Dharam Kaur vs Gurdev Singh

M.S. Liberhan, J.—The plaintiff, Gurdev Chand, filed a suit for possession and for recovery of Rs. 1800/- as mesne profits inter alia contending, that the property in dispute, about 2 1/2 Marlas Taur and shop, was sold on 20-04-1968 for a consideration of Rs. 3,000/-, Rs. 2000/- were paid before the Registrar at the time of registration and Rs. 1000/- was paid as advance at the time of agreement of sale.

The defendant controverted the said allegations, denied the execution of the sale deed, receipt of the money, and further averred that the transaction was fraudulent. It was further stated that the agreement for sale was due to the undue influence of the plaintiff, as the plaintiff was a Municipal Commissioner, held Akhara, used to do astrology work and used to perform spiritual rituals and defendant was under his spiritual influence. Question of limitation, estoppel and various other objections were raised.

The Courts below came to the conclusion that the sale was for consideration, there was no undue influence and the suit was within limitation. No other objection of the defendant was found valid. Thus, the suit was decreed.

In this regular second appeal, the only question raised by the learned counsel for the appellant is that the sale transaction is on account of the under influence exercised by the plaintiff-respondent upon Harbhajan Singh, deceased. Thus, it is a void transaction and cannot be given effect to. In order to support his contention, the learned counsel argues that the Courts below have not taken into consideration section 16 of the Contract Act wherein it is provided that the moment the defendant is able to show that the transaction is unconscionable and the plaintiff was in a dominant position to influence the defendant, the onus shifts and then it is for the plaintiff to show that the transaction was for a consideration and it was independent of any undue influence. The learned counsel relies upon AIR 1938 470 (Nagpur) and 1 Chancery Division 145 Chancery Division 145.

The counsel contends that in the year 1968, the premises in dispute had been sold for a petty consideration of Rs. 3,000/- which is totally inadequate. It was proved on the record that the plaintiff was a Municipal Commissioner and used to hold Akharas, gave spiritual discourses and also practised astrology. It was further stated that the defendant was an old man of 76 years of age at the time of sale and had no other house to live in, and had no relation to depend upon. It was admitted that he used to take food with the plaintiff The learned counsel contends that in view of the above stated circumstances, inference of undue influence be drawn against the plaintiff and since the plaintiff had led no evidence to show that he had not exercised any undue influence, the sale transaction be considered as void on accounts of its having come into existence under undue influence of the plaintiff.

Learned counsel for the respondent contends that the land in dispute was purchased by the defendant in an open auction in the year 1960 for Rs. 1,236/, but the allotment was cancelled later on. The said fact has been admitted by the defendant in his cross-examination. There is not an iota of evidence on the record to show that similarly situated properties were of more value than Rs. 3,000/- on the date of sale or near about that date. It is further stated that the mere fact that the defendant did not own any other property and he had sold the only property he had, does not raise any inference of undue influence. The findings with respect to undue influence and fraud are pure questions of fact and cannot be interfered with. He has relied, upon Subhas Chandra Das Mushib Vs. Ganga Prosad Das Mushib and Others, wherein their Lordships of the Supreme Court held as under:-

The Court trying a case of undue influence must consider two things to start with, namely (sic) are the relations between the donor and the done such that the done is in a position to dominate the will of the donor, and (2) has the done used that position to obtain an unfair advantage over the donor? Upon the determination of these issues a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in position to dominate the will of the other.

Merely because the parties were nearly related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arise. Generally speaking the relations of solicitor and client, trustee and cestui que trust, spiritual advisor and devotee, parent and child are those in which such a presumption arises.

In my considered view, the contentions raised by the learned counsel for the appellants have no force, in view of the facts stated above. The consideration of Rs. 3,000/- was not an inadequate consideration. Sale of the only property cannot raise any presumption that the transaction suffers from undue influence or fraud particularly keeping in view the conduct of the defendant who had stated that no sale deed was executed and he had not signed any document but when cornered admitted signing the document. The consideration passed to him in the presence of the Registrar. There is no evidence on the record to show that the plaintiff used his position and obtained any unfair advantage over the defendant. Thus, I find that no undue influence was exercised by the plaintiff. (sic) confirm the findings of the Courts below to this effect.

Resultantly, the appeal is dismissed with no order as to costs.