Case: Afsar Sheikh and Another Vs. Soleman Bibi and Others

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 temporarily 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 fact that he was illiterate and old, was no proof of such mental incapacity. None of the circumstances mentioned in sub-section (2) of s. 16, had been proved from which an inference could be drawn that the donee was in a position to dominate the will of the donor. The failure of the plaintiff to prove this element of undue influence, which was t o be considered at the first stage, would itself lead to the collapse of the whole ground of "undue influence".22. Assuming for the sake of argument that the "Hiba-bil-Ewaz was induced by influence of Afsar, in whom the former reposed confidence such as a father does, in his son, then also it had not been proved that such influence was undue. As a rule "there is no presumption of undue influence in the case of a gift to a son...... although made during the donors illness and a few days before his death". (Halsburys Laws of England 3rd Ed. Vol. 17, p. 674).23. The District Judge has held (as per his judgment dated 18-6-1965) that the plaintiff executed the Hiba-bil-Ewaz of his own free will after understanding the contents of the deed.24. Indeed, the evidence of the deed writer, DW 6, who knew Ebad for about 5 years previously, was to the effect that he had scribed the deed (Hiba-bil-Ewaz) according to Ebads instructions in the presence of the attesting witnesses. DW 6 then read out the contents of the deed to Ebad, who accepted the same to be correct and then thumb marked it. This account of the witness was not challenged in cross-examination.25. D.W. 7 is an attesting witness of the deed. H e was the Sarparch of Birkiti Gram Panchayat. He had come to the Registration Office at Pakur on that day in connection with his own business. He was known to Ebad. According to the witness, it was Ebad, the donor, - and not the donee-who had re quested the witness to attest the deed. The witness stated that it was Ebad who told him that he was gifting 12-1/2 bighas of land to Afsar in token consideration of a Dhoti given by the latter. The witness corroborated the scribe, that the de ed had been drawn up according to the instructions given by Ebad.The first two courts have concurrently found that these witnesses are respectable, independent and disinterested persons, and their evidence is entirely creditworthy. They also accepted the evidence of DW 3, DW 4 and DW 5 regarding the giving of Dhoti as consideration for the Hiba by the donee to the donor.26. 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 plaintiffs 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 de ed had been lost, got on 9-2-1959, the Hiba-bil-Ewaz executed. The core of this story was gouged out by the plaintiffs 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.27. The first appellate Court further came to the conclusion that this gift was acted upon by the parties, the donee entered into possession of the gifted land, that the plaintiffs natural son Moktul who since long before the gift, had been living separately from him, started residing with the plaintiff, and, according to the plaintiffs own admission, Moktul, sometime prior to the suit (which has been filed about one year after the execution of the Hiba) convened a Panchayat in the Mosque, to consider why the land should be given to defendant 1 , and since then the troube arose which led to the institution of the suit.In short, the District Judge who was the final court of fact, after a survey of the entire evidence on record, found that Afsar was not in a position to dominate the will of Ebad Sheikh and that the execution of the Hiba-bil-Ewaz was not induced by undue influence.28. We have discussed the evidence of the important witnesses in some detail to show that on the material on record, the finding of the first appellate court to the effect, that the plaintiff had failed to prove that defendant 1 was in a position to dominate his will, was not wrong or unreasonable. In any case, it did not suffer from any "illegality, omission, error or defect such as is referred to in sub-section (1) of section 100". It was a finding of fact and the High Court in second appeal, had no jurisdiction to interfere with the same, even if it appeared to be erroneous to the High Court, the error not being of a kind indicated in section 100(1).29. Since the plaintiff had failed to substantiate the first element essential to the proof of undue influence, the High Court was wrong in holding that the burden had shifted on the defendant to show that the Hiba-bil-Ewaz was not induced by undue influence.30.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Thus considered, the High Court was in error when by its judgment, dated October 16, 1963, it remanded the case to the first appellate Court with a direction to determine the question of undue influence "on material already on record."Be that as it may, the High Court was not competent, in second appeal, to reverse the 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 andscope of the powers of the High Court to interfere in second appeal with judgments and decrees of courts below is indicated in ss. 100, 10 1, and 103 of theCode 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 f act. 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. Jawharthe present case the High Court did not consider the propositions in the order indicated above, and this led to a wrongthe case before us, after a careful examination of the evidence on record, the first appellate Court found the points to be considered at the first two stages, against the plaintiff. It held that although the relationship between the donor and the donee was intimate, like that of father and son characterised by mutual cordiality and affection, the donee was not in a position to dominate the will of the donor. No less a witness than the donor himself, as R.W. 10, emphatically maintained in cross-examination: "Afsar worked sometimes as my labourer on wages and I dont understand what confidence has got to do with it." He intransigently refused to concede even the stark fact-which was otherwise found fully established-that he had brought up Afsar as a son from his very infancy and the latter used to look after the formershave discussed the evidence of the important witnesses in some detail to show that on the material on record, the finding of the first appellate court to the effect, that the plaintiff had failed to prove that defendant 1 was in a position to dominate his will, was not wrong or unreasonable. In any case, it did not suffer from any "illegality, omission, error or defect such as is referred to in sub-section (1) of section 100". It was a finding of fact and the High Court in second appeal, had no jurisdiction to interfere with the same, even if it appeared to be erroneous to the High Court, the error not being of a kind indicated in sectionthe plaintiff had failed to substantiate the first element essential to the proof of undue influence, the High Court was wrong in holding that the burden had shifted on the defendant to show that the Hiba-bil-Ewaz was not induced by unduethe present case the High Court did not consider the propositions in the order indicated above, and this led to a wrongthe case before us, after a careful examination of the evidence on record, the first appellate Court found the points to be considered at the first two stages, against the plaintiff. It held that although the relationship between the donor and the donee was intimate, like that of father and son characterised by mutual cordiality and affection, the donee was not in a position to dominate the will of the donor. No less a witness than the donor himself, as R.W. 10, emphatically maintained in cross-examination: "Afsar worked sometimes as my labourer on wages and I dont understand what confidence has got to do with it." He intransigently refused to concede even the stark fact-which was otherwise found fully established-that he had brought up Afsar as a son from his very infancy and the latter used to look after the formerseven 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 theare, with due respect, unable to appreciate this antic construction put on the defendants pleading.All that has been said in the written statement is that the relationship subsisting between the plaintiff and the defendant was marked by love and affection, and was akin to that of father and son.Normally, in such paternal relationship, the father, and not the son, is in a position of dominating influence. The defendants pleading could not be reasonably construed as an admission, direct or inferential, of the fact that he was in a position to dominate the will of the plaintiff. In spelling out a plea of undue influence for the plaintiff by an `inverted construction of the defendants pleading, the High Court overlooked the principle conveyed by the maxim secundum allegataet probata, that the plaintiff could succeed only by what he had alleged and proved. He could not be allowed to travel beyond what was pleaded by him and put in issue. On his failure to prove his case as alleged, the court could not conjure up a new case for him by stretching his pleading and reading into it something which was not there, nor in issue, with the aid of an extraneous document.Thus considered, the High Court was in error when by its judgment, dated October 16, 1963, it remanded the case to the first appellate Court with a direction to determine the question of undue influence "on material already on record."Be that as it may, the High Court was not competent, in second appeal, to reverse the 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