never told by her husband that the document related either to plot no. 91 or plot no. 92 of Lingadahalli village. Shiddappa died in about the end of December, 1949 and till then she was amicably living with him and consequently she had no occasion to know about the true character of Ex. 45 or about its contents. Shiddappa had taken a second wife in the year 1941 and after the death of Shiddappa in 1949 the relations of the second wife, respondent no. 4, began to assert their rights in respect of the properties of the appellant. Growing suspicious of the conduct of the respondents, the appellant made enquiries f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court relied for reaching its finding. In our opinion, the argument put forward on behalf of the appellant is well founded and must be accepted as correct. At the time of the gift deed, The appellant was a young woman of about 24 years of age. She was illiterate and ignorant and all her affairs were being managed by her husband who stood in a position of active confidence towards her. The trial court found that the appellant s husband was in a position to dominate her will. The document of gift also appears to be grossly undervalued at ₹ 1,500 while actually the value of the property was about ₹ 40,000 at the relevant date. The trial court has found that plots nos. 91 and 92 of Lingadahalli village were the most valuable and fertile lands owned by the appellant before the execution of the gift deed. It is the admitted position that not only the appellant and her husband but her husband s two brothers and their families lived on -he income of the two plots. There appears to be no reason whatever for the appellant to agree to transfer the valuable lands of plots nos. 91 and 92 of Lingadahalli village inherited by her from her father to her husband. It was suggested on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he arty defrauded. Until it is avoided, the transaction is valid, so at third parties without notice of the fraud may in the meantime aquire rights and interests in the matter which they may enforce against the party defrauded. The fact that the contract has been duced by fraud does not make the contract void or prevent the property from passing, but merely gives the party defrauded a thoght on discovering the fraud to elect whether he shall continue to treat the contract as binding or dis affirm the contract and resume the property, If it can be shown that the party defrauded has at any time after knowledge of the fraud either by express words or by unequivocal acts affirmed the contract, his election determined for ever. The party defrauded may keep the question open so long as he does nothing to affirm the contact. Clough v. L. N. W. Ry.), (1871) L.R. 7 Ex. 26, 34. The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document out as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r husband on affectionate terms till the time of his death. Till then she had no reason to suspect that any fraud had been committed on her in respect of the two plots in Lingadahalli village. It is only after his death when his brothers and respondent no. 4 s brothers removed grain from the house against her wishes that the appellant came to know that the lands at Lingadahalli village were included in the gift deed by fraud. The suit was instituted by the appellant within a few days after she came to know of the fraud. We are therefore of the opinion that the suit was brought within time prescribed under Art. 95 of the Indian Limitation Act so far a.plots 91 and 92 of Lingadahalli village are concerned. As regards plots nos. 407/1 and 409/1 of Tadavalga village the trial court has found that the husband of the appellant was in a position of active confidence towards her at the time of the gift deed and that he was in a position to dominate her will and the transaction of gift was on the face of it unconscionable. Section 16(3) of the Indian Contract Act says that where a person who is in a position to dominate the will of another enters into a transaction with him which appears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eath and the three year s period under Art. 91 should therefore be taken to run not when the appellant had knowledge of the true nature of the gift deed but from the date when she escaped the influence of her husband by whose will she was dominated. It is not possible, to accept this argument in view of the express language of Art. 91 of the Limitation Act which provides that the three years period runs from the date when the plaintiff came to know the facts entitling her to have the instrument cancelled or set aside. This view is borne out by the decision of the Judicial Committee in Someshwar Dutt v. Tirbhawan Dutt, 61 I.A. 224 in which it was held that the limitation of a suit to set aside a deed of gift on the ground that it was obtained by undue influence was governed by Art. 91 of the Indian Limitation Act, and the three years period runs from the date when the plaintiff discovered the true nature of the deed, and not from the date when he escaped from the influence by which be alleged that be was dominated. For the reasons expressed we hold that this appeal must be allowed and the appellant must be granted a decree that the, gift deed, Ex. 45 is not binding on her so far ..... 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