Shyamlal vs Chamelibai

P.P. Naolekar, J.—Plaintiff/Appellant''s case in brief is, that Laxmibai was owner and in possession of the suit property and Defendant Chamelibai and her neighbour, they had cordial and good relations; Chamelibai was frequent visitor to the Laxmibai''s house and used to take care of her. Laxmibai was an old lady of 80 years of age. In October 1982 Laxmibai fell ill and taking advantage of her relation, ill health, old age of Laxmibai the Defendant got sale-deed executed in her favour on 18.10.1982 (Ex.D.1) without payment of any consideration. When Laxmibai could understood serious implication of the deed executed by her she sent a notice through her lawyer on 11.12.1982 (Ex.P.3) demanding reconveyance of the house. Said notice was replied by the Defendant Chamelibai on 24.12.1982. It is further alleged that Laxmibai executed registered ''Will'' bequething suit house in favour of the Plaintiff/Appellant on 6.1.1983(Ex.P.1). On the same day i.e. on 6.1.1983 a registered Power of Attorney (Ex.P.2) was also executed in favour of the Plaintiff/Appellant by Laxmibai; whereby he was given authority to take all necessary steps in respect of the suit property. After the death of Laxmibai on 28.2.1984, the Plaintiff has become owner of the suit house by virtue of ''Will'' executed in his favour, and therefore, Plaintiff has filed a suit on 21.1.1985 to remove the clouds cast on his title by virtue of the alleged sale-deed executed under the undue influence of the Defendant, without payment of the consideration by Laxmibai. The Plaintiff claimed a relief that the sale-deed executed on 18.10.1982(Ex. D.1) by Laxmibai in favour of Defendant Chamelibai be declared void and ineffective against the Plaintiff. A further relief of declaration of his title on the basis of the ''Will'' was claimed by the Plaintiff by amendment. The relief of injunction restraining the Defendant from interfering with the possession of the Plaintiff was sought for. As per the Defendant, the sale-deed was executed in exercise of free-will'' of Laxmibai without there being any undue influence, for consideration, and the Defendant has acquired valid title by virtue of that sale-deed. The trial Court had dismissed the suit of the Plaintiff against which the present appeal is filed.

The real controversy in the case is whether Laxmibai executed the sale-deed without there being any undue influence of the Defendant and for the consideration referred in the sale-deed. The question of title of the Defendant will be required to be gone into, if the sale-deed executed in favour of the Defendant is declared void and not binding on Laxmibai and consequently upon the Plaintiff. This being so because the Defendant is claiming title to the suit house under the ''Will'' executed on the subsequent date of the deed of sale; by virtue of ''Will'' dated 6.11.1983 and which has been into operation on the death of Laxmibai on 28.2.1982.

Undue influence is implied when-(i) a person in whom confidence is reposed or holds real or apparent authority over the other, makes exercise of such authority or use confidence reposed, for the purpose of obtaining advantage which he could not obtained but for such authority or confidence; & (ii) person whose mind is enfeabled by old age, illness, or mental or bodily distress, is so treated as to make him consent to that to which, but for such treatment, he would not have consented, although such treatment may not amount to coercion. The court equired to find out, whether undue influence is used, is to consider where the relations subsisting between the parties are such that one is in a position to dominate the will of the other and such person uses that position to obtain unfair advantage. Both these conditions ordinarily to be established by the parties seeking to avoid the transaction. u/s 16(2) of the Contract Act, there is a presumption of deemed position of dominance of the will of another. If a person holds real or apparent authority over another, or his relation with another stands fiduciary or where a person makes a contract with another whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress.

Counsel for the Appellant has argued that as Laxmibai was an old lady and was ill at the time of execution of the sale-deed it should be presumed that the execution of the deed of sale was under the undue influance of the Defendant who had close and intimate relations with her. It it further argued that as the amount of Rs. 26,000/-, the sale-consideration has not been paid the transaction of sale is shocking to the conscious, and as such, is covered u/s 16 of the Contract Act. It is further argued that sale-deed is an agreement without consideration, and therefore, is void u/s 25 of the Contract Act. It is an admitted fact that Laxmibai was an old lady at the time of execution of sale-deed. However, there is controversy as to the illness of Laxmibai, according to the Plaintiff, she was ill at the time of execution of deed of sale; whereas according to Defendant she was hale and hearty and was in a position to understand the implication of the document executed. The Plaintiff examined P.W.1 Shyamlal who has stated that Laxmibai''s illness is that of old age. Another witness P.W.3 Mohanlal, in paragraph 3, has stated that Laxmibai was prudent and wordly wise lady and could understand wordly affairs. Evidence to the effect that Laxmibai was not sick at the time of execution of sale-deed is led by the Defendant by examining Ram Kumar Shrivastava (D.W.2) scribes of Ex. D-1 who has stated that Laxmibai was not sick at the time of execution of sale-deed. Similar statement is of DW-2 Jhumuk Lal Kaushik who has witnessed transaction (Ex.D-1). From all this evidence it is clear that Laxmibai was not sick at the time of execution of the sale-deed; Apart from the question of sickness or old age, to attract presumption u/s 16(2)(b) of the Contract Act it should be proved that on account of age, illness or mental or bodily distress, person''s mental capacity is temporarily or permanently affected. There is no evidence on record to show that Laxmibai''s mental capacity was temporarily or permanently affected at the time of execution of sale-deed. No presumption can be drawn in the absence of proof of these material facts simply on the basis of old age or illness. The Plaintiff has completely failed to discharge onus for drawing the presumption, of exercise of the dominant will by the Defendant on Laxmibai. On the basis of the evidence placed on record by the Plaintiff, it is not possible to hold that the document Ex.D-1 was executed by Laxmibai on account of undue influence exercised by the Defendant.

Ex.D-1 dated 18-10-1982 is a sale-deed executed by Laxmibai of the suit property in favour of Defendant Chamelibai. This document of sale contained recital that the property is being transferred as the income from rent is not sufficient to maintain her, she was required to take loan for her treatment which is required to be paid and that she wants to spend rest of her life in worship of God peacefully and she requires money for all these purposes, and therefore, she is executing the deed of sale. Very intimate facts that she had one daughter who had died, and that her husband had deserted her 40-50 years back are also the contents of the document. It do indicate that at the time of execution of sale-deed Laxmibai had given instructions for drafting the deed and was aware of the nature of deed which she was executing. The document contains an endorsement of the Addl. Registrar that Laxmibai has already received the amount of Rs. 26,000/- as sale-consideration. Ex. D-2 is a notice published in ''Nav Bharat'' dt. 29.9.1982 (published from Raipur) by Chamelibai declaring her intentions to purchase the suit house and inviting objections''. This published notice is prior to the execution of sale-deed Ex.D.1. Had it been the intention of the purchaser to enter into shaddy transaction of getting title in the suit house without payment of any consideration, she would not have published a general notice in the newspaper inviting objections, if any. The transaction of sale is evident from the document (Ex.D.4) dated 18.10.1982; whereby Ekrarnama was executed by Laxmibai in favour of Chamelibai admitting the sale of the suit house for consideration of Rs. 26,000/- and accepting her as her landlord because she wanted to retain possession of portion of the house. Ex. D.5 dated 21.9.1984 is a document which shows payment of tax of the suit house to Baloda Nagar Palika, paid by Chamelibai as owner of the suit property. Ex. D.6 dated 14.11.1983 is another document which is an intimation sent by Chief Nagarpalika Adhikari Baloda to Chamelibai that on her application dated 19.10.1982, her name is recorded in the Municipal record as owner of the suit house in place of Laxmibai.

It would be partinent to note that although immediately after the execution of the sale-deed, a notice was given (Ex.P.3) dated 11.12.1982 purported to be on instructions of Laxmibai to the Defendant through her lawyer contending that she is an old lady was ill at the time of execution of the sale-deed and the sale- deed was without payment of any consideration. Reconveyanced-deed was also asked for and on failure to execute deed of reconveyance it was said that steps shall be taken by reporting the matter to the police. Document Ex.D.2 dated 6.1.1983 is power of attorney by Laxmibai executed in favour of the Plaintiff. This power of attorney must have been executed for the purposes of taking action in the matter of affairs of Laxmibai. However, no steps were taken either by reporting matter to the police or by filing a civil suit enforcing reconveyence-deed. This inaction on the part of the Plaintiff or the deceased Laxmibai is not understandable inasmuch as when the notice contains allegation that the deed of sale was got executed without payment of any consideration. It is only after the death of-Laxmibai on 22.2.1984 a suit was filed by the Plaintiff on 21.1.1985. Normally Laxmibai would have been the best witness to state whether she had received consideration or not and non-filing of the suit during the life-time of Laxmibai is factor which goes against the Plaintiff. All the aforesaid documents and the evidence led by the parties indicate genuine nature of the transaction entered between the Defendant Chamelibai and deceased Laxmibai.

u/s 58(1)(c) of the Registration Act, 1908, it is the duty of the Sub-Registrar to make endorsement of the payment of consideration of sale, and such an endorsement as to the payment of consideration by the Sub-Registrar gives rise to initial presumption that the payment so recorded in the document was paid. The endorsement made on Ex.D.1 (sale-deed) of the receipt of consideration of Rs. 26,000/- before actual registration of the sale-deed raises presumption that the amount so mentioned has been paid and unless this presumption is rebutted has been paid and unless this presumption is rebutted by cogent evidence it shall be taken the court that the consideration passes. Coupled with this endorsement the documents mentioned hereinabove; whereby payment of money was admitted by Laxmibai in Ex. D.4 Kirayanama, recording the name in the Municipal record of the Defendant; payment of municipal tax and notice inviting objection before the execution of the sale-deed do indicate that amount has been paid as consideration by the Defendant to deceased Laxmibai. In the state of affairs of the evidence on record. I do not find that the presumption of the payment of consideration is being successfully rebutted by the Plaintiff. After considering the evidence, I am of the opinion that sale-deed (Ex.D.1) was a genuine transaction entered between the parties for payment of the consideration of Rs. 26,000/- and the sale- deed conveyanced title in the Defendant Chemelibai.

As in the opinion of this Court Ex.D.1 transferred title of the suit property in the Defendant there was nothing left with Laxmibai to be given to the Plaintiff under the ''Will'' dated 6.1.1983. On. over all consideration of the matter this Court is of the opinion that the judgment and decree passed by the trial Court is well founded on the evidence on record.

As the result thereof the appeal fails and is dismissed with cost. Counsel''s fee in accordance with schedule, if certified.