IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 217 of 2011. Reserved on: 06.09.2011. Decided on: 16.9.2011 _____________________________________________________ Chhajju. …Appellant. -Versus- Kalan. …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the appellant : Mr. Ramakant Sharma, Advocate. For the respondent. : M/s. Shanti Swaroop and H.S. Rana, Advocates. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 07.04.2011, passed by the learned Presiding Officer, Fast Track Court, Solan, H.P. in Civil Appeal No. 10 FTN/13 of 2005/10. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the respondent-plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) had instituted a suit against the appellant-defendant (hereinafter referred to as “the defendant” for brevity sake), for declaration with consequential relief of permanent injunction and in the alternative for possession. According to the plaintiff, she had inherited the land from her father. She lost her father about 26 years back and her mother also died about 20 years ago. She is having two sons, who are physically challenged. Defendant became known to the 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 2 - plaintiff and started visiting her house off and on. He started treating her as God sister. She started reposing faith in defendant. She being poor, illiterate, innocent, ignorant, rustic and widow lady, had been persuaded and asked by the defendant to come to Tehsil Office, Nalagarh to get financial assistance for the treatment of her physically handicapped and disabled sons from the Government. Defendant apprised her that Government used to pay the widow pension and she will also be entitled to get `150/- from the Government. She believed the defendant and on 12.08.1998, defendant asked the plaintiff to accompany him to Nalagarh. According to her, defendant got some papers thumb marked from her, telling her that said papers were for widow pension and for grant of financial assistance from the Government for the treatment of her disabled sons. Thereafter, she was taken to the Tehsil Office. She was assured that in the Tehsil Office that she would be given financial assistance and she was asked to put thumb impression on some papers. Thereafter, defendant asked her to accompany her to Baddi, where Tehsildar has to verify the facts and she was made to sit outside Patwar Khana. She was told that Tehsildar has forwarded her papers for pension and financial assistance to Deputy Commissioner, Solan. She came to know about the gift deed when she was about to sell her Khair trees from the suit land. The Patwari told her that defendant had become owner of the land on account of gift deed dated 12.08.1998. Thereafter, she contacted an Advocate and obtained the gift deed from the record. According to her, the defendant has played fraud on her. The suit property was the only source of livelihood to her two disabled sons. According to her, the entire - 3 - cultivable land was taken by the defendant through gift deed. According to her, the gift deed dated 12.08.1998 was illegal, void and not binding on the plaintiff. It is in these circumstances that the suit was filed by the plaintiff for declaration that she was owner in possession of the suit land and gift deed dated 12.08.1998 was wrong, illegal, null and void and was the result of fraud, mis-representation and undue influence. In the alternative, she has prayed for decree of possession. 3. The suit was contested by the defendant. The defendant has admitted that the plaintiff has two sons and two daughters. According to him, the plaintiff has sufficient land in two villages, namely Karyana and Sanerh. She had inherited the property at village Sanerh after the death of her husband. It was also admitted by the defendant that he had good relation with the plaintiff. According to him, he had been serving the parents of the plaintiff and he has also discharged his social obligation. According to him, the plaintiff voluntarily came to Nalagarh on 12.08.1998 and executed gift deed in the presence of witnesses, which was registered and the gift was accepted by the defendant on the same day. He became owner in possession of the suit land. She never objected to revenue entries after execution of the gift deed and Khasra Girdwari was carried out on the spot and she never objected to the same. According to him, the gift was the out come of free consent and will. The gift deed was presented before Sub-Registrar, Nalagarh in the presence of witnesses and she was asked by the Sub-Registrar about the contents of the gift and after the same, she got registered the gift in accordance with law. - 4 - 4. Plaintiff filed the replication. Learned Civil Judge (Senior Divison), Nalagarh, District Solan framed the issues on 12.09.2001. The suit filed by the plaintiff was dismissed by the learned Civil Judge (Senior Division), Nalagarh on 05.02.2005. Plaintiff preferred an appeal before the learned Presiding Officer, Fast Track Court, Solan, H.P.. He allowed the same on 07.04.2011. Hence, this Regular Second Appeal. 5. This Regular Second Appeal was admitted on the following substantial questions of law: “1. Whether the learned Appellate Court is right in holding Exhibit D-1 to be the result of mis-representation more particularly when there is neither any pleading or proof as required in view of the law laid down by the Apex Court reported in 2005 (2) SCC page 10 and 2005 (5) SCC Page 527? 2. Whether the learned lower Appellate Court is right in not considering the provisions of Section 60 sub section (2) of the Indian Registration Act? 3. Whether the learned lower Appellate Court is right in not considering the fact that gift deed Ex. D-1 stood proved by way of statements of witnesses DW-2 scribe and DW-4 and DW-5 the attesting witnesses? 4. Whether the learned lower Appellate Court is right in not considering the provisions of Order 6 Rule 4 which requires particulars of alleged mis-representation by misconstruing the pleadings of the parties? - 5 - 6. Mr. Ramakant Sharma, learned counsel for the appellant/defendant has supported the judgment and decree passed by the learned trial court on 05.02.2005. According to him, gift deed dated 12.08.1998 Ex. D-1 was valid and binding between the parties. He also argued that his client has removed all the suspicious circumstances surrounding the gift deed. 7. Mr. H.S. Rana, learned counsel for the plaintiff has supported the judgment and decree passed by the 1st appellate court. According to him, the gift deed dated 12.08.1998 was the out come of undue influence, mis-representation and fraud. He further contended that suit property is the only cultivable land available with the plaintiff and now she is without any source of livelihood. 8. I have heard the learned counsel for the parties and gone through the pleadings carefully. 9. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence. 10. Plaintiff has appeared as PW-1. She has also appeared her own witness in rebuttal evidence. She had filed two affidavits in her examination-in-chief. She has reiterated the stand taken in the plaint. She has denied the suggestion that defendant was rendering services to her and her family members. She has denied the suggestion that the gift deed was voluntarily executed on 12.08.1998. - 6 - 11. PW-2 Sanjiv Kumar has proved the copy of pariwar register Ex. P-2, which shows that the plaintiff is residing in village Kharyana, Tehsil Nalagarh, District Solan. 12. PW-3 Sadh Ram has proved the copy of rapat No. 389, dated 4.8.1998 Ex. P-7. According to Ex. P-7, defendant has obtained two copies of Jamabandis for the year 1993-94 of Khasra No. 7/7 min, spot map and one year average value of sale transaction of Mauja Kharyana. 13. PW-4 Bagga Ram and PW-5 Swanu have supported the version of plaintiff. According to them, plaintiff was in possession of the suit land and she was dependent on the income of the suit land. According to PW-5 Swanu, plaintiff was a simple lady and dependent on others. 14. Defendant has appeared as DW-1. He has reiterated the stand taken in the written statement. He has performed the duties of brother according to Hindu Rites and Customs at the time of the marriage of the daughter of plaintiff. He has admitted that while executing the gift deed, the plaintiff has not taken advise of any Advocate. He also admitted that the land which was gifted to him, was a cultivable land and Khasra Nos. 28, 35 and 79, which were not the subject matter of the gift deed shown in the ownership and possession of the appellant, were Banjar Kadeem. 15. The gift deed dated 12.08.1998 has been scribed by DW-2 Nand Lal. He has led his evidence by way of an affidavit. According to him, he has written the gift deed at 1:10 p.m. and it took him half an hour for writing the gift deed Ex. D-1. - 7 - 16. DW-4 Tara Chand is the marginal witness. He has led his evidence by filing an affidavit. According to DW-4, the gift deed was written on 8.12.1998 at 1-1:20 p.m. and they have appeared before the Sub Registrar, Nalagarh at 2:15 p.m.. He has admitted that the plaintiff was dependent upon the income of the agricultural land. According to him, it took him 1 ½ hours for typing the gift deed and papers were given to the petition writer at 11:00 a.m.. The petition writer started typing at 11:00 a.m. and thereafter they have appeared before the Sub Registrar. However, according to DW-2, he has started preparing the gift deed 1:10 p.m. and not at 11:00 a.m., as stated by DW-4 Tara Chand. 17. DW-5 Ram Nath has admitted that the plaintiff was dependant on the agricultural income of the suit land. According to him, the petition writer started writing the gift deed at 11-11:30 a.m. and the gift deed was completed at 1-1:30 p.m. and the same was presented before the Sub Registrar at 3: 30 p.m. 18. There is divergence in the statements made by DW-2, DW-4 and DW-5, the manner in which the gift deed Ex. D-1 has been prepared. According to DW-2, as noticed above, he has written the gift deed at 1:10 p.m., according to DW-4, it was written at 11:00 a.m. and according to DW-5, it was written at 11- 11:30 a.m. DW-4 has stated that the parties had appeared before the Sub Registrar, Nalagarh at 2:15 p.m., whereas according to DW-5, the parties appeared before the Sub Registrar at 3:30 p.m. 19. What emerges from the facts enumerated hereinabove, is that the plaintiff is a widow, rustic and an illiterate lady. She has reposed faith in defendant. The defendant has taken her to Tehsil Office and subsequently to Baddi to prepare pension - 8 - papers to seek widow pension and financial assistance from the State Government for her two disabled sons. She has been deprived of the land measuring 30 bighas 10 biswas. This was cultivable land and now she has been left with only 18 bighas 14 biswas of land, which is Banjar Kadeem. She was solely dependent for her livelihood on the income from the agricultural land. Defendant has taken the undue advantage of the innocence of the plaintiff in getting the gift deed in his favour. He has actively participated towards preparation of Ex. D-1, dated 12.08.1998. He has obtained copies of Jamabandis for the year 1993-1994. Defendant has not produced any witness from the office of Sub Registrar Nalagarh to corroborate his statement. Defendant has not placed any tangible evidence on record to establish that who has filled the column of endorsement, which was inside the stamp made by the Sub Registrar, Nalagarh. There is no evidence that Sub Registrar, Nalagarh has read out the contents of gift deed Ex. D-1, dated 12.08.1998 to the plaintiff. It was the duty of the Sub Registrar, Nalagarh to read out the contents of the gift deed to the plaintiff and only thereafter, she was supposed to put her thumb impression. The defendant has also not disclosed the name of Sub Registrar. Defendant has also not led any evidence to prove that he had been looking after the parents of the plaintiff. Plaintiff did not know the consequences of her putting thumb impression on the document. She was always under the impression that these documents were being prepared to seek widow pension and financial assistance for her children. It has not come in evidence that she has sought any advise from an Advocate before sending the documents. It was necessary for the defendant to prove that - 9 - the plaintiff knew the consequences of putting thumb impression on the documents. The execution of Ex. D-1, dated 12.08.1998 is the out come of undue influence exercised by the defendant. 20. Their Lordships of Hon’ble Supreme Court in Ladli Parshad Jaiswal Vs. The Karnal Distillery Co., Ltd. Karnal and others, AIR 1963 SC 1279 have held that in order to prove the plea of undue influence, the party has to give particulars. Their Lordships of Hon’ble Supreme Court have analyzed Order 6 Rule 4, Section 16 of the Contract Act, 1872 as under (paras 20, 25 and 26):- “Order 6 Rule 4 Civil P.C. provides that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms in the Appendix, particulars (with dates and items if necessary) shall be stated in the pleading. The reason of the rule is obvious. A plea that a transaction is vitiated because of undue influence of the other party thereto, gives notice merely that one or more of a variety of insidious forms of influence were brought to bear upon the party pleading undue influence, and by exercising such influence, an unfair advantage was obtained over him by the other. But the object of a pleading is to bring the parties to a trial by concentrating their attention on the matter in dispute, so as to narrow the controversy to precise issues, and to give notice to the parties of the nature of testimony required on either side in support of their respective cases. 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. This rule has been evolved with a view to narrow the issue and protect the - 10 - party charged with improper conduct from being taken by surprise. A plea of undue influence must, to serve that dual purpose, be precise and all necessary particulars in support of the plea must be embodied in the pleading; if the particulars stated in the pleading are not sufficient and specific the Court should, before proceeding with trial of the suit, insist upon the particulars, which give adequate notice to the other side of the case intended to be set up. The doctrine of undue influence under the common law was evolved by the Courts in England for granting protection against transactions procured by the exercise of insidious forms of influence spiritual and temporal. The doctrine applies to acts of bounty as well as to other transactions in which one party by exercising his position of dominance obtains an unfair advantage over another. The Indian enactment is founded substantially on the rules of English common law. The first sub-section of S.16 lays down the principle in general terms. By sub-section (2) a presumption arises that a person shall be deemed to be in a position to dominate the will of another if the conditions set out therein are fulfilled. Sub-section (3) lays down the conditions for raising a rebuttable presumption that a transaction is procured by the exercise of undue influence. The reason for the rule in the third sub-section is that a person who has obtained an advantage over another by dominating his will may also remain in a position to suppress the requisite evidence in support of the plea of undue influence. A transaction may be vitiated on account of undue influence where the relations between the parties are such that one of them is in a position to dominate the will of the other and he uses his position to obtain an unfair advantage over the other. It is manifest that both the conditions have ordinarily to be established by the person seeking to avoid the transaction: he has to prove that the other party to a transaction was in a position to dominate his will and - 11 - that the other party had obtained an unfair advantage by using that position. Clause (2) lays down a special presumption that a person is deemed to be in a position to dominate the will of another where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other or where he enters into a transaction with a person whose mental capacity is temporarily or permanently affected by reason of age illness or mental or bodily distress. Where it is proved that a person is in a position to dominate the will of another (such proof being furnished either by evidence or by the presumption arising under sub-sec. (2) and he enters into a transaction with that other person which on the face of it or on the evidence adduced, appears to be unconscionable the burden of proving that the transaction was not induced by undue influence lies upon the person in a position to dominate the will of the other. But sub-sec.(3) has manifestly a limited application: the presumption will only arise if it is established by evidence that the party who had obtained the benefit of a transaction was in a position to dominate the will of the other and that the transaction is shown to be unconscionable. If either of these two conditions is not fulfilled the presumption of undue influence will not arise and burden will not shift.” 21. In Bishnu Priya Dei and another Vs. Brusabhanu Mohapatra and others, AIR 1976 Orissa 163, the Division Bench has held that it is duty cast upon the party pleading undue influence to set forth full particulars. The learned Division Bench has held as under (para 8):- “Counsel for respondent No.1 has contended before us that there is no adequate averment to sustain the plea of undue influence and, therefore, plaintiffs should not have been permitted to lead evidence at the trial for making out a case of undue - 12 - influence. The entire plea of undue influence has to be found in paragraphs 4, 7, 7(a) and 13 of the plaint. We think it worthwhile to extract these allegations in their original form:- “4. That the defendant No.1 being resident of Kolabira and a cultivator of few acres of lands was first appointed as a cleaner in 1936 and then as a driver about 6 years after, and served in those capacities for a pretty long time i.e. till the year 1953. Though appointed as a cleaner and driver he rendered all sorts of services to plaintiff No.1’s ailing father who had crossed the age of 60 and thus made himself indispensable to his master, i.e. father of the plaintiff No.1. In short, he had considerable influence on plaintiff No.1’s father and he was in a position to dominate the will of plaintiff’s father so much so that he was the cause of the differences of opinion between the plaintiff No.1 and his father in many domestic matters in which the defendant No.1 intermeddled at times to serve his purposes. 7. That because of the influence and dominating position defendant No.1 had on plaintiff No.1’ father, the defendant No.1 managed to get a sale deed executed without the knowledge of the plaintiff and other members of the family in the year 1951 by the plaintiff No.1’s father. The sale deed contains many false recitals such as, the self- acquisition of the property and exclusive possession thereof, the advancement of the sale price of Rs.7,500/- on 26-3-50 for house hold expenses and income-tax purpose and the like. 7(a). It appears from the recitals of the sale deed that defendant No.1 has also taken some documents from plaintiff No.1’s father on or about 26- 3-50 by exerting his influence without the knowledge - 13 - of the plaintiff No.1 and other members of the family and without any consideration to gain an undue advantage to himself. 13. That the sale deed dated 27-6-51 having been executed without consideration and under influence of defendant No.1, and for inadequate consideration even if sale price as per recital is proved to have been paid, the sale is vitiated on account of undue influence and inadequacy of consideration as defendant No.1 thereby has gained an undue advantage by getting a property worth Rs.30,000/- (Rupees thirty thousand) for either no sum or a nominal sum of Rs.7,500/- in view of his influence and dominating position.” It is claimed that these averments do not satisfy the requirement of Order 6, Rule 4 of the Code of Civil Procedure. That Rule runs thus:- “In all cases in which the party pleading relies on any misrepresentation fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and item if necessary) shall be stated in the pleadings.” “Undue influence” has been defined in Section 16(1) of the Indian Contract Act thus:- “A contract is said to be induced by undue influence where the relations subsisting between the parties are such that 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.” Sub-section (2) is illustrative and provides:- - 14 - “In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another:- (a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other, or (b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by the reason of age, illness, or mental or bodily distress.” Sub-section (3) deals with the rule of evidence and provides:- “Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to e unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.” In the case of Bishundeo v. Seogeni Rai, AIR 1950 SC 280, Bose, J. pointed out:- “It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to account to an averment of fraud of which any Court ought to take notice, however, strong the language in - 15