BELLACHI (DEAD) BY LRversusPAKEERAN

                             [2009] 4 S.C.R. 823

                        .,
                     BELLACHI (DEAD) BY LR                               A
                                     v.
                               PAKE ERAN
                   Civil Appeal No. 1785 of 2009
                             MARCH 23, 2009
                                                                         B
   . [S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ]

        Code of Civil Procedure, 1908:
        s. 100 - Second appeal - Jurisdiction ofHigh Court -
  HELD: High Court can interfere with concurrent findings of two         c
  courts below if any substantial question of law arises for its
  consideration - Findings of courts below were not stated to
  have been vitiated by any illegality or omission or error or
  defects as envisaged by s.100.
        Or 6 r 4 - Suit challenging a sale deed as vitiated by D
  misrepresentation, undue influence, fraud and collusion -
  HELD: The party alleging undue influence, fraud etc. must
  prove the same - Trial court as a/so the first appellate court
  having held that plaint did not contain any particulars of undue
  influence, fraud etc., High Court rightly dismissed the second E
  appeal.
        Contract Act, 1872:
          s. 16 ~ Undue influence - HELD: Relation between
    parties so as to enable one of them to dominate the will of the      F
    other is sine qua non for constitution of undue influence - Trial
    court and first appellate court having arrived at the finding that
... defendant was not in a position to dominate plaintiff's will, High
    Court rightly declined to interfere.
       The plaintiff-appellant filed a suit challenging a sale G
  deed alleged to have been executed by her in favour of
  her younger brother, the defendant. It was contended that
  the sale deed was vitiated by misrepresentation, undue
  influence, fraud and collusion as the plaintiff was made
                              823                              H
    824       SUPREME COURT REPORTS                  [2009] 4 S.C.R.


A to believe that she would obtain financial assistance for
  treatment of her husband's prolonged illness by executing
  the said document. The trial court dismissed the suit
  holding that the plaint did not satisfy the requirements of
  Or.6, r.4 CPC, as particulars of fraud and undue influence
B were not pleaded and the plaintiff was not able to establish
  that the defendant had been in a position so as to unduly
  influence her or that the sale deed was executed by her
  under misrepresentation. The first appellate court affirmed
  the said findings. The second appeal of the plaintiff was
  dismissed by the High Court.
c
       In the instant appeal filed by the plaintiff, it was
  contended for the appellant that the courts below
  committed an error of law in so far as they failed to take
  into consideration that the relationship between the                       ,~   .
D vendor and vendee being that of sister and brother and
  the appellant being an illiterate old lady, the onus of proof
  was upon the defendant-respondent to show that the sale
  deed was genuine and amount of consideration had been
  received by vendor, and as no officer of Registration Office
  was examined in this regard, the vendee must be held to
E
  have failed to discharge the onus.
          Dismissing the appeal, the Court
        HELD: 1.1 The jurisdiction of the High Court in terms
  of s.100 of the Code of Civil Procedure, 1908 is limited. It
F can interfere with the concurrent findings of two courts
  below 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 question of fact. Per se it does
G not give rise to a substantial question of law. [para 10)
  [829-E-F]
                                                                        ..
          Afsar Sheikh and Anr. Vs. Soleman Bibi and Ors.1976
    (2) sec 142 - relied on.
H         1.2 The trial court as also the first appellate court inter
                                                                              •,
                                                                                  y




                                                                                  "
                                                                                  ,-
                     BELLACHI (DEAD) BY LR V                 825
                           PAKEERAN

      alia held that the very basis of the claim of the appellant A
      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. A concurrent finding of
      fact has also been arrived at that the plaintiff was not a
      person wholly incapable of understanding things. It was B
      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 c
      husband's treatment, is not correct. The said concurrent
      findings of the fact ordinarily are binding on the High Court
      while exercising its jurisdiction u/s 100 of the Code. [para
      11-13] [829-G; 830-B-D]
            2.1Section16 of the Contract Act, 1872 defines 'undue D
      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
      have been arrived at by both the trial court as also the first
      appellate court that the respondent was not in a position E
      to dominate the plaintiff's will. It was, furthermore, noticed
      that plaintiff's husband as also her daughter were govern-
      ment employees.[para 13 and 15] [831-D-E; 830-C-D]
             2.2 In a given case it is possible to hold that when an
      illiterate, pardanashin woman executes a deed of sale, the F
      burden would be on the vendee to prove that 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
..r   finding of fact has been arrived at that the plaintiff was G
      not an illiterate woman nor was she incapable of
      understanding as to what she had done. Furthermore,
      both the courts below have held that the plaint does not
      contain any particulars of undue influence, fraud etc. The
      law does not envisage raising of a presumption in favour H
    826       SUPREME COURT REPORTS                    [2009] 4 S.C.R.


A   of undue influence. A party alleging the same must prove               •
    the same subject of course to just exceptions.[para 16, 18]
    [831-F; 832-F-G]
          M. Rangasamy Vs. Rengammal and Ors. (2003) 7 SCC
    683 - relied on.
B
          Mst. Sethani Vs. Bhana 1993 Supp. (4) SCC 639 -
    distinguished.
                         Case Law Reference
          1976 (2) sec 142           relied on           para 13
c
          1993 Supp.
          (4) sec 639                distinguished       para 17
          (2003) 1 sec 683           relied on           para 18
D        CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1785
    of 2009
         From the Judgement and Order dated 26.06.2007 of the
    High Court of Kerala in R.S.A. No. 254 of 2007.
          P.V. Dinesh, for the Appellants.
E
          A. Raghunath, for the Respondents.
          The Judgement of the Court was delivered by
          S.B. SINHA, J :
F         1. Leave granted.
           2. Appellant is the plaintiff in Original Suit No. 36 of 2000
    filed in the Court of Munsiff, Kasargod. Defendant-respondent
    is her younger brother.
G         3. Subject matter of the suit was a deed of sale dated l'
    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 misrepresentation, undue
H   influence, fraud and collusion as she was made to believe that
                      BELLACHI (DEAD) BY LR V.                       827
                      PAKEERAN [S.B. SINHA, J]

     she would obtain financial assistance by executing the said A
     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 B
     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 consideration.      C

           4. The learned Trial Judge in view of rival pleadings of the
     parties framed the following issues:

          "(i)   Whether the sale deed was validly executed in favour
                 of the plaintiff?                                    D

          (ii)   Whether the alleged cause of action is true?"
           5. Inter 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 E
     furthermore having regard to the 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 F
     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 G
          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
                                                                           H
    828       SUPREME COURT REPORTS                    [2009] 4 S.C.R.


A         collusion in the execution of Ext. B.5. At tne 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. 85 under fraud,
          misrepresentation, collusion and undue influence."
B
          6. The 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 ill.

c         Agreeing with the conclusions arrived at by the learned
    Trial Judge, it was held :

          "The execution of a document made to establish only if the
          same is denied. In this case the plaintiff admitted the
          signatUie and also execution of Ext. 85 but contended
D         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.
          85 deed. Ext. 82 to 84 documents would show that
E         immediately after the execution of Ext. 85 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
F         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. 85 was not
G         executed under fraud, misrepresentation or collusion. But
          on the other hand the oral as well as documentary evidence
          show that Ext. 85 as executed by the plaintiff out of her
          free will and volition. Hence it has to be held that the sale
          deed Ext. 85 was validly executed by the plaintiff and
H         hence it is not liable to be set aside.
                      BELLACHI (DEAD) BY LR V                      829
                      PAKEERAN [S.B. SINHA, J.]

           7. The second appeal preferred by the appellant A
     thereagainst has been dismissed by the High Court by reason
     of the impugned judgment.

             8. Mr. P.V. Dinesh, learned counsel appearing on behalf
     . of the appellant, would urge that the courts below committed a
                                                                       8
       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 C
       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 D
     sale and passing of the amount of consideration, must be held
     to have failed to discharge the heavy onus placed on him.
          9. Mr. Raghunath appearing on behalf of the respondent,
      however, would support the impugned judgment.
                                                                         E
           10. 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 F
     was in a dominating position is essentially a question of fact.
     Per se it does not give rise to a substantial question of Jaw.
            11. We 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 G
      very close to her and had been visiting her quite often and thus
      was a man of trust had not been established.
           12. Although the parties to the suit used to live together at
      one point of time, the respondent parted with her company 15 H
    830       SUPREME COURT REPORTS                    [2009) 4 S.C.R.


A   years prior to the execution of the deed of sale. He had visited
    her house only when her husband fell ill.

          13. A 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
B   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.
c
        It was, furthermore, noticed that her husband as also her
    daughter (PW-2) were government employees.

         The said concurrent findings of the fact ordinarily are
    binding on the High Court while exercising its jurisdiction under
D   Section 100 of the Code of Civil Procedure.

        This Court in Afsar Sheikh and Anr Vs. Soleman Bibi
    and Ors. reported in [1976 (2) sec 142] held as under:

          "4. In his written statement, Afsar defendant denied the
E         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
F         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
G         the htba-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
H         the suit lands ever since the execution of the hiba."
                  BELLACHI (DEAD) BY LR V.                        831
                  PAKEERAN [S.B. SINHA, J.]

      It was observed :                                                  A
     "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
                                                                   8
     fairly, in accordance with the procedure prescribed. is not
     liable to be reopened in second appeal ( Satgur Prasad
     v. Har Narain Das; Ladli Prasad Jaiswa/ v. Kamal
     Distillery Co. Ltd. ). " .

       14. It is not the case of the appellant that the finding of the   c
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 Procedure.

      15. Section 1.6 of the Indian Contract Act provides for as
to what constitutes undue influence. Relationship between the D
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 E
respondent was not.in a position to dominate the plaintiffs wilt.
        16. In 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 F
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.
       17. Mr. Dinesh has placed strong reliance upon a decision G
of this Court in Mst. Sethani Vs. Bhana reported in [1993 Supp.
(4) sec 639] wherein 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 H
    832       SUPREME COURT REPORTS                    [2009] 4 S.C.R.


A         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,
B         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
c         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 Shana-respondent was
          in a position to dominate the will of Putlibai and was in a
D
          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
E         with Shana-respondent, as well as the manner and nature
          of the transaction.
          The factual matrix involved in the aforementioned case was,
    thus, absolutely different.
F         18. Furthermore 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
G
    the same subject of course to just exceptions.
                                                                           •
          In M1 Rangasamy Vs. Rengammal and Ors. [(2003) 7
    sec 683), this court has held as under:-
          "Further. a perusal of the plaint shows that the execution
H
                       BELLACHI (DEAD) BY LR V.                      833
                       PAKEERAN [S.B. SINHA, J.]

           of Exhibits B-6 and B-7 has, in fact, not been disputed by A
           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 B
           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.
         19. There 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.

    R.P.                                            Appeal dismissed.