Bellachi Vs. Pakeeran
 INSC 584 (23 March 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1785 OF 2009 [Arising
out of SLP (Civil) No. 5238 of 2008] Bellachi (Dead) by LR ...Appellant Versus
S.B. SINHA, J :
is the plaintiff in Original Suit No. 36 of 2000 filed in the Court of Munsiff,
Kasargod. Defendant-respondent is her younger brother.
matter of the suit was a deed of sale dated 7th October, 1999 executed by her
in favour of the respondent. The amount of consideration was shown therein to
be a sum of Rs. 20,000/-. Contention of the appellant in the said suit was that
the said deed of sale is vitiated by 2 misrepresentation, undue influence,
fraud and collusion as she was made to believe that she would obtain financial
assistance by executing the said document. According to her, she had reposed
complete faith and trust in her brother who used to visit her place often.
It was also her
contention that when her husband was in bed due to prolonged illness, she was
taken away from her house and made to sign some documents. According to her she
came to know with regard to execution of the aforementioned deed of sale when
some officers of the bank visited the suit land to take measurement thereof.
Respondent in his written statement however stated that the deed of sale was
executed voluntarily by the appellant upon receiving the amount of
learned Trial Judge in view of rival pleadings of the parties framed the
"(i) Whether the
sale deed was validly executed in favour of the plaintiff? (ii) Whether the
alleged cause of action is true?"
alia holding that the plaint does not satisfy the requirements of Order VI Rule
4 of the Code of Civil Procedure as particulars of fraud, undue influence were
not pleaded and furthermore having regard to the 3 fact that the plaintiff had
admitted in her deposition that except once the respondent had not visited her,
the suit was dismissed.
It was opined that
the plaintiff had not been able to establish that the defendant had been in
such a position so as to dominate over her will and /or the said deed of sale
was executed by her under misrepresentation, undue influence or collusion. As
regards execution of the sale deed, it was stated as under :
"Order VI Rule 4
and Order VI Rule 2 of the Civil Procedure Code, makes it clear that there
shall be specific pleading with sufficient particular regarding the fraud or
undue influence misrepresentation etc. which is lacking in this case. I have
already stated that there is no scope for any collusion in the execution of
Ext. B.5. At the same time there is no sufficient material to show that the
defendant was in such a position so as to dominate the will of the plaintiff,
and he got executed Ext. B5 under fraud, misrepresentation, collusion and undue
first appellate court affirmed the said findings of the learned Munsiff
noticing that the appellant herself had deposed that the defendant had left her
house about fifteen years back and came to her house only when her husband was
4 Agreeing with the
conclusions arrived at by the learned Trial Judge, it was held :
of a document made to establish only if the same is denied. In this case the
plaintiff admitted the signature and also execution of Ext. B5 but contended
that it was obtained under undue influence, believing that she signed in papers
necessary for getting government loan to the persons laid up due to illness.
The evidence of DW1 and DW2 satisfactorily proved the execution of Ext. B5
deed. Ext. B2 to B4 documents would show that immediately after the execution
of Ext. B5 the defendant started paying basic tax. In AIR 1976 SC 163 the Apex
Court held that there shall be separate pleading about undue influence and the
general allegation regarding the undue influence is not sufficient.
Order VI Rule 4 and
Order VI Rule 2 of Code of Civil Procedure make it clear that there shall be
specific pleading with sufficient particular regarding the fraud or undue
influence, misrepresentation etc. and absolutely no such specific pleadings are
in this case and hence it has to be held that Ext. B5 was not executed under
fraud, misrepresentation or collusion. But on the other hand the oral as well
as documentary evidence show that Ext. B5 as executed by the plaintiff out of
her free will and volition. Hence it has to be held that the sale deed Ext. B5
was validly executed by the plaintiff and hence it is not liable to be set
second appeal preferred by the appellant thereagainst has been dismissed by the
High Court by reason of the impugned judgment.
P.V. Dinesh, learned counsel appearing on behalf of the appellant, would urge
that the courts below committed a serious error of law in so far as they failed
to take into consideration that the relationship between the vendor and vendee
being that of sister and brother and the appellant being an illiterate old aged
lady, the onus of proof was upon the defendant-respondent to show that the deed
of sale was a genuine one and the amount of consideration specified therefor
had been received by her.
It was furthermore
urged that the respondent having not examined the Registrar or any other person
from the registration office in regard to the execution of the aforementioned
deed of sale and passing of the amount of consideration, must be held to have
failed to discharge the heavy onus placed on him.
Raghunath appearing on behalf of the respondent, however, would support the
jurisdiction of the High Court in terms of Section 100 of the Code of Civil
Procedure is limited. It can interfere with the concurrent findings of two
courts if any substantial question of law arises for its consideration. Whether
the respondent despite the fact that he was brother of the appellant was in a
dominating position is essentially a 6 question of fact. Per se it does not
give rise to a substantial question of law.
have noticed hereinbefore that the Trial Court as also the first appellate
court inter alia held that the very basis of the claim of the appellant was
that the respondent had been very close to her and had been visiting her quite
often and thus was a man of trust had not been established.
the parties to the suit used to live together at one point of time, the
respondent parted with her company 15 years prior to the execution of the deed
of sale. He had visited her house only when her husband fell ill.
concurrent finding of fact has also been arrived at that the appellant was not
a person wholly incapable of understanding things. It was furthermore held that
the plaintiff had sufficient funds for her own treatment as also for the
treatment of her husband and thus the story that she was made to believe that
she would be rendered financial assistance by some banks so as to enable her to
meet the expenses for her husband's treatment, is not correct.
It was, furthermore,
noticed that her husband as also her daughter (PW-2) were government employees.
7 The said
concurrent findings of the fact ordinarily are binding on the High Court while
exercising its jurisdiction under Section 100 of the Code of Civil Procedure.
reported in [1976 (2)
SCC 142] held as under :
"4. In his
written statement, Afsar defendant denied the allegations of fraud and
misrepresentation. He averred that his grandmother was the sister of the
plaintiff's mother. The defendant's father died when he was an infant. The
plaintiff brought him up as a son. Since his very infancy, the defendant has
been living with the plaintiff, managing his affairs and treating him as his
father. The defendant further stated that the plaintiff has transferred 10 to
12 bighas of land to his natural son and an equal area to his second wife. Out
of love and affection, the plaintiff conferred a similar benefit on the
defendant and voluntarily executed the hiba-bil-ewaz after receiving from the
donee a dhoti as a symbolic consideration therefor. He denied that the
plaintiff at the time of the gift was too old and infirm. According to him, the
plaintiff was not more than 75 years of age. He further averred that he was in
possession of the suit lands ever since the execution of the hiba."
It was observed :
"20. It is
well-settled that a question whether a person was in a position to dominate the
will of another and procured a certain deed by undue influence, is a question
of fact, and a finding thereon is a finding of fact, and if arrived at fairly,
in accordance with the procedure prescribed. is not liable to be reopened in
second appeal (Satgur Prasad v. Har Narain Das; Ladli Prasad Jaiswal v. Karnal
Distillery Co. Ltd. )."
is not the case of the appellant that the finding of the first appellate court
on the question of fraud, undue influence etc. is vitiated by any illegality,
omission or error or defect as envisaged under Section 100 of Code of Civil
16 of the Indian Contract Act provides for as to what constitutes undue influence.
Relationship between the parties so as to enable one of them to dominate the
will of the other is a sine qua non for constitution of undue influence.
Findings of fact as
noticed hereinbefore have been arrived at by both the trial judge as also the
first appellate court that the respondent was not in a position to dominate the
a given case it is possible to hold that when an illiterate, pardanashin woman
executes a deed of sale, the burden would be on the vendee to prove that it was
the deed of sale was a genuine document. It is, however, a registered document.
It carries with it a presumption that it was executed in accordance with law.
Again a concurrent finding of fact has been arrived at that she was not an
illiterate woman or she was incapable of understanding as to what she had done.
Dinesh has placed strong reliance upon a decision of this Court having regard
to the fact had been arrived at from the courts below, it was held :
"4. The facts
are so glaring, still the onus to prove the issue has been over-emphasised. It
is true that the initial onus to prove undue influence was on the
plaintiff-appellant, but the onus, in the facts and circumstances of the case,
was easily discharged. It is the respondent who had obtained the sale deed in
his favour way back on April 1, 1963 by a registered sale deed, which saw the
light at a late stage of the trial. From the certified copy thereof it was
evident that no consideration passed at the time of the sale.
Nobody from the
registration office was examined to explain the sale. No evidence was led by
the respondent to discharge the onus that the sale deed was executed under no
undue influence, even though the vendor was old, blind, illiterate and a tribal
woman totally at the mercy of the respondent, with whom she was living till her
death. The parties were so situated that Bhana-respondent was in a position to
dominate the will of Putlibai and was in a position to obtain an unfair
advantage over her. It is also in evidence that Putlibai was dependent on the
respondent. The trial court had given cogent reasons to come to the finding
that the sale deed was vitiated on account of the condition in which Putlibai
was put due to her relationship with Bhana-respondent, as well as the manner
and nature of the transaction.
The factual matrix
involved in the aforementioned case was, thus, absolutely different.
both the courts below have held that the plaint does not contained any
particulars of undue influence, fraud etc.
The law does not
envisage raising of a presumption in favour of undue influence. A party
alleging the same must prove the same subject of course to just exceptions. this
court has held as under:- "Further, a perusal of the plaint shows that the
execution of Exhibits B-6 and B-7 has, in fact, not been disputed by the
plaintiffs. The case set up by them is that the first defendant, exercising
dominating influence over his grandmother, got the two settlement deeds
executed from her exploiting her old age, dim eyesight and mental condition. It
has been further pleaded that the first defendant had a fiduciary relationship
with his grandmother and, therefore, though normally it would be for a person
who pleads undue influence to establish the said fact, but in view of this
relationship, it is for the first defendant to prove that the gift deeds were
the result of free exercise of independent will by the executant."
The said decision
will apply in all fours in this case.
is, thus, no merit in the appeal. It is dismissed accordingly.
However, in the facts
and circumstances of this case, there shall be no order as to costs.
[Dr. Mukundakam Sharma]