Himachal Pradesh High Court
Smt. Niko Devi vs Kirpa on 19 July, 1988
Equivalent citations: AIR1989HP51
JUDGMENT R.S. Thakur, J.
1. This regular second appeal arises out of the judgment and decree passed by the learned Additional District Judge Kangra at Dharamsala, dt. Aug. 1, 1978, whereby the appeal of Kirpa (hereinafter referred to as 'the defendant') against Smt. Nikko (hereinafter referred to as 'the plaintiff') was allowed, the judgment and decree dt. Aug. 22, 1977 passed by the trial court (Subordinate Judge Ist Class Palampur) in favour of the plaintiff were set aside and consequently the suit of the plaintiff was dismissed leaving the parlies to bear their own costs throughout.
2. The facts are that the plaintiff instituted a suit in the court of the Subordinate Judge at Palampur for possession of certain land measuring 4 kanals 13 marlas, one house and one GHARAT, more particularly described in the body of the plaint. Her case was that this property at one time was exclusively in the ownership and possession of her father Moni. Said Moni died when the plaintiff was a child of two years and on his death this property devolved upon her mother Smt. Kalan exclusively. Said Kalan also died when the plaintiff was hardly a child of ten years and thereafter the defendant started bringing her up and also took the entire suit property in his possession including the moveable property, namely, the household articles, ornaments of gold and silver and 80 heads of sheep and goats and started appropriating them to himself in lieu of her maintenance. She asserted that as a matter of fact the defendant is the son of her father's elder brother Murli as her father and said Murli were the real sons of one Khana alias Gainda.
3. The plaintiff further averred that somewhere in 1967 the defendant got the plaintiff married but did not send her to the matrimonial home for a period of 2 years on the plea that throughout this period there was no auspicious occasion for sending muklawa that is, the ceremony when the bride for the first time goes to the matrimonial home after the marriage. It has further been the case of the plaintiff that before the defendant sent her muklawa he pressed upon the plaintiff that she should execute a general power of attorney in his favour with respect to her property as in the contrary event this property was likely to be dissipated by her husband or his family members when she goes in muklawa and starts living with them and in that case she was likely to face hardship in case she was not treated well in the matrimonial home and was required to fall back upon her own property. On this false pretext, according to the plaintiff, she was taken to Palampur by the defendant while she was living with him and got the document executed by her and later on when she started living in the matrimonial home she came to know from her husband that the said document was in fact a gift deed in respect of her entire property which the defendant had got executed by her in his favour. She thus asserted that as this so-called gift was the result of fraud, coercion and undue influence on the part of the defendant, the same was liable to be set aside, and she prayed that a decree be passed in her favour for possession of this property after setting aside the gift deed. She also claimed Rs. 500/- by way of damages in respect of the moveable property appropriated by the defendant which belonged to her.
4. The defendant contested the suit and in his written statement while admitting that he was the plaintiffs father's brother's son, he has stated that after the death of Moni, the father of the plaintiff, he had brought up not only the plaintiff but also her mother Kalan who remained sick for about four years before her death and he incurred a lot of expenses not only on her treatment but also on performing her obsequies after her death. He admitted that Kalan, the mother of the plaintiff, died when the plaintiff was hardly of ten years of age. He also admitted that it was he who had performed the marriage of the plaintiff and asserted that at that time he again spent five to six thousand rupees on the marriage and also the dowry that he gave to the plaintiff. He denied that he exercised any undue influence, coercion or fraud upon the plaintiff at the time of execution of the gift deed by her in his favour and asserted that as a matter of fact since she had been brought up by the defendant as his sister and had spent much on her marriage she voluntarily offered to alienate this property in his favour through a gift deed in lieu of all that he had done for her. He denied that he had come by any moveable property of the plaintiff which she had inherited from her parents.
5. On the pleadings of the parties a number of issues were raised by the trial court which are as follows : --
1. Whether the suit is properly valued for purposes of court fee and jurisdiction ? OPP.
2. Whether the plan filed by the plaintiff is correct ? OPP.
3. Whether the suit in the present form is not maintainable ? OPD.
4. Whether the plaintiff made a gift of the property in suit in favour of the defendant ? OPD.
5. If issue No. 4 is proved, is the gift vitiated, by fraud mis-representation, inducement and undue influence ? OPP.
6. Whether the Gharat in dispute is only constructed by the defendant and the plaintiff has no share in it ? OPP.
7. Whether the defendant has taken into possession any moveable property of the plaintiff and enjoyed the produce of the land and the Gharat of the plaintiff as alleged, if so, since when and of what value and to what effect ? OPP.
8. Relief.
6. Only the finding on issues Nos. 4 and 5 is required to be taken note of since controversy thereon has survived up to this stage. The finding of the trial court on these issues was that the defendant was in such a position vis-a-vis the plaintiff that he could use undue influence on the plaintiff and he did use this influence to get the impugned gift deed executed by her in his favour and the plaintiff, therefore, was entitled to avoid the same. The trial court, therefore, set aside the gift deed and decreed the suit for possession of the immoveable property which was subject matter of the suit but dismissed her claim with respect to the damages in respect of the moveable property.
7. The defendant challenged this finding before the learned Additional District Judge in appeal and the learned lower appellate court vide the impugned judgment then held that though the defendant was having a fiduciary relationship with the plaintiff at the time of the impugned gift deed but sufficient material has been brought on record to show that the defedant did not exercise any undue influence on the plaintiff and it was a voluntary act on her part and it, therefore, allowed the appeal and dismissed the suit of the plaintiff as stated earlier. Thus the only question that survives for determination by this Court in this appeal is whether the finding of the lower appellate court that the impugned gift by the plaintiff in favour of the defendant was free from the taint of any undue influence is sustainable ?
8. In the light of the material, brought on record it is clear that most of the facts set out in the pleadings of the parties stand proved. It has been admitted on both hands that the suit property at one time belonged to Moni -- the father of the plaintiff who was the real brother of the father of the defendant named Murli. It is also proved that Moni died when this property exclusively devolved upon Smt. Kalan -- the mother of the plaintiff and said Kalan also died within a period of five or six years of the death of Moni when the entire property was inherited by the plaintiff at the age of about ten years. It is also admitted that at least from that point of time the plaintiff started living with the defendant who brought her up and she continued living with him till she was married by the defendant to one Dilbar of village Bohal after she had attained the age of majority. It is also proved on record that this plaintiff was an illiterate rustic girl at the time of impugned gift and the said gift was got executed from her by the defendant before she went for the first time to live in the matrimonial home by way of muklawa. It has also not been denied that during the period the defendant brought up and maintained the plaintiff her entire property which she had inherited from her parents was being managed/appropriated by the defendant. Thus the defendant being next cousin of the plaintiff and much older in age, as he was in a position to bring her up, it can be safely assumed that the defendant was very much in loco-parentis to the plaintiff.
9. At this stage the provisions of Section 16 of the Contract Act, may be noted which defines undue influence as follows : --
"16. "Undue influence" defined. -- (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 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 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".
10. The law with regard to undue influence as is set out as aforesaid is by now well established and there are rulings galore from Supreme Court downwards wherein these provisions have been construed in detail. To cite a few of them, in AIR 1967 SC 878, Subhas Chandra v. Ganga Prosad, their Lordships of the Supreme Court have observed; "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 ? Upon the determination of these issues 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". In AIR 1963 SC 1279, Ladli Parshad v. Karnal Distillery Co. Ltd., Karnal, it has been held :
"that 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 form 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 Section 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".
11. Now as already observed, it is clear that the plaintiff had started living with the defendant ever since she was a child of six according to the defendant himself and since the age of ten according to the plaintiff and thus the defendant not only brought up the plaintiff but also performed her marriage. He was thus admittedly, loco-parentis to the plaintiff. The impugned gift was made in his favour by the plaintiff when she was still living with him and prior to the muklawa ceremony of the plaintiff when she was to go to live with her husband for the first time after the said ceremony. The defendant admittedly had been managing and appropriating the entire moveable and immoveable property of the plaintiff which she had inherited from her father Moni and mother Kalan. She was admittedly forced to live with the defendant as her father died when she was just a child of two years and mother died when she was still aged about eight or ten years. As already observed, she is illiterate rustic girl. The defendant by virtue of the impugned gift has got her divested of her entire moveable and immoveable property which she had inherited from her parents. Thus the defendant was not only in a position to dominate the will of the plaintiff by virtue of his being loco-parentis to her but the impugned transaction was apparently an unconscionable one as she stands divested of her entire property by virtue of this gift deed. Thus in my view, in the facts and circumstances of the case, the defendant was in a position to eliminate the will of the plaintiff and he used that dominance to enter into the impugned transaction which is on the very face of it unconscionble since it has divested the plaintiff of her entire property and thus there could be no better example of a transaction being vitiated by undue influence.
12. Apparently in these circumstances the burden lay squarely on the shoulder of the defendant to prove that at the time of the impugned transaction the plaintiff had an independent advice available to her and the impugned gift deed was a voluntary act on her part when she understood the nature of the transaction in question,
13. After going through the evidence on record I have no doubt in my mind that the defendant had miserably failed to discharge the onus and in these circumstances the plaintiff is entitled to avoid the transaction in question.
14. The case of the defendant appears to be that he not only looked after the plaintiff but also her mother during her life time when she remained sick and confined to bed for four years and he thus spent considerable amount initially on the treatment of the plaintiffs mother and then on her death on her obsequies which he himself performed and later on he also spent considerable amount on the marriage of the plaintiff. He has, however, failed to prove anything of that type on the record. The gift deed in question also does not disclose any such thing except that the plaintiff purports to have stated therein that the defendant had served her and also performed her marriage, and, therefore, she was alienating her entire property in lieu of those services, but this is of no consequence. In fact the gift deed discloses that the property which was the subject matter of gift is of substantial character being, agricultural land, house and Gharat from which the plaintiff stands divested. It is also admitted that this entire property was being managed and appropriated exclusively by the defendant for more than a decade, that is, during the period the plaintiff lived with the defendant. Thus it can safely presumed that since the defendant was benefiting from this entire property during the period the plaintiff lived with him there was no question of the plaintiff being under any obligation of the defendant, rather the defendant was liable to keep full and true accounts of the benefits he received from this property during the course of his i management.
15. In view of the above discussion, I accept the appeal, set aside the order of the learned Additional District Judge, dt. Aug. 1, 1978 and restore the judgment and decree passed by the Sub-Judge, Ist Class Palampur, in favour of the plaintiff and against the defendant on Aug. 22, 1977. The defendant is also burdened with costs throughout.