Himachal Pradesh High Court
Roshan Lal And Ors. vs Kartar Chand And Ors. on 13 December, 2001
Equivalent citations: AIR2002HP131
JUDGMENT Kamlesh Sharma, J.
1. The appellants are the plaintiffs, whereas, respondents are the defendants and they will be referred to as such in this judgment. In this appeal under Section 100, C.P.C. the plaintiffs are aggrieved by the decree and judgment dated 3-1-1994 passed by the District Judge, Hamirpur whereby the appeal of the defendant Kartar Chand was accepted and decree and Judgment dated 7-11-1986 of the Senior Sub-Judge, Hamirpur was set aside. The Senior Sub-Judge, Hamirpur had decreed the suit of the plaintiffs and the plaintiffs were held entitled to succeed to the estate of Shri Sunder to the extent of 3/4th share on the basis of Will dated 6-1-1969 Ex. P. 2 and accordingly they were declared owners in possession thereof. The adoption deed dated 15-6- 1978 Ex. D. 1 gift deed dated 15-6-1978 Ex. D.2 and Cancellation deed dated 28-4-1980 Ex. D.3 were declared null and void.
2. The brief facts of the case are that one Shri Hushnaki was the common ancestor of the parties who was owner in possession of land measuring 403 kanals 5 marlas, situate in Tika Naugran, Tehsil and District Hamirpur. On his death his five sons, namely, S/Shri Munshi, Sunder, Khazana, Thunia and Sant Ram inherited his estate in equal shares i.e. 1/5th share each. The plaintiffs are the successors of Khazana, Munshi and Sant Ram, whereas, the defendants are the successors of Thunia. Shri Sunder had died issueless and dispute between the parties is in respect of his estate. According to the plaintiffs, Shri Sunder had executed a Will dated 6-1-1969, Ex. P.2, whereby he had bequeathed his property in favour of the successors of his four brothers in equal shares i.e. 1/4th share each and accordingly they had claimed 3/4th share of the property of Shri Sunder under the said Will and so far the remaining 1/4th of his property falling to the share of the defendants is concerned, their case was that they were inducted as tenants-at-will and they had acquired its proprietary rights. Therefore, the plaintiffs had sought declaration to the effect that they have become owners of the property of Shri Sunder to the exclusion of the defendants. Further case of the plaintiffs was that the adoption deed Ex. D. 1 and gift deed Ex. D2 in favour of defendant Kartar Chand and Cancellation deed Ex. D.3 were the result of fraud, mis-representation and undue influence and not binding upon them.
3. Defendant Kartar Chand and other defendants filed separate written statements but the defence taken by them was common. They denied the case of the plaintiffs that they were in possession of any portion of the property of Shri Sunder as tenants-at will, as claimed by them. Though, they have admitted that Shri Sunder had executed a Will dated 6-1-1969, Ex. P.2, but further pleaded that the said Will was cancelled by Cancellation deed dated 28-4-1980 Ex.D3. According to them, Shri Sunder had adopted defendant Kartar Chand as his son in 1961 and thereafter executed an adoption deed dated 15-6-1978, Ex. D. 1, who had succeeded to his estate. It was further pleaded by them that Shri Sunder had also executed a gift deed dated 15-6-1978, Ex. D.2 in favour of defendant Kartar Chand whereby he had gifted whole of his property in favour of defendant Kartar Chand who has been in possession thereof. It was denied that any fraud, mis-representation or undue influence was played upon Shri Sunder.
4. On the pleadings of the parties the following issues were framed :--
1. Whether the plaintiffs were inducted as tenants by deceased Sunder during his life time as alleged? if so on what terms and conditions? OPP.
2. Whether Sunder deceased during his life time executed a legal and valid Will in favour of parties qua the suit -land as alleged? OPP.
3. If Issue No. 2 is proved, whether the said Will was cancelled by Sunder vide a cancellation deed dated 28-4-1980 as alleged? OPD.
4. Whether Sunder adopted defendant No. 1 as his son during his life time as alleged? OPD-1.
5. Whether Sunder executed a gift deed dated 15-6-78 in favour of defendant No. 1? If so, its effect? OPD.
6. Whether the plaintiffs are the tenants to the extent of 1/4th share over the disputed land under defendant No. 1 as alleged? If so, its effect? OPP.
7. Whether the suit in the present form is maintainable? OPP.
8. Relief.
5. Issue Nos. 1 and 6 were decided against the plaintiffs, but the other issues were decided in their favour and the suit was decreed declaring them owners in possession of 3/4th share of the property of Shri Sunder on the basis of Will, Ex. P.2. Feeling aggrieved defendant Kartar Chand filed appeal before the District Judge before whom the learned Counsel for the plaintiffs conceded that the findings of the trial Court on Issue Nos. 1 and 6 were correct as they had failed to prove their claim of tenancy over 1/4th share of the defendants under the Will. On the other hand, learned Counsel for defendant Kartar Chand had also conceded that he had failed to prove himself to be a validly adopted son by Shri Sunder. Accordingly, the District Judge has decided the appeal on the following points :--
1. Whether Sunder had executed the gift deed dated 15-6-78 (Ext. D.2) in favour of appellant as alleged?
2. If point No. 1 is proved, whether the said gift deed is the result of fraud, mis-representation and undue influence as alleged? If so, its effect?
3. Whether the Will dated 6-1-69 (Ext. P.2) stand cancelled vide cancellation deed dated 28-4-80 (Ext. D.3)? If so, its effect?
4. Final order.
6. On point Nos. 1 and 2 the District Judge has found that gift deed, Ex. D.2 has been proved on record and there is no evidence worth the name that it was the result of fraud, mis-representation and undue influence played upon Shri Sunder. The District Judge also found that in the absence of particulars of fraud, mis-representation and undue influence the evidence, if any, adduced by the plaintiffs that the gift in question was the result of fraud, mis-representation and undue influence, cannot be looked into. For the same reasons the Cancellation deed, Ex. D.3 was upheld with the result that in answer to point No. 3 it was held Will Ex.P.3 stood cancelled. Now these findings have been assailed by the plaintiffs in this appeal on the following substantial question of law, which was framed at the time of admission :--
Whether it stands proved on record that after having executed Will Ex. P-2, deceased Shri Sunder made a valid gift of his property in favour of respondent Kartar Chand?
7. This Court has heard learned Counsel for the parties and gone through the record.
8. Learned Counsel for the plaintiffs has taken this Court through the evidence to urge that the gift deed Ex. D2 and the cancellation deed, Ex. D3 were the result of undue influence exercised upon Shri Sunder by defendant Kartar Chand, his parents and his father-in-law which can be inferred from the facts and circumstances proved on record that he was 85 years of age, not keeping good health and was residing with the family of defendant Kartar Chand and also the fact that Shri Sunder had already executed a Will dated 6-1-1969, Ex. P.2, bequeathing his property to all the successors of his brothers in equal shares and there were no reasons to cancel the said Will and give his entire property to defendant Kartar Chand only.
9. The finding that gift deed Ex. D.2 was executed by Shri Sunder with his free Will and there was ho undue influence played upon him by defendant Kartar Chand or any other members of his family, is a finding of fact arrived at by the District Judge on the basis of evidence on record and this Court is not supposed to re-appreciate the evidence to disturb this finding unless it is shown that either any material evidence is not taken into account or misread and mis-appreciated, which the learned Counsel has not been able to successfully establish. The District Judge has rightly relied upon the evidence of Parmodh Singh, DW-3 and Kanshi Ram, DW-4, attesting witnesses to hold that the gift deed Ext. D.2 was executed and got registered before the Sub-Registrar, Barsar by Shri Sunder, as no purposeful cross-examination was done to either of them witnesses or to DW-1 Kartar Chand to elicit from any of these that the execution of the gift deed was the result of fraud, mis-representation or undue influence. Infact, after going through the plaint this Court finds that except making general allegations that the adoption deed, gift deed and cancellation deed were the result of fraud, mis-representation and undue influence, the particulars as envisaged under Order 6, Rule 4, C.P.C. have not been stated. Order 6, Rule 4 is as under :--
"Particulars to be given where necessary :-- in all cases in which the party pleading relies on any mis-representation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars with dates and items if necessary shall be stated in the pleadings."
10. Referring to this provision the learned Judges of the Supreme Court in Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280 have held in para 25 :
"It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Ct. ought to take notice, however, strong the language in which they are couched may be, and the same applies to undue influence and coercion."
11. In another judgment of Supreme Court in Ladli Parshad Jaiswal v. The Karnal Distillery Co. Ltd., Karnal, AIR 1963 SC 1279, the learned Judges have further elaborated on Order 6, Rule 4, C.P.C. In para 20 of the judgment :--
"................, The reason of the rule is obvious. A plea that a transaction is vitiated because of undue influence of the other party thereto, gives notice merely that one or more of a variety of insidious forms of influence were brought to bear upon the party pleading undue influence, and by exercising such influence, an unfair advantage was obtained over him by the other. But the object of a pleading is to bring the parties to a trial by concentrating their attention on the matter in dispute, so as to narrow the controversy to precise issues, and to give notice to the parties of the nature of testimony required on either side in support of their respective cases. A vague or general plea can never serve this purpose, the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. This rule has been evolved with a view to narrow the Issue and protect the party charged with improper conduct from being taken by surprise. A plea of undue influence must, to serve that dual purpose, be precise and all necessary particulars in support of the plea must be embodied in the pleading; tf the particulars stated in the pleading are not sufficient and specific, the Court should, before proceeding with the trial of the suit, Insist upon the particulars, which give adequate notice to the other side of the case Intended to be set up."
12. Quoting the above observations in Ladli Parshad Jaiswal (supra) the learned Judges of Supreme Court have further held in Subhash Chandra Das Mushib v. Ganga Prosad Das Mushib, AIR 1967 SC 878 in para 10 :--
"Before, however a Court is called upon to examine whether undue influence was exercised or not, it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6, Rule 4 of the Code of Civil Procedure ............,"
13. Therefore, in view of the settled legal position, the District Judge has rightly held that in the absence of pleadings giving necessary particulars of fraud, mis-representation and undue influence the evidence led to that effect cannot be looked into. Otherwise also, as held by District Judge there is no evidence adduced by the plaintiffs to prove that defendant No. 1 Kartar Chand was in a position to dominate the Will of Shri Sunder and the execution of the gift deed was conscionable.
14. In Raghunath Prasad Sahu v. Sarju Prasad Sahu. AIR 1924 PC 60 the learned Judges have expounded three stages for consideration of undue influence 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 He upon the person who was in a position to dominate the Will of the other."
15. Quoting the above observations of the Privy Council the learned Judges of Supreme Court in Subhas Chandra Das Mushlb (AIR 1967 SC 878) (supra) have observed that merely because the parties were nearly related to each other no presumption of undue Influence can arise. The learned Judges have also quoted with approval the following notes from Halsbury's Laws of England, Third Edition, Vol. 17 page 673 :--
"............... there is no presumption of undue influence in the case of gift to a son, grand-son, or son-in-law, although made during the donor's illness and a few days before his death."
And observed further ;
"Generally speaking the relation of solicitor and client, trustee and cestul que trust, spiritual adviser and devotee, medical attendant and patient, parent and child are those in which such a presumption arises. Section 16(2) of the Contract Act shows that such situation can arise wherever the donee stands in a fiduciary relationship to the donor or holds a real or apparent authority over him."
16. Applying these principles to the facts of the present case this Court finds that there was no fiduciary relationship between the donee Shri Sunder and donor defendant No. 1 Kartar Chand and the District Judge has rightly held that there is no evidence on record to show that defendant No. 1 Kartar Chand was in a position to dominate the Will of Shri Sunder in executing the gift deed Ex. D2. Simply because Shri Sunder was 85 years of age and he had already executed a Will in favour of the plaintiffs long back in the year 1969 or the witnesses attesting the gift deed are not from the village of Shri Sunder or defendant No. 1 Kartar Chand has not been proved to be legally adopted son of Shri Sunder, it cannot be presumed that gift deed Ex. D. 2 is the result of undue influence. Therefore, this Court does not find any infirmity in the findings of fact arrived at by the District Judge that the gift deed, Ex. D.2 is a legal and valid document and Will Ex. P.2 is of no consequence. The substantial question of law is answered accordingly.
17. In the result, there is no merit in this appeal and it is rejected, No costs.