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Documents citing Afsar Sheikh And Anr vs Soleman Bibi And Ors on 6 November, 1975

Smt. Maria Eduaria Apolonia Gonsalves E ... vs Shripad Vishnu Kamat Tarcar And Anr. on 30 October, 1996

16. Admittedly her son Caesar was present along with her when the agreement in question was signed and the appellant has chosen not to examine him who was actually eye witness to what had transpired and who could throw light on the question whether any undue influence had been exercised on her to sign the said agreement. In the suit filed by her no specific details of undue influence were given, except that in spite of repeatedly insisting that she did not want to sell the property, Advocate Shri Rui Gomes Pereira insisted that she should sign the agreement. Order VI, Rule 4 CPC provides that in all cases in which the party pleading relies on misrepresentation, fraud, breach of trust, wilful default, or undue influence and in all other cases where 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 pleading. Though it is not necessary to quote any ruling on this aspect, yet it may be mentioned that the Apex Court in Afsar Shaikh v. Soleman Bibi has laid down that such matters are required to be separately pleaded with specificity, particularity and precision. It was further observed therein that a general allegation in the plaint, that the plaintiff was a simple old man of ninety who had reposed great confidence in the defendant, was much too insufficient to amount to an averment of undue influence. We have already pointed out that the plea taken by the appellant appears to be the result of afterthought and our conclusion is based upon the fact that even though the appellant has deposed in her evidence that in spite of her repeatedly telling that she did not want to sell the property and in spite of her telling that she would come later either in the afternoon or the next morning, she was forced to sign the agreement, yet on the very next day she encashed the cheque of Rs. 5000/- which was given as earnest money by the respondents. The appellant had stated in para 20 of Special Civil Suit No. 214/77 filed by her that on the same day i.e. on 9-3-77 she got the agreement read over and explained to her by one of her friends and came to know that the said papers were a copy of the agreement. However, during the cross of her evidence, she admitted that she had called one of her tenants Vasudev Dhume on 9-3-77 itself, but he was not able to understand the said agreement but he took the agreement with him for explanation from some . learned man. She further states in her deposition that on the next day morning at about 9 a.m., the said Vasudev Dhume came and told her that she. was cheated. Thus as per para 20 of the plaint in the suit filed by her, she had categorically stated that she had come to know the contents of the agreement on 9-3-77 itself, yet in the course of her deposition she stated that she came to know about the same on 10-3-77. She has further deposed that on the next day i.e. on 10-3-77 at about 9 a.m. the said Dhume had asked her to return the plaintiff's money/cheque given to her by Vistar Hotel and not by the plaintiffs and that she should return it by making a draft. Thus, it is the case of the appellant herself in the course of her deposition that at about 9 a.m. on 10-3-77 she had come to know the contents of the agreement and that she was cheated and that Vasudev Dhume had even told her to return the cheque of the respondents. No bank opens at 9 a.m. and in spite of Vasudev Dhume telling her to return the cheque, she deposited the cheque witht the Bank on 10-3-77 and encashed the same. In order to support her theory she went to the extent of coining another story that she had gone to the Bank, signed the ' cheque on both sides and told the Bank Clerk to give a draft, but he told her that a draft could not be given as the same had to be sent to Panaji. She told him to keep the cheque with him for two days. There was absolutely no necessity for the cheque to be kept with the Bank Clerk and she could have taken the same back. She then states that on 10th March itself she sent a cheque by registered post to Shripad, but he returned the same. After four days she went to the bank but the Clerk had told her that he had already credited the said cheque in the account and the cheque of Rs. 5000/- which she had given to him was torn by him. The said Clerk has not been examined and in the absence of the same can this story put up by the appellant that she had kept the cheque given by Tarcars with the Bank Clerk for two days and had also given him another cheque but the said cheque was torn by the said Bank clerk, be believed? Even Vasudev Dhume has not been examined.
Bombay High Court Cites 11 - Cited by 0 - Full Document

P.Apparao Rodda vs Slunkara Jagga Rao on 5 November, 2024

"With respect to the substantial question of Law No.2, as above, in view of the decision of the Supreme Court in Afsar Shaikh v. Soleman Bibi (supra), the contentions, based on undue influence and misrepresentation, have to be excluded from consideration, as there is neither any pleading nor any evidence. In fact, it is not even stated in the plaint that the respondent herein was in a dominating position with respect to appellant nor it is stated that he influenced the appellant and her son to execute the sale deed by using his dominant position. In the absence of very basic averment to that effect in the plaint, the only question which needs to be considered is whether the appellant has established fraud as alleged?"
Andhra Pradesh High Court - Amravati Cites 13 - Cited by 0 - Full Document

P. Appa Rao Rodda vs S.Jagga Rao on 5 November, 2024

"With respect to the substantial question of Law No.2, as above, in view of the decision of the Supreme Court in Afsar Shaikh v. Soleman Bibi (supra), the contentions, based on undue influence and misrepresentation, have to be excluded from consideration, as there is neither any pleading nor any evidence. In fact, it is not even stated in the plaint that the respondent herein was in a dominating position with respect to appellant nor it is stated that he influenced the appellant and her son to execute the sale deed by using his dominant position. In the absence of very basic averment to that effect in the plaint, the only question which needs to be considered is whether the appellant has established fraud as alleged?"
Andhra Pradesh High Court - Amravati Cites 13 - Cited by 0 - Full Document
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