JUDGMENT Harries, J.
1. This is a defendant's second appeal against a decree of the lower appellate Court reversing a decree of the Court of first instance which dismissed the plaintiff's claim. The plaintiff Sri Ram sued for possession of certain property and also for damages for the wrongful cutting and removal of certain trees in a grove which form part of the property in dispute. The learned Munsif who tried the case came to the conclusion that the sale deed upon which the plaintiff relied to establish his title was a fictitious document and that it gave the plaintiff no right of ownership or possession and that such rights still remained in the vendor who was the husband of the defendant, Mt. Manbhari, the present appellant in the suit. The lower appellate Court reversed the decision of the learned Munsif and held that the plaintiff Sri Ram was the owner of the property and that he was entitled to possession and damages in respect of the trees which had been cut. He however pointed out in his judgment that Sri Ram had obtained the property in question at a ridiculously low figure and that only a small part of that purchase price had actually been paid. He further pointed out that very likely Sri Ram took advantage of the immature young age of Bauli Chand (the vendor) who used to smoke hemp with him, but there is no evidence of any fraud or undue influence; and mere inadequacy of consideration will be no ground for holding that the sale deed is fictitious.
2. Whilst he held that the property had passed by means of this sale deed to Sri Earn, and that consequently the latter was entitled to possession and damages, he further held that it was only equitable that Sri Ram should pay the balance of the purchase price, less damages, and he made such payment a condition precedent to Sri Ram obtaining actual possession. In short the learned Judge found that this was a most discreditable transaction on the part of Sri Earn, but he seems to have been afraid to declare the transaction voidable at the option of the vendor or his representative.
3. In my view the decree of the learned Subordinate Judge cannot be sustained. He has found as a fact that Sri Ram's vendor Bauli Chand had only just attained his majority when he executed the sale deed in question. He has further found that Bauli Chand regarded Sri Ram as his 'guru' and that this young man was accustomed to smoke hemp with his so called 'guru.' There were further findings that the property was worth at a very moderate estimate not less than Rs. 1,380 yet the sale deed was executed for an ostensible consideration of Rs. 400. Again the learned Judge having considered the evidence adduced by the plaintiff to prove the passing of the consideration came to the conclusion that payment of Rs. 70 only had been established. In short the facts found are these: that the vendor was a very young man who was addicted to smoking hemp. This young man sold property worth at least Rs. 1,380 to Sri Ram whom he regarded as his 'guru.' All that he was promised for the property was Rs. 400 and at most he never received more than Rs. 70. The only evidence that Rs. 70 was paid is the fact that it is stated that such a sum was paid before the Sub-Registrar, but such is not very satisfactory evidence because money paid before the Sub-Registrar can very easily be repaid the moment the parties left that officer.
4. Upon these facts the learned Subordinate Judge says that there was no evidence at all of fraud or undue influence, but in the same breath says that very likely Sri Ram took advantage of the immature youth of the vendor. In my judgment the relationship of the parties in this case was precisely what is contemplated in Section 16, Contract Act. Sri Ram was in a position to dominate the will of Bauli Chand and to use his position to obtain an unfair advantage over the latter. As the learned Judge has found Sri Ram was in the position of a 'guru' to this immature young man and further this immature young man was addicted to hemp smoking which is well-known to have disastrous consequences upon the smoker. The admitted facts here show quite clearly that Sri Ram was in a position to dominate the will of Bauli Chand and as a contract was entered into between them which was obviously on the face of it unconscionable, it was for Sri Ram to prove that such a contract was not induced by undue influence. Sri Ram did nothing to displace the presumption of undue influence which arises in this case and to my mind the evidence so far from displacing such presumption actually proves undue influence. There is an actual finding that Bauli Chand transferred the whole of his property to Sri Ram, his so called guru, and that coupled with the other circumstances which I have mentioned satisfy me that this was not a bona fide transaction and that it was open to Bauli Chand to move to have it set aside on the ground of undue influence.
5. Bauli Chand however disappeared sometime after this contract and his where abouts have been unknown for over seven years. Consequently the burden of proving that he is now alive rests upon the persons who so allege. Sri Ram in this case seems to have conceded that Bauli Chand is dead because he sued his wife presumably as Bauli Chand's heir and entitled to his property for at least hex-life. In any event as Bauli Chand has not been heard of by those who would naturally have heard of him for over seven years the Court can presume his death unless there is evidence to the contrary. In my view the present appellant, as representing her husband, can raise the question of undue influence and claim that the contract should not be enforced against the representatives of Bauli Chand. Counsel for the respondents finds himself in a difficult position because though there is no finding of undue influence by the learned Subordinate Judge there is a series of findings of fact which amount actually to a finding of undue influence. Counsel however has contended that undue influence cannot be pleaded by way of defence and as there is no claim by the defendant to set aside the contract, undue influence, even if established, is no defence to the present claim. In my view, however, it is well established that a defendant may raise undue influence by way of defence and it is not necessary for him to take steps to set aside the agreement. This is clearly laid down in the case in Rangnath Sakharam v. Govind Narsivu (1904) 28 Bom 639. Further the same principle is laid down in Lakshmi Doss v. Roop Laul (1907) 30 Mad 169 at p. 178. I, therefore, hold that undue influence may be set up by way of defence to an action by the other party on the contract alleged to have been induced by such undue influence. A second contention was advanced on behalf of the respondents, viz., that it was not open to a representative of a party to the contract to raise the question of undue influence. It was pointed out that in Section 19-A no reference is made to the representatives of the parties to the contract. The section reads:
When consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the party whose consent was so caused. Any such contract may be set aside either absolutely or, if the party who was entitled to avoid it has received any benefit thereunder, upon such terms and conditions as the Court may deem just.
6. To hold that Section 19-A, Contract Act is confined solely to the parties to the contract might lead to some extraordinary results. Persons on their deathbeds are frequently induced to enter into contracts by means of undue influence, yet if the respondents' contention was sound such contracts could but rarely be set aside. However, the matter is concluded by authority if any authority is needed, because it was decided in Shravan Goba v. Kashiram Deviji 1927 51 Bom 133 that the option of avoiding a contract procured in any of the ways mentioned in Section 19 and Section 19-A is exercisable by the party's representatives unless at the date of his death he has lost such rights by acquiescence or otherwise. There is no suggestion in this case that Bauli Chand had lost the rights by acquiescence or otherwise and the true facts tend strongly to show that Bauli Chand was never in a position after this contract to exercise his will at all. In my view the present appellant could resist this claim as a representative of the vendor by pleading undue influence. The result, therefore, is that I am satisfied that this contract was induced by undue-influence if not by something worse and therefore that it was voidable at the option of Bauli Chand and now voidable at the option of his widow. Further, she can by way of defence to this claim plead that the contract was not binding upon her husband and that it gave Sri Ram no right whatsoever. It, however, has been contended by learned Counsel for the respondents that as the vendor Bauli Chand received a benefit viz., Rs. 70 under the contract his widow should at least be made to repay that sum. I am far from satisfied that Bauli Chand received any benefit whatsoever under this or any other contract which he executed in favour of Sri Earn.
7. The evidence called to establish the passing of Rs. 400 as the consideration of this sale was disbelieved in its entirety by the learned Subordinate Judge and he held that only Rs. 70 had bean paid and that mainly upon the endorsement of the Sub-registrar. Where a vendee calls perjured evidence with a view to proving the passing of the major part of the consideration it is quite impossible to ask the Court to believe that at least the evidence with regard to a very minor part of the consideration is true. Further having regard to the fact that Sri Ram now has the whole of Bauli Chand's property I do not think it can possibly be held that Bauli Chand or his widow, the present appellant, had received any benefit whatsoever from this particular transaction. Having regard to the peculiar facts of the case I do not think it right that I should frame an issue and ask the lower Court to decide whether or not Bauli Chand or his widow obtained any benefit under this contract. The facts are plain and speak for themselves and I hold that they received no such benefit in fact. To my mind this is a clear case where an ignorant young man whose mind was clouded and affected by hemp smoking has been deprived of his property by a person who had complete control over him. That being so, this appeal must be allowed and the decree of the lower appellate Court set aside and the plaintiff's claim dismissed in its entirety. The present appellant must have her costs in this Court and in the Courts below. Leave to appeal under the Letters Patent is refused.