Karnataka High Court
Mahadev S/O Vishwanth Swamy vs Smt. Vishalakshi W/O Mahadev Swamy on 31 March, 2023
1
®
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
DATED THIS THE 31ST DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR.JUSTICE C.M.POONACHA
RSA No.7075 OF 2013
BETWEEN
MAHADEV
S/O VISHWANTH SWAMY
AGED ABOUT 35 YEARS
OCC. AGRICULTURE,
R/O RACHAPPA GOUNDGAON
TQ. BHALKI DIST. BIDAR 585328
...APPELLANT
(BY SRI V K NAYAK, ADVOCATE )
AND
1. SMT. VISHALAKSHI
W/O MAHADEV SWAMY
D/O MAHALING SWAMY
AGED ABOUT 30 YEARS
OCC. HOUSEHOLD & AGRI,
R/O KASHI NIVAS, NEAR OLD WATER TANK
GUNJ BHALKI DIST. BIDAR 585328
2. SRI MAHALINGAIAH
S/O GURUBASSAYYA SWAMI
AGED ABOUT 70 YEARS
OCC: AGRICULTURE
R/O KASHI NIVAS, NEAR OLD WATER TANK
GUNJ BHALKI DIST. BIDAR 585328.
...RESPONDENTS
(BY SRI SHIVANAND PATIL, ADVOCATE FOR R1
SRI DEEPAK V BARAD, ADVOCATE FOR R2)
2
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 19.01.2013
PASSED IN R.A. NO.83/2012 ON THE FILE OF THE FAST TRACK
COURT -II AT BIDAR CAMP AT BHALKI WHEREIN, THE APPEAL
WAS DISMISSED AND THE JUDGMENT AND DECREE DATED
09.07.2012 PASSED IN O.S. NO.32/2008 ON THE FILE OF THE
SENIOR CIVIL JUDGE AT BHALKI WAS CONFIRMED AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
15.02.2023, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The above second Appeal is filed by the Defendant under Section 100 of the CPC (hereinafter referred to as the 'CPC') challenging the judgment and decree dated 19.1.2013 passed in RA.No.83/2012 by the Fast Track Court-II at Bidar, Camp at Bhalki (hereinafter referred to as the 'first Appellate Court') and the judgment and decree dated 9.7.2012 passed in OS.No.32/2008 by the Senior Civil Judge, Bhalki, (hereinafter referred to as the 'Trial Court') and to dismiss the suit of the Plaintiff. 3
2. For the sake of convenience, the parties herein are referred to by their rank before the Trial Court.
3. It is the case of the Plaintiff that property bearing No.195/2, measuring 7 Acres, situated at Bhalki (hereinafter referred to as the 'suit property') was purchased by her father through his own earnings in the name of her mother Nirmaladevi vide registered Sale Deed dated 18.12.1997. The Plaintiff being the only daughter of her parents, the said property was gifted in her favour by a registered Gift Deed dated 2.5.2005 and hence she is the absolute owner of the suit property. That the Plaintiff got married to the Defendant on 24.11.2004 and they have a daughter born from the said marriage. That the Defendant has taken money on many occasions from the father of the Plaintiff and the Defendant was also given a car and gold by the father of the Plaintiff. That the Defendant stating that he is taking 4 a loan from the bank to improve the suit property for which the Plaintiff is required to mortgage the suit property in favour of the bank, brought her to the Sub Registrar's office and by playing fraud and misrepresenting her, has created the alleged Gift Deed in his favour in respect of the suit property and without disclosing the real facts asked her to put her signature on the document. The Plaintiff believing the words of her husband i.e., the Defendant has not gone through the contents of the document and signed the alleged Gift Deed, consequent to which, the Defendant has his name entered in the revenue records.
4. That after succeeding to get the Gift Deed in his name, the Defendant has turned hostile to the Plaintiff and has addicted to bad habits like, drinking and gambling and started neglecting the Plaintiff and has been torturing her to bring money and gold from her father. When the parents of the Plaintiff advised the 5 Defendant to leave the bad habits, he threatened to alienate the gifted land which is standing in his name by virtue of the Gift Deed. It is then that the Plaintiff got to know about the Gift Deed got executed by the Defendant and thereafter, on 22.10.2008 the Plaintiff and her father have approached the office of the Sub Registrar to verify the records. After confirming the same and when the Defendant refused to cancel the Gift Deed, the Plaintiff filed the suit seeking for the following reliefs:
"a) It be declared that, the Plaintiff is the owner and possessor of suit land Sy.No.195/2 measuring 7 Acre situated at proper Bhalki within the boundaries as shown in subject matter.
b) That, the defendant be perpetually restrained from causing illegal interference and obstruction in the peaceful possession and enjoyment of the Plaintiff over the suit land.
c) A decree be passed for cancellation of gift deed bearing document No.3026/06-07 dtd: 21.8.2006 executed by the Plaintiff in favour of the Defendant at S.R.O Bhalki.
d) A decree be passed in favour of Plaintiff by issuing necessary directions to the Sub Registrar, Bhalki for cancellation of alleged Gift Deed bearing 6 document No.3026/06-07 dtd: 21.8.2006 in their concerned records of the suit land.
e) A decree be passed in favour of Plaintiff by issuing necessary directions to the Revenue Authorities for correction of records of rights in respect of suit land by deleting the name of Defendant from Col.No.9 and 12/2 and entering the name of Plaintiff in the RoR of the suit land.
f) Cost of the suit be awarded to the Plaintiffs.
g) Any other equitable relief/s to which the Plaintiff are entitled also be granted to the Plaintiffs."
5. The Defendant has contested the case and filed his Written Statement denying the plaint averments. It is the case of the Defendant that one Nirmala Bai/Nirmaladevi (mother of the Plaintiff) purchased the suit land from one Ganapati vide registered Sale Deed 18.12.1998. That Nirmaladevi being his real sister, he was staying with her and she offered to give her daughter in marriage to the Defendant and believing her words the Defendant has constructed a house in the suit property out of his income from his ancestral property. The Defendant admits the registered Gift Deed dated 2.5.2005 by the 7 mother of the Plaintiff in favour of the Plaintiff. He denies that he has played fraud while getting the Gift Deed registered in his favour and that the Plaintiff out of her own willingness and understanding has executed the Gift Deed dated 21.3.2006 in his favour and he is in possession of the suit property. That the Plaintiff is educated and is also a graduate. He denies the case of the Plaintiff regarding him having been addicted to bad habits. It is the further case of the Defendant that due to the wrong advice of her parents, the Plaintiff and her brother have thrown out the Defendant and his mother from the house. The Defendant has further pleaded that he has purchased the suit house in the name of his sister and he has purchased other properties and also a car out of his own income. Hence, he seeks for dismissal of the suit.
6. The Trial Court upon the pleadings of the parties has framed five issues. The Plaintiff in support of 8 her case examined herself as PW.1 and examined 3 other witnesses as PWs.2 to 4. Exs.P1 to P11 were marked in evidence. The Defendant has examined himself as DW.1 and examined to two other witnesses as DWs.2 and 3. Exs.D1 to D5 were marked in evidence. The Trial Court, upon an appreciation of the oral and documentary evidence on record has decreed the suit and ordered as follows:
"ORDER The suit of the Plaintiff is decreed with costs.
It is declared that Plaintiff is owner of suit property.
Further Defendant, his men, servant, agent or claiming on behalf of Defendant are hereby restrained from obstructing the Plaintiff in her peaceful possession and enjoyment over the suit property.
Further declaration of cancellation of gift deed bearing Document No.3023/2006-07 dated 21.8.2006 is granted as prayed.
Further issue directions to the revenue authorities for correction of the records of rights in respect of suit land as prayed for.
Draw decree accordingly."9
7. Being aggrieved, the Defendant preferred RA.No.83/2012. The Plaintiff entered appearance in the said proceedings and contested the same. The first Appellate Court by its judgment and decree dated 19.1.2013 dismissed the Appeal filed by the Defendant with compensatory costs of Rs.5000/- and confirmed the judgment and decree passed by the Trial Court. Being aggrieved, the present second Appeal is filed.
8. This Court, vide order dated 7.12.2017 has framed the following substantial questions of law:
"1. Whether both the courts below were justified in law in entertaining suit for mere declaration and injunction without claiming the relief of consequential relief of possession, which is contrary of proviso to section 34 of Specific Relief Act?
2. Whether both the courts below were justified in law in decreeing the suit, when the plaintiff could not prove the fraud alleged to have been played by the Defendants?
3. Whether both the courts below were justified in law in not properly appreciating the pleadings and evidence placed on record?"
9. Sri V.K.Nayak, learned Counsel appearing for the Appellant/Defendant contended; 10
i) that the Plaintiff has not pleaded full particular of fraud as required under Order VI Rule 4 of the CPC and only general allegations are made in para 6 of the plaint;
ii) that the Plaintiff is educated and is able to read and write English and hence, her case that she did not know the contents of the Gift Deed cannot be believed;
iii) that the Defendant is in possession of the suit property and the entry is made in the revenue records consequent to the same;
iv) oral evidence of possession contrary to the averments made in the Gift Deed - Ex.D1 is impressible in view of Section 92 of the Evidence Act, 1872 (hereinafter referred to as the 'Evidence Act');
v) that the Plaintiff ought to have sought for possession of the suit property which she has failed to do;
11
vi) that the Trial Court and the first Appellate Court have ignored the documentary evidence while recording the finding of possession.
In support of his contentions, the learned Counsel relied on the following judgments:
i) Union of India v. M/s Chaturbhai M.Patel & 1 Co., ;
ii) Ranganayakamma v. K.S.Prakash2;
iii) Bijendra Nath Srivastava (dead) by Lrs., v.
Mayank Srivastava & Ors.,3;
iv) Arulmigu Chokkanatha Swamy Koil Trust v. Chandran 4;
v) Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund 5;
vi) Thavarayil Salim v. Thekkeveettil Karuvantevalappil Saru6;
vii) S.Saktivel (dead) by Lrs., v. M.Venugopal Pillai & ors.,7;
viii) Balasubramanian v. M.Arickiasamy (dead) through Lrs.,8;
1 (1976) 1 SCC 747 2 AIR 2005 KAR 426 3 (1994) 6 SCC 117 4 (2017) 3 SCC 702 5 (2007) 13 SCC 565 6 (2011) 3 KLT 280=2011 SCC OnLine Ker 4160 7 (2000) 7 SCC 104 12
ix) State of Rajasthan v. Rao Raja Kalyan Singh (dead) by Lrs.,9
10. Per Contra, Sri Shivanand Patil, learned Counsel appearing for the first Respondent/Plaintiff supporting the judgment and decree passed by the Trial Court as well as the first Appellate Court contended;
i) that having regard to Sections 68 and 111 of the Evidence Act and Section 16(1) and (3) of the Indian Contract Act, 1872 the onus is on the Defendant to show that he has not unduly influenced the Plaintiff and he ought to have discharged the proof of due execution of the Gift Deed;
ii) The witness - PW.4 has also stated that the Defendant approached him for execution of a Mortgage Deed;
8 (2021) 12 SCC 529 9 (1972) 4 SCC 165 13
iii) that the plea of fraud made at para 6 of the plaint is sufficient and the necessary details have been stated;
iv) that in the absence of the Defendant proving Ex.D1 to be genuine and bona fide, the same cannot be looked into for the purpose of accepting his contention of being in possession of the suit property;
v) the oral evidence of PWs.1 and 3 that they are cultivating the suit property through the mother of the Plaintiff proves the contention of the Plaintiff regarding possession;
vi) the conduct of DW.1 has been extensively referred from the material on record to demonstrate that he has sold the property and squandered away the money.
In support of his submissions, the learned Counsel relied upon the following judgments:
i) Ningawwa v. Byrappa Shiddappa
Hireknrabar & ors.,10;
10
AIR 1968 SC 956
14
ii) Krishna Mohan Kul & ors., v. Pratima Maity & Ors.,11
11. The Trial Court upon the pleadings of the parties, framed the following issues:
"1) Whether the Plaintiff proves that, she is the owner in possession of the suit land?
2) Whether the Plaintiff proves that, the Defendant has created the gift deed by playing fraud, mischief and managed to get entered his name in the ROR with the help of bogus, sham and capricious gift deed behind her back?
3) Whether the Plaintiff proves that the Defendant is trying to alienate the suit property?
4) Whether the Plaintiff is entitled the relief as sought for?
5) What order or decree?"
12. The Trial Court, vide its judgment and decree dated 9.7.2012, while decreeing the suit of the Plaintiff has recorded the following findings:
i) The initial burden on the Plaintiff to prove her case that she has signed the alleged Gift Deed treating the same as Mortgage Deed and the Defendant who is 11 (2004) 9 SCC 468 15 her husband misrepresented her and obtained her signature on the said Deed has been proved leading the oral and documentary evidence of PWs.1 to 4 and Exs.P1 to 11 as well as the admissions of PWs.1 to 3 which show that the Plaintiff is a duty bound wife and she was heeding to the words of the her husband;
ii) the evidence of PWs.1 and 3 and the suggestion made by the Counsel for Defendant to PW.3 and the admission of DW.1 clearly goes to show that the Plaintiff is in possession of the suit property;
iii) The Plaintiff has proved her initial burden and the burden has shifted on the Defendant to prove his contention as true and correct which he has failed to prove;
iv) the Defendant has not examined any attesting witness to prove the contents of Ex.D1;
v) the Plaintiff has examined one of the attesting witnesses to Ex.D1 as PW.4 and he has supported the case of the Plaintiff; 16
vi) the Defendant has examined DW.3 who is the Draftsman of Ex.D1 and he has stated that the Defendant has given him instructions to prepare Ex.D1.
The evidence of DW.3 will not help the case of the Defendant to prove the contents of Ex.D1;
vii) DW.1 admitted in the cross-examination that when the Plaintiff was staying with him, she was a dutiful wife and she was obeying his words as 'Veda Vakya';
viii) The Plaintiff has proved that she is in possession of the suit property and the same has not been handed over to the Defendant;
ix) The evidence on record proves that the Defendant has created Gift Deed by playing fraud and misrepresenting the Plaintiff and got his name entered in the revenue records behind the back of the Plaintiff;
x) The written statement of the Defendant and the cross-examination done by the Counsel for the Defendant to the Plaintiff's witnesses and the evidence 17 of the Defendant clearly go to show that the Defendant is attempting to alienate the suit property.
13. The first Appellate Court has framed the following points for consideration:
"1. Whether the impugned judgment and decree dated 9.7.2012 passed by the learned Senior Civil Judge, Bhalki in OS No.32 of 2008 is capricious, perverse erroneous against law and merits of the case and interference of his court is needed.
2. Whether the impugned judgment and decree passed by the lower court is sustainable in the eye of law?
3. What order?"
14. The first Appellate Court, vide judgment and decree dated 19.1.2013, while dismissing the Appeal filed by the Defendant and confirming the judgment and decree passed by the Trial Court has recorded the following findings:
a) the Defendant has given instructions to prepare the Gift Deed in the absence of the Plaintiff;18
b) having regard to the evidence of PW.3 it cannot be said that the Defendant is in possession of the suit property;
c) the Defendant, taking advantage of the leniency of the Plaintiff, misrepresented her that her signature is required on the Mortgage Deed and succeeded in getting the same on Ex.D1 by playing fraud;
d) the Plaintiff has not voluntarily executed the Gift Deed in favour of the Defendant;
15. The Trial Court, on a detailed appreciation of the oral and documentary evidence available on record, has appreciated the case of the respective parties and recorded the findings as mentioned supra while decreeing the suit of the Plaintiff. The first Appellate Court has re-appreciated the entire material on record vis-a-vis the case of the respective parties while 19 dismissing the Appeal of the Defendant and confirming the judgment and decree passed by the Trial Court.
16. In order to appreciate the contentions putforth by both the Counsels, it is necessary to notice a few of the legal provisions:
16.1 Section 111 of the Evidence Act States as follows:
"111. Proof of good faith in transactions where one party is in relation of active confidence.--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 a position of active confidence.
(emphasis supplied) 16.2 Section 16(1) and (3) of the Indian Contract Act States 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.20
2. x xx x (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 be upon the person in a position to dominate the will of the other.
Nothing in the sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872)."
(emphasis supplied)
17. A combined reading of Section 111 of the Evidence Act and Section 16(1) and (3) of the Indian Contract Act makes it clear that in view of the allegations of fraud made by the Plaintiff and the circumstances in which such allegations are made, the burden is on the Defendant to prove that the Gift Deed - Ex.D1 is not induced by undue influence and is a transaction entered in good faith.
18. Section 68 of the Evidence Act requires one attesting witness to be examined in proof of a document which is required by law to be attested and Section 123 21 of the Transfer of Property Act, 1882 mandates that a Gift Deed is required to be registered, signed by or on behalf of the donor, and attested by at least two witnesses.
19. The Plaintiff at para 6 of the plaint has pleaded as follows:
"6. That, there after the defendant has plan to grab the gifted property of his wife by saying one or the other reason he win over the plaintiff and further the defendant stated that, he taking from the Bank to improve the land for which the Plaintiff should mortgage the suit land in favour of bank by saying like this Defendant brought the Plaintiff to the Sub Registrar Office, Bhalki and by playing fraud, misrepresenting the plaintiff has created a alleged Gift Deed in his favour in respect of suit land and without disclosing the real and true facts and asked her to put the signature on the document. The plaintiff by believing the words of her husband i.e., defendant has not gone through the contents of document put her signature on the alleged Gift Deed. Further the alleged Gift Deed has been drafted by Advocate of Bidar and one of the witness is also from Bidar as such by playing fraud and mischief has created a bogus, sham and capricious Gift deed behind the back of plaintiff. And he managed to get entered his name in the Revenue Records."22
20. Having regard to the specific plea made by the Plaintiff at para 6 of the plaint as extracted hereinabove, it is clear that necessary details of the alleged fraud played by the Defendant have been averred. The Plaintiff in support of her case, examined herself as PW.1, her mother Nirmala devi as PW.2, one Babu Rao, who is the husband of the sister of PW.2 as PW.3 and Sri Arun, who was working as a Deed Writer at the Sub Registrar office Bhalki as PW.4. All the witnesses examined on behalf of the Plaintiff have supported the case of the Plaintiff.
21. The Defendant examined himself as DW.1, examined a witness one Riyaz as DW.2 and the other witness Vijaykumar as DW.3. DW.2 in his affidavit has stated that he has supervised the construction in the suit property and it is the Defendant who made the payment for the construction material and labour which was paid through DW.2. However, in his cross- 23 examination he has admitted that he does not know from where the money was brought by the Defendant for construction of the house and he also admits that he does not know the elder sister of the Defendant. Hence, the testimony of DW.2 will not aid the case of the Defendant.
22. DW.3 who is the Scribe of the Gift Deed - Ex.D1 in his affidavit has stated that he drafted the Gift Deed as instructed by the Defendant. However, in the cross-examination he has stated that the Defendant has shown him the record of rights (ROR) of the suit land and asked him to prepare the Gift Deed and the boundaries of the land was also furnished by the Defendant, on the basis of which he has finalised the Gift Deed. He further admits that he has not signed the Gift Deed as an attesting witness, but has signed the same as having drafted the said document. 24
23. The evidence of DW.3 has been appreciated by the Trial Court and the first Appellate Court and rightly recorded a finding that the testimony of DW.3 supports the case of the Plaintiff. Having regard to the fact that the burden of proving that the Gift Deed as being valid and proper is on the Defendant, he has not examined any of the witnesses to Ex.D1 in support of his case. Further, the Defendant has not adduced any evidence to discharge his burden that he has not unduly influenced the Plaintiff in the execution of the Gift Deed
- Ex.P1 and that the said transaction is fair, honest and free from any imputation whatsoever. Under the circumstances, the finding recorded by the Trial Court and the first Appellate Court that the Plaintiff is entitled to declaration is just and proper and not liable to be interfered with.
24. With regard to possession, the Plaintiff relies on the Gift Deed - Ex.D1 as well as the revenue records 25 which are marked as Exs.D2, 4 and 5. The name of the Defendant has been entered in the revenue records consequent to the execution of Ex.D1. Having regard to the fact that the Defendant has not proved the valid and due execution of Ex.D1 and the Plaintiff has proved that she is entitled to declaration as sought for, the exhibits marked on behalf of the Defendant will not aid the case of the Defendant to prove his possession. On the contrary, as rightly held by the Trial Court and the first Appellate Court, the evidence adduced by PW.3 coupled with the evidence of DW.1 clearly shows that the Plaintiff is in possession of the suit property.
25. The judgments relied upon by the learned Counsel for the Appellant/Defendant are considered as under:
25.1 The case of M/s Chaturbhai M.Patel & Co.1 and Ranganayakamma 2 are with regard to the plea of fraud and misrepresentation and the requirement 26 of necessary pleading as contemplated under Order VI Rule 4 of the CPC. The said judgments will not aid the case of the Defendant since the said judgments are not rendered in the context of Section 11 of the Evidence Act and Section 13 of the India Contract Act, 1872. In any event, the extent of particulars required to be stated is a question of fact.
25.2 In the case of Bijendra Nath Srivastava3 the Hon'ble Supreme Court has held that the plea of fraud or misconduct is required to be raised under Order VI Rule 4 of the CPC and it is not permissible to introduce the particulars other than in the pleadings. The said judgment will also not aid the case of the Defendant since it has been held that the plea of fraud as stated in para 6 of the plaint is sufficient and it is the Defendant who is required to prove due execution of Ex.D1.
25.3 In the case of Arulmigu Chokkanatha Swamy Koil Trust4 the Hon'ble Supreme Court was 27 considering a case where the Plaintiff had filed a suit for declaration and mandatory injunction and it was found that Plaintiff was not in possession. It was held in the said case that the Plaintiff being out of possession the relief of recovery of possession ought to have been claimed by the Plaintiff. The said judgment will not aid the case of the Defendant since it is the case of the Plaintiff that she is in possession of the suit property and both the Trial Court and the first Appellate Court have held that the Plaintiff is in possession of the suit property.
25.4 In the case of Gurunath Manohar Pavaskar5 the Hon'ble Supreme Court held that the revenue record is not a document of title and it merely raises a presumption regarding possession. The said judgment will not aid the case of the Defendant since the Trial Court has not relied on the revenue record for the purpose of holding that the Plaintiff is in possession of the suit property.28
25.5 The case of Thavarayil Salim6 a Co-
ordinate Bench of the High Court of Kerala held that an attesting witness need not be a party to a suit. The said judgment is also in applicable to the facts of the present case as the same is rendered considering Order I Rule 10 of the CPC.
25.6 In the case of S.Saktivel7 the Hon'ble Supreme Court relying on Section 92(4) of the Evidence Act held that no oral evidence can be adduced in modification or alteration or substitution to a document which is required by law to be in writing. The said judgment will not aid the case of the Defendant as the facts of the said case are completely different from the facts of the present case and the other provisions of law as noticed above were not under consideration in the said case.
25.7 In the case of Balasubramanian8 the Hon'ble Supreme Court has laid down as to when a concurrent finding of the Courts could be interfered with 29 as a substantial question of law under Section 100 of the CPC. The proposition of law as laid down by the Hon'ble Supreme Court will not aid the case of the Defendant as he has failed to demonstrate that the concurrent findings recorded in the present case are required to be interfered with.
25.8 In the case of Rao Raja Kalyan Singh9 the Hon'ble Supreme Court was considering whether the maintainability of a suit under Order VI Rule 2 of the CPC is a legal plea. The said case will not aid the case of the Defendant as the same is wholly inapplicable to the facts of the present case.
26. The judgments relied upon by the learned Counsel for the first Respondent/Plaintiff are considered as under:
26.1 In the case of Ningawwa10 the Hon'ble Supreme Court has held as follows:30
"7. ............ Section 16(3) of the Indian Contract Act says that where a person who is in a position to dominate the will of another enters into a transaction with him which appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such transaction was not induced by undue influence, shall lie upon the person in a position to dominate the will of another. Section 111 of the Indian Evidence Act also states:
"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 a position of active confidence. ....."
26.2 In the case of Krishna Mohan Kul11 the Hon'ble Supreme Court has held as follows:
"12. ....... There was challenge by the plaintiffs to the validity of the deed. The onus to prove the validity of the deed of settlement was on Defendant 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, and 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 31 court watches with jealousy 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 ingrained 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 the Courts of Equity in England and America. This principle is that he who bargains in a matter of advantage with a person who places 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 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."
(emphasis supplied) 32
27. Having regard to the settled proposition of law as laid down in the judgment as noticed above and the legal provisions as notice at paras 16 and 17 supra, having regard to the concurrent finding of fact recorded by the Trial Court as well as the first Appellate Court and having noticed the evidence of the parties at paras 20 to 24 supra, the first substantial question of law with regard to the suit being not maintainable in view of the proviso to Section 34 of the Specific Relief Act, 1963, will not arise in the present case since the Plaintiff has pleaded that she is in possession of the suit property and the Trial Court and the first Appellate Court have concurrently held that she is in possession of the suit property. Hence, the proviso to Section 34 of the Specific Relief Act is not attracted and the said substantial question of law is answered in the affirmative, against the Defendant. 33
28. The second substantial question of law is answered in the affirmative against the Defendant since the Plaintiff has pleaded and proved the fraud played by the Defendant. On the contrary, it is the Defendant who was required to prove that there is no fraud played by him while executing the Deed at Ex.D1, which he has failed to do.
29. The third substantial question of law is also answered in the affirmative against the Defendant since both the Trial Court and the first Appellate Court have properly re-appreciated the entire material on record while considering the case of the respective parties and decreeing the suit of the Plaintiff.
30. In view of the aforementioned, I pass the following:
ORDER i. The above Appeal is dismissed;34
ii. The judgment and decree dated 19.1.2013 passed in RA.No.83/2012 by the Fast Track Court-II at Bidar, Camp at Bhalki and the judgment and decree dated 9.7.2012 passed in OS.No.32/2008 by the Senior Civil Judge, Bhalki, are affirmed;
No costs.
SD/-
JUDGE nd