Heard Sri Pankaj Agarwal and Sri Rajesh Mishra, learned counsel for the appellant and Sri N. L. Pandey, learned counsel for the respondents.
This is plaintiffs' Second Appeal against the Judgment and Decree dated, 07.05.2003, passed by Sri Ramesh Chandra Singh, Additional District Judge, Court No.3, Ghaziabad, in Civil Appeal No.218 of 2002, whereby the Judgment and Decree dated 19.09.2002, passed by Sri Kamlesh Dubey, Civil Judge (Junior Division), Hapur, dismissing the Original Suit No.398 of 1978 of the plaintiffs has been confirmed and the suit of the plaintiffs has been dismissed.
The plaintiff instituted an Original Suit No.398 of 1978, praying for a decree of cancellation of the will revocation deed dated 16.10.1975.
The plaintiffs' case is that Panna Lal and Nand Kishore, son of Harvans Lal, were real brothers; that Panna Lal had only 2 daughters, namely, Smt. Ramrati Devi, wife of Chandrabhan and Smt. Rameshwari Devi wife of Sri Ganesh Dutt, at the time of execution of the disputed document; that Nand Kishore had 2 sons, namely, Dr.Ramesh Dutt Sharma and Mahesh Dutt Sharma; that both the brothers had inherited land from their father and the same was divided during consolidation proceeding; that Panna Lal had Chak No.239 ( area 9-6-13) and as per the provisions of the U.P.Zamindari Abolition & Land Reforms Act, 1952, this land was to be inherited by brother Nand Kishore or his sons but Panna Lal probably desired that after his death all his moveable and immoveable property should go to his 2 daughters; that wife of Panna Lal died in 1970 and he executed a Will dated 16.10.1975 in favour of his 2 married daughters and got the same registered; that Nand Kishore had full knowledge of the Will dated 16.10.1975 executed by his brother, Panna Lal and since 1976 -77, Panna Lal suffered paralysis, he used to come to see Panna Lal; that Panna Lal lived at Meerut in the house of Smt.Ramrati, plaintiff no.1; that on the pretext of consulting better doctor, he took Panna Lal to Hapur and while he was not in his senses, he got the will dated 16.10.1975 cancelled by the revocation deed dated 03.02.1977; that Panna Lal died on 15.05.1978 at Subhash Nagar, Meerut and his last rites were performed by the son of plaintiff no.1, Sanjeev Kumar; that after death of Panna Lal, defendant no.1, Nand Kishore, started claiming himself to be the owner of the properties left behind by Panna Lal and then plaintiffs came to know from the mutation proceedings that defendant no.1 has got will dated 16.10.1975 cancelled by the document dated 03.02.1977; that hence the suit was instituted by plaintiff no.1, arraying plaintiff no.2 as proforma- defendant, initially, but after the death of plaintiff no.1, defendant no.2, the second daughter of the deceased, Panna Lal, got herself transposed as plaintiff no.2 in the suit; that plaintiffs requested defendant no.1 to refrain from his illegal deed, but he did not relented; that plaintiffs were in possession over the property left behind their father and hence the suit was instituted.
The defendant no.1 filed his written statement denying plaint averments to the effect that no partition ever took place between him and his brother Panna Lal and they lived together without any ill will against each other; that Panna Lal lived with him and not with his daughter, plaintiff no.1 and he cancelled will dated 16.10.1975 in favour of his daughters on 03.02.1977 on his own will in full sense; that Panna Lal was got treated by the defendant no.1 and his son at Meerut and it is false to allege that he lived with plaintiff no.1 and the defendant took him on the pretext of treatment at Meerut and got the will revocation deed executed; that the deed was duly executed before the Registrar on 03.02.1977, when Panna Lal was in his full sense and he himself gave application for mutation before consolidation court; that defendant no.1 is the only legal heir of Panna Lal and the plaintiff no.2, who was earlier defendant no.2, was fully aware of the fact of cancellation of the will and therefore she did not joined the plaintiff in suit; that will dated 16.10.1975 was got executed from Panna Lal by fraud and after its execution, his daughters, plaintiff no.1 and defendant no.2, started misbehaving with him and therefore he got will in their favour cancelled; that defendant no.1 is in possession over the property left behind by Panna Lal; that the defendants have no right to institute the suit, which is barred by time and is entitled to special costs from them, as per Section -35 C.P.C.
The defendant no.1 died during pendency of suit and his sons got substituted as defendant nos.1/1 and 1/2. They filed their written statement repeating the averments made by defendant no.1 in his written statement after he died and claimed themselves to be owners of the property left behind by Panna Lal through their father, defendant no.1, who was the real brother of Panna Lal. They also filed an additional written statement, stating that the transposition of defendant no.2 as plaintiff no.2 in the suit is barred by time.
The plaintiff no.2 filed her replication to the additional written statement filed by defendant nos. 1/1 and 1/2 stating that her rights are similar to that of the plaintiff no.1 and her legal heirs and she has been transposed by the orders of the Court and therefore additional written statement aforesaid may be rejected.
On the basis of the pleadings of the parties the trial court framed the following issues, (1). Whether the document dated 03.02.1977 is void being based on fraud and coercion?.
(2). Whether the plaintiff and defendant no.2 are the owners of disputed land on the basis of will dated 16.10.1975?
(3). Whether partition ever took place between father of plaintiff and defendant no.2 and the defendant no.1?.
(4). Whether the Court has no jurisdiction to entertain the suit as stated in paragraph no.32 of the written statement ?
(5). Whether the suit has been under valued and Court fees paid is insufficient?.
(6). Whether suit is barred by time?
(7). Whether suit can not legally proceed?
(8). To what relief the plaintiffs' are entitled?.
On the basis of the evidence produced by the parties, trial court decided issue no.5 regarding valuation and court fees and issue no.4 regarding jurisdiction of the Civil Court to entertain the suit, in favour of plaintiffs. Issue no.6 regarding suit being time barred was also decided in favour of plaintiffs holding that the suit is not barred by time against transposed plaintiff no.2. Issue no.7 was decided holding that suit regarding cancellation of the documents can proceed before Civil Court. Issue no.3 regarding partition of the property between father of plaintiffs and defendant no.1 was decided by the trial court holding that Panna Lal, father of plaintiffs and Nand Kishore had got their land and house separated and partition has taken place between them during consolidation proceedings. Issue nos. 1 and 2 regarding voidability of document dated 03.02.1977 and the ownership of plaintiffs of the property of Panna Lal on the basis of will dated 16.10.1975, was decided holding that document dated 03.02.1977 was not got executed by Panna Lal by fraud and coercion and issue no.2 was therefore decided against the plaintiffs. The suit was dismissed by the Judgment and Decree dated 19.09.2002.
The plaintiffs preferred a Civil Appeal No.218 of 2002 before the lower appellate court, which was dismissed by the lower appellate court after considering the findings regarding issue nos. 1 and 2 recorded by the Trial Court and hence this Second Appeal.
This Second Appeal was admitted on 27.02.2004 on the following substantial question of law, "Whether the revocation of the Will being a solemn act the burden of its proof, as in the case of Will, lay upon the defendant, who was relying upon it and the burden has been erroneously placed upon the plaintiff ?"
The learned Counsel for the plaintiff- appellant has argued that both the courts below committed manifest error of law in dismissing the suit of the plaintiff- appellant by shifting the burden upon plaintiff to prove undue influence, fraud and coercion and that the plaintiff failed to prove the same. Once it has come on record that age of testator at the time of execution of document was 75 years and his mental condition was not sound and he was also suffering from paralysis, which stands proved by the statement of Mahesh Kumar P.W.3, witness to revocation deed dated 03.02.77, coupled with the fact that defendant no.1, Nand Kishore, being real brother of Panna Lal, took him from house of Ramrati with assurance of his treatment and got deed of revocation executed, constituted sufficient material before court below to prove the element of "Undue Influence". Nand Kishore was in a dominant position over Panna Lal to take unfair advantage in getting revocation deed executed, where after it was the burden of defendant to prove that deed of revocation was not result of any fraud, coercion or undue influence and was executed by the testator on this own sweet will.
In support of the contention so raised reference is made to Section-16 of the Indian Contract Act 1872, "16. "Undue influence" defined -(1) A contract is said to be induced by "undue influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
(2). In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another-
(a). Where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b). Where he makes a contact with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3). Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other.
Nothing in this sub- section shall affect the provisions of Section 111 of the Indian Evidence Act, 1872 (1 of 1872).
Emphasis has been given to sub section (3) of Section 16 which provides that in case where the position of a person as such that he is in a position to dominate the will of another, entered into a contract, the transaction appears on the face of it or on evidence adduced, fraudulent, the burden of proving that such contract was not induced by undue influence shall be upon person in a position to dominant the will of the other. Relying upon the said provision it is submitted that once there was sufficient material before the Courts below regarding the age of the testator, relation of Panna Lal with Nand Kishore and his mental condition and his ailment which stands corroborated by the statement and cross examination of Mahesh Kumar, P.W.3, there was sufficient element to prove "undue influence" as required under law. Thereafter it was burden of the defendant to prove that transaction does not suffers from any fraud, undue influence or coercion and plaintiff was not expected to prove the same by leading any positive documentary evidence regarding age, ailment and relation of the defendant with the testator. Moreover the beneficiary of the document was the defendant and like proponder of will he was required to dispell all clouds surrounding its due execution.
It has been further submitted that view taken by the court below, that appellant, who was defendant at the time of recording of statement of Ramrati as P.W.1, did not cross examined her when Ramrati made statement against her own case in the plaint and thus drawn adverse inference against the appellant is manifestly erroneous and result of ignorance of what happened during proceeding of trial. Ramrati, P.W.1, to save her son, who was facing criminal trial in the murder of defendant, Nand Kishore, was pressurized by sons of Nand Kishore, defendant nos. 1/1 and 1/2, to give statement against plaint averments. Thereafter, the present appellant moved an application for transposition as plaintiff no.2, as Ramrati, plaintiff no.1, colluded with defendant, which was allowed by order of trial court dated 04.02.1998 directing plaintiff no.1, Ramrati, to make necessary amendment in the plaint which plaintiff no.1 failed to carry out and suit was ultimately dismissed in her absence on 24.02.98. Against dismissal of suit, Civil Appeal No.109 of 1998 was preferred by the present appellant alone which was allowed on 15.03.2002 and thereafter present appellant was arrayed as plaintiff no.2. Ramrati died on 8.5.1998, therefore, she could not be cross- examined at the behest of plaintiff no.2, appellant herein. Therefore, while drawing adverse reference against the present appellant (plaintiff no.2) regarding not cross examination of P.W.1 by appellant, court below failed to take note of the fact that after her transposition in the year 2002, when statement of Sunil Dutt as P.W.6 was recorded on 02.08.2002, the application to cross examine P.W.6 was filed by the appellant to substantiate the circumstances on which the plaintiff no.1 had made statement against the plaint averments, but the said application of the appellant was rejected by the trial court on 13.08.2002. Thus courts below should not have drawn any adverse inference against appellant for not cross- examining either P.W.1 or P.W.6 who gave statement against the plaint assertions. Apart from this their statements lost their sanctity after dismissal of suit on 24.02.98 in absence of plaintiff no.1 and after judgment and order dated 15.03.2002 in Civil Appeal No.109 of 1998, filed by the appellant where after, it was appellant, who was permitted to contest the suit as plaintiff no.2 and thus the entire judgment based upon the testimony of P.W.1 and P.W.6 is vitiated.
Finally, he has concluded that judgments of both the courts below are liable to be set aside in view of the fact that plaintiff proved the necessary element of undue influence which also stands corroborated by the statement of P.W.3, Mahesh Kumar, but court below wrongly shifted burden of proving undue influence upon plaintiffs to prove the same by leading positive evidence regarding age, ailment of the testator, and recorded finding that plaintiff failed to prove the same which was incorrect approach and the instant appeal deserves to be allowed.
The learned Counsel for the appellant has relied upon paragraph nos. 22, 23, 38 and 39 of the Judgment in the case of Haridwar Vs. Smt. Kulwant, 2013 (6) ADJ 485,
22. An "influence" will turn and become "undue" when a person, in a dominant position uses that position to obtain unfair advantage for himself at the cost of a person relying upon his authority or aid or position. Broadly speaking, in order to bring an act satisfying the term "undue influence", there are three ingredients, vide Section 16 of ICA, 1872, which are:
(i) that the relation subsisting between the parties should be such that one of the parties is in a position to dominate the will of the other;
(ii) that the dominant party obtains an unfair advantage over the other, and
(iii) that the dominant party uses his position to obtain unfair advantage.
23. In other words, undue influence means domination of a weak mind by strong mind to an extent which causes the behaviour of the weaker person to assume an unnatural character. Undue influence is any influence brought to bear upon a person entering into an agreement or consenting to a disposal of property which in normal circumstances one would not have done or agreed to do. The essence of "undue influence" is that a person is constrained to do against his will, but for the influence he would have refused to do it left to exercise his own judgment. It is an influence which acts to the injury of a person who is swayed by it and which compels that person to do something which he would not have done, if he had been a free person.
38. Here, I may also observe that law does not require plaintiff to establish positively, that, in fact, the deed had been obtained by exercising undue influence. The plaintiff cannot be expected to set out in detail the element of undue influence in the plaint and to bring forth documentary or oral evidence to prove each and every aspect, much of which depends and originated from human behaviour, relation, etc.. It was enough to point out that defendant was in a position to dominate the will of vendor and he obtained an unfair advantage by using that position. I am fortified in expressing above view, by judgment of this Court in Sher Singh and Ors. Vs. Pirthi Singh and Ors. 1975 Allahabad 259.
39. The plaintiff, in this regard, has led enough evidence and this is supported with the fact that entire transaction underwent clandestinely, and, those, who in normal course must have knowledge thereof, were kept in dark. The lower Appellate Court, therefore, while observing that it was for defendant to prove that instrument of sale deed was not obtained by undue influence, has said so, at a stage when initial burden i.e. facts constituting element of undue element were found to exist, and thus he turned/shifted onus upon defendant to prove that document was not obtained by undue influence. This approach of lower Appellate Court can neither be said to be illegal nor contrary to law.
Further reliance has been placed on paragraph nos. 15, 16 and 17 in the case of H.V.Nirmala & another Vs. R.Sharmila & another, (2018) 3 SCC 303,
15. Having examined, we are inclined to concur with the reasoning of the High Court and accordingly answer the question in favour of respondent No.1, i.e., the plaintiff and against the appellants (defendant Nos. 2 and 3). In other words, we hold that the plaintiff was able to prove the Will dated 12.03.1980 in accordance with law and there is no reason to hold otherwise. This we say for the following reasons.
15.1 First, the Will dated 12.03.1980 is a registered Will.
15.2 Second, it was executed by none other than the father-Ramaiah in favour of his minor daughter-Sharmila and minor Son-Umesh born from first wife.
15.3 Third, when Ramaiah-the father bequeathed his property to his minor children then we find nothing unnatural in it. In our opinion, it is a natural bequeath out of love and affection.
15.4 Fourth, there is no question of minor daughter and son playing an active role in execution of the Will dated 12.03.1980 in their favour. It is for the simple reason that both were too young to indulge in any kind of illegal acts to grab the suit property. In other words, it was too much to expect from the minor children to play any active role in grabbing their father's property and create forged Will.
15.5 Fifth, it has come in the evidence that the original Will dated 12.03.1980 was not in possession of the plaintiff but it was in possession of defendant No.1. For this reason, the plaintiff filed its certified copy after obtaining from Registrar's office.
15.6 Sixth, this explanation was accepted by the High Court and, in our opinion, rightly.
15.7 Seventh, since the original Will was not in plaintiff's possession, its existence and legality could be proved by the plaintiff by leading the secondary evidence.
15.8 Eighth, the plaintiff proved the Will dated 12.03.1980 in accordance with the requirement of Section 68 of the Evidence Act,1872 by adducing her own evidence and by examining one attesting witness of the Will. In our view, such evidence was sufficient to prove the Will.
15.9 Ninth, it is not in dispute that the later Will dated 20.05.1995 disclosed by the defendants did not find mention therein the fact of execution of first Will dated 12.03.1980 by the testator. In our view, the Will dated 20.05.1995 should have found reference of the earlier Will dated 12.03.1980 because Will dated 12.03.1980 was a registered Will and in order to prevail the last Will over the earlier one, the reference of revocation of the earlier Will dated 12.03.1980 was necessary in the later Will. It was not so.
15.10 Tenth, since the plaintiff was not a party to the compromise decree dated 25.01.1997 passed in OS No.7266 of 1996, it was not binding on her.
15.11 Lastly, once the Will dated 12.03.1980 is held proved, in accordance with law, the plaintiff becomes entitled to claim a declaration in her favour that she is the owner of the properties bequeathed to her by the testator as specified in the Will.
16. In the light of the foregoing discussion, we hold that the High Court was right in holding that the plaintiff was able to prove the Will dated 12.03.1980 and that the Will dated 20.05.1995 and the decree dated 25.01.1997 passed in O.S. No.7266 of 1996 are not binding on the plaintiff.
17. As a consequence thereof, we find no merit in this appeal, which fails and is accordingly dismissed.
Finally reliance on paragraph nos. 11, 12, 13, 17 and 19 of the case of Bharpur Singh and others Vs. Shamsher Singh, AIR 2009 SC 1766, has been made,
11. The legal principles in regard to proof of a will are no longer res integra. A will must be proved having regard to the provisions contained in clause (c) of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, in terms whereof the propounder of a will must prove its execution by examining one or more attesting witnesses. Where, however, the validity of the Will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator. In a case where the Will is surrounded by suspicious circumstances, it would not be treated as the last testamentary disposition of the testator.
12. This Court in H. Venkatachala Iyengar vs. B.N. Thimmajamma [AIR 1959 SC 443] opined that the fact that the propounder took interest in execution of the Will is one of the factors which should be taken into consideration for determination of due execution of the Will. It was also held that one of the important features which distinguishes Will from other documents is that the Will speaks from the date of death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator.
It was also held that the propounder of will must prove:
(i) that the Will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and
(ii) when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of propounder, and
(iii) If a Will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion.
In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein.
It was moreover held:-
"20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
13. This Court in Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao & ors. [2006 (14) SCALE 186], held:
"33. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D.
Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi and Ors. v. Jayaraja Shetty and Ors. (2005) 8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.
34. There are several circumstances which would have been held to be described (sic) by this Court as suspicious circumstances:
(i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will;
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.
[See H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors. AIR 1959 SC 443 and Management Committee T.K. Ghosh's Academy v. T.C. Palit and Ors. AIR 1974 SC 1495]"
17. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will:
i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time.
iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
iv. The dispositions may not appear to be the result of the testator's free will and mind.
v. The propounder takes a prominent part in the execution of the Will.
vi. The testator used to sign blank papers.
vii. The Will did not see the light of the day for long.
viii. Incorrect recitals of essential facts.
19. We, therefore, keeping in view the peculiar facts and circumstances of this case, are of the opinion that the impugned judgment of the High Court as also the first appellate court should be set aside and the matter be directed to be considered afresh in the light of the observations made hereinbefore by the first appellate court. It is ordered accordingly.
The appeal is allowed with the aforementioned observations and directions. However, in the facts and circumstances of the case, there shall be no order as to costs.
The Counsel for the defendants-respondents has supported the Judgments of both the Courts below and has argued that in original suit no.398 of 1978 evidence was lead by the plaintiff and the defendants and the issues were framed and after the issues were framed, evidence was lead by the plaintiff, Ram Rati, who was earlier proceeded to file original suit no.398 of 1978 and Smt. Rameshwari Devi was made proforma defendant in the aforesaid suit and later on she has been transposed as plaintiff no.2. Before the trial court issue no.1 was whether the revocation of the deed dated 16.10.1975 by the deed dated 03.02.1977 was result of undue influence and if this was so, what was its effect. Issue no.1 was with regard to establishing this fact that the deed dated 03.02.1977 was result of undue influence which has been pleaded in the plaint itself by the plaintiff Ram Rati, P.W.1, who was examined and she tried to prove that the mental and bodily condition of Panna Lal was not such as he could have decided on his free will to execute the deed dated 3.2.1977. In order to prove her case, medical prescription of Ayurved doctor, Dr. Devdutt Sharma, was filed but the trial court as well as the appellate court have rightly returned finding that it can not come to the rescue of the plaintiffs as the doctor who has issued the certificate has not been examined and not only this, this was also proved by number of other evidence. Since it was averred in the plaint itself and the issue was framed as to whether the deed dated 3.2.1977 was result of undue influence or not and in this regard, the trial court as well as the appellate court have returned findings which are based on evidence and that it is in consonance with the decision of the Hon'ble Apex Court in the case of Ladly Prasad Jaiswal Vs. Karnal Distillery Company Limited, Karnal report in AIR 1963.
In the judgment of the trial court itself finding has been returned wherein it has been stated the P.W.1, Ram Rati, in her examination-in-chief has not supported this fact that undue influence was made over Panna Lal and no allegation with regard to the fact has been made. Later on she has admitted that the will dated 16.10.1975 made in her favour has been cancelled after one year and 3 months. Smt. Rameshwari Devi did not cross examined her and has stated that the deed dated 03.02.1977 was result of exercising undue influence as contemplated under Section 16 of the Indian Contract Act, 1872. It is relevant to point out that version of Mahesh Chandra Sharma and Smt. Rameshwari Devi is contradictory and nowhere Mahesh Chandra Sharma has negated that the deed dated 03.02.1977 was not having the signature of Panna Lal, rather he has accepted that the deed dated 03.02.1977 was having the signature of late Panna Lal and as such, the decision relied upon by the appellant, as reported in 2013 (6) ADJ page 485 does not comes in her rescue and other decision which have been mentioned, as reported in (2018) 3 SCC 303, is with regard to the genuineness of two wills. The trial court as well as the appellate court while returning finding on issues which have been discussed in detail have considered evidence lead before the courts below and after great deliberation and appreciation of evidence on record, finding has been returned which is concurrent finding and it can not be re-appreciated by exercising the power U/S. 100 C.P.C. In support of this following decisions which have been rendered by the Hon'ble Apex Court are cited:-
1. (2011) 1 SCC page 158
2. (2016) 3 SCC page 78
3. (2010) 11 SCC page 777
4. (2010) 5 SCC page 770 The initial burden of proving fraud, coercion, dominant position of the defendant no.1, illness of Panna Lal, his unsoundness of mind and residence with defendant no.1 at the time of execution of the cancellation deed in dispute, was on plaintiffs-appellants and unless this burden of proof was discharged by them, the Onus never shifted towards defendants-respondents to prove or dispute the aforesaid averments. His argument is that the lower appellate court has recorded clear findings of fact that the plaintiffs failed to discharge the burden of proof regarding issue nos.1 and 2 and therefore the plea taken by them regarding fraud and coercion has not been found to be proved. The lower appellate court has recorded the finding that the original will as well as the document of revocation thereof were filed in evidence by defendants and after execution of the document dated 03.02.1977, cancelling the will dated 16.10.1975, had Panna Lal been under the influence of defendant no.1, another Will could have been got executed from Panna Lal in favour of defendant no.1. Therefore both the disputed documents were executed by Panna Lal exercising his free will and he was never under any coercion or influence of defendant no.1.
He has replied to the Case Laws relied upon by the Counsel for appellant that unless it is proved by leading cogent and reliable evidence that the relations between the parties were such that the defendant no.1 was in a position to dominate the will of Panna Lal and used that position to obtain the document of revocation cancellation of will, the provisions of Section-16 of the Contract Act, 1872 will not come to his aid. He has further argued that the plaintiffs have failed to prove that the defendant no.1 was in a position to dominate the will of Panna Lal and therefore, the burden was never on the defendant no.1 or his legal heirs to prove that the document dated 03.02.1977 was not the result of any fraud or coercion or undue influence upon plaintiff and it was executed by Panna Lal on his own free will.
After consideration of the arguments of both the parties, it is undisputed that the beneficiary of the revocation deed dated 03.02.1977 was defendant and after his death his 2 sons, defendant nos.1/1 and 1/2. In this appeal, it is to be decided as to on whom, the burden of proving undue influence fraud and coercion for getting the disputed revocation deed executed lied.
The learned Counsel for appellant has relied upon Section-16 of the Indian Contract Act, which defines undue influence. In Section-16(3) of the Act aforesaid, it has been provided that where a person who is in a position to dominate the will of another, and enters into a contract with him, which appears to be unconscionable, the burden of proving that such contract was not tainted by undue influence shall be upon the person dominating the will of the other.
In the present case, defendant did not enter into any contract with Panna Lal but he is the beneficiary of the revocation deed. In the case of Laxmi Doss Vs. Roop Laul, AIR 1930 Madras, 169, 178, it was held that if a deed is obtained by undue influence, it makes no different that the claim under the deed is not made by donee but a third party. In Rama Patter Vs. Manikkam, AIR 1958 Madras, 445, it has been held that although Section-16 of the Contract Act deals with the exercise of undue influence by one party to the contract on the other, the principle of English Law in respect of undue influence exercised by persons other than promisor applied in India by virtue of Section 89 of the Trusts Act. Therefore, the result will be the same whether the plaintiffs themselves exercised undue influence or took the benefit of a transaction with notice that the transaction was the result of undue influence. If the plaintiff is aware of the existence of fiduciary relationship, he is under the same disability as the party who occupied the position of confidence. In such circumstances the onus lies on the plaintiff to prove that he derived no unfair advantage or that the defendant acted as a free agent. In Shravan Vs. Kashi Ram, 1951 Bombey 133, it has been held that not only the actual party on whom the undue influence had been exerted but also his legal representatives may do so.
The Apex Court in the case of Ladly Prasad Jaiswal Vs. Karnal Distillery Company Ltd., AIR 1963 SC 1279 held that Sub Section -3 of Section-16 of the India Contract Act has limited application. The presumption will arise only if it is established by the evidence that the party who obtained the benefit of a transaction was in a position to dominate the will of the other and the transaction is shown to be unconscionable. If either of these 2 conditions is not fulfilled, the presumption of undue influence will not arise and the burden will not shift on the beneficiary of the transaction.
In the case of Karnal Distillery Co. Ltd. vs Ladli Parshad Jaiswal And Anr AIR 1958 Punj.190, it has been held that it is open to a court to presume the exercise of undue influence in any case, where the facts and circumstances can justify the presumption. In the case of Lal Jagdish Bahadur Singh Vs. Mahabir Prasad Singh and others, reported in AIR 1921 PC 43 and in the case of Bibi Rehana Khatun Vs. Iqtidar Uddin Hasan reported in AIR 1943 All 184, it has been held that undue influence is not a matter always capable of direct proof and must depend on conclusion to be drawn from the nature of the transaction itself and the circumstances, in which it had its origin.
In the present case, it is clear from the undisputed facts that the revocation deed in dispute is not only unconscionable, but also the dominant position of the defendant is proved. The revocation deed was against the interest of the daughters of Panna Lal, in favour of whom, he had executed the will only about a year back. The clear finding of fact has been recorded by the lower appellate court that the original will as well as the original revocation deed were filed in evidence by the defendant. It conclusively proves that there was fiduciary relationship between Panna Lal and defendant, who were real brothers. It is for this reason that Panna Lal was having the registered sale deed executed in favour of his daughters on 16.10.1975 in his possession, otherwise, he would not have entrusted this document to the defendant, which was against his interest. The burden of proof was squarely on the defendant to prove under what circumstances, Panna Lal got the revocation deed dated 03.02.1977 executed which was against the interest of his daughters and in favour of the defendant, who was found in custody of the revocation deed also. The learned counsel for the defendant respondent has not cited any authority against the settled law discussed above. The reliance placed on (2011) 1 SCC page 158 ; (2016) 3 SCC page 78 ;(2010) 11 SCC page 777 and (2010) 5 SCC page 770 is not regarding the issue involved in the appeal.
Therefore, the substantial question of law framed in this appeal is answered in favour of the plaintiffs- appellants holding that the courts below have legally erred in shifting the burden of proving undue influence, fraud and coercion upon plaintiff and it was the defendant, who was beneficiary of the revocation deed dated 03.02.1977 and was also in possession thereof and therefore he was required to prove absence of undue influence, fraud and coercion in execution of the deed aforesaid.
The judgments and decrees passed by both the courts below are set aside.
In view of the legal position discussed above, this Second Appeal stands allowed.
The suit of the plaintiff is decreed with costs.
Order Date :-31.05.2018 SS