JUDGMENT Umeshwar Pandey, J.
1. This second appeal of the plaintiff has been filed against the judgment and decree dated 20.9.1986, passed by the lower appellate court (IInd. Additional District Judge, Ghazipur).
2. The appellant had filed a suit for cancellation of a sale deed dated 10.12.1984 on several grounds taken in the pleadings including the ground that the sale had been obtained by practising fraud upon him which could .be easily manipulated by the defendant/respondent on account of his old age and also on account of his being illiterate. He further stated that no consideration in the present transfer by sale had passed from the defendant to him and he was cleverly deceived by the respondent, who represented to the plaintiff that he wanted a surety bond to be executed by him to indemnify the defendant towards the payment of some dues to the Government. The plaintiff was also given to understand that in case he did not execute the surety bond, the defendant/respondent might face arrest and detention for such nonpayment of the dues. After having been fully convinced by the crafty talks of the defendant and on account of being under his influence from before, the plaintiff agreed to execute the surety bond and he was taken to the Court premises where instead of a bond this sale deed was got executed by fraud and misrepresentation.
3. The defendant/respondent contested the suit and filed a written statement disclosing certain facts and pleading inter alia that the sale deed in question was not got executed by him by practising fraud or any sort of misrepresentation nor did he unduly influence the plaintiff, an old man of seventy years of age. He further pleaded that the plaintiff had three daughters only who had been married and finding himself all alone and lonely he started living with the defendant who happens to be his nephew. He was taking his meals and staying with the defendant and after the defendant Joined service he used to give all money which he received as his salary to the plaintiff only. The plaintiffs daughters and his sons-in-law did not take any care of him and as such the defendant had been looking after his uncle (plaintiff) with utmost sincerity and care. Since the defendant's father had died and he had separated from his other brothers, his marriage was also got arranged and conducted by the plaintiff himself. The defendant's wife also took maximum care of plaintiffs comfort while he was residing with her. Later on since the plaintiff was extremely pleased with the care and comfort accorded to him by the defendant and the wife he told his daughters that he was going to transfer his entire property to his nephew (defendant). The defendant further pleaded that in the circumstances as stated above, this sale deed was executed and no element of fraud had been there in this transfer of plaintiffs property through the impugned sale deed.
4. On the pleadings of the parties, the trial court framed as many as five issues and in the findings of issues No. 1 and 5 taken together it was held that no consideration passed for the disputed sale of property and that was the only property held and possessed by the plaintiff as a source of his livelihood and virtually there was no occasion in such circumstances to transfer the property showing it to be a transaction of sale. Accordingly the learned trial court having believed the story set up in the plaint about fraud and misrepresentation played upon the plaintiff by the defendant found that the sale deed in question was liable to be cancelled and accordingly after giving formal finding on the other issues decreed the suit with costs.
5. The respondent/defendant preferred an appeal before the lower appellate court against the judgment and decree passed by the trial court in which the findings, as had been recorded by the trial court that the sale deed in question was a result of fraud and misrepresentation practised upon the plaintiff, were reversed and it has been held that the document was executed by way of love and affection which the plaintiff possessed for the defendant. The parties are uncle and nephew and since the plaintiff (uncle) was residing for the last several years with the defendant this execution of the sale deed transferring the property belonging to the plaintiff was a natural and phenomenal result of that relation.
The lower appellate court has though specifically concurred with the findings recorded by the trial court that no consideration in the present sale as mentioned in the sale deed, had passed, yet the sale deed could not be set aside in view of the provisions of Section 25(1) of the Contract Act. Accordingly the appeal was allowed by the lower appellate court and the judgment and decree of the trial court was set aside." Consequently the suit of the appellant was dismissed.
6. Aggrieved by the judgment of the lower appellate court this second appeal has been preferred.
7. While admitting this appeal, the Court adopted questions No. 3 and 4 as referred to in the memo of appeal as the substantial questions of law which are reproduced as below:
(1) Whether the lower appellate court is right in not considering the fraud played upon the plaintiff/appellant and the inducement on him made by the defendant?
(2) Whether the principle of pardanashin lady will apply in case of seventy years old illiterate villager as well and the burden lies upon the defendant to prove due attestation of the document?
FINDINGS
8. A perusal of the judgment of the lower appellate court shows that it had concurred with the findings recorded by the trial court that no consideration in the present transaction of sale had passed from the vendee to the vendor. Taking the protection of Section 25(1) of the Contract Act, the learned Counsel has tried to emphasise that even if no consideration in the present case had passed for the transfer of the property, it will not make any difference in view of Section 25(1) of the Contract Act. This transfer is by virtue of natural love and affection between the parties. The learned Counsel further tried to impress upon the Court that not passing of consideration in such agreements does not render the transaction as void. In this context he has referred to the case law of Smt. Mania v. Deputy Director of Consolidation .
9. It would be relevant to refer to Section 25(1) of the Contract Act which is reproduced below:
An agreement made without consideration is void unless:
(1) It is expressed in writing and registered under the law for the time being in force for the registration of documents and is made on account of natural love and affection between parties standing in a near relation to each other or unless.
10. The lower appellate court has considered the pleading and the evidence led from the side of the defendant that in lieu of the service and comfort accorded to the plaintiff by the defendant in last several years while living with him this document of transfer of property by sale was executed. Accordingly the findings have been recorded that the sale deed was executed by way of love and affection between the uncle and the nephew and the agreement was protected under Section 25(1) of the Contract Act. A perusal of the impugned sale deed shows that it has been executed in return of the sale consideration of Rs. 22,500 received by the transferor. This part of the recital of the sale deed is admittedly false. In the case of Smt. Mania (supra), the Court has taken the agreement questioned in that case to be valid because it had been arrived at between the parties by way of certain reproachment and it was treated as a gift. Here the defendant/ respondent himself in his pleadings has stated about passing of certain consideration when in para 6 of the written statement he states that for the last eight years of his earnings from the service had been given by him to plaintiff/appellant. Of course it has also been pleaded by the defendant in his written statement that he had been looking after his uncle (the plaintiff) who all through, after the marriage of his daughters, had been staying with him, but at the same time reference to the passing of consideration by way of money regularly paid by him to the plaintiff has also been given in the pleadings. Therefore, the document in question has to be treated as a sale deed and accordingly the argument for treating it to be a document of gift cannot be accepted. The recitals in the sale deed are that as the executant urgently needed money for certain repayment of loan and also for meeting his personal expenses and for that purpose he intended to transfer the property to the vendee for a sum of Rs. 22,500. In such circumstances, if the consideration which has not passed for the execution of such a sale deed which is so patent and also held by both the courts below, it is definitely not a gift-deed and it could not have been validly held to be a transaction of gift executed by the plaintiff in favour of his nephew (defendant) out of love and affection. An express case of love and affection has nowhere been taken by the defendant in his pleadings except mere mention of facts that he had been maintaining and looking after his uncle (plaintiff) during the last several years. It is stated in para 6 of the written statement that the plaintiff before executing the transfer In his favour had told his daughters that he was going to transfer his property.
11. While arguing in the aforesaid context, the learned Counsel for the respondents citing the case law of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors. . has tried to emphasise that even though a point of law has not been pleaded specifically by a party or is found to be assigned between the parties in absence of any factual format, a litigant should not be allowed to raise that questiorf as substantial question of law. The substantial question of law would definitely arise when the first appellate court has assumed Jurisdiction which did not vest in it. That question is a question which is adjudlcatable in the second appeal.
12. As already observed in the preceding paragraph that in the face of the fact as pleaded in the written statement of the respondent defendant and as also from the documents (impugned sale deed) it is not decipherable that at any point of time this transaction of sale was ever treated by the parties as a gift deed and the provisions of Section 25(1) of the Contract Act, thus could not be attracted. The trial court has held this document to be a void deed on the ground that no consideration in the transaction actually passed from the vendee to the vendor. From the discussions made in the judgment by the trial court, it was found that misusing the confidence reposed by the appellant plaintiff in the respondent defendant, the document in question was got executed projecting it to be a surety bond for indemnifying the defendant from his liability and thus, avoiding his arrest in pursuance to the recovery certificate issued against him. A perusal of the impugned appellate judgment shows that at no place a proper discussion has been made about the fact that this deed in question while apparently being executed as a sale deed could turn out, without any specific pleading to that effect, to be a deed of gift. The judgment also does not have any discussion as to how and in what circumstances the plaintiff who was admittedly a man of about 70 years of age and reposing confidence in the defendant could execute a clear and patent sale deed instead a gift deed. As per the judgment of the lower appellate court, the appellant plaintiffs evidence has been recorded and he specifically stated before the Court that he was taken by the defendant to District Hqrs. Ghazipur, for purchasing some clothes for him on the assurance that he would obtain the clothes at cheaper rate through him (defendant). The plaintiff was told there at Ghazipur that some repayment of Government loan is to be made by the defendant which he is not able to make for the time being and the plaintiff may sign a surety bond or put his thumb impression thereon to which he agreed. In these circumstances, the document in question was got executed. Actually the evidence which was given by the plaintiff is more than sufficient to cover the entire pleadings of the plaint regarding misrepresentation and fraud, which was committed by the defendant while getting the impugned deed executed by him. The alleged fraud as described in the plaint, in the light of the evidence and circumstances available, which has been fully discussed by the trial court, does not find proper discussion in the appellate court's judgment while reversing those findings. A sale deed on the face of it when not executed after receiving the due consideration, mentioned in the deed itself, such document is definitely a void document and the claim of its validity could not have been upheld in the present context by taking the help of Section 25(1) of the Contract Act. Therefore, it is apparent from the judgment of the lower appellate court itself that it has not considered all these circumstances and facts in the light of the pleadings and evidence available on record while holding that the document was a valid agreement duly executed by the appellant plaintiff as a gift deed. The lower appellate court was under legal obligation while reversing the findings of the trial court, to go into the substance of matter and only then find out if the document was a document of gift or sale. In no otherwise manner such finding of the trial court could be validly reversed and the appeal could be allowed. Here the findings of fact given by courts below are not concurrent. The lower appellate court has assumed the impugned sale as a transaction of gift which it would not do in the facts and circumstances available in the case. This is nothing but a wrongly assumed jurisdiction which did not vest in it. The case law of Kondiba Dagadu Kadam (supra) does not help out the submission made on behalf of the respondent.
13. In the case of Rajeshwari v. Puran Indoria , the Hon'ble Supreme Court while summarising the case law of Raghunath Prasad Singh v. Deputy Commissioner of Pratapgarh 54 IA 126 ; Dy. Commissioner v. Rama Krishna and Chunnilal V. Mehta and sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. , has propounded in this context in the following words:
Thus, it was accepted that a question of law would be a substantial question of law if it directly and substantially affects the rights of the parties and if it was not covered by a decision of the Supreme Court or of the Privy Council or of the Federal Court.
14. Much emphasis has been given by the learned Counsel for the defendant respondent that such questions involving mixed question of law and facts are not to be taken as a substantial questions of law for the purpose of second appeal and such question is beyond the scope of Section 100, C.P.C.
15. As I have discussed above that the lower appellate court has taken up a case of Section 25(1) of Contract Act, which has not been specifically pleaded in the written statement and thus has given the benefit of the same to the defendant respondent for reversing the findings of the trial court and dismissing the plaintiffs suit. Besides, that the lower appellate court has also not, as discussed above, considered the reasonings given in the judgment of the trial court for holding the questioned sale being a resultant fraud and misrepresentation and has straightway given a finding that the defendant proved the questioned deed as a valid piece of agreement. The reasonings and findings recorded by the lower appellate court cannot be Justified by the case law of Smt. Mania (supra).
16. In the aforesaid context the case law of Rajeshwari v. Puran Indoria 2005 (4) AWC 3869 (SC) : JT 2005 (7) SC 630, is relevant to mention, in which the Apex Court in following two paragraphs has suggested for restoration of position in Section 100, C.P.C. prior to 1976 amendment and has observed that there are instances when the first appellate court merely, mechanically, confirmed the findings of fact rendered by the trial court without an independent reappraisal of the pleadings and the evidence in the case. There are occasions when the High Court feels constraint of Section 100, C.P.C. and declines to interfere though such interference is proper to render justice between the parties. In the present case, it is not only a matter of mechanical confirmation of the finding of fact by the appellate court but it is a definite case of carving out a case which is nowhere inferable either from the deed or the pleadings of parties. Thus, it is a judgment of reversal given by lower appellate court without properly justifying the dismissal of the reasons given by the trial court in its Judgment. The paragraphs 6 and 7 of the aforesaid judgment are as below:
6. Before parting, we feel that we would be justified in pointing out that the amendment brought to Section 100 of the Code with effect from 1.2.1977 by Act 104 of 1976, has really not advanced the cause of Justice. Earlier, interference could be had under Section 100 of the Code if the decision was contrary to law or some usage having the force of law ; or the decision had failed to determine some material issue of law or usage having the force of law ; or suffered from a substantial error or defect in procedure provided by the Code or any other law for the time being in force, which may possibly have produced the error or defect in the decision of the case upon the merits. The provision enabled the Court to correct errors of law or of procedure in an appropriate case and even unreasonable appreciation of evidence could have been brought within the contours of error of law in the circumstances of a given case. But by introducing the concept of "substantial question of law" in Section 100 of the Code, the right of the litigants to have a decision after a reappraisal of the relevant materials by the High Court has been curtailed. Though, courts of first appeal are made the final courts of facts, there are instances when first appellate courts merely, mechanically, confirm the findings of fact rendered by the trial court without an independent reappraisal of the pleadings and the evidence in the case. Since a judgment of affirmance need not be as elaborate as a judgment reversing the decision of the Court below, it is often contended that the judgment of the appellate court satisfies the requirements of Order XLI, Rule 31 of the Code. There are occasions when the High Court feels the constraint of Section 100 and reluctantly declines to interfere though interference would have been proper to render justice between the parties. High Courts are often confronted with an argument that even if what was involved was a mixed question of fact and law or even a question of law, that did not constitute a substantial question of law justifying interference under Section 100 of the Code. Why not an error of law committed by the appellate court be corrected in second appeal? Why should not a litigant have an opportunity of having the decision in his case corrected for an error of law by the High Court at the second appellate stage? When a substantial question of law as expounded by this Court is only an open question of law substantial as between the parties, a restoration of the position as it existed prior to 1.2.1977 does not appear to be reopening of the door too wide. It must be remembered, that now, after the amendment of the Code by Act 22 of 2002, interference in revision under Section 115 of the Code of Civil Procedure, 1908 has also been substantially curtailed. Even if the High Court is satisfied that there would be failure of justice if the order is allowed to stand, the High Court cannot, interfere under Section 115 of the Code, in view of the deletion of the particular proviso which extended prior to the amendment. Therefore, the High Courts cannot correct errors that could lead to a mistrial or a finding of fact to be arrived at based on an erroneous approach that is proposed then and there by exercising a revisional jurisdiction, even at the initial stage so that at a later stage a remand by the first appellate court is avoided. The curtailment of the right 10 interfere under Section 115 of the Code has only resulted in the High Courts being flooded with proceedings under Article 227 of the Constitution of India challenging all sorts of interlocutory orders. It is for the law makers to consider whether it would not be more appropriate to restore Section 115 of the Code as it existed prior to its amendment by Act 22 of 2002 and confer a broader right of second appeal as it existed prior to the introduction of the concept of substantial question of law into Section 100 of the Code, by Act 104 of 1976.
7. It is true that it is in consonance with public policy, to curtail a right of appeal (that too, a second appeal) so as to ensure that a litigation attains finality as early as possible. At the same time, it has also to be ensured that justice, according to law, is made available to the litigants who approach the Court. Our experience, as lawyers and Judges of High Courts shows that more often than not, first appellate courts, simply, mechanically, reiterate what is stated by the trial court and confirm findings of fact rendered by the trial court without making an independent reappraisal of the pleadings and the evidence in the case as they are bound to do as courts of appeal. But even in such cases, the High Courts find it difficult to interfere, though, they do interfere, when the injustice caused to the litigants is so apparent that the same could not be overlooked and the judgment under appeal allowed to pass muster. There have also been occasions when the High Courts had felt compelled to interfere, notwithstanding the limitation imposed by the wording of Section 100 of the Code of Civil Procedure, and on occasions such decisions have been interfered with by this Court, on the ground that the High Court has exceeded its jurisdiction under Section 100 of the Code of Civil Procedure, After all, the purpose of the establishment of courts of justice is to render justice between the parties. Is it necessary to unduly curtail the jurisdiction of the High Courts, either under Section 100 of the Code of Civil Procedure or under Section 115 of the Code of Civil Procedure in that context? Of course, the High Courts have to act with circumspection while exercising these jurisdictions. Certainly, it is for the Parliament to take into account all the relevant aspects. We are making these observations only with a view to highlight the position as has emerged in the light of the amendments to Sections 100 and 115 of the Code of Civil Procedure as they are now obtaining.
17. The point which has been indicated in the second question "ramed by this Court that the plaintiff vendor being old man of 70 years and iliterate villager should be accorded he same benefit as that of pardanashin lady, the law is settled an this point. It is true that in a deed July registered, there is legal presumption of its correctness so the original person who is challenging the validity of transaction on the ground of fraud and undue influence etc. the burden of proof of such fraud etc. rests on him. But a major exception to this rule is that the initial burden would not be on the party, who is old and illiterate challenging the transaction and will, instead be cast on the person who relies on such deed if there exists any fiduciary relationship between the parties. The possibility of this relationship and probability of dominating the challenging party arises either directly from the very nature of the relationship existing between the parties or sometimes from a peculiar handicap or disability from which that party suffers. Section 111 of the Evidence Act read with Section 16 of the Contract Act, the principle enshrined therein is also extendable to cases where there is a proof of a person dependent, by virtue of his physical or mental infirmity or disability on another party and the circumstances have been proved to show that the other party, taking advantage of such position, has secured a deed or instrument for his own benefit. In such cases a Division Bench of this Court in Daya Shankar v. Smt. Bachi and Ors. , has held that the burden to prove the genuineness of the deed lies on dominating party and not on a person challenging it. In this context the following paragraphs of the decision of Daya Shankar (supra) is quite remarkable and is quoted as below:
In Parasnath Rai v. Tileshra Kuar 1965 All LJ 1080, Gangeshwar Prasad, J., followed the decision of the Calcutta High Court in Chinta Dasya v. Bhalku Das AIR 1930 Cal 591, wherein Mitter, J., held, that rules regarding transactions by a pardahnashin lady were equally applicable to an illiterate and ignorant woman, though she may not be pardahnashin. We are unable to comprehend as to why the broad principle which has been accepted and widely applied in the numerous decisions to which we have adverted should not also embrace within its sweep the cases of males who by reason of their apparent physical or mental incapacity or infirmity or being placed in circumstances where they are greatly amenable to the overpowering influence of another person are induced to enter into conveyances and transactions relating to their property. The basic principle is the same and where it is proved to the satisfaction of the Court either that the bargain was on the face of it unconscionable or the executant was the victim of physical or mental handicap or that he was subdued by the complexity of circumstances in which another person had an upper hand, the burden must be cast squarely on the person enjoying the dominating position to show that he secured the deed in good faith.
18. In the present case, the plaintiff appellant was admittedly an old man of 70 years of age and as per the defendant's case itself there did exist a fiduciary relationship between the two. Since those days the plaintiff was dependent on the defendant and was living with him, he was obviously suffering from these handicaps and thus, the defendant was definitely in a dominating position being his nephew. The transaction is also unconscionable as being a sale deed of the entire property held by the vendor, the only source of his livelihood. By this transfer the plaintiff is also found to have excluded his all the three daughters from getting any share in the property. In such circumstances, the initial burden was on the defendant to prove that the deed was valid and had been executed in all fairness and bonafide and not otherwise influenced by any fraud or misrepresentation. The mere observation of the lower appellate court that since the defendant has come in the witness box he actually has discharged his burden by saying that he got the sale deed validly executed, will not definitely be a finding as to amount holding that the requirements of the provisions of Section 111 of Evidence Act read along with provisions of Section 16 of the Contract Act were in reality fulfilled. When there was no finding recorded in favour of this aspect of the matter by the trial court the detailed findings should have been recorded by the appellate court in that regard.
19. Learned Counsel for the respondent/defendant while relying upon the case law of Ningawwa v. Byrappa , has further raised a point that in the present case if the contentions of the plaint are to be taken on its face value, the transaction should be treated as void and no decree for its cancellation as sought by the appellant/plaintiff is required to be passed. He has tried to demonstrate from the pleadings in the plaint that the deed in question has been obtained by making fraudulent representation as to its character and the fraud allegedly committed by the respondent defendant is not a misrepresentation as to the contents of the document and thus emphasised that in the present case the suit was not at all maintainable. The case, as has been taken by the plaintiffs regarding questioned deed, is that of void deed and such suit is not maintainable in the civil court. Learned Counsel has further relied upon the case law of Ram Roop v. Smt. Budhiya 1979 RD 212 and Indra Pal v. Jagan Nath 1992 (2) AWC 1118 : 1992 RD 231, in same context.
20. As per the plaint case the sale deed in question was got executed by the respondent defendant misrepresenting it to be a document of security indemnifying the defendant from repayment of Govt. dues. But the contents of document are otherwise stating it to be a sale deed after having received the amount shown therein as consideration. So far as the element of fraud and misrepresentation is concerned, it is obvious in the pleadings itself. Whether the pleadings are squarely to be categorized as denoting fraudulent misrepresentation as to the character of document or as to the contents of document, is a question which is in itself unanswerable from the contents of the deed. The facts were misrepresented to the plaintiff by the defendant and taking the plaintiff into his confidence and dominating him by his position as such, he got fraudulent deed of sale executed. These mixed facts as demonstrated from the circumstances as well as from the contents of deed in question make the document as one obtained by playing fraud and misrepresentation as to its contents also and that renders the deed as a voidable document which requires to be cancelled in law. The lower appellate court side-tracking all these issues has Interpreted this document to be a deed of gift and as per the discussions made above, without going into other merits of the evidence and attending circumstances has actually ignored all the reasonings given by the trial court in its judgment and thus, has reversed it. The question thus, so arises in this second appeal from the facts and circumstances available in the present case which is more than obvious that the judgment of lower appellate court has directly and substantially affected the right of the parties and it has been rightly interpreted as a substantial question of law arising before this Court for adjudication.
21. In view of the aforesaid proposition and also in the circumstances and facts available on record, this appeal appears to have enough merit and the judgment and decree passed by the appellate court requires to be set aside and thus the appeal should be allowed.
22. In result, the appeal is allowed and the Judgment and decree dated 20.9.1986. passed by the IInd Additional District Judge, Ghazipur, is hereby set aside. The judgment and decree passed by the trial court is restored. Costs of this appeal shall be easy.