Delhi District Court
Maya W/O Sh. Hargyan Singh vs Late Anaro Devi W/O Late Mahipal Singh on 30 August, 2019
IN THE COURT OF SH. M. P. SINGH, ADDITIONAL DISTRICT JUDGE
03, EAST DISTRICT, KARKARDOOMA COURTS, DELHI
RCA no. 225/16
1. Maya w/o Sh. Hargyan Singh
D/o Late Naubat Ram
R/o H. No. 97, B Block,
Gali No. 5, Jagatpuri, Delhi - 51
2. Ramwati w/o Hukum Singh
D/o Late Naubat Ram
R/o H. No. 97, B Block,
Gali No. 5, Jagatpuri, Delhi - 51 ................ Appellants
Versus
1. Late Anaro Devi w/o late Mahipal Singh
D/o Late Naubat Ram (through her legal heirs):
i) Kusum w/o Mohinder Singh
R/o B22/10, Jagatpuri Extension, Delhi
ii) Mamta w/o Jai Prakash
R/o B946, East Gokkalpur, Delhi
iii) Babita w/o Pawan Kumar
R/o Saboli Village Extension, Delhi - 93
iv) Anil Kumar s/o Late Mahipal Singh
R/o D3/208, Nand Nagri, Delhi
v) Sunil Kumar s/o Late Mahipal Singh
R/o D3/208, Nand Nagri, Delhi
vi) Ashwani s/o Late Mahipal Singh
R/o D3/208, Nand Nagri, Delhi
vii) Tikam s/o Late Mahipal Singh
R/o D3/208, Nand Nagri, Delhi
2. Puhspa w/o Rambir
D/o Naubat Ram
R/o 43, Sarojini Naidu Park,
Shastri Nagar, Delhi 31 ............Respondents
Appeal filed on 22.02.2016
RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 1 of 22
Arguments heard on - 27.07.2019
Judgment pronounced on - 30.08.2019
JUDGMENT
1. Defendants Maya and Ramwati are in appeal before this Court against preliminary decree dt. 03.12.2015 passed by Ld. Civil Judge in a suit for partition, declaration and permanent injunction. Parties shall be referred to in this judgment as per their ranks before Ld. Trial Court.
2. Naubat Ram (for short 'NR') left for his heavenly abode on 16.01.1999 leaving behind four daughters, namely, (i) Anaro Devi (ii) Maya, (iii) Ramwati, and (iv) Pushpa. He had a property measuring 150 sq. yards bearing no. 43, Gali no. 5, Sarojini Naidu Park, Shastri Nagar, Delhi (for short the 'suit property') in his name by virtue of a registered sale deed executed on 29.01.1965. According to plaintiffs, NR had died intestate. NR, prior to his demise, as per the plaintiffs, had been undergoing treatment for mental illness and defendants Maya and Ramwati had taken him to their house, on small pretext, only to grab the suit property, where he breathed his last on 16.01.1999.
3. It is plaintiffs' assertion that NR had purchased the suit property out of sale proceeds of ancestral jewellery and ancestral property in a village at District Bulandshahar, Uttar Pradesh. They assert that NR was unemployed with no source of income. As per the plaintiffs, NR was not the owner of the suit property; anyhow, its sale deed had been executed in his name as he was karta of the family. They state that NR had never executed any document in favour of anyone qua the suit property. As per plaint's averments, plaintiff Pushpa is in possession of nine rooms and plaintiff Anaro of three rooms.
RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 2 of 22Defendants Maya and Ramwati are stated to be not in possession of any room.
4. Plaintiffs allege that defendants Maya and Ramwati used to threaten them to grab the entire the suit property. Plaintiff Pushpa thus instituted a suit for declaration and permanent injunction in the Court of Ld. Civil Judge, Delhi. Defendants Maya and Ramwati in the course of proceedings in the suit for declaration and permanent injunction produced documents viz., GPA, Agreement to Sell, Affidavit, Receipt, and Will purportedly executed on 15.01.1999 by NR in their favour. Plaintiffs term these documents as forged and fabricated. On the strength of these documents, defendants Maya and Ramwati allegedly started to threaten the plaintiffs that they would sell out the suit property to some third person. Whilst the suit, out of which the instant appeal arises, was sub judice before Ld. Trial Court, defendants Maya and Ramwati transferred the suit property to one Ms. Kiran Devi on 09.06.2008. On these averments, following reliefs were sought for in the plaint:
(a) Decree for partition of suit property equally between the four sisters by metes and bounds,
(b) Decree of declaration thereby declaring GPA, Agreement to Sell, Receipt, Affidavit, Will executed by late NR on 15.01.1999 in favour of defendants Maya and Ramwati as null and void; declaration that property documents dt. 09.06.2008 executed by defendants Maya and Ramwati in Ms. Kiran Devi's favour are null and void; and
(c) Decree of permanent injunction to restrain the defendants from creating any third party interest in the suit property.
5. Defendants Maya and Ramwati resisted the suit on the ground that late NR had had sold the suit property on 15.01.1999 in equal shares to them for valuable consideration through two separate sets of documents, namely, RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 3 of 22 registered GPA, registered Will, notarised Agreement to Sell, Receipt and Affidavit. They thus assert that they are the absolute owners of the suit property. They admit that NR had left this world on 16.01.1999. Denying that suit property is HUF property purchased out of funds received on sale of ancestral property / jewellery by NR, they state that it was actually his self acquired property. According to them, NR had come to Delhi in 1950s and started to earn his livelihood by plying tonga; that he used to have handsome earnings as in those days tonga used to be a means of transportation; that out of his earnings, NR had purchased two jhuggies at JJ Colony, near Gulabi Bagh, Shakti Nagar, Delhi; that in 1965 after selling the jhuggies, NR purchased the suit property and raised the construction. They go on to state that just prior to plaintiff Pushpa's marriage, late NR and his brother had sold off the ancestral property to one Bhoop Singh and spent the money in her (Pushpa's) marriage. They refute plaintiffs' averment that NR was suffering from mental illness or that he was undergoing any kind of medical treatment for it. They deny that they had taken their father to their house on small pretext. They state that till NR was alive, plaintiffs Anaro and Pushpa did not care for him and never came to see him and that he was actually under their (Maya and Ramwati) care. According to them, NR had died due to old age. They state that plaintiff Pushpa is in possession of two rooms and a shop in the suit property and plaintiff Anaro of one room. Initiation of the previous litigation by Pushpa for declaration and permanent injunction before the Court of Ld. Civil Judge, Delhi is not denied. Denying other averments, defendants sought dismissal of the suit.
6. Issues framed on 27.09.2006 by Ld. Trial court are as follows: RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 4 of 22
1. Whether the plaintiff has not come to the court with clean hands and suppressed the material facts? OPD
2. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD
3. Whether the plaintiff has any locus standi to file the present suit? OPD
4. Whether the plaintiff is entitled for decree of declaration is prayed for? OPP
5. Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP
6. Whether the plaintiff is entitled for a decree of partition as prayed for? OPP
7. In plaintiffs' evidence, the following witnesses entered the witness box: PW1 Anaro Devi - She was examinedinchief; but her cross examination remained inconclusive as she passed away. PW2 Amer Singh - He is a resident of the same native village as late NR. He entered the witness box to depose that NR purchased the suit property out of sale proceeds of agricultural land; that NR used to ply tonga; that NR used to remain ill and for the last two years prior to his death he was mentally unfit, and; that NR had told him that he wanted to give the suit property in equal shares to all his four daughters. PW3 Pushpa Devi (plaintiff no.2) - She entered the witness box to depose more or less along the same lines as averred in the plaint. PW4 Kusum Lata She is the daughter of plaintiff no.1 late Anaro Devi. She too entered the witness box to depose more or less along the same lines as averred in the plaint.
8. Defendants led no evidence.
RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 5 of 229. Before proceeding further, the nature of documents purportedly executed on 15.01.1999 by NR in favour of defendants Maya and Ramwati may be taken note of.
a) Vide registered GPA (Mark P1), notarised Agreement Deed (Mark P2), registered Will Deed (Mark P3), Receipt of Rs. 40,000/ (Mark P4) and notarised affidavit (Mark P5) NR purported to transfer 75 sq. yards (out of total area of 150 sq. yards) of property bearing no. 43A, Sarojini Naidu Park, Shastri Nagar, Delhi - 31 to defendant Maya for a consideration of Rs. 40,000/ only. All these documents purportedly bear NR's thumb impressions.
b) Vide registered GPA (Mark P6), notarised Agreement for Sale (Mark P7), Will Deed (Mark P8), Receipt of Rs. 40,000/ (Mark P9) and affidavit (Mark P10) NR purported to transfer 75 sq. yards (out of total area of 150 sq. yards) of property bearing no. 43A, Sarojini Naidu Park, Shastri Nagar, Delhi - 31 to defendant Ramwati for a consideration of Rs. 40,000/ only. All these documents purportedly bear NR's thumb impressions.
10. It is apparent from the Trial Court record that the originals of the aforesaid documents executed on 15.01.1999 never saw the light of the day before the Trial Court. They neither saw the light of the day before this Court. What is on the Trial Court record are the copies of the documents purportedly executed on 15.01.1999 by NR.
11. On issues no.1, 2 and 3 Ld. Trial Court held in plaintiffs' favour. Finding no evidence to show that suit property was ancestral / HUF property, Ld. Trial Court returned a finding that it was NR's selfacquired property. Ld. RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 6 of 22 Trial Court then went on to observe - (a) in terms of section 101 of Indian Evidence Act, burden was on defendants to prove their claim to ownership,
(b) defendants' claim to ownership was within their 'special knowledge' therefore burden of proof lay on them to establish that they were the owners; and as such the argument that plaintiffs had failed to prove the suspicious circumstances surrounding execution of documents Mark P1 to Mark P10 lacked merit, (c) only if the defendants had led evidence in support of their claim to ownership, could the burden have shifted to the plaintiffs to disprove such ownership claim, (d) defendants, having led no evidence, failed to prove their claim to ownership, (e) plaintiff(s) had served a notice (Ex. PW1/4) under Order XII Rule 8, CPC upon the defendants to produce their original documents vide which they had purportedly purchased the suit property from NR, but they did not produce the same, (f) except defendants' pleadings, there is nothing in the form of evidence to show that they are the owners or have any title better than that of the plaintiffs, (f) with there being no evidence to conclude that NR ever divested himself of ownership and vested the same in defendants, there is only one conclusion to be reached i.e. NR died intestate on 16.01.1999, (g) General power of attorney executed by NR in defendants' favour came to an end on NR's demise; agreement to sell, as per section 54 of Transfer of Property Act, confers no title; due execution of the Wills dt. 15.01.1999 not proved, (h) an interesting fact raises serious questions on authenticity of documents Mark P1 to Mark P10; in the documents Mark P1 to Mark P10 the suit property is described as bearing no. 43A, Sarojini Naidu Park, Delhi whereas the suit property owned by NR was actually 43, Sarojini Naidu Park, Delhi, and (i) defendants' claim to ownership having fallen through, the subsequent transfer in Ms. Kiran Devi's favour also falls through.
RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 7 of 22Consequently, Ld. Trial Court went on to hold that each of the four daughters had 1/4 share in the suit property.
12. Arguments heard. Record perused.
13. Before proceeding further, the following observations from the report of A. Raghavamma & Anr. Vs. A. Chenchamma & Anr., AIR 1964 SC 136 need to be taken note of, "There is an essential distinction between burden of proof and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts.... Such a shifting of onus is a continuous process in the evaluation of evidence."
14. Insofar as the finding of fact by Ld. Trial Court that the suit property was NR's self acquired property, I see no reason to take a different view. PW1 late Anaro Devi's deposition cannot be read in evidence as it remained inconclusive. PW3 Pushpa, who conceded in her crossexamination that her father had purchased the suit property before her birth, can be no witness to establish that the same had been purchased out of sale proceeds of ancestral property / ancestral jewellery. Plaintiffs furnished no document of the alleged sale of ancestral property / ancestral jewellery, much less details thereof, viz., date of sale, name of the vendee(s), witnesses to the said sale, the sale consideration etc. Thus, there is no evidence to establish that the suit property was purchased out of sale proceeds of ancestral property or ancestral jewellery. And as such the suit property cannot be ancestral / HUF property. This Court affirms the finding of fact by Ld. Trial Court that the suit property, purchased in NR's name vide registered sale deed dt. 29.01.1965, was NR's selfacquired property.
RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 8 of 2215. Now comes the question whether the ownership claim of defendants Ramwati and Maya can be sustained and as a necessary corollary whether the suit property ought to be partitioned. Appellants' Counsel strenuously urged that the court below had wrongly applied the law with regard to burden of proof. He argued that it was the plaintiffs who had asserted that GPA sale documents executed by NR in favour of defendants Ramwati and Maya were forged and fabricated and as such the burden was on the plaintiffs to prove so; that plaintiffs had challenged defendants' ownership claim and as such onus had been placed on the plaintiffs to prove the documents as null and void; that execution of documents in defendants' favour and their claim to ownership was well within plaintiffs' knowledge; that onus of proving ownership would have been on the defendants, provided the plaintiffs had either not sought the relief of declaration or had not shown knowledge of defendants' title; that no evidence was brought on record to show that the documents did not have NR's signatures or that NR was suffering from mental illness during the period of execution and registration of the documents; that the documents were always available with the office of SubRegistrar and that had the plaintiffs taken steps for getting the originals verified through any private source the defendants would have produced the same.
16. For reasons entirely different than those of Ld. Trial Court, this Court too is of the view that defendants' claim to ownership must fall through and the suit property ought to be partitioned in four shares amongst NR's four daughters. And to arrive at this conclusion I do not think it is necessary to delve into the aspect whether NR was actually suffering from mental illness in the evening of his life.
RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 9 of 2217. Ordinarily a person can rely on a registered instrument executed in his favour. And in ordinary circumstances burden is cast on the person impeaching and assailing such an instrument. But to this ordinary rule, section 111, Evidence Act and section 16 (3), Contract Act are exceptions. Section 111, Evidence is as follows: "Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in position of active confidence."
18. Plaintiffs' very case, right from the very inception, was that the transaction of transfer of the suit property from NR to defendants Maya and Ramwati was not genuine; that the documents were forged and fabricated; that defendants Maya and Ramwati had taken NR, a patient of mental illness, to their house on small pretext to grab the suit property. In other words, their case right from the very inception was that the transaction of transfer of the suit property from NR to defendants Maya and Ramwati lacked the element of 'good faith'. Now, it is not in dispute that defendants Maya and Ramwati, who claim to have purchased the suit property from NR on 15.01.1999, were late NR's daughters and consequently stood in a 'position of active confidence' in relation to their father i.e. late NR. That NR left this material world the very next day on 16.01.1999 again is not in dispute. As per PW2 Amer Singh (NR's covillager) NR had died at the age of 85 years, and from the Trial Court record it appears that defendants do not seriously contest this. Late NR who had purportedly affixed his thumb impressions on documents dt. 15.01.1999 was a person who used to ply tonga for his daily bread is also not in dispute. Therefore, these undisputed facts, even de hors plaintiffs' RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 10 of 22 allegations, ipso facto do raise the question of 'good faith' in the transaction between NR and defendants Maya and Ramwati. And in terms of section 111, Evidence Act the burden of proving the 'good faith' of the transaction is actually on defendants Maya and Ramwati. But defendants Maya and Ramwati led no evidence whatsoever. And as such defendants Maya and Ramwati have actually failed to discharge the burden of proof under section 111, Evidence Act.
19. Now to section 16 (3), Indian Contract Act. Section 16 of Contract reads as follows: "(1) A contract is said to be induced by undue influence when the relations subsisting between the parties are such that one of them is in a position to dominate 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 and 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 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. "
20. The present case is one where section 16 of Contract Act squarely applies. I have no doubt in my mind that defendants Maya and Ramwati were in a position to dominate the will of their father NR who was enfeebled by age being 85 years old. And at the age of 85, ordinarily a person grows weak in RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 11 of 22 mind and suffers in health. NR had died the very next day. It is also apparent that NR in his old age was actually with defendants Maya and Ramwati; and they themselves state so by making an averment in their written statement that he was under their care. The fact that NR, who had purportedly affixed his thumb impressions on documents dt. 15.01.1999, used to ply tonga to earn his living leaves a big doubt as to whether he was literate. I also doubt if NR at the age of 85 was on equal bargaining power with defendants Maya and Ramwati and whether NR had the benefit of independent advice in the transaction that was entered into just a day prior to his death. That apart, the discrimination against the other two daughters also cannot go unnoticed. The mode of payment to NR by the defendants Maya and Ramwati was apparently in cash. It is not known as to what became of that cash when NR had passed away the very next day. Next, NR purportedly transferred the suit property for a total consideration of Rs. 80,000/ to defendants Maya and Ramwati. PW3 Pushpa in her crossexamination, conducted on 17.07.2013, to a certain question replied as follows, "I have never inquired about the market value of the suit property from any valuer or property dealer. I do not know whether the market value of the suit property is around 1.5 crores." Then PW4 Kusum in her crossexamination, conducted on 12.11.2014, to a certain query replied as follows, "I cannot tell the market value of the suit property. I cannot tell whether the market value of this property ranging between 02/03 crores or less or more." Therefore, if and if it is the case of defendants Maya and Ramwati that market value of the suit property was at least Rs. 1.50 crores in year 2013, then the transaction entered into on 15.01.1999 for a total consideration of Rs. 80,000/ only is per se unconscionable on the face of it. After all, a property of market value of Rs. 1.50 crores in 2013, would RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 12 of 22 certainly not be of meager value of Rs. 80,000/ in 1999. Further, the GPA sale documents dt. 15.01.1999 purportedly bear NR's thumb impressions. And there can be only two explanations to this, either that NR was not literate, or that NR was enfeebled by age or illness in the evening of his life. And either of these two explanations is detrimental to the case of defendants Maya and Ramwati. I have no doubt in my mind that the twin transactions of 15.01.1999 between NR and defendants Maya and Ramwati appear, on the face of it, to be unconscionable. This is a fit case to invoke section 16 (3) of Contract Act. In terms of section 16 (3), Contract Act the burden of proving that the contract was not induced by undue influence is on defendants Maya and Ramwati. But defendants Maya and Ramwati led no evidence whatsoever. And as such defendants Maya and Ramwati have actually failed to discharge the burden of proof under section 16 (3), Contract Act.
21. Under section 111, Evidence Act and section 16 (3), Contract Act a document falls through not because they are proved to have been forged and fabricated or that any wrongful act is proved to have been committed, but because of policy considerations and to prevent relations which existed between the parties and the influence arising therefrom being abused. In this regard, certain observation as occurring in a Division Bench judgment of Daya Shankar Vs. Bachi & Ors., 1980 SCC OnLine All 16 : AIR 1982 All 376 can be fruitfully referred to :
11. The Indian law on the point is founded substantially on the rules of English law in which the principle of conveyances being impeachable by reason of position of parties is well recognised. We may refer to the leading case on this point in which the law was elaborately stated. In All card v. Skinner, (1887) 36 Ch. D 145, Lindley L. J. explained the rule in these words:
RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 13 of 22"The principle must be examined. What then is the principle? Is it that it is right and expedient to save persons from the consequences of their own folly? or is it that it is right and expedient to save them from being victimised by other people? In my opinion the doctrine of undue influence is founded upon the second of these two princi ples. Courts of Equity have never set aside gifts on the ground of the folly, imprudence, or want of foresight on the part of donors. The Courts have always repudiated any such jurisdiction. Huguenin v. Baseley, (1807) 14 Ves 273 is itself a clear authority to this effect. It would obviously be to encourage folly, recklessness, extravagance and vice if persons could get back property which they foolishly made away with, whether by giving it to charitable institutions or by bestowing it on less worthy objects. On the other hand, to protect people from being forced, trickled or misled in any way by others into parting with their property in one of the most le gitimate objects of all laws."
12. The crux of the law applicable to such transactions was ex plained by Cotton, L. J. in the same case in these words:
"In the second class of cases the Court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent the relations which existed between the parties and the influence arising therefrom be ing abused."
13. The law relating to the effect of undue influence on conveyances has been summed up in Halsbury's Laws of England, Third Edition, Vol. 17 in para 1297 at page 672:
"1297. Classification. Undue influence by reason of which courts of equity will interfere to set aside an agreement should be distin guished from duress which is a ground on which an agreement may be set aside also at common law. Duress is the compulsion under which a person acts through fear of personal suffering to himself or a near relative, as from injury to the body or from confinement, ac tual or threatened. The basis of the jurisdiction which the courts of equity exercised to grant relief in cases of undue influence was fraud, in the sense in which that term was used in those courts, that is to say, as including what is described as constructive fraud. There are two classes of cases in which gifts are set aside by courts of equity on the ground of undue influence, though the division be RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 14 of 22 tween them is not always clear cut: first where the court has been satisfied that the gift was the result of influence, in the form of some unfair or improper conduct, coercion from outside or cheat ing, expressly used, in general, though not always, by a donee placed in some close and confidential relation to the donor to obtain some personal advantage, and, secondly, where the position of the donor to the donee, or other party has been such that it has been the duty of the donee or other party to advise the donor, or even to manage the property for him, and a presumption that the donee or other party had influence over the donor is raised by the relation ship between them.
In cases where undue influence is presumed the court sets aside the gift unless it is proved that it was in fact the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justify the court in holding that the gift was the result of the free exercise of the donor's will.
The first class of cases may be considered as depending on the principle that no one shall be allowed to retain any benefit arising from his own fraud or wrongful act. In the second class of cases the court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent relations which existed between the parties and the influence arising therefrom being abused."
14. All the salient ingredients of the doctrine of undue influence flowing from the existence of a particular relationship between the parties have been seized in section 16 of the Indian Contract Act which is very widely worded so as to include a myriad of circumstances which may give rise to the possibility of a person being able to dominate over the will of an other. They include handicap suffered by a person on account of mental capacity affected by reason of age, illness etc. or a likelihood of a person holding a real or apparent authority over the other or standing in a fidu ciary relation to the other. The word 'fiduciary' as contained in the Web ster's New International Dictionary connotes "a person in trust, a person or thing holding something in trust". The other meaning given in the dic tionary is "of or pertaining to a trust, pertaining to or of the nature of trusteeship." Thus, whenever it is brought to the notice of the courts that a person on account of some reason of the nature indicated above was not in a position to exercise his independent will, the courts always insist on placing the burden of proof on the person who was in such advantageous RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 15 of 22 position to establish that he did not abuse his position. The principle was originally confined to cases of pardahnashin ladies who manifestly suf fered from such inhibition and limitation. Gradually the area covered by this rule was enlarged and it was extended to females who, though not strictly observing pardah, yet were prone to labour under such infirmities and handicap by virtue of their lesser experience of the world and their inability to cope with the complexities of life.
15. In Parasnath Rai v. Tileshra Kuar, 1965 All LJ 1080. Gangesh war Prasad, J. followed the decision of the Calcutta High Court in Chinta Dasya v. Bhalku Das, AIR 1930 Cal 591, wherein Mitter, J. held, that rules regarding transactions by a pardahnashin lady were equally applica ble to an illiterate and ignorant woman, though she may not be pardah nashin. We are unable to comprehend as to why the broad principle which has been accepted and widely applied in the numerous decisions to which we have adverted should not also embrace within its sweep the cases of males who by reasons of their apparent physical or mental inca pacity or infirmity or being placed in circumstances where they are greatly amenable to the overpowering influence of another person are in duced to enter into conveyances and transactions relating to their prop erty. The basic principle is the same and where it is proved to the satis faction of the court either that the bargain was on the face of it uncon scionable or the executant was the victim of physical or mental handicap or that he was subdued by the complexity of circumstances in which an other person had an upper hand, the burden must be cast squarely on the person enjoying the dominating position to show that he secured the deed in good faith."
(underlined for emphasis)
22. In Krishna Mohan Kul & Anr. Vs. Pratima Maity & Ors., (2004) 9 SCC 468 fight between the relatives of executant Dasu Charan Kul, aged more than 100 years, centred around a registered settlement deed purportedly executed on 11.07.1970. Averments in the plaint, inter alia, were that defendant no.1 Krishna Mohan Kul with an oblique motive had created the registered settlement deed to grab the property; that the same was forged and fabricated; and that it had no witnesses. The contesting defendants took the defence that the registered settlement deed was perfectly in order and no RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 16 of 22 illegality was attached to it. Apex Court observed:
12. As has been pointed out by the High Court, the first Appellate Court totally ignored the relevant materials and recorded a completely erroneous finding that there was no material regarding age of the executant when the document in question itself indicated the age. The Court was dealing with a case where an old, ailing illiterate person was stated to be the executant and no witness was examined to prove the execution of the deed or putting of the thumb impression. It has been rightly noticed by the High Court that the courts below have wrongly placed onus to prove execution of the deed by Dasu Charan Kul on the plaintiffs. There was challenge by the plaintiffs to validity of the deed. The onus to prove the validity of the deed of settlement was on defendant no. 1. When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with zealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position. This principle has been engrained in section 111 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). The rule here laid down is in accordance with a principle long acknowledged and administered in Courts of Equity in England and America. This principle is that he who bargains in a matter of advantage with a person who places a confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The transaction is not necessarily void ipso facto, nor is it necessary for those who impeach it to establish that there has been fraud or imposition, but the burden of establishing its perfect fairness, adequacy and equity is cast upon the person in whom the RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 17 of 22 confidence has been reposed. The rule 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 section requires that the party on whom the burden of proof is laid should have been in a position of active confidence. Where fraud is alleged, the rule has been clearly established in England that in the case of a stranger equity will not set aside a voluntary deed or donation, however, improvident it may be, if it be free from the imputation of fraud, surprise, undue influence and spontaneously executed or made by the donor with his eyes open. Where an active, confidential, or fiduciary relation exists between the parties, there the burden of proof is on the donee or those claiming through him. It has further been laid down that where a person gains a great advantage over another by a voluntary instrument, the burden of proof is thrown upon the person receiving the benefit and he is under the necessity of showing that the transaction is fair and honest.
13. 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 very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even de hors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before Court.
14. It is now well established that a Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift, of proving that in fact he exerted no influence for the purpose of obtaining it. The proposition is very clearly started in Ashburner's Principles of Equity, 2nd Ed., p. 229, thus:
"When the relation between the donor and donee at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor, the Court sets aside the gift unless the donee can prove that the gift was the result of a free exercise of the donor's will."
15. The corollary to that principle is contained in subsection (3) of RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 18 of 22 section 16 of the Indian Contract Act, 1872 (in short "Contract Act").
16. At this juncture, a classic proposition of law by this Court in Kharbuja Kuer v. Jang Bahadur Rai, AIR 1963 SC 1203 needs to noted:
"It is, therefore, manifest that the rule evolved for the protection of pardahnashin ladies shall not be confused with other doctrines, such as fraud, duress and actual undue influence, which apply to all persons whether they be pardahnashin ladies or not."
17. 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. Observations of this Court, though in the context of pardahnashin lady in Kharduja Kuer v. Jang Bahadur Rai, AIR 1963 SC 1203 are logically applicable to the case of the old, invalid, infirm (physically and mentally) and illiterate persons.
(underlined for emphasis)
23. For the application of the principles of section 111 of Evidence Act and section 16 (3) of Contract Act it is not necessary that executant of the document must be party to the suit or that he must be the plaintiff alleging that he is a victim of abuse of position of active confidence. In Daya Shankar (supra) one late Mahadeo, before his demise on 02.06.1965, had executed two gift deeds, one in favour of the plaintiff and the other in defendants' favour. In the suit filed by the plaintiff therein, the gift deed in his favour, though executed prior in time, fell through on the basis of principles contained in section 111 of Evidence Act and section 16 (3) of Contract Act. Mahadeo was not a party to the lis as he had died long before. Similarly, in Krishna Mohan Kul (supra) it is apparent from a reading of the judgment that the executant of the registered settlement deed had died long before and the fight was between his relatives.
RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 19 of 2224. In Krishna Mohan Kul (supra) as regards execution of the registered settlement deed Apex Court had (already reproduced hereinabove) observed, "The Court was dealing with a case where an old, ailing, illiterate person was stated to be the executant and no witness was examined to prove the execution of the deed or putting of the thumb impression." In the present case too, NR had affixed his thumb impressions on the documents dt. 15.01.1999. Defendants Maya and Ramwati examined no witnesses to prove the execution of documents or the putting of the thumb impression by NR, who was not literate and was enfeebled by age.
25. From the very language of section 111, Evidence Act it is clear that it extends to all kinds of 'transaction' where the question is of good faith between parties, one of whom stands to the other in a position of active confidence. Similarly from the very language of section 16, Contract Act it is clear that it extends to all 'contracts' arising out of undue influence. These provisions are not limited in their scope only to gift deeds or settlement deeds.
26. Next, as regards the documents purportedly executed on 15.01.1999 there are two unusual circumstances that need to be taken note of: (a) Firstly, NR was the owner of suit property measuring 150 sq. yards bearing no. 43, Gali no. 5, Sarojini Naidu Park, Shastri Nagar, Delhi by virtue of a registered sale deed executed on 29.01.1965. However what was purportedly transferred by NR to defendants Maya and Ramwati on 15.01.1999 was property bearing no. 43A, Gali no. 5, Sarojini Naidu Park, Shastri Nagar, Delhi, and (b) Secondly, copy of the registered 'Will Deed' (Mark P3) dt. 15.01.1999 in favour of defendant Maya, which is on the Trial Court record, reflects that only one 'witness', namely Harish Chand s/o Ram Chander, attested it.
RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 20 of 22Similarly, copy of the 'Will Deed' (Mark P8) dt. 15.01.1999 in favour of defendant Ramwati, which is on the Trial Court record, reflects that only one 'witness', namely Harish Chand s/o Ram Chander, attested it. And I note this in the backdrop of section 63, Indian Succession Act, 1925 which, inter alia, mandates that a Will shall be attested by two or more witnesses.
27. To sum up, the claim of ownership of defendants Maya and Ramwati over the suit property falls. Documents relied upon by them in support of their ownership fall through. As a necessary consequence, the subsequent transfer of the suit property by defendants Maya and Ramwati to the subsequent purchaser also fall through. Consequently, the suit property ought to be partitioned in four equal shares (¼ share each) amongst NR's four daughters i.e. Anaro Devi, Maya, Ramwati, and Pushpa and the preliminary decree of Ld. Trial Court is in order.
28. Before parting with this judgment, certain observation qua issue no.2, pertaining to court fee and jurisdiction, need to be made. Issue no.2 is, "Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD". Ld. Trial Court in its judgment (paragraph 18.5) notes that valuation of the relief of partition at Rs. 200/ is proper. And for this, Ld. Trial Court relies on the report of Sushma Tehlan Dalal Vs. Shivraj Singh Tehlan & Ors., 2011 (123) DRJ 91. However, in this report itself (paragraph
6) there is an observation to the effect that in a partition suit, valuation for the purpose of jurisdiction has to be the value of whole of the properties subject matter of partition. Given this, I do not think that valuation of the suit property could have been only Rs. 200/. However, it is also to be noted that onus to prove this issue was on the defendants. Defendants Maya and Ramwati in the RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 21 of 22 corresponding paragraph of their written statement made a bare denial of plaintiffs' averments, without stating as to what was the value of the suit property. They neither led evidence to show that the suit property was valued more than the pecuniary jurisdiction (Rs. 3 lacs) of Ld. Trial Court. Given this circumstances, I hold that although the aforesaid observation of Ld. Trial Court is incorrect, yet there is no evidence to show that valuation of the suit property, for the relief of partition, was more than the pecuniary limit (Rs. 3 lacs) of Ld. Trial Court. Affixation of fixed court fee for the relief of partition was proper for the reason that the plaintiffs are admittedly in possession of the suit property, though the extent of their possession is disputed.
29. Conclusion - This appeal has no merit. It stands dismissed. Trial Court record be sent back together with a copy of this judgment. Appeal file be consigned to record room.
Digitally signed by MURARI PRASAD MURARI SINGH Location: Court PRASAD No.7, Karkardooma SINGH Courts, Delhi Announced in the open Court Date: 2019.08.30 15:30:22 +0530 on 30th August, 2019 (M. P. Singh) Addl. District Judge03, East, Delhi 30.08.2019 RCA No. 225/16 Maya & Anr. vs. Anaro & Anr. Page 22 of 22