Letters Patent Appeal No.436 OF 1995 Against the Judgment and order passed by a learned Single Judge of this Court dated 19.05.1994 in First Appeal No. 166 of 1979. **** Sita Ram Singh, son of Late Shri Ram Dayal Singh, resident of village Siswan Buzurg, P. O. & Police Station – Mairwa, District – Siwan Defendant (Appellant) …… Appellant Versus 1. Ram Kishori Devi alleged to be widow of Amar Roy (deceased). 2. Draupadi Kumari alleged to be the daughter of Amar Roy (deceased). Both residents of village Siswan Buzurg, P.O & Police Station – Mairwa, District Siwan. Plaintiff (Respondents) …. Respondents **** For the Appellant : Mr. Shashi Shekhar Dwivedi, Sr. Advocate. Mr. Ajit Kumar Singh – II, Advocate. Mr. Ranjan Kumar Dubey, Advocate. For the Respondents :- Mr. Kumar Uday Singh, Advocate. **** P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE GOPAL PRASAD ****** Gopal Prasad, J. This Letters Patent Appeal has been preferred against the Judgment and Order dated 19.05.1994 passed in First Appeal No. 166 of 1979 by which the appeal has been dismissed confirming the judgment and decree dated 07.12.1978 passed by Sri Mundrika Prasad, VIth Additional Sub-Judge, Siwan in Title Suit No. 129 of 1965 / 25 of 1977. 2. Appellant is the defendant in the suit. Original Plaintiff Amar Rai filed a suit for declaration that the deed of gift dated 07.02.1964 executed by 2 him in favour of defendant Sita Ram Singh with respect to the property in suit is illegal, inoperative and void with further prayer for recovery of possession of suit property and mense profit. 3. The original plaintiff Amar Rai died during pendency of suit, his wife & daughter were substituted in his place as plaintiff no. 1 and 2 respectively. 4. The case of the plaintiff in the plaint is that the said original plaintiff Amar Rai had got his first marriage at village Pachphor, the first wife (Dhanrajo Devi) died issueless. After the death of the first wife the Amar Rai got second marriage with Kishori Devi plaintiff no. 1 and from the second wife the original plaintiff Amar Rai blessed with a daughter who is Draupadi plaintiff no. 2 and was about 10 years old at the time of the institution of the suit. The further case is that the Amar Rai had got some near Gotia alive. The further case the mother of defendant Sita Ram and first wife of original plaintiff Amar Rai had their Naihar at village Pachphor & so there was a relationship of sister between them by virtue of being of same village, so defendant Sitaram used to call the original plaintiff Amar Rai as Mausa. The further case is that the plaintiff got mentally and physically weak due to old age as he was 70 years old and in ill health and hence, the defendant used to visit the house of the plaintiff and manage his agricultural pursuits and got the confidence and trust of original plaintiff and even dominating the will of the original plaintiff Amar Rai. The further 3 case is that the defendant impressed the original plaintiff to execute an Intjamnama for managing the agriculture of original plaintiff. On 07.02.1964, the defendant Sitaram came and took the original plaintiff Amar Rai to Siwan Sub-Registry Office and got a deed executed and took the signature or thumb impression on several papers but it was neither read over nor explained and on the next day the defendant along with other brought the original plaintiff to Registry Office and got the deed registered. 5. The further case of the plaintiff is that after one months the plaintiff learnt as he heard Hulla in the village that instead of getting a deed of Intjamnama the defendant has fraudulently got a deed of gift having been executed and registered and then the plaintiff contacted his Pattidar Ram Jatan Rai and got a certified copy and then he learnt that the defendant has committed fraud and instead of Intjamnama has got a deed of gift executed with respect to entire property. Then the plaintiff filed a criminal case under Section 420 of the Indian Penal Code against defendant Sitaram. However, the defendant got acquitted in the said criminal case and started threatening to dispossess and even tried to get mutation. Hence, the suit was filed for setting aside the deed of gift on the ground of its execution by fraud, undue influence and misappropriation. 6. The defendant appeared in the case and filed the written statement. The case of the defendant is that the plaintiff No. 1 Kishori Devi is not a legally wedded wife of original plaintiff Amar Rai nor the plaintiff 4 no. 2 is the legitimate child of the original plaintiff Amar Rai and so has got no title in the disputed land. The further case is that the original plaintiff Amar Rai had brought plaintiff no. 1 after purchase and had kept her as concubine and Amar Rai out of fear of his prestige admitted defendant no. 1 as his wife and further original plaintiff Amar Rai was neither 70 years old nor was ill since last five years nor was physically or mentally weak and asserted that the age of Amar Rai at the time of the institution of the suit was only 60 to 65 years old and was not mentally or physically weak and stated that the defendant is the son of the full sister of the first wife of Amar Rai and hence original plaintiff was own Mausa of the defendant Sitaram. The further case of defendant is that the Amar Rai kept the defendant as his son and the defendant always used to serve and the defendant even used to help Amar Rai by money and the residential house of original plaintiff which has been subject of gift was also constructed from the money of the defendant and after the execution of the deed of gift the defendant Sita Ram Singh came in possession of the suit property. On the pleading of the parties. Issues were framed by the trial court. 7. On the issued framed both the parties in support of their pleading adduced both oral and documentary evidence in trial court. 8. After hearing both the parties and taking into consideration both oral and documentary evidence adduced by the parties the trial court decreed the suit holding that deed of gift dated 07.02.1964 executed by 5 original plaintiff Amar Rai in favour of defendant is not genuine and valid document and the same was brought into existence by undue influence, fraud and misrepresentation. The plaintiff No. 1 is wife and plaintiff no. 2 is the daughter of original plaintiff Amar Rai and original plaintiff Amar Rai was not own Mausa of the defendant. The learned trial court further held that there was a fiduciary relation between Sita Ram and original plaintiff Amar Rai and Sita Ram was in a position to dominate the will of the plaintiff and the deed of gift executed by Amar Rai in favour of defendant on 07.02.1964 is not genuine and valid document and the same was brought into existence under undue influence, fraud and misrepresentation. 9. Being aggrieved by the judgment and decree of the learned trial court the defendant preferred an appeal before this Hon’ble Court being First Appeal No. 166 of 1993. The learned Single Judge after hearing the parties dismissed the first appeal confirming the judgment and decree of the trial court holding that Ram Kishori plaintiff no. 1 is the legally wedded wife of Amar Rai and Dropadi plaintiff no. 2 is a legitimate daughter of Amar Rai and Amar Rai was not own Mausa of defendant Sita Ram, and Sita Ram did not perform Shradh of original plaintiff Amar Rai. It further held that there was a fiduciary relationship between defendant Sita Ram and family of Amar Rai and Sita Ram was in a position to dominate the will of original plaintiff Amar Rai and further held that the deed of gift was unconscionable as donor gave entire property without keeping any property 6 either for self or his wife or the daughter and hence onus shifted on the defendant to prove that deed was not induced by undue influence & fraud. 10. Being aggrieved by the order of this Court in first appeal, this L.P.A has been filed by the defendant-appellant. The learned counsel for the appellant submitted that the suit has been filed by the plaintiff respondent for setting aside the deed of gift on the ground of fraud, undue influence and misrepresentation but for challenging the deed of gift on the ground of undue influence and fraud the fact constituting the undue influence and fraud must be specifically pleaded in full particular detail about the undue influence i.e. nature of manner of influence, circumstances under which original plaintiff had fiduciary relation with defendant and general allegation are not sufficient for challenging the deed on the ground of fraud and undue influence and heavy onus lies on plaintiff to plead and proof and has placed reliance upon decisions of Supreme Court reported in AIR 1951 SC, 280, (Bishundeo Narain & Anr. Vs. Seogeni Rai & Ors.) & AIR 1963 SC, 1279, (Ladli Prasad Jaiswal Vs. The Karnal Distillery Co. Ltd., Karnal & Ors). It has further been contended that the first appellate court though considered the subsidiary issue but did not consider properly the main issues whether the deed of gift suffered from undue influence and fraud. It has further been contended that the appellate court i.e. the Hon’ble Court in Letters Patent Jurisdiction requires independent appraisal of all the issues considering the entire oral and documentary evidence to come to its 7 independent conclusion and not mechanical appreciation and has relied upon decisions reported in 2007(6) SCC 737 para 14 (Ramchandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale (Dead) & Ors.) and 2009 (4) SCC 791 (Nicholas V Menezes Vs. Joseph M. Menezes & Ors.) and further contended that since no proper pleading made so case was not decided in right perspective and at it requires interference to be remanded for fresh consideration. 11. Learned counsel for the respondent, however, contends that the learned trial court considered the evidence in great detail and also the pleading and proof i.e. the evidence both oral and documentary and the first appellant court also take into consideration relevant pleading and proof. The first appellate court also considered the law and fact in proper perspective and there is nothing in their judgment to disturb the finding of trial court as well as the judgment of confirmation passed by the first appellate court which has considered the relevant facts and law and has placed reliance upon decision reported in 1970 SC page 1367 (Lakshmi Amma & Anr. Vs. Talengala Narayana Bhatta & Anr.) and further contended that the appellant court and this court in its jurisdiction under the letters patent appeal not necessarily required to do reappraisal of all issues in all cases or in each and every case. If the facts and law have been well considered in the trial court and first appellate court then this court in Letter Patent Appeal is not required to reiterate the facts and reappraisal of evidence to come to 8 independent conclusion. 12. Hence, the question for consideration on the respective submission is whether the deed of gift was executed in circumstances which render the deed of gift invalid as suffering from undue influence, fraud and misrepresentation and the judgment and decree of learned lower court and 1st appellate court suffer from any illegality requiring interference on ground of defect in pleading or proof and require reappraisal of evidence to come to independent conclusion by this Court. 13. The suit has been filed for declaration that deed of gift dated 07.02.1964 executed by the original plaintiff Amar Rai in favour of defendant is illegal inoperative and void on the ground that the deed of gift has been brought in existence by undue influence, fraud and misrepresentation. 14. We proceed to consider that in a suit for setting aside a deed of gift on the ground of undue influence, fraud and misrepresentation, what are the essential ingredients to plead and proof and how the plaintiff who seeks such relief, has to proceed with his case and when the defendant is required to be called upon to show that the contract or gift was not inducted by undue influence. 15. Undue influence has been defined in Section 16 of the Indian Contract Act, thus: “16 (1) 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 9 the will of the other and uses that position to obtain an unfair advantage over the other. (2) 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 reason of age, illness, or mental or bodily distress. (3) 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 be 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. Nothing in this sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1972.” 16. Hence it is apparent that Section 16 of Contract Act defines undue influence its ingredient as well as its applicability i.e. condition when and where it applies and when onus shifts on defendant to show that deed of gift did not suffer from undue influence. Hence, sub-paragraph (1) of Section 16 of the Contract Act mentions the elements of undue influence i.e. for setting aside a deed on the ground of undue influence two things are required to be considered and proved. (1) Whether fiduciary relation exists between the donor and donee, such that the donee is in a position to dominate the will of the doner and (2) Has the donee used that position to obtain an unfair advantage over the donee. 17. The sub-section (2) mentions that a person is deemed to be in a position to dominate the will where he stands in a fiduciary relation to 10 another 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 and proof being furnished either by evidence or by presumption that a person is in a position to dominate the will. 18. The third sub-section mentions that if the transaction on its face or on evidence adduced, appears to be unconscionable, the burden of proof shall be on the person, who is in a position to dominate the will of donor, to prove that deed does not suffer from undue influence. 19. This legal position has well been established and enunciated in decision of Supreme Court reported in AIR 1967 SC pp. 878 (Subhas Chandra Dad Murhib Vs. Ganga Prasad Das Murhib & Ors.) and it is relevant to quote paragraphs 4, 5, 6 and 7 which are as follows :- “4. Under S. 16 (1) of the Indian Contract Act 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. This shows that the court trying a case of undue influence must consider two things to start with, namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor and (2) has the donee used that position to obtain an unfair advantage over the donor? 5. Sub-section (2) of the section is illustrative as to when a person is to be considered to be in a position to dominate the will of another. These are inter alia (a) where the donee holds a real or apparent authority over the doner or where he stands in a fiduciary relation to the donor or (b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress. 6. Sub-section (3) of the section throws the burden of proving that a contract was not induced by undue influence on the 11 person benefiting by it when two factors are found against him, namely, that he is in a position to dominate the will of another and the transaction appears on the face of it or on the evidence adduced to be unconscionable. 7. The three stages for consideration of a case of undue influence were expounded in the case of Raghunath Prasad V. Sarju Prasad, 51 Ind App 101 (AIR 1924 PC 60) in the following words:- “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 the contract has been induced by undue influence. Upon the determination of this issue a third point emerges, which is that of 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. Error is almost sure to arise if the order of these propositions be changed. The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of these parties. Were they such as to put one in a position to dominate the will of the other?” This view is also well propounded in the decision reported in AIR 1963 SC p. 1279 (supra): “25 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. 12 26 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 that the other party had obtained as 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 other and that the transaction is shown to be unconscionable. If either of these two conditions is nit fulfilled the presumption of undue influence will not arise and burden will not shift.” 20. Hence from the above consideration legal position emerges that the court trying a case of undue influence must consider two things to start with, (1) Are the relationship between donor and donee such that the donee is in a position to dominate the will of donor. (2) Has the donee used that postion to obtain an unfair delay. And further if the transaction appears to be unconscionable 13 then the burden of proving that the contract/deed was not induced by undue influence shifts to the donee. 21. Having established the position of law on the subject, the next point arises about the pleading in the plaint about the basic facts to cover the law and the proof thereon. 22. Order VI, Rule 4 of the Code of Civil Procedure specifically provides that the party pleading or relying on undue influence must properly plead the precise nature of the influence exercised on the donor, the manner of use or influence by the donee and the unfair advantage obtained by the donee and all necessary particulars in support of plea must be embodied in the pleading in full particulars with particular act in sufficient details. Only general allegation shall not suffice and if the particulars stated in the pleading are not sufficient and specific, the Court should before proceeding with the trial must insist upon the plaintiff to provide the particulars. This view has well been enunciated in the decision reported in AIR 1951 SC p. 280 (Bishundeo Narain & Anr. Vs. Seogeni Rai & Ors.) as well as 1963 SC p. 1279 (Ladli Prasad Jaiswal Vs. The Karnal Distillery Co. Ltd., Karnal & Ors.) and in this connection, it is relevant to quote para 20 of AIR 1963 SC pp. 1279 :- “20 Order 6 Rule 4 Civil P.C. provides that in all cases in which the partly pleading relies on any misrepresentation, fraud, breach of trust, willful 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 14 a transaction is vitiated because of undue influence of the other party thereto, gives notice