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TMI Blog1975 (11) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaintiff's case as laid in the plaint, is that he is an illiterate, simple villager, aged about 90 years. On April 2, 1957, one Saifuddin fraudulently got executed and registered a will, dated April 2, 1957, by the plaintiff in favour of the former and his wife in respect of the suit lands. When this fraud was discovered by the plaintiff, he brought it to the notice of Afsar-appellant, a distant relation who was in his confidence and used to help him in cultivation of his lands. Afsar Sheikh on February 3, 1959, took the plaintiff to Pakur for execution and registration of a deed cancelling the Will. A cancellation deed was drawn up and executed by the plaintiff, but it could not be presented for registration on that date on account of some delay. On February 9, 1959, Afsar again took the plaintiff to Pakur and represented that the cancellation deed which was prepared on February 3, 1959, had been misplaced and lost, and consequently it was necessary to execute a fresh deed of cancellation. With this misrepresentation, Afsar got executed and registered in his favour a Hiba-bil-Ewaz purporting to be a transfer of 12 1/2 Bighas of lands by the plaintiff. Thereafter, Afsar sold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e allegation in the plaint that defendant No. 1 was assisting him in the management of his property and that as a result thereof the plaintiff had developed confidence in him, which, according to the plaintiff, was abused in getting the document dated 9-2-59, executed by the plaintiff , it was incumbent on the court below to find out whether the donee was in a position to dominate the will of the donor in giving advice. In the opinion of the learned Judge, if the trial court had come to the conclusion in favour of the allegations made by the plaintiff then the onus in that case would have shifted to defendant No. 1 to establish that he did not abuse his position and that the deed of Hiba-bil-Ewaz though unconscionable on the very face of it, was not brought about by any undue influence on his part. By his judgment, dated October 16, 1963, he remanded the case to the District Judge for a fresh hearing on the material already on the record for recording findings as to whether Afsar had obtained the Hiba-bil-Ewaz by exercising undue influence over the plaintiff, whether consideration had been given for the Hiba-bil-Ewaz and whether the alleged donee had been in possession of the gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the plaintiff and Afsar was not disclosed. It was not particularised how Afsar was in a position to dominate the will of the plaintiff, in what manner he exercised that influence, how the influence, if any, used by Afsar over him was undue , and how and in what circumstances the Hiba-bil- Ewaz was an `unfair' or unconscionable transaction. In short no material particulars showing that the transaction was vitiated by undue influence were pleaded. Rather somewhat inconsistently with a plea of undue influence, it was alleged that the Hiba was tainted by fraud, misrepresentation and deceit practised by Afsar. While it is true that `undue influence', `fraud', `misrepresentation' are cognate vices and may, in part, overlap in some cases, they are in law distinct categories, and are in view of Order 6, Rule 4, read with Order 6, r.2, of the Code of Civil Procedure, required to be separtely pleaded, with specificity, particularity and precision. A general allegation in the plaint, that the plaintiff was a simple old man of ninety who had reposed great confidence in the defendant, was much too insufficient to amount to an averment of undue influence of which the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding of fact recorded, after the remand, by the first appellant Court, to the effect, that Afsar was not in a position to dominate the will of the plaintiff, and he did not exercise any undue influence on the plaintiff to obtain the Hiba-bil-Ewaz, which was voluntarily executed by the plaintiff after understanding its contents and effect. The scope of the powers of the High Court to interfere in second appeal with judgments and decrees of courts below is indicated in ss. 100, 101, and 103 of the Code of Civil Procedure. Broadly, the effect of ss. 100 and 101, read together, is that second appeal is competent only on the ground of an error in law or procedure, and not merely on the ground of an error on a question of fact. The High Court has no jurisdiction to entertain a second appeal on the ground of a erroneous finding of fact, however gross or inexcusable the error may seem to be (Mst. Durga Choudhrani v. Jawhar Singh) (1). Section 103 enables the High Court in second appeal, where the evidence on the record is sufficient, to determine an issue of fact necessary for the disposal of the appeal only- (a) if the lower appellate Court has not determined that issue of fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iary relation to the donor, or (c) whether he makes the transaction with a person whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress. Sub-section (3) contains a rule of evidence. According to this rule, if a person seeking to avoid a transaction on the ground of undue influence proves- (a) that the party who had obtained the benefit was, at the material time, in a position to dominate the will of the other conferring the benefit, and (b) that the transaction is unconscionable, the burden shifts on the party benefitting by the transaction to show that it was not induced by undue influence. If either of these two conditions is not established the burden will not shift. As shall be disussed presently, in the instant case the first condition had not been established, and consequently, the burden never shifted on the defendant. In Subhas Chandra case (ibid), this Court quoted with approval the observations of the Privy Council in Raghunath Prasad v. Sarju Prasad(2) which expounded three stages for consideration of a case of undue influence. It was pointed out that the first thing to be considered is, whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter used to look after the former's lands. Thus, even the slander shred in the plaint from which the High Court tried to spell out a whole pattern of fiduciary relationship between the parties and a position of dominant influence for Afsar, was torn and destroyed by the plaintiff himself in the witness-stand. In the context of the first-stage consideration, the District Judge found on the basis of the evidence on record, that although the plaintiff was an old man-and he had intentionally, far overstated his age yet he was quite fit to look after his affairs. On this point, the District Judge accepted the version of the plaintiff's own witness (PW 7) which was to the effect, that the plaintiff himself yokes the bullocks, and unaided by anybody else, ploughs his lands. In the face of such evidence, the District Judge was right in holding that Ebad plaintiff, though old, was physically fit to carry on his affairs. There was no evidence to show that the mental capacity of the donor was temporarlly or permanently affected or enfeebled by old age or other cause, so that he could not understand the nature of deed or the effect and consequences of its execution. The mere fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration for the Hiba by the done to the donor. PW 4 was another deed-writer, who had scribed the cancellation deed (Ex. 1), admittedly executed by the plaintiff on 3-2-1959 to revoke the will. The plaintiff's case was that on 3-2-1959, it was Afsar who took him to Pakur and got the cancellation deed executed, and took hold of that deed, and thereafter by a misrepresentation that the deed had been lost, got on 9-2-1959, the Hiba-bil-Ewaz executed. The core of this story was gouged out by the plaintiff's own witness, PW 4, who had scribed the cancellation deed. PW 4 did not swear to the presence of Afsar defendant on 3-2-59 at Pukar when the cancellation deed Ex. 1 was written and executed. In view of this, the first appellate court, was right in holding, in concurrence with the trial court, that Afsar never accompanied Ebad to Pukar on 3-2-1959, and he not having come into possession of the cancellation deed, no occasion for him arose to induce by misrepresentation or undue influence the execution of the Hiba-bil-Ewaz in question. The first appellate Court further came to the conclusion that this gift was acted upon by the parties, the done entered into possession of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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