1

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

First Appeal No. 48 of 1999

Judgment Reserved on 02/02/2022

Judgment Delivered on 23/03/2022

Abbas Bhai (Dead Through LRs Mufaddal Azad, S/o Burhanuddin, R/o

Ahmedji Colony, Nulghar, Raipur Town, Police Station Civil Lines, Raipur,

District Raipur Chhattisgarh

---- Appellant/ Plaintiff

Versus

Smt. Pushpa Kumari, D/o Rajmata Hitendra Kumari Devi, W/o Rajendra Singh

Deo, Resident of Talcher, Orissa.

1.1(A)Vijayendra Chandra Deo (Deleted) Aged About 8 Years, As per the

Hon'ble Court Order Dated 08-12-2020

1.1 (B)Swadeshja Kumari Devi, D/o Rajendra Singh Deo, Aged About 6 Years

Minors, Through Court Reader, Resident of Talcher, Orissa.

1.1(C)Shailendra Chandra Deo, S/o Rajendra Singh Deo, Aged About 3 Years,

Minors, Through Court Reader, Resident of Talcher, Orissa.

2. Krishna Kumari Devi, Wd/o Bharatchandra Bhanjdeo, Aged About 37 Years,

2.1 (A)Kamalchandra Bhanjdeo, S/o. Late Bharatchandra Bhanbjdeo

2.1 (B)Gayatri Devi, D/o Late Bharatchandra Bhanjdeo, Defendant No. 2 to 2(b)

all residents of Sakin Rajmahal, Jagdalpur District Bastar (M.P.)

3. Hari Har Chandra Bhanjdeo, S/o Late Vidyachandra Bhanjdeo, Aged About

25 Years, Resident of Sakin Rajmahal, Jagdalpur, District Bastar (MP).

4. Smt. Jyoti Wd/o. Deweshchandra Bhanjdeo, Aged About 25 Years,

4.1(A)Jubika Devi, D/o. Late Deweshchandra Bhanjdeo, Aged About 3 Years

4.2(B)Mohitchandra Bhanjdeo, S/o Late Deweshchandra Bhanjdeo, Aged about

4 months, Defendant No. 4 (A) and 4(B) both minor through their mother

Jyoti Devi, R/o. Rajmahal, Jagdalpur (MP)

---- Respondents / Defendants

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For the Appellant : Mr. Manoj Paranjpe, Advocate

For the Respondents : Mr. Prafull N. Bharat, Sr. Advocate with

2, 2(a) and 2(b) Mr. Keshav Dewangan, Advocate

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Hon'ble Shri Justice Narendra Kumar Vyas

CAV Judgment

1.The instant First Appeal has been filed by the appellant/ plaintiff under Section

96 of the Code of Civil Procedure,1908 challenging the judgment and decree

dated 06.11.1998 passed by 3

rd

Additional District Judge, Bastar at Jagdalpur

in Civil Suit No. 8A/1993, whereby the suit preferred by the appellant/ plaintiff

has been dismissed.

2.The necessary facts for disposal of the present appeal, in short are that the

plaintiff had filed a civil suit for specific performance of contract on 03.02.1984

contending that defendants No. 1 to 4 are the owners of the property

described in the plaint bearing sheet No. 60, plot No. 106, 86/2 situated in the

city of Jagdalpur, Tahsil Jagdalpur, and defendant No. 5 was duly registered

general power of attorney holder of respondents No. 1 to 4. By this power of

attorney dated 17.08.1983, defendant No. 5 has been authorized to negotiate

and enter into contract of sale of immovable properties, land, houses, vacant

site, building site, as per details mentioned in the power of attorney itself. It

has also been pleaded in the plaint that in exercise of power and authority

vested in the defendant no. 5 had entered into an agreement for sale of

property as mentioned in schedule of the property for a consideration of Rs.

1,00,000/- on 20.08.1983. As per the agreement, the plaintiff had paid Rs.

25,000/- in cash as earnest money for the suit land to the agent of the

defendants No. 1,2,3 and 4 Vidyasagar Tiwari defendant no. 5 and for the

balance amount of Rs. 75,000/- the plaintiff paid five postdated cheques dated

09.11.1983, 05.11.1983, 05.12.1983, 20.12.1983 and 05.01.1984 for Rs.

15,000/- each to defendant No.1. It has been contended that the plaintiff was

in possession of the suit property and before Dussehra festival, in the year

1983, he went to the defendant No. 2 then he asked him to stop payment

issued in favour of defendant No.1 as there was some family dispute arisen

between defendants No.1 to 4. Since there was no communication with regard

to performance of the contract by the defendant, plaintiff sent a legal notice on

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15.10.1983 with regard to performance of contract by the parties.

3.It has been contended in the plaint that defendant No.2 has given the reply

denying the execution of agreement and also with regard to execution of

power of attorney in favour of defendant no. 5. He also denied the right and

title of other defendants and claimed himself to be exclusive owner of the suit

land. It has been further contended that on 27.08.1983 power of attorney

purported to have been executed by defendant No.2 and was revoked by him

by publication in Dandakaranya Samachar newspaper. It has been further

pleaded that deed of revocation dated 27.08.1983 even if, it is valid, does not

affect in any manner, the agreement dated 20.08.1983 as the agreement was

executed when the power of attorney was in existence, therefore, they are

bound to perform the said contract.

4.The plaintiff has amended the plaint and certain pleading were made which

are mainly by;- enforcement of 26 amendment of the Constitution of India in

1971 introducing the Article 363(1) all rights, privileges and status granted

under the Constitution of all the “Rulers” including the defendant No. 2 have

been abolished and the Rulers are now at par with all other citizens of India

without any additional privileges or status granted under the Constitution of

India or any covenant or agreement entered into by them before the

commencement of the Constitution of India. Thus the defendant No. 2 hold the

suit property without any restriction and the property which is in his exclusive

or joint with other defendants could be sold by him. On above factual matrix

the plaintiff has prayed for directing the defendants to perform their part of

contract as per agreement dated 20.08.1983 and also grant necessary full

possession of the suit property.

5.Defendant No. 1,3 to 5 have filed their joint written statement. The defendant

no. 1,3 to 5 have admitted the case of the plaintiff and submitted that

postdated cheques of Rs. 15,000/- each issued by the plaintiff could not be

encashed. The defendants No. 1,3 to 5 had put the plaintiff in possession of

the suit property in good faith expecting that he will abide with terms of the

contract and the post dated cheques will be honoured. The plaintiff was

enjoying the suit properties being in possession of the same being tenant but

he was not paying the rent as such, he was saving rent of Rs. 385/- per

month, therefore, the plaintiff be directed to deposit Rs. 385/- per month till

execution of the sale deed. It is admitted that after service of notice these

defendants have sent their reply on 21.11.1983 through their counsel

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contending that they are ready and willing to execute the sale deed as per

agreement dated 20.08.1983 and asked the plaintiff to pay the balance

amount to which the plaintiff did not comply. Since the plaintiff has not

complied the terms of the contract, therefore, he is not entitled to get the sale

deed to be executed in his favour and the suit is liable to be dismissed.

6.Defendant No. 2 has filed his separate written statement raising preliminary

objection contending that Maharaja Praveerchandra Bhanjdeo the then Ruler

of Bastar entered into an agreement with the Government of India on or about

15

th

December 1947 whereby he transferred the administration of Bastar State

to the dominion of India, and from 01-01-1948 Bastar State merged into

Government of India. That by Article III of the above agreement Late

Praveerchandra Bhanjdeo was entitled to ownership of all the properties in

capacity as a Ruler of Bastar. On 31

st

March 1948, an agreed inventory of

properties was arrived at between Late Maharaja Praveerchandra Bhanjdeo

and premier C.P. Berar acting on behalf of the Government of India. By

properties vesting in the late Maharaja P.C. Bhanjdeo it was meant that he

became owner in the sense that they were attached to his position as

Maharaja and Ruler recognized as such by the Government of India and these

properties would devolve on the next succeeding Maharaja and Ruler when

Maharaja P.C. Bhanjdeo would die either physically or civilly, said properties

for the purposes of inheritance and succession, are not governed by Hindu

Law. These properties are in alienable. That the suit property is a part and

parcel of Ruler's residence situated within palace premises and meant

exclusively for Ruler's residence and is specifically declared by the

Government to be in-alienable. It has been further contended that on

12.01.1961 late Maharaja P.C. Bhanjdeo expired and late Maharaja Vijay

Chandra Bhanjdeo was recognized as Ruler and Maharaja of Bastar, with the

privileges of ownership and enjoyment of Ruler's property. It has been further

contended that after death of Maharaja Vijay Chandra Bhanjdeo, defendant

No.2 was recognized as Ruler and Maharaja of Bastar w.e.f 12.04.1970 by the

Government of India, Ministry of Home Affairs vide notification No. F 5/7/70

Poll-III dated 11.07.1970. The defendant No. 2 continued to be Ruler and

Maharja of Bastar, with exclusive ownership and enjoyment of Ruler's

property. It is further contended that defendant No.2 Bharatchandra Bhanjdeo

being the last Maharaja and Ruler of Bastar, all the properties owned and

enjoyed by him as a Ruler, including the suit property vests in him exclusively

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and question of succession and inheritance under the Hindu Law does not

arise. Thus the defendant No.2 is the sole owner of the suit property,

excluding defendant No.1,3 and 4. It has been further contended that the suit

property, its ownership, enjoyment and question of its succession are matters

within the ambit of said provisions and thus the suit is barred under Article

363(1) of the Constitution of India.

7.It has been further contended that the suit house and premises were rented to

M/s. Ahmed Ji Bhai Jagdalpur by defendant No.2 on monthly rent and they

continued to be in occupation of the same as tenant. It has been specifically

denied that the possession of suit house and premises were ever given to the

plaintiff. It has been further contended that the defendant no. 2 is the sole

owner of the suit property as the last Ruller of Bastar and the suit premises

was still recorded in the name of Maharaja. The entire property of Maharaja

which vested in the defendant No.2 was under the control of Court of Wards of

Jagdalpur for defendant No.2. It is denied that defendant No. 5 was duly

constituted attorney of defendant No.2 alleged power of Attorney was got

signed by defendant No.2 under undue influence, coercion, threat and fraud

by defendant No. 1 and 5.

8.The defendant No. 1 and 5 were getting signature on blank stamp papers,

some time on written stamp papers, or on ordinary papers under coercion

undue influence and fraud, the contents of which were never disclosed to the

defendant no.2 by them. The alleged Power of Attorney dated 17.08.1983 is a

sham and bogus document. It is submitted that the defendant No.1 and 5

asserted that the properties at Culcutta and Baripada (Orissa) belonging to

defendant No. 1 to 4 are mismanaged and beyond their control, therefore,

they have decided to empower the defendant No. 5 for management purpose

only. The defendant No. 2 was under complete dominance and threat of

defendant No.1 and 5 and he signed the said Power of Attorney believing that

the power of attorney is being signed for the above mentioned purposes as

suggested by defendant no. 1 and 5. It is further denied that the defendant

No. 5 was ever authorized by defendant No.2 to negotiate and enter into a

contract of sale of any immovable properties, including the suit property. It is

contended that the suit property is part and parcel of Ruler's residence and is

in-alienable. It has been further contended that defendant No.1 and 5 have

planned to sell off the palace properties, the defendant No.2 immediately

complained the matter to the Collector Bastar, Superintendent of Police,

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Jagdalpur, and got revoked the alleged power of attorney by the Notary and

subsequently by a registered revocation deed.

9.It is denied that defendant No. 2 had any contract with the plaintiff regarding

sale of the property as alleged by the plaintiff. The alleged agreement of sale

is a nullity, as the suit property is in-alienable as stated in foregoing paras. It is

denied that any amount has been paid to the defendant No.2, as earnest

money. It is denied that there was any agreement of sale of suit property for

consideration of Rs. 1,00,000/-. The defendant No. 5 had been exploiting the

defendant No.2 with the conspiracy of defendant No.1 who unfortunately

happens to be the mother of defendant No.2. The defendant No. 5 had not

paid any amount of alleged sale to the defendant No.2 nor he ever intimated

the defendant No. 2 with regard to alleged agreement of sale. It is submitted

that the defendant No.2 had been mentally deranged for the last 15 years and

was undergoing treatment from mental hospital Ranchi, from time to time. It is

further contended that title over properties cannot be disposed of on simple

whims and agreements (unregistered) of the parties. It has also been denied

that the defendant no.2 has disclosed the factual matrix of the case to the

plaintiff in response to the notice and would pray for dismissal of the suit.

10.Learned trial Court after pleading of the parties has framed as many as 16

issues, out of which the issues which are relevant and necessary for deciding

the present appeal are extracted below:-

(I). Was the plaintiff placed in possession of the suit

property in pursuance of an agreement executed by

defendant No. 5 on behalf of the co-defendants on

20.08.1983?

(2) Was the defendant No.5 validly constituted power

of attorney by the defendant No.2 Bharatchandra

also?.

(3) Was the power of attorney got singed by the

defendant No.2 misrepresenting that the same was

constituted for management of the properties at

Calcutta and Baripada (Orissa)?.

(4) Was the suit agreement antedated and executed

by the defendant No.5 after revocation of his power

of attorney by the defendant No.2 ?

(5) (a) Did the suit property vest in the defendant

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No. 2 as the ruler of the Bastar Estate duly

recognized by the Govt. of India vide notification no.

5/7/70Poll-III dated 11.07.70 ?

(b) If so, is the suit property in alienable?

(6) Is the suit for specific performance of the contract

of sale of the property barred under article 366 (1) of

the Constitution of India?

(7) (a) Has the defendant No. 2 declared by

agreement dated 30.07.81 the suit property to be

owned jointly by the defendant No.1 to 4 ?

(b) If so, will the Rule of estoppal operate against

the defendant No. 2 to dispute agreement of sale of

this property executed on behalf of the defendants

by defendant No.5 ?

(8) Was the power of attorney got executed by

coercion and dominance exercised by the defendant

no. 1 and 5 ?

(9) If so, is the agreement executed by the power of

attorney not enforcible against the defendant No.2 ?

(10) (a) Was the plaintiff occupying the suit propel as

a tenant?

(b) Was he called upon to vacate the tenant

premises through a notice dated 09.06.73 ?

11.Plaintiff examined himself as (PW-1), J.L. Wasnikar (PW-2), Pawan Dubey

(PW-3), Mahendra Vishwakarma (PW-4) and exhibited general power of

attorney dated 17.8.83 (Ex.P-1), sale agreement dated 20.08.1993 (Ex.P-2),

Notice dated 15.10.1983 (Ex.P-3), receipt (Ex.P-4), acknowledgement (Ex.P-

5), Notice dated 03.11.1983 (Ex.P-6), postal receipts (Ex.P-7 to Ex.P-11),

Notice dated 15.06.1983 (Ex.P-12), acknowledgement (Ex.P-15 to Ex.P-18)

receipt (Ex.P-18), paper publication (Ex.P-19), paper publication (Ex.P-20),

notice revocation of power of attorney (Ex.P-21), notice published on

28.08.1983 (Ex.P-22), agreement dated 22.08.1983 (Ex.P-23), agreement

(Ex.P-24), Letter written by Vidyasagar Tiwari (Ex.P-25). The defendant

examined Harihar Chandra Bhanjdeo (DW-1), Sahdeo Dhruv (DW-2), and

Ghanshyam Mishra (DW-3).

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12.Plaintiff (PW-1) has deposed in his examination-in-chief that the agreement

was executed on 20.08.1983 through the power of attorney holder Vidyasagar

Tiwari. He has also stated that after execution of agreement, he talked to

defendant No. 2 Bharatchandra Bhanjdeo, who has told him to stop the

payment as there is dispute. He has also stated that the suit land belongs to

joint family property. He has also stated that he has been given possession of

the suit property by defendants No. 1,3 and 5. He has also stated that after

execution of agreement to sell, he is taking rent of Rs 700/- from M/s. Ahmad

Ji Bhai. He has further stated that power of attorney holder has given this right

to him after intimation to the Income Tax Officer. The defendant no. 1,(a) (b),

(c), 3 and 4 have not cross examined the witness. Counsel for defendant No.2

has cross-examined the witness wherein he has denied that the tenancy was

given by Court of Ward of Bharatchandra Bhanjdeo. He has also admitted that

power of attorney has not been written before him. He has also stated that he

was not aware whether any notice in the year 1982 for vacating the house,

shop was ever given to him. He has also admitted that before execution of

agreement, he has not met defendant no. 2. He has also stated that he is not

aware rate of the suit property is Rs. 200 per squire feet. He has also stated

that he is not aware that defendant no. 2 is suffering from mental disorder. He

has admitted in the cross-examination that in the sale agreement though the

property is joint family property, still in the agreement Late Hitendra Kumari

Devi and Hariharchandra Bhanjdeo, have put their signatures as witness to

the agreement. He has also stated that he is not aware that defendant no. 2

has no cordial relation with other family members and Vidyasagar Tiwari. He

has stated that it is not in his knowledge that before execution of sale

agreement of the suit property rent was paid to whom. He has admitted that

suit property is 100 -150 meter away from palace. He has also admitted that

suit property belongs to Maharaja then clarify that he is not aware that suit

property is Ruler property.

13.J.L. Wasnikar (PW-2) has admitted that he has not typed (Ex.P-1) but

inadvertently it has been mentioned that Ex.P-1 has been typed by him. He

has admitted that the suit property is Ruler property and the defendant No. 2

was the last Ruler. He has admitted that agreement dated 22.08.1983 (Ex.P-

23) has not been written by him nor he has put his signature on it.

14.Pawan Dubey (PW-3) has admitted that he published general information

(Ex.P-20) in Deshbandhu newspaper on 03.09.1983. Mahendra Vishwakarma

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(PW-4) he has also admitted that he published (Ex.P-19) information on

23.10.1983 in Dandakaranya newspaper.

15.Hariharchandra Bhanjadeo (DW-1) has examined before the trial Court

wherein he has stated that Vidyasagar Tiwari has taken his signature on

various paper but he did not disclose the contents of the papers. He has

stated that he has never asked him on which paper he had taken his signature

because he was scolded by others. He has never made any complaint to

anybody. Vidyasagar Tiwari had support of Rajmata. He has stated that they

have not given any power of attorney to Vidyasagar Tiwari. He has stated that

Abbas Bhai is the proprietor of M/s. A. Ahmad Ji Bhai firm and he was living

there as tenant. He has stated that he has neither made any agreement to sell

the property with Abbas Bhai nor signed any document of agreement. He

admitted that in the year 1982-83 there was dispute between Vidyasagar

Tiwari and Bharatchandra Bhanjdeo regarding sale of land, as a result of

quarrel, Bharatchandra Bhanjdeo and his wife was thrown out from the

palace. He has stated that after the death of Rajmata, the family members

were living together in the meantime time Vidyasagar Tiwari had died. He

stated that Bharatchandra Bhanjdeo was the last Ruler of Bastar District. He

has also stated that Bharatchandra Bhanjdeo was not physically and mentally

fit and he was treated by Dr. Shukla at Jagdalpur and Dr. Sahgal at Bhilai who

was taking care of Bharatchandra Bhanjadeo and he was admitted for further

treatment in Mental Hospital Ranchi. He has stated that health of

Bharatchandra Bhanjdeo was not good for last two months and during the

treatment he became violent.

16.The witness was cross-examined wherein he has stated that Bharatchandra

Bhanjdeo was the head of the family and being the head of the family he

looked after all the property. He has stated that he had not sold any properties

situated near Rajmahal.

17.Rajmata Smt. Krishnakumari Devi Bhanjdeo was examined as (DW-2)

wherein she has stated that the suit property belonged to Estate of Maharaja

and Bharatchandra Bhanjdeo was the last ruler of the Bastar and he was

recognized by the Central Government. He has stated that the suit land

cannot be sold as the Government has already imposed ban. She has stated

that Maharaja Bharatchandra Bhanjdeo has not given any authority to

Vidyasagar Tiwari to sell the property. She admitted that Maharaja was

suffering from mental disorder before her marriage therefore, Court of ward

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was appointed by the Collector. This witness has further stated that she is not

having information regarding any agreement entered between Maharja

Bharatchandra Bhanjdeo and Abbas Bhai. She has stated that when she had

received information regarding agreement to sell with Abbas Bhai, she was

informed by Secretary of Maharaja namely Ghanshyam Mishra on that issue

then Maharaja quarreled with Rajmata. Maharaja went to Collector and asked

him for cancellation of agreement and paper publication was also done for

cancellation of agreement consequently he went to notary for cancellation of

agreement. The suit property cannot be sold as government has already

prohibited for sale of palace portion. She has stated that an order in the

mutation proceedings is pending and till the proceeding is pending the Estate

of places could not be sold, as stay is still in force. She has stated that

Maharaja has not given any authority to Vidyasagar Tiwari to sell the property.

If any right to agreement for sale of property is written, when Maharja was not

well. Vidyasagar Tiwari was the Secretary of Maharani. She has stated that

Vidyasagar Tiwari has mutated some property in his family members.

Vidyasagar Tiwari was threating the children and Maharaja for putting their

signatures in paper. He wanted to keep everybody in his domination.

Vidyasagar Tiwari wants to get things as per his desire and if it has not been

done then he used to keep them in locked room and stopped providing food

also.

18.This witness was cross-examined wherein she has stated that she made

complaint against Vidyasagar Tiwari before Collector Jagdalpur and a report

was also made against him and in view of complaint Vidyasagar Tiwari was

not allowed to enter in the palace. She has stated that they have not sold any

property. Vidyasagar Tiwari has got registered some property in the name of

his relative but their names have not been mutated in the records. There was

no cross-examination by the plaintiff with regard to plea of undue influence for

execution of power of attorney raised by the defendants. In fact she has

denied that her husband was physically fit and used to work with full mental

ability. She has stated that her husband was ill at the time of marriage till his

death.

19.Shahdeo Dhruv (DW-3) he has stated that the rate of the property situated in

various wards of the Jagdalpur District has been increased to demonstrate

that the property is undervalued. Ghanshyam Mishra (DW-4) manager of the

palace, has stated that in year 1982 Vidyasagar Tiwari has got signature of

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Bharatchandra Bhanjadeo forcefully therefore, there was quarrel between

them. The Collector has ordered for payment of rent to Bharatchandra

Bhanjadeo for maintaining himself. The Collector had advised him for

cancellation of power of attorney, for this he has taken steps for paper

publication. There was dispute between Vidyasagar Tiwari and Bharatchandra

Bhanjdeo with regard to power of attorney as the property was recorded in the

name of Maharaja. He has also admitted that Bharatchandra Bhanjdeo was

not physically and mentally fit and he was treated by Dr. Shukla at Jagdalpur,

Dr. Sahgal at Bhilai who was taking care of Bharatchandra Bhanjadeo and

thereafter he was admitted for further treatment in Mental Hospital Ranchi. It

is stated the witness that Vidyasagar Tiwari had executed sale deed in the

name of Rama Vashnikar and Rajesh Kumar Tiwari but the mutation

proceedings has not been done because palace property cannot be sold out.

It is Ruler’s residential property and it is transferred to generation by

generation and not alienation to anybody.

20.Learned trial Court after appreciating the evidence, material on record

dismissed the suit by recording the finding a power of attorney has been

written with under undue influence, as such, it is not a valid power of attorney,

therefore, any agreement executed by defendant No. 5 on the strength of

illegal power of attorney will be remained as illegal. Learned trial Court has

also recorded the finding that the suit land is a palace property, which cannot

be transferred. Learned trial Court while raising doubt over execution of

agreement has recorded a finding that persons whose property is to be sold

have put their signature as witness. Learned trial Court has also recorded the

finding that the person who has written the agreement has not been examined

and no explanation has been given for non-production of that witness for

evidence. Learned trial Court while dismissing the suit has also recorded a

finding that the plaintiff has deposed that he has given Rs. 25,000/- to

defendant no.2 but has not filed any document to substantiate the mode of

transfer of such a big amount, therefore, issue no. 8 has also been answered

in negative against the plaintiff. Learned trial Court after appreciating the

evidence, material on record has decided issue nos. 1 to 13 and additional

issues against the plaintiff. Learned trial Court has also recorded a finding that

the plaintiff has stated before the trial Court that encashment of cheque

amount has been withheld on account of dispute, therefore, it is quite clear

that plaintiff has failed to perform his part of contract and finally the suit was

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dismissed vide judgment and decree dated 06.11.1998. This judgment and

decree is being assailed by the plaintiff before this Court by filing appeal under

Section 96 CPC.

21.Learned counsel for appellant/plaintiff would submit that findings recorded by

learned trial Court are perverse, contrary to the evidence and law also. He

would submit that registered power of attorney cannot be revoked other than

the registered revocation deed. In support of his submission he would rely

upon the judgment of Madhya Pradesh High Court in case of Kamla Bai vs.

Rajesh 2008(3)MPJR 317 and would refer to para 11 which is as under:-

“The power of attorney is an instrument

empowering a specified person to act for and in

the name of the person executing it. It gives

authority to the person in whose favour the power

of attorney was executed to act in the name of

executant. In this case, power of attorney was a

registered power of attorney executed by plaintiff

in favour of defendant Shyam Rao. It was a

registered power of attorney under Section 32 (C)

of the Registration Act. If the power of attorney

executed by a registered document, naturally for

cancellation, a registered document was required

and the plaintiff ought to have cancelled it by a

registered document. But in place of this, plaintiff

oped to serve a notice intimating defendant No. 2

Shyam Rao for revocation of the attorney.

Aforesaid procedure was not a proper one and

the plaintiff only after cancellation of the power of

attorney by registered document ought to have

intimated to the defendants in respect of such

cancellation. Apart from this, notice was refused

by Shyam Rao on 30.04.1973 when he had

already executed the sale deed on the basis of

power of attorney in favour of defendant Rajesh.

In these circumstances, the revocation of power

of attorney was not of any consequences and

the sale deed executed on the basis of the power

13

of attorney was a valid document. The plaintiff

ought to have sought a specific relief of

cancellation of the sale deed, executed on the

strength of power of attorney and in absence of

this, sale deed was a valid document”.

22.He would further submit that the learned trial Court should have seen that

other vendee can execute the sale deed in favour of the vendor if other

vendee has denied execution of sale deed. To substantiate his submission he

would refer judgment of Hon’ble Supreme Court in the matter of Kammana

Sambamurthy v. Kalipatnapu Atchutamma (2011) 11 SCC 153. He would

further submit that since the power of attorney is a registered document and

there would be presumption that registered document is validly executed

document as such onus of proof would be on a person who leads evidence to

rebut the presumption and in the present case, no such rebuttal of the

presumption was made. He would refer judgment of Hon’ble Supreme Court

in case of Prem Signh vs. Birbal (2006) 5 SCC 353 where the Hon’ble

Supreme Court has held as under;-

27. There is a presumption that a registered

document is validly executed. A registered document,

therefore, prima facie would be valid in law. The onus

of proof, thus, would be on a person who leads

evidence to rebut the presumption”. In the instant

case, Respondent No.1 has not been able to rebut

the said presumption. Learned counsel for the

appellant would submit that in absence of any cogent

evidence, material on record to prove that power of

attorney was given under undue influence or fraud,

the registered document cannot be treated as a

shame document.

23.In support of his submission he would reply upon the judgment of Madhya

Pradesh High Court in the case of Shamim Afroz vs. Mehfooz-Ul Hassan,

(2007) 1 MPLJ 103. He would further submit that registered document cannot

be excluded by oral evidence in terms of section 92 of the Evidence Act and

would refer the judgment in the matter of V. Anantha Raju and Another vs.

T.M. Narasimhan & others (2021) SCC online SC page No. 969, he would

refer paragraph 36 which extracted below:-

14

This Court has further held that Section 91 and 92 of

the Evidence Act would apply only when the document

on the face of it contains or appears to contain all the

terms of the contract. It has been held that after the

document has been produced to prove its terms under

section 91, the provisions of section 92 come into

operation for the purpose of excluding evidence of any

oral agreement or statement for the purpose of

contradicting, varying, adding or subtracting from its

terms. It has been held that it would be inconvenient

that matters in writing made by advice and on

consideration, and which finally import the certain truth

of the agreement of parties should be controlled by

averment of the parties to be proved by the uncertain

testimony of slippery memory. It has been held that

when parties deliberately put their agreement into

writing, it is conclusively presumed, between

themselves and their privies, that they intended the

writing to form a full and final statement of their

intentions, and one which should be placed beyond the

reach of future controversy, bad faith and treacherous

memory”.

24.On the above factual and preposition of law, he would pray for allowing the

appeal and would submit that defendants be directed to execute the sale deed

in his favour.

25.Learned Sr. counsel appearing on behalf of Respondent Nos. 2. 2(a), and 2(b)

would submit that the learned trial Court has rightly recorded the finding after

appreciating the evidence that if a party is in a position to dominate the will of

other and used that position it would fall under undue influence as per Section

16(2) of the Contract Act. He would rely upon the judgment of Hon’ble

Supreme Court in case of Ladli Prasad vs. Karnal Distillery Company AIR

1963 SC 1279. He would refer to paragraph No. 26 which reads as under;-

26. Whether a particular transaction was vitiated on the

ground of undue influence is primarily a decision on a

question of fact.In Satgur Prasad v. Har Narain Das

15

I.L.R (1932) L.R. 59 I.A. 147, the Privy Council held

that in a suit to set aside a deed on the ground that it

wass procured by undue influence and fraud, the

finding that it was so procured is a finding of fact and is

not liable to be re-opened if fairly tried. Under the Civil

Procedure Code, a second appeal does not lie to the

High Court, except on the grounds- specified in the

relevant provision of the Code, prescribing the right to

prefer a second appeal,and the High Court has no

jurisdiction to entertain a second appeal "on the ground

of an erroneous finding of fact however gross or

inexcusable the error may seem to be" (Mussummant

Durga Choudhrain v. Jawahir Singh Choudhri (1890)

L.R. 17 I.A. 122 But the challenge before Bishan

Narain, J., to the decision of the District.Judge was

founded not on the plea that appreciation of evidence

was erroneous, but that there were no adequate

particulars of the plea of undue influence, that the

particulars of facts on which undue influence was held

established by the District judge were never set up, that

there was no evidence in support of the finding of the

District judge and that burden of proof on a

misconception of the real nature of the dispute was

wrongly placed on the plaintiff. A decision of the first

appellate Court reached after placing the onus wrongly

or based on no evidence, or where there has been

substantial error or defect in the procedure, producing

error or defect -in the decision of the case on the

merits, is not conclusive and a second appeal lies to

the High Court against that decision.

26.He would further submit that as per agreement between Union of India and

Bastar Estate, the Rulers property is his private property and is succeeded by

Ruler and not by Hindu Succession Act as such it is incumbent for the plaintiff

before entering into an agreement to seek necessary permission as required

by Government of India notification issued on October 1954. In absence of

any permission the agreement is void ab anitio. He would further submit that

16

the suit property is Ruler’s property and in view of judgment passed by

Hon’ble Division Bench of this Court on 04.10.2019 the Ruler’s property

cannot be disposed of for their own advantage and the private properties

vested in them in their capacity as Ruler should pass to their successors

intact. He would further submit that since there was no valid agreement and

the fact that plaintiff has failed to perform his part of contract, the learned trial

Court has rightly rejected the suit. He would further submit that the power of

attorney is under undue influence and there was sufficient evidence placed on

record and from the fact that power of attorney was executed on 17.08.1983

and agreement to sell was executed on 20.08.1983 which itself creates doubt

over the execution of power of attorney as well as agreement. Learned Sr.

counsel would further submit that the plaintiff was inducted as a tenant about

20-22 years prior to execution of sale deed; therefore, he has to show how his

nature of possession has altered from the tenant into that of a transferee. The

plaintiff has failed to establish this fact by recording cogent evidence before

the learned trial Court. He would further submit that the plaintiff has failed to

prove that he was delivered possession in part performance of contractor or

he being already in possession, as lease, continued his possession in part

performance of agreement to purchase the suit land. Reliance was placed in

the matter of D.S. Parvathamma vs. A. Srinivasan 2003 (4) SCC 705. On

above foundation learned Sr. counsel would pray for dismissal of appeal with

heavy costs.

27.I have heard learned counsel for the parties, perused the document with

utmost satisfaction.

28.From the facts, evidence and law on the subject, it is quite vivid that three

points have to be determined by this Court;-

(1) Whether the findings recorded by the learned Court below

that power of attorney executed on 17.08.1983 suffers from

undue influence, coercion is legal and justified?

(2) Whether the suit property is Ruler’s property and their

alienation is not permissible?

(3) Whether the findings recorded by learned trial Court that

plaintiff has failed to prove readiness and willingness to perform

his part of contract is legal and justified and does not suffer from

any perversity or patent illegality which warrant interference?.

17

Point no. 1

29.Before adverting to point to be determined by this Court it is expedient to refer

to Section 16 of the Contract Act which is extracted below:-

Section 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. ‘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 contract 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 the sub-

section shall affect the provisions of section 111 of the Indian

Evidence Act, 1872 (1 of 1872).

(a) A having advanced money to his son, B, during his minority,

upon B’s coming of age obtains, by misuse of parental

influence, a bond from B for a greater amount than the sum

due in respect of the advance. A employs undue influence. (a)

A having advanced money to his son, B, during his minority,

upon B’s coming of age obtains, by misuse of parental

influence, a bond from B for a greater amount than the sum

18

due in respect of the advance. A employs undue influence."

(b) A, a man enfeebled by disease or age, is induced, by B’s

influence over him as his medical attendant, to agree to pay B

an unreasonable sum for his professional services, B employes

undue influence. (b) A, a man enfeebled by disease or age, is

induced, by B’s influence over him as his medical attendant, to

agree to pay B an unreasonable sum for his professional

services, B employes undue influence."

(c) A, being in debt to B, the money-lender of his village,

contracts a fresh loan on terms which appear to be

unconscionable. It lies on B to prove that the contract was not

induced by undue influence. (c) A, being in debt to B, the

money-lender of his village, contracts a fresh loan on terms

which appear to be unconscionable. It lies on B to prove that

the contract was not induced by undue influence."

(d) A applies to a banker for a loan at a time when there is

stringency in the money market. The banker declines to make

the loan except at an unusually high rate of interest. A accepts

the loan on these terms. This is a transaction in the ordinary

course of business, and the contract is not induced by undue

influence.] (d) A applies to a banker for a loan at a time when

there is stringency in the money market. The banker declines to

make the loan except at an unusually high rate of interest. A

accepts the loan on these terms. This is a transaction in the

ordinary course of business, and the contract is not induced by

undue influence.]"

30.Learned counsel for the plaintiff would submit that there is no material placed

on record to establish that the power of attorney has been given in favour of

the defendant no.5 Vidyasagar Tiwari under undue influence, as such finding

recorded by the trial Court is perverse and deserves to be set aside by this

Court.

31.Per contract, learned Sr. Counsel for respondent No. 2, 2(a) and 2(b)would

submit that there is sufficient evidence with regard to execution of power of

attorney under undue influence. From bare perusal of the evidence, it is quite

vivid that the Hariharchandra Bhanjdeo/ defendant no.3 has stated before the

trial Court that Vidyasagar Tiwari, used to get signature in the blank paper and

19

sometime in the written document but its contents were not explained to him

as the defendant no.1 has also supported him, therefore, he could not make

complaint to anybody. He has also stated that there was quarrel between

Bharatchandra Bhanjdeo and Vidyasagar Tiwari, therefore, he was removed

from the palace. He has stated that Bharatchandra Bhanjdeo was the last

Ruler of Bastar District and he was suffering from mental disorder, he was

getting regular treatment from different places as recorded in the evidence.

Rajmata Krishnakumari Devi W/o. Bharatchandra Bhanjdeo has also

reiterated the same evidence which remain unrebutted and she has further

clearfield that before her marriage, Maharaja was undergoing treatment. This

witness to demonstrate that the power of attorney was executed under undue

influence and explained in her evidence about the conduct of Vidyasagar

Tiwar and his behavior with defendant no.2 and other family members. She

has also stated that the suit property was undervalued which is also because

under undue influence of Vidyasagar Tiwari. Ghanshyam Mishra (DW-3) has

also reiterated the evidence about undue influence of Vidyasagar Tiwar, also

clarified that Vidyasagar Tiwari creats pressure on the family of

Bharatchandra, Deveshchandra, Harihar, Krishna Kumari Devi and without his

permission no one was allowed to meet them. If anybody meets them without

his permission, then he used to beat Bharaatchandra Bhanjdeo and he was

deprived from money also. He has further stated that Vidyasagar Tiwari used

to take decision without anybody’s consultation, there was quarrel with

Bharatchandra Bhanjdeo as he has got signature forcefully in some paper.

DW-3 has further stated that Vidyasagar Tiwari has got registered property in

the name of Smt. Rama Vashnikar, Rajesh Tiwari, one Sarjupari Bhrahman

Samaj and his name also but mutation cannot be done as property of Ruler’s

cannot be sold out. He has further stated that suit property is within palaces

premises. In the cross-examination at para-19, it has further been brought on

record that Vidyasagar Tiwari used to manhandle the family members, two or

three occasions this has happened before him also and thereafter the family

members were kept in locked room. It has been empathetically denied that

Vidyasagar Tiwari has not done any tortuous act against the family member.

The defendant no. 2 in the written statement has placed the circumstances to

prove that defendant no. 5 was in a dominating position, and power of

attorney was written under undue influence but the plaintiff has neither

amended the pleadings nor adduced evidence to demonstrate that power of

20

attorney has been written by the defendant no. 1 to 4 on their own sweet will

without undue influence. From the evidence, material on record, it is quite

vivid that Vidyasgar Tiwari was tortuous in a fiduciary relationship with the

defendant no. 1 to 4 and he was in a dominating position and the fact that

Bharatchandra Bhanjdeo was suffering from mental disorder, it is quite clear

that power of attorney was written under undue influence of defendant no. 5.

32.Hon’ble Division Bench of Madras High Court in the case of Andalammal vs.

Rajeswari Vedachalam (daced) and others AIR 1985 Mad 321, has held at

paragraph 21 and 22 as under:-

21.A close examination of the said provision reveals that

under circumstances set out in S. 16(1) a case of

undue influence is established. If the circumstances set

out either in sub Cl. (a) or sub-Cl. (b) in sub-S. (2) are

found to be established, a person is deemed to be in a

position to dominate the will of another. Sub-sec. (2) is

common to sub-S. (1) and sub-S. (3) of S. 16. As

between sub-S. (1) and sub-S. (3), the common factor

is that one of the parties was in a position to dominate

the will of the other. Sub-S. (1) and sub-S. (3) cover two

different fields, though, at times, one may overlap the

other. To attract sub-S. (1) two things should be

established, namely, (a) one of the parties was in a

position to dominate the will of the other, and (b) he

used that position and obtained an unfair advantage

over the other; while to attract sub-S. (3)(a), the person

was in a position to dominate the will of the other, and

(b) the transaction appeared on the face of it or the

evidence adduced was to be unconscionable There is

another vital difference between sub-sec. (1) and sub-

S. (3). In sub S. (3), if the two ingredients are

established, the burden of proof that contract was not

induced by undue influence shall lie upon the person to

dominate the will of the other. This presumption is

absent in sub-S. (1). This, in our view, is the proper

reading of S. 16 of the Contract Act. Another special

feature is found in S. 16(3); i.e, if it is established that a

21

person who is in a position to dominate the Page:

261will of another entered into a contract with him and

if the transaction appeared either on the face of it or on

the evidence adduced to be unconscionable, the

burden is upon the person who was dominating the will

of another to prove that such contract was not induced

by undue influence. The word ‘shall’ found in S. 16(3)

indicates that the presumption is mandatory. In the

instant case, if the ingrediants referred to in S. 6(3)

were to be estaelished by the appellant the burden

would be on the respondents to satisfactorily prove that

Ex. B2 sale was not induced by undue influence. The

concomitant position is that if the burden is not

discharged, the presumption shall prevail. It is further

significant to notice that either on the evidence or on

the face of transaction it is enough if it appeared to be

unconscionable. In other words, it is enough for the

appellant to substantiate that the transaction was prima

facie unconscionable and that she was under the

domination of her husband, P.W 4 and the first

respondent's manager, D.W 4. To put it differently,

positive proof that the transaction is unconscionable is

dispensed with to raise a statutory presumption and the

statu tory presumption would be in force until the

burden is rebutted. According to the learned counsel for

the appellant, this import of clause (3) of S. 16 was not

noticed by the learned Judge of this Court and the

result was learned Judge threw the burden wrongly on

appellant. This, according to the learned counsel, has

to a greater extent vitiated the judgment of the learned

Judge. He would further urge that there are enough

circumstances to project a prima facie case as

envisaged by S. 16(3) and that in any event, there is

ample evidence in this to support misrepresentation,

coercion and fraud.

22. S. 16(2) says what is domination. If a person

22

should hold either a real or apparent authority over the

other, he would be deemed to be in a position to

dominate the will of another (emphasis by us). We shall

not lose the significance of the expression ‘real’ and

‘apparent’ employed in that sub-section. In our view,

even if the circumstances were to project that one had

apparent authority over the other, it would be deemed

that person dominated the will of the other as

envisaged by sub-S. (2) of S. 16. So too, if a person

were to stand in a fiduciary relationship with the other,

the former would be deemed to have dominated the will

of the other. We are not referring to sub-S. (b) as that is

not relevant in this case. The plain meaning of sub-S.

(2) clearly points out that the relationship between the

two has no relevance at all though it may in certain

cases project a prima-facie case.

33.Hon'ble High Court of Madhya Pradesh in the matter of Kasturchand

Chhotmal vs. Kapurchand Kewalchand AIR 1975 MP 136, has held thus in

In Satish Chandra Chateriee v. Kumar Satish Kantha Roy, AIR 1923 PC 73 it

was held as under :--

"Charges of fraud and collusion must no doubt be

proved by those who make them by established facts

or inferences legitimately drawn from those facts taken

together as a whole. Suspicions and surmises and

conjectures are not permissible substitutes for those

facts or those inferences but that by no means reauires

that every puzzling artifice or contrivance resorted to

by one accused of fraud must necessarily be

completely unravelled and cleared up and made plain

before a verdict can be properly found against him. If

this were not so, many a clever and dexterous knave

would escape.

In view of the above case law it may be observed that

the appellant has placed on record; whatever material

as was available to draw inference that the gift deed,

23

Ex. P-9, was executed by Mst. Soni Bai under the

undue influence of the respondent. The burden,

therefore, shifted on the respondent to prove that the

said document was executed by Mst. Soni Bai by her

free will and not under any undue influence. This could

have been done, had the respondent appeared in the

witness box and stood the test of cross-examination.

As the respondent failed to discharge the burden cast

upon him we hold that Mst. Soni Bai executed the gift

deed under undue influence and, therefore, it is not

valid and binding on the appellant”.

34.Hon'ble High Court of Mysore in the matter of Smt. Smt. Chinnamma And

Ors. vs The Devanga Sangha And Ors AIR 1973 Mys 338;-

17. The next ground urged on behalf of defendants 1

and 2 is that Exhibit P-l had been obtained by the

President and the Secretary of the plaintiff by

exercising undue influence over Kenchamma and that

Kenchamma had not voluntarily executed the said

document. The Court while dealing with a case in

which the validity of a gift is challenged on the ground

that it is vitiated by undue influence, should bear in

mind two factors, viz., whether the donor and donee

stood in such a position that the donor was able to

dominate over the will of the donee and whether the

donor utilised the said position to obtain an unfair

advantage over the other Section 15(2) of the Contract

Act provides a special presumption that in cases falling

under Clauses (a) and (b) thereof, a person is deemed

to be in a position to dominate over the will of the

other. In particular clause (b) states that when a person

makes a contract with a person whose mental capacity

is either temporarily or permanently affected by reason

of age, illness or mental or bodily distress, the former

is deemed to be in a position to dominate over the will

of the latter. Whereas ordinarily the burden of

24

establishing undue influence is on the person alleging

it, in a case falling under Sub-section (3) of Section 16

of the Act i.e., where a person is in a position to

dominate the will of another enters into a transaction

with him and the transaction either appears on the face

of it or is proved to be unconscionable the burden of

proving that it was not induced by undue influence lies

on the person in a position to dominate the will of the

other. In Ladli Parshad v. Karnal Distillery Compay, the

Supreme Court explained the doctrine of undue

influence as follows :--

"The doctrine of undue influence under the

common law was evolved by the Courts in

England for granting protection against

transactions procured by the exercise of

insidious forms of influence spiritual and

temporal. The doctrine applied to acts of bounty

as well as to other transactions in which one

party by exercising his position of dominance

obtains an unfair advantage over another. The

Indian enactment is founded substantially on

the rules of English common law. The first sub-

section of Section 16 lays down the principle in

general terms. By Sub-section (2) a

presumption arises that a person shall be

deemed to be in a position to dominate the will

of another if the conditions set out therein are

fulfilled. Sub-section (3) lavs down the

conditions for raising a rebuttable presumption

that a transaction is procured by the exercise of

undue influence. The reason for the rule in the

third sub-section is that a person who has

obtained an advantage over another by

dominating his will, may also remain in a

position to suppress the requisite evidence in

support of the plea of undue influence."

25

18. In the instant case, it is clear from the evidence

discussed above that Kenchamma was suffering from

cancer on 28-12-1960 on which date it is alleged that

Exhibit P-l was executed, that it was known to P. W. 3,

the Clerk of the plaintiff and that she died of the said

disease on 7-3-1961. It appears to us to be quite

probable that Kenchamma knew that she was

suffering from the said disease even for about a few

weeks prior to 28-12-1960. Defendant 1 has stated in

her deposition that Kenchamma was ill from

November 1960. It is quite natural that Kenchamma

must have been suffering from bodily and mental

distress on account of the dreadful nature of the

disease, and as a consequence her mental capacity

must have been affected during that period. The

statement of defendant 1 in her evidence which is

corroborated by D. W. 2 that Kenchamma's mental

capacity had been affected during that period appears

to be quite probable. During that period when

Kenchamma's mental capacity was affected the

plaintiff secured the gift deed from her. We are of the

opinion that the case clearly comes under Clause (b)

of Sub-section (2) of Section 16 of the Act. It is also

quite clear that the transaction is of an

unconscionable nature because Kenchamma had

purported to part with all the known resources she

had under Exhibit P-l and that she was driven to the

necessity of applying for monetary assistance to the

plaintiff to meet the medical bills immediately after the

date of Exhibit P-l. Under these circumstances, Sub-

section (3) of Section 16 would clearly be attracted

throwing the burden of proving that the transaction in

question was not induced by undue influence on the

plaintiff who is deemed to be in a position to dominate

over the will of Kenchamma by virtue of Sub-section

(2) of Section 16 of the Act. On a careful assessment

26

of the evidence adduced in the case, we are satisfied

that the plaintiff has not discharged the burden of

proving that the gift under Exhibit P-l was not induced

by undue influence. It is argued by Sri S. Rangarai,

the learned counsel for the plaintiff, that defendants 1

and 2 had not disclosed how and in what manner

such undue influence was brought to bear upon

Kenchamma. We feel that there is no such obligation

on them in this case to which Sub-section (3) of

Section 16 of the Act is applicable. It is well to

remember here the observations of the Supreme

Court in paragraph 25 in Ladli Parshad's case that the

reason for the rule in the third sub-section in Section

16 is that a person who has obtained an advantage

over another by dominating his will may also remain

in a position to suppress the requisite evidence in

support of the plea of undue influence. The way in

which we have approached and dealt with the

evidence in this case, is in accord with the decision of

the Supreme Court in Lakshmi Amma v. Talengaia

Narayana Bhatta, in which the Supreme Court was

concerned with a settlement deed under which the

settlor, when he was suffering from diabetes and

other ailments, had purported to settle all his property

on one of the grandsons to the exclusion of his own

sons and other grandsons without making sufficient

provision for the maintenance of his third wife and

debarring himself from dealing with the property

during his lifetime. One additional factor available in

this case is that Kenchamma was an illiterate lady

who knew only how to sign her name and had no

independent advice. Further, the nature of advice said

to have been given to her by P. W. 4 as alleged in the

plaint is kept back from the Court.

19. One other argument of Sri Rangaraj, the learned

counsel for the plaintiff, requires to be noticed here.

27

He argued that neither the President nor the

Secretary of the plaintiff derived any advantage

personally from the transaction and that it was the

plaintiff who was benefited thereby; He, therefore,

submitted that Section 16 of the Act could not apply.

We cannot accede to the above submission. It is not

correct to hold that Section 16 is attracted only when

the party in a position to or deemed to be in a position

to dominate the will of the other derives a personal

advantage from the transaction. The said section is

also applicable to case in which the executant is

made to part with his property in favour of another in

whom the person in a position to or is deemed to be

in a position to dominate the will of the other is

interested provided the other requirements of the

section are satisfied. In coming to the above

conclusion, we have relied upon the decision of the

Allahabad High Court in Sital Prasad v. Parbhu Lal,

(1888) ILR 10 All 535 in which the facts were as

follows: The plaintiff who on the death of the widow of

his brother became entitled to the estate of the

deceased, found himself resisted in his claim by

wealthy relatives. He was a man without means. The

defendant took him to his house, kept him there,

found him all the money for the purpose of carrying on

his litigation with his relatives, in which the plaintiff

succeeded. While the litigation for mutation of names

in respect of the property was pending in the revenue

Court and while the plaintiff was residing with the

defendant, he executed a sale deed in favour of

defendant's brother for the nominal consideration of

Rs. 9,500/- on half the property he claimed, and

again, shortly after the mutation case had terminated

in his favour, he executed a deed of endowment of

the remaining half in favour of a temple founded by

the ancestor of the defendant in which the defendant

28

was interested, and the result was that plaintiff was

left as poor as he was when he first came into the

defendant's hands. Plaintiff sued for cancellation of

the deed of endowment on the ground that the same

had been obtained from him by the exercise of undue

influence and by means of fraud and obtained a

decree. On appeal by the defendant it was held that

looking at all the facts, such a relation between

plaintiff and defendant in the course of the year 1885

had been established as to cast upon the latter the

obligation of satisfying the Court that the transaction,

which was given effect to by the deed of endowment,

was an honest and bona fide transaction and one that

ought to be upheld even though the advantage under

the transaction was not derived by the defendant

himself. Hence, the fact that in the present case the

benefit is derived by the plaintiff in which its President

and Secretary were interested and they entered into

the transaction with the donor is enough to attract

Section 16 of the Act. We are satisfied from the

evidence placed before the Court that the President

and Secretary of the plaintiff who were in a position to

dominate or were deemed to be in a position to

dominate the will of Kenchamma, have used their

position to obtain an unfair advantage over her and to

secure the gift deed Exhibit P-l in favour of the plaintiff

in which they were interested.

20. After giving our anxious consideration to all the

facets of the case presented before us, we hold that

the execution of the gift deed Exhibit P-l is not duly

proved and even if it is executed by Kenchamma, she

had done so on account of the undue influence, and,

therefore Exhibit P-l is void. The suit of the plaintiff for

declaration of its title should fail.

35.The contention of learned counsel for the plaintiff/appellant is that Section 92

of the Evidence Act provides exclusion of evidence of oral agreement and

29

would submit that in the present case when the agreement which is reduced

to the form of document (Ex.P-1) has been proved as per section 91 of the

Evidence Act, no evidence of any oral agreement or statement shall be

admitted as between the parties to any such instrument or their representative

in interest for the purpose of contradicting, varying, adding to or subtracting

from its terms is not applicable in the present facts and circumstances of the

case, as learned trial Court has not disputed the execution of the agreement

but has questioned the foundation of execution of agreement i.e. power of

attorney issued in favour of the defendant no. 5 as such the judgment citied by

learned counsel for plaintiff in the case V. Anantha Raju and Another vs.

T.M. Narasimhan & others (supra) is not applicable to the present facts of

the case.

36.Learned trial Court after analyzing the evidence, material on record and

considering the law on the subject, has held that power of attorney has been

written under undue influence, therefore, the finding recorded by learned trial

Court with regard to point No. 1 is legal, justified and does not warrant

interference.

Point No.2

37.Defendant No.2 in the written statement has categorically pleaded that suit

property is Ruler’s property and cannot be alienated and it will be succeeded

to generation to generation and to substantiate they adduced evidence and all

the witnesses have categorically have stated in their examination-in-chief that

suit property is Ruler’s land which was not rebutted through evidence or

through amending the pleading, therefore, the contention of defendant No. 2

that suit land is Ruler’s land even in the cross examination the plaintiff witness

No.1 has admitted that suit property is a Ruler’s property. Learned trial Court

while deciding the issue no 5(a) (b) has categorically recorded the findings

that in view of no rebuttal against the notification no. EF 57/7/70-EOLL-III

dated 11.07.1970, it is quite vivid that suit land is palace property and cannot

alienate but has not answered this issue on the count that the trial Court it has

already decided validity of the power of attorney wherein it has been held that

power of attorney has been executed under undue influence, therefore,

subsequent agreement is also null and void, as such it is not required to give

any finding on this issue. The suit land is a Ruler’s property has held by the

Division Bench of this Court in FA No. 119 of 2017 Smt. Krishna Kumari Devi

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and other vs. Hariharchandra Bhanjdeo at paragraph 60,76 and 77 as under;-

60. The documents discussed above and the

pleadings of the party as well, would lead us to an

indisputable fact that the properties involved in the

present suit were private properties of Maharaja of

Bastar.

76. It is, thus, indisputably and fairly well settled that

private property of a Ruler was to remain with him

under the covenant/ agreement executed with the

GOI and the said property has to pass on from one

Ruler to another in terms of Article 5 of the agreement.

It would pass on to the next Ruler under the principle

of Lineal Male Primogeniture and the private

properties would not be treated as the joint family

property or HUF property of the Ruler. It is also settled

that by virtue of section 5(ii) of the Act, 1956, the

provisions of the said Act would not apply to the suit

property as under the covenant, it would descent to a

single heir under the terms of the agreement executed

between the Ruler of Bastar and the GOI. It is also

settled that the Gaddi and the property would pass on

the next Ruler and would thereafter pass on the legal

heirs of the last Ruler.

77. The private property of the Ruler shall not be

treated as HUF property nor the Act, 1956 would apply

to the said property for yet another reason inasmuch

as vide Ex.P/74, which is a letter issued by the

Government of the Central Provinces and Berar dated

19.07.1948, it was specifically provided that the34.

Muafi Rights created by the Ruler i.e. Maharaja Parvir

Chandra Bhanjdeo for the maintenance of his brother

in 27 villages are allowed. It is, thus, apparent that if

the other family members had any right over the

private property by birth or by survivorship there was

absolutely no necessity to create Muafi Rights for the

maintenance of the Ruler’s brother in 27 villages. It is

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clearly discernible that the brothers of the Ruler were

treated as a separate entity at the time of merger and

they had no claim to the private property of the Ruler

as they were separated by granting them Muafi Rights

in the lands for their maintenance. The brothers of the

Ruler have, thus, no right over the properties of the

Ruler which would pass on the next Ruler under law of

primogeniture.

38.Thus, from above stated evidence, material on record and the law laid down

by the Hon’ble Division Bench of this Court, it is clear that suit land is Ruler’s

property and cannot be alienated, as such the findings recorded by the

learned trial Court is legal, justified and does not warrant interference.

Point No.3

39.Learned trial Court while deciding the issue No. 9 has recorded a finding that

plaintiff has failed to perform his part of contract as on account of dispute he

has stopped payment of cheque amount as such it cannot be said that plaintiff

was ready and willing to perform his part of contract. This finding is legal,

justified and does not suffer from perversity or illegality and inconformity with

the law laid down by the Hon’ble Supreme Court in the matter of Shenbagam

and others vs. K.K. Rathinavel decided in Civil Appeal No. 150 of 2022

decided on 20.01.2022.

27. It is settled law that even in the absence of specific

plea by the opposite party, it is the mandate of the

statue that the plaintiff has to comply with Section

16(c) of the Specific Relief Act and when there is non-

compliance with this statutory mandate, the Court is

not bound to grant specific performance and is left with

no other alternative but to dismiss the suit. It is also

clear that readiness to perform must be established

throughout the relevant points of time. “Readiness and

willingness” to perform the part of the contract has to

be determined/ascertained from the conduct of the

parties.

40.The findings recorded by the trial Court that the plaintiff failed to perform his

part of contract is legal, justified and does not warrant interference, even the

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trial Court has recorded the findings that even if, plaintiff establishes that he is

ready and willing to perform his part of contract still he cannot claim any relief

as the power of attorney which is the basis of agreement has been held to be

executed under undue influence, as such also the claim of the plaintiff for

specific performance of contract is not tenable. Thus, all the points determined

by this Court stands decided against the plaintiff as no perversity or illegality in

the judgment and decree passed by the learned trial Court is brought on

record which warrants interference by this Court. Accordingly, the first appeal

being devoid of merit is liable to be dismissed and it is dismissed. No order

as to the cost.

41.A decree be drawn up accordingly.

Sd/-

(Narendra Kumar Vyas)

Judge

Santosh