1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.160 OF 2006 Mrs. Prisca Cardozo, Alias Prisca Cardozo Barreto, Wife of late Alarico Carlos Vespaciano Barreto, Aged 71 years, landlady, Resident of H.No.1941, Cursabatt, Cavorim, Chandor, Goa. …. Appellant V/s 1. Mr. Cirilo Antonio Mendes, son of late Inacio Santano Mendes, aged 61 years, business, resident of H.No.1938, Cursabhatt, Cavorim, Chandor, Goa. 2. The Government of Goa, through its Chief Secretary, Secretariat, Panaji, Goa. 3. The Sub-Registrar of Salcete, having office at Osia Complex, near Kadamba bus stand, Margao, Goa. …. Respondents Mr. D. Shirodkar, Advocate for the Appellant. Mr. C.A. Coutinho, Advocate for Respondent No.1. CORAM : N.A. BRITTO, J. DATE : 5th OCTOBER, 2010 JUDGMENT : This appeal is by the plaintiff, whose suit has been dismissed by judgment dated 10/05/2006. 2. Heard learned Counsel on behalf of both the parties. The parties hereto shall be referred to in the names as they appear in the 2 cause title of the suit. Defendant no.1 shall be referred to as the defendant. 3. The plaintiff was married to Alarico (Alarico Carlos Vespaciano Barreto). They had no children of their marriage. Both were co-owners amongst others of property having land registration no.38622 and survey nos.43/9 and 43/20 of Cavorim village. The plaintiff had their house in survey no.43/9 while defendant's brother had a house in survey no.43/20. As the plaintiff and her husband Alarico had no children of their own, Alarico made a will in favour of his two nieces, on his side, namely, Sybil and Greta. Sybil is married to Peter, whom the plaintiff examined as her attorney. Greta was also examined in support of the case of the plaintiff. 4. The plaintiff entered into an agreement of sale with the defendant on 21/03/2000. This agreement of sale was prepared by the defendant's lawyer in the office of advocate Shri Carlos Ferreira. It was executed in the office of the notary Shri Leo Velho at Margao. At the time of execution of the said agreement, the plaintiff was paid a sum of Rs.50,000/-, by cheque, which the plaintiff credited to her own account. The plaintiff then executed a 3 sale deed on 3/04/2000 by which the plaintiff transferred her right of 8/24th share i.e. one third share in property surveyed under no.43/9 in favour of the defendant. It is recorded in the sale deed that the share which was sold was worth Rs.5,66,606.66, but was sold to the plaintiff for Rs.50,000/- on account of the special relationship. From 21/03/2000 to 3/04/2000, the plaintiff did not reside at her own house in Cavorim where she was residing previously but, came to reside at the house of one Telma, a relative of the defendant, and from 4/04/2000 at her sister's house in Chinchinim. On 4/04/2000, the plaintiff filed a complaint to the Sub-registrar stating that she had signed the papers under coercion. She also filed a complaint to Maina-Curtorim police station. However, no case was filed though an FIR is stated to have been registered. On 28/03/2000 at the behest of the plaintiff's niece by name Olivia Rocha, advocate Anacleto Viegas filed a missing report. 5. Then, the plaintiff filed the suit on 6/04/2000 pleading that after the death of her husband, the plaintiff had spent a miserable time due to the threats issued by the defendant in order to force her to part with the said properties. The plaintiff stated that she had fought all the court cases with the defendant who had kept an eye 4 on the property of the plaintiff. The plaintiff stated that on 21/03/2000, the plaintiff was kidnapped from Chandor by defendant with the help of some antisocial elements and was kept as a hostage at Colva till 3/04/2000 and she was kept in the house of one Telma at Colva. According to the plaintiff, she was made to sign under duress the papers on 21/03/2000 in the office of notary public Shri Leo Velho at Margao and, thereafter, again on 3/04/2000 the plaintiff was made to sign the sale deed in the office of the sub-registrar. Plaintiff claimed, by way of amendment, that she was a ignorant person and was not aware of the contents of the sale deed prepared by the defendant's lawyer and that said sale deed was executed due to misrepresentation of facts, undue influence and coercion. It was the case of the plaintiff that the deed of sale was signed on 3/04/2000 and presented for registration on 3/04/2000 and it was signed without consideration. 6. The defendant contested the suit and it was his case that it is the plaintiff who approached him expressing her desire to sell the suit property and asked the defendant a sum of Rs.50,000/- stating that her nieces from Bombay were not willing to advance to her. According to the defendant, it is the plaintiff who persisted and requested the defendant to purchase the property. The defendant 5 stated that the plaintiff had informed him that advocate Shri A. Viegas, Shri Silvano Estibeiro and advocate Ms. Santa Rita Rebello were desirous of keeping the plaintiff in the home for the aged and the plaintiff was not desirous of going to the home for the aged and on that account she was desirous of staying away from the house of Chandor. Defendant stated that plaintiff had informed him that on 18 or 19/3/2000, advocate Shri Viegas and advocate Silvano Estibeiro and two other persons had come at about 6 to 6.30 p.m. at the residence of the plaintiff to take her to the home for the aged and the defendant was called from his residence and when he went there he met the above persons standing outside the house of the plaintiff and even spoke to advocate Shri Viegas on that occasion. According to the defendant, the plaintiff on the next date told the defendant to make arrangement to take the plaintiff away from Chandor and, accordingly, the defendant spoke to his brother-in-law's wife namely the said Telma Priscilla Vaz, who agreed to keep the plaintiff free of costs and the plaintiff requested the defendant to prepare necessary documents to transfer her rights in favour of the defendant and on 21/03/2000, the plaintiff came to the residence of said Telma Vaz at Colva and at the plaintiff's own request the agreement for sale was executed on 21/03/2000 before the notary Shri Leo Velho at Margao. The defendant admitted 6 execution of the said agreement of 21/03/2000, but denied that the plaintiff was made to sign the same under duress or under coercion. The defendant stated that the consideration of about Rs.50,000/- was paid to the plaintiff. The defendant also denied the other allegations made by the plaintiff in the suit. 7. The plaintiff did not examine herself but examined her attorney and nephew, the said Peter Rodrigues. The defendant examined himself and advocate Shri Velho in support of his case. 8. In dismissing the suit, the learned trial Court, held that the plaintiff by abstaining herself from entering the witness box, failed to prove, the allegations levelled by her. The learned trial Court, drew adverse inference against the plaintiff. The learned trial Court held that the evidence given by PW1/Peter and PW2/Greta was hearsay. The learned trial Court held that the defendant (DW1) had meticulously brought on record the talks that had transpired between him and the plaintiff. Referring to the evidence of DW2/Leo Velho, the learned trial Court, held that the defendant had established that he purchased the property from the plaintiff out of free will and consent. The learned trial Court, further observed that inadequacy of consideration was not a ground for 7 holding that contract was influenced by fraud or undue influence unless the inadequacy was so gross as to raise a presumption that the party either did not understand what he was doing or was the victim of some imposition (deception?). The learned trial Court held that the plaintiff had failed to prove that she was kidnapped from Chandor by the defendant on 23/01/2000 and she was wrongfully confined in the house of the said Telma at Colva. 9. The controversy as regards non-examination of the plaintiff in support of her case has been dealt with by the learned trial Court in para 10 of the learned judgment. It can be seen from the records that the plaintiff had signed and verified the plaint by herself but then was being represented by her attorney by name Bevin Martins. On 14/10/2002, the suit was adjourned for filing of affidavit of evidence. On 13/11/2002, as the affidavit was not filed, the suit was adjourned with costs, as condition precedent. On the next date i.e. on 9/12/2002, the affidavit in evidence of the plaintiff was filed and the suit was adjourned to 16/01/2003 for further examination in chief of the plaintiff but the plaintiff did not appear and the learned trial Court after setting out the progress of the suit proceeded to close the case of the plaintiff and fixed the 8 case for defence evidence on 5/02/2003. An application to set aside the said order appears to have been filed, but the same was dismissed. Ultimately, the said orders were set aside by this Court and on 7/01/2004, the plaintiff filed an application to examine the plaintiff on commission, but that application came to be rejected by order dated 10/02/2004 by the learned trial Court observing that the plaintiff was fragile and weak and even in case a commission was appointed, it would not be possible to record the evidence of the plaintiff on commission. The plaintiff did not assail the said order dated 10/02/2004, but examined PW1, the said Peter Rodrigues and thereafter Greta D'Souza and, thereafter, on 18/06/2005 the plaintiff filed another application stating that the plaintiff wanted to be examined on commission. That application came to be rejected by the learned trial Court by order dated 4/07/2005 holding that the evidence of the plaintiff was completed in all respects through the said attorney who had stepped into the shoes of the plaintiff and, therefore, the plaintiff could not be examined afresh. 10. A writ petition was preferred by the plaintiff against the said order and the same came to be dismissed by this Court by order dated 7/12/2005 observing that there was no provision in law to permit the plaintiff to record her evidence for the second time, 9 particularly, when the evidence of other witness was already adduced. 11. The fact remains that the plaintiff did not examine herself in support of her case and all the allegations made by her against the defendant have remained without being proved. The plaintiff's witnesses including the attorney were certainly not persons who were acquainted with the facts pleaded by the plaintiff to support her case. On the other hand, the defendant gave evidence in support of his defence and examined the said notary Shri Leo Velho. The net result is that plaintiff failed to prove the case pleaded by her and, therefore, there was no other choice before the learned trial Court but to dismiss the suit. 12. Shir Shirodkar, learned Counsel of the appellant – plaintiff submits that the plaintiff had pleaded undue influence and the burden was on the defendant to prove the same. Learned Counsel refers to Section 16 of the Indian Contract Act, 1872 and submits that the defendant was in a position to dominate the will of the plaintiff and, as such, had obtained an unfair advantage over the plaintiff. Learned Counsel submits that this is apparent from the fact that the plaintiff went along with the defendant and sold the 10 property to the defendant at a throw away price. Learned Counsel submits that the plaintiff was an old lady, not conversant with english language and otherwise had no benefit of any advice and that in this background, the defendant had gone along with her to the office of the notary where she executed the said agreement. Learned Counsel has placed reliance on Krishna Mohan Kul @ Nani Charan Kul & Anr. V/s. Pratima Maity & Ors. (2004 (9) SCC 468), wherein the Apex Court has held that: “In judging the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of great importance in such cases. Section 111 of the Evidence Act, 1872 applies equally to all persons standing in confidential relations with each other. Agents, trustees, executors, administrators, auctioneers, and others have been held to fall within the rule. The logic is equally applicable to an old, illiterate, ailing person who is unable to comprehend the nature of the document or the contents thereof. It should be established that there was not mere physical act of the executant involved, but the mental act.” 13. On the other hand, Shri Coutinho submits that the suit was initially filed only on ground of coercion, but subsequently the ground of undue influence was brought by way of amendment. Learned Counsel submits that in terms of Order 6, Rule 4, when the plaintiff pleaded the ground of undue influence, the plaintiff 11 was required to give the particulars. Learned Counsel submits that the plaintiff did not only give the particulars as to how undue influence was exercised nor proved the same by leading evidence. Learned Counsel submits that the pleadings of one ground cannot be made use of for other ground and in this context learned Counsel has placed reliance on the judgment of this Court in the case of Onkar V/s. Smt. Shobha Ambadas Ugale & Ors. (2004 (2) ALLMR 137), wherein this Court has observed that: “Undue influence essentially consists of a situation where 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.” This Court further observed that when a party is said to have exercised undue influence on another, the element of deceit is not necessary factor, and in fact undue influence can be said to be exercised where a party influences the other by a reason of his position to do something by dominating the will of the other. It is not necessary in a case of undue influence that a person whose will is dominated is deceived as to what he or she is asked to do; and thus it was necessary for the plaintiff to set out the particulars of fraud or undue influence or breach of trust, etc. Learned Counsel has also placed reliance on the decision of the Apex Court in the case of Subhas Chandra Das Mushib V/s. Ganga Prosad Das 12 Mushib & Ors. (AIR 1967 SC 878) so as to bring about the three consecutive stages to find out whether in a given set of facts there was undue influence or not which decision has been followed by the Apex Court in the case of M. Rangasamy V/s. Rengammal & Ors. (2003 (4) ALL MR 748). 14. The Apex Court in the case of Subhas Chandra Das Mushib (supra) referring to AIR 1924 PC 60 observed that: “In the first place the relations between the parties to each other must be such that one is in a position to dominate the will of the other. Once that position is substantiated the second stage has been reached, namely, the issue whether contract has been induced by undue influence. Upon the determination of this issue a third point emerges, which is that the onus probandi. If the transaction appears to be unconscionable then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other.” 15. The Apex Court observed that merely because the parties were nearly related to each other no presumption of undue influence can arise and where there is no relationship shown to exist from which undue influence is presumed, that influence must be proved. The Apex Court also noted that generally speaking the relation of solicitor and client, trustee and cestui que trust, spiritual adviser and devotee, medical attendant and patient, parent and 13 child are those in which such a presumption arises. Section 16(2) of the Contract Act shows that such a situation can arise wherever the donee stands in a fiduciary relationship to the donor or holds a real or apparent authority over him. Before, however a court is called upon to examine whether undue influence was exercised or not, it must scruitinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. The Apex Court also observed referring to AIR 1963 SC 1279 that when a vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. 16. Law can be applied only to proved facts. The plaintiff, having not given any evidence of facts pleaded by her, which were to her exclusive knowledge and that of the defendant, failed to prove the plea of coercion as well as undue influence, apart from the fact that no particulars of undeue influence were given, as required by Order 6, Rule 4, C.P.C. In the absence of any evidence given by her, the defendant and his witness Shri Leo Velho had disproved both the pleas taken by her. The plaintiff might have 14 been an elderly person, residing alone but that was no ground to jump to the conclusion that the defendant had taken undue advantage of her. The plaintiff herself had pleaded that she had fought cases with defendant. This would show that the plaintiff as well might have had benefit of legal advice and the defendant was not a person, who could have influenced her will. The Plaintiff appears to have forgotten about the said averments when she amended the plaint to say that she was ignorant person and she was not aware of the contents of the deed. The first requirement, as contemplated by Subhas Chandra Das, was not proved. The evidence of DW1 as well as of DW2 shows that the second requirement was also not proved and as such there was nothing left to be proved by the defendant. 17. Learned Counsel submits that the order dated 10/02/2004 was not challenged by the plaintiff because of the prevailing law which permitted the plaintiff to be examined by attorney and in this context Shri Shirodkar has placed reliance in the case of Shri Humberto Luis & Anr. V/s. Shri Floriano Armando Luis & Anr. (2000 (1) ALL MR 648) wherein this Court held that there was no restriction imposed upon the holder of power of attorney of a person to depose on behalf of the person giving such power. The 15 competency of such person to depose on behalf of the party to the litigation has not been curtailed in any manner by the said provision of law. Nevertheless this Court also held that a direction could be given to plaintiff to step in the witness box in order to discharge the burden of the issues which are upon him and such direction can be given in justifiable cases and not as a matter of course and it is primarily for the party to decide whether to appear in person to depose in relation to the facts of the matter or not. It is for the Court to draw necessary inference in case of failure of the party to appear in person in a matter before the Court, but that by itself would not entitle the Court to direct a party to appear before the Court to discharge the burden of issues which lies on such person. Subsequently, the Apex Court in the case of Janki Vashdeo Bhojwani and Anr. V/s. Indusind Bank Ltd. & Ors. (2005 SC 439) has held that the view in Humberto Luis & Anr. (supra) cannot be said to have laid down the correct law. The Apex Court has held that the view taken in Shambhu Dutt Shastri V/s. State of Rajasthan (1986 (2) WLL 713) by the Rajasthan High Court was the correct view. The Rajasthan High Court had held that: “A general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only 16 appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.” 18. In other words, what the Apex Court has held is that a power of attorney may appear on behalf of the plaintiff, but certainly cannot depose to facts which are to the knowledge of the plaintiff. By no stretch of imagination it could be said that Humberto Luis was an authority to the proposition that an attorney could depose to facts which were exclusively to the knowledge of his principal. That would always be hearsay evidence. The history of the suit shows that the plaintiff was always reluctant to enter the witness box to depose to the facts pleaded by her. It does not require a discerning eye to conclude that the plaintiff was put forward by those who had interest in her property. 19. In the case at hand, the plaintiff has made several averments which were personal to her knowledge only and the same could not have been to the knowledge of the attorney and by not examining herself, the plaintiff failed to prove the said averments made by her in support of the case. On the contrary, the defendant gave evidence to support the defence taken by him and also examined a 17 very material witness. It is understandable that the plaintiff made a mistake by not entering in the witness box first, and allowing her attorney to step in the witness box but that mistake to some extent could have been corrected if the plaintiff had examined her niece Olivia at whose instance advocate Viegas had filed a missing report or her sister with whom she went to reside after execution of the sale deed or advocate Shri A. Viegas who filed the missing report, to show under what circumstances it was filed or the said Telma Vaz with whom she stayed for about 15 days. These witnesses would have thrown some light on the averments of the plaint. On the contrary, the case of the plaintiff has remained without any evidence whatsoever to support her case and there was no other option for the Court below than to accept the evidence of the defendant and his witness which once accepted would show that the plaintiff had entered into the said agreement of sale out of free will and consent without any coercion or influence being exercised upon her and had also subsequently executed the said sale deed. 20. It is being pointed out by learned Counsel on behalf of the defendant that the defendant had clearly stated in his affidavit that on 18th or 19th March, 2000 advocate Shri A. Viegas, Shri Silvano Estibeiro and advocate Ms. Santa Rita Rebello had come to the 18 plaintiff's house between 6 to 6.30 p.m. in order to take her to the home for the aged and that the plaintiff had called the defendant to the