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CASE NO.:

Appeal (civil) 7133 of 2003

PETITIONER:

KRISHNA MOHAN KUL @ NANI CHARAN KUL AND ANR.

RESPONDENT:

PRATIMA MAITY AND ORS.

DATE OF JUDGMENT: 09/09/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

JUDGMENT

2003 Supp(3) SCR 496

The Judgment of the Court was delivered by ARIJIT PASAYAT, J. : Leave

granted.

By the impugned judgment, learned Single Judge of the Calcutta High Court

held that the deed of settlement purported to have been executed by Dasu

Charan Kul (hereinafter referred to as the 'executant') was a void and

invalid document. The fight between relatives of the executant centers

round a registered deed of settlement purported to have been executed on

11.7.1970 by the executant. A suit for declaration and permanent injunction

was filed by Pratima Maity, daughter of Pane Charan Kul, son of Dasarathi

Kul. The suit property originally belonged to Dasarathi Kul who died in the

year 1972. His Son Phani Charan Kul died in the year 1979. Averments in the

plaint were to the effect that on coming to know from the office of the

Block Land Reforms Officer that defendant No. 1 - Krishna Mohan Kul

(appellant No. 1 in the present appeal) had filed a registered deed of

settlement dated 11.7.1970 it was necessary to get the deed declared to be

void and invalid as the same was a forged document. There was no existence

of the witnesses whose names appeared in the said deed which was created to

grab the property of the plaintiffs. It was in this background alleged that

the deed of settlement was created by Krishna Mohan Kul (defendant No. 1)

with oblique motive. The contesting defendants took the stand by filing

written statements that the deed was perfectly in order and no illegality

was attached thereto. "

Before the trial Court several witnesses were examined to contend that the

executant was more than 100 years of age at the time of alleged execution

of the deed in question. He was paralytic and his mental and physical

condition were not in order. He was practically bed ridden with paralysis

and though his left thumb impression was stated to be affixed on the

document, there was no witness who could substantiate that in fact he had

put his thumb impression. That being the position, the deed was to be

declared as void and invalid. The contesting defendants took a stand that

it was not as if executant was not in a fit condition physically or

mentally at the time of execution of the deed. The trial Court disbelieved

the plea of plaintiffs and dismissed the suit.

Similar was the fate before the first Appellate Court. On being approached

by the plantiffs the following questions were framed by the High Court in

the Second Appeal :

"Whether the deed of settlement executed by the predecessor-in-interest of

the parties is valid in law". In fact, such substantial question of law

should also embrace the question as to whether the judgments of the courts

below are perverse in appreciating the said deed of settlement."

High Court took the view that the approach of both the trial Court and the

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first Appellate Court was erroneous. The following factual aspects were

considered relevant. Plaintiffs produced certified copy of the deed, while

defendants produced the original one. It was a deed of settlement where

Dasu Charan Kul was described as the donor, and curiously the donor and two

others namely Nani Charan Kul and his minor son Jagdish Kul. The L.T.I, was

identified by one Hriday Krishna Das. The deed was typed by one N.R. Dutta

and in the column meant for the names of witnesses, names of scribe Hriday

Krishna Das along with two others namely Nantu Bihari Ray and P.K. Maity

appeared. In the deed of settlement donor indicated his age to be 106

years. It was also indicated that he was becoming lackluster due to old age

and various ailments and for other mental shocks. According to High Court,

courts below wrongly placed the onus on the plaintiffs to prove the

validity of the deed of settlement. It was observed that the first

Appellate Court dealt with the matter in a very slip shod manner even

coming to a conclusion that age of the executant was not proved. It was

pointed out that the deed in question indicates that the executant was 106

years old at the time of execution. None of the witnesses of the deed in

question was examined to prove the deed of settlement and not even the

person who had identified the L.T.I, of the executant. The High Court came

to hold that executant was an illiterate person, was not in proper physical

and mental state and, therefore, the deed of settlement and trust dated

11.7.1970 was void and invalid. The defendatns were injuncted permanently

from disturbing the possession of the plaintiffs in the suit property.

Learned counsel for the appellants submitted that the High Court should not

have interfered with the concurrent findings recorded by the trial Court

and the first Appellate Court while dealing with an appeal under Section

100 of the Code of Civil Procedure, 1908 (for short the 'CPC'). It was

submitted that there is no material to conclude that the executant was not

in a fit physical and mental state at the time of execution of the deed.

That being so, the High Court should not have interfered with the

conclusions arrived at by the trial Court and the first Appellate Court.

In response, learned counsel for the respondents (plaintiffs 1, 2 and 3)

submitted that the High Court has rightly interfered with the lower Court's

orders as the conclusions were totally on misreading of the provisions of

law. The High Court rightly noticed that onus was wrongly placed on the

plaintiffs to prove validity or otherwise of the deed of settlement.

We shall first deal with the question relating to jurisdiction of the High

Court to interfere with the concurrent findings of fact. Reference was made

by learned counsel for the appellants to Chandra Bhan v. Pamma Bai and

Anr., [2002] 9 SCC 565,SakhahariParwatrao Karahale and Anr. v. Bhimashankar

Parwatrao Karahale, [2002] 9 SCC 608. So far as the first decision is

concerned, in view of the factual findings recorded by the lower Court and

the first Appellate Court it was held that interference with the concurrent

findings of fact are not justified. The question related to possession and

two Courts primarily considering factual position had decided the question

of possession. In that background, this Court observed that jurisdiction

under section 100 CPC should not have been exercised. So far as the second

decision is concerned, the position was almost similar and it was held that

findings contrary to concurrent findings of lower Courts and having no

basis either in pleadings, issues framed or in questions actually

adjudicated upon by any of the lower Courts cannot be sustained. That

decision also does not help the appellants in any manner as the factual

scenario is totally different in the present case.

Though as rightly contended by learned counsel for the appellants the scope

for interference with concurrent findings of fact while exercising

jurisdiction under Section 100 CPC is very limited, where the trial Court

and/or the first Appellate Court misdirected themselves in appreciating the

question of law and placed the onus on the wrong party certainly there is a

scope for interference under Section 100 CPC after formulating a

substantial question of Jaw.

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As was noted in Yadarao Dajiba Shrawane (dead) by Lrs. v. Nanilal

Harakchand Shah (dead) and Ors., [2002] 6 SCC 404 if the judgments of the

trial Court and the first Appellate Court are based on mis-interpretation

of the documentary evidence or consideration of inadmissible evidence or

ignoring material evidence or on a finding of fact has ignored admissions

or concession made by witnesses or parties, the High Court can interfere in

appeal.

In Neelakantan and Ors. v. Mallika Begum, [2002] 2 SCC 440 it was held that

findings of fact recorded must be set aside where the finding has no basis

in any legal evidence on record or is based on a misreading of evidence or

suffers from any legal infirmity which materially prejudices the case of

one of the parties.

As has been pointed out by the High Court, the first Appellate Court

totally ignored the relevant materials and recorded a completely erroneous

finding that there was no material regarding age of the executant when the

document in question itself indicated the age. The Court was dealing with a

case where an old, ailing illiterate person was stated to be the executant

and no witness was examined to prove the execution of the deed or putting

of the thumb impression. It has been rightly noticed by the High Court that

the courts below have wrongly placed onus to prove execution of the deed by

Dasu Charan Kul on the plaintiffs. There was challenge by the plaintiffs to

validity of the deed. The onus to prove the validity of the deed of

settlement was on defendant No. 1. When fraud, mis-representation or undue

influence is alleged by a party in a suit, normally, the burden is on him

to prove such fraud, undue influence or misrepresentation. But, when a

person is in a fiduciary relationship with another and the latter is in a

position of active confidence the burden of proving the absence of fraud,

misrepresentation or undue influence is upon the person in the dominating

position, he has to prove that there was fair play in the transaction and

that the apparent is the real, in other words, that the transaction is

genuine and bona fide. In such a case the burden of proving the good faith

of the transaction is thrown upon the dominant party, that is to say, the

party who is in a position of active confidence. A person standing in a

fiduciary relation to another has a duty to protect the interest given to

his care and the Court watches with zealously all transactions between such

persons so that the protector may not use his influence or the confidence

to his advantage. When the party complaining shows such relation, the law

presumes everything against the transaction and the onus is cast upon the

person holding the position of confidence or trust to show that the

transaction is perfectly fair and reasonable, that no advantage has been

taken of his position. This principle has been engrained in Section 111 of

the Indian Evidence Act, 1872 (in short the 'Evidence Act'). The rule here

laid down is in accordance with a principle long acknowledged and

administered in Courts of Equity in England and America. This principle is

that he who bargains in a matter of advantage with a person who places a

confidence in him is bound to show that a proper and reasonable use has

been made of that confidence. The transaction is not necessarily void ipso

facto, nor is it necessary for those who inpeach it to establish that there

has been fraud or imposition, but the burden of establishing its perfect

fairness, adequacy and equity is cast upon the person in whom the

confidence has been reposed. The rule applies equally to all persons

standing in confidential relations with each other. Agents, trustees,

executors, administrators, auctioneers, and others have been held to fall

within the rule. The Section requires that the party on whom the burden of

proof is laid should have been in a position of active confidence. Where

fraud is alleged, the rule has been clearly established in England that in

the case of a stranger equity will not set aside a voluntary deed or

donation, however, improvident it may be, if it be free from the imputation

of fraud, surprise, undue influence and spontaneously executed or made by

the donor with his eyes open. Where an active, confidential, or fiduciary

relation exists between the parties, there the burden of proof is on the

donee or those claiming through him. It has further been laid down that

where a person gains a great advantage over another by a voluntary

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instrument, the burden of proof is thrown upon the person receiving the

benefit and he is under the necessity of showing that the transaction is

fair and honest. In judging of the validity of transactions between persons

standing in a confidential relation to each other, it is very material to

see whether the person conferring a benefit on the other had competent and

independent advice. The age or capacity of the person conferring the

benefit and the nature of the benefit are of very great importance in such

cases. It is always obligatory for the donor/beneficiary under a document

to prove due execution of the document in accordance with law, even de hors

the reasonableness or otherwise of the transaction, to avail of the benefit

or claim rights under the document irrespective of the fact whether such

party is the defendant or plaintiff before Court.

It is now well established that a Court of Equity, when a person obtains

any benefit from another imposes upon the grantee the burden, if he wishes

to maintain the contract or gift, of proving that in fact he exerted no

influence for the purpose of obtaining it. The proposition is very clearly

started in Ashburner's Principles of Equity, 2nd Ed., p. 229, thus :

"When the relation between the donor and donee at or shortly before the

execution of the gift has been such as to raise a presumption that the

donee had influence over the donor, the Court sets aside the gift unless

the donee can prove that the gift was the result of a free exercise of the

donor's will."

The corollary to that principle is contained in Clause (3) of Section 16 of

the Indian Contract Act, 1872 (in short 'Contract Act').

At this juncture, a classic proposition of law by this Court in Mst.

Kharbuja Kuer v. Jang Bahadur Rai and Ors., AIR (1963) SC 1203 needs to

noted :

'It is, therefore, manifest that the rule evolved for the protection of

pardahnashin ladies not be confused with other doctrines, such as fraud,

duress and actual undue influence, which apply to all persons whether they

be pardahnashin ladies or not".

The logic is equally applicable to an old, illiterate, ailing person who is

unable to comprehend the nature of the document or the contents thereof. It

should be established that there was not mere physical act of the executant

involved, but the mental act. Observations of this Court, though in the

context of pardahnashin lady in Mst. Kharduja Kuer v. Jang Bahadur Rai and

Ors., AIR (1963) SC 1203 are logically applicable to the case of the old,

invalid, infirm (physically and mentally) and illiterate persons.

Above being the position, the High Court was justified in holding that the

judgments of the trial Court and the first Appellate Court were perverse

and indefensible. We find no scope for interference with the impugned

judgment of the High Court. The appeal is dismissed. There shall be no

order as to costs.