Subbamma vs Mohd. Abdul Hafiz and Another

This appeal has been filed by defendant against the decrees and concurrent judgments of the two lower Courts, whereby a suit for the specific performance of a contract to sell immovable property has been allowed,

The appellant, an illiterate widow, is the owner of twenty three agricultural plots situated in Yellandu Taluqa, Warangal District. It is admitted that her permanent residence is at Avidi, in the Godavari District. She had appointed respondent 2 as her ''Mukhtar'' to manage these holdings. He was appointed on 5th Aban 1349 F. (1st September 1940) and was dismissed on 80th Amardad 1350 Fasli (5th July 1941 A.D.). Daring the continuance of this agency, i.e., on nth Farwardi 1350 F. (12th February 1941 A.D.), an agreement to sell these plots, is alleged to have been executed by the appellant in favour of respondent 2. By it she agreed in consideration of RS. 2,500 to convey all the twenty-three plots, measuring over three hundred and fifteen acres, to the respondent or his assignees, by the end of Aban 1351 p. (September 1942). About two and half months before the expiry of the period i.e., on 20th Shehrewar 1351 F. (26th July 1942 A.D.), respondent 2 assigned in writing his rights under the agreement to respondent 1. This assignment was in consideration of Ks. 3,000 and out of the agreed amount Rs. 6,00 were paid to respondent 2, the remaining sum being left with the assignee to be paid as price to the appellant on the execution of the sale deed. Neither of the two documents is on stamp papers or is registered. The agreement to sell purports to bear the appellant''s thumb impression and signatures of the scribe and two witnesses.

On 5th Azur 1353 P. (10th October 1943) respondent 1 instituted the suit on the basis of the agreement and its assignment for its specific performance, claiming that within the period fixed by the contract he has tendered the price and asked for the execution of the deed; but the appellant put him off and finally refused to perform her contract. The appellant, who was impleaded as defendant 1 denied the execution of the agreement and pleaded its being inadmissible in evidence duo to its not being properly stamped or registered; she further allowed that the Mukhtar on being dismissed for failure to pay or to render accounts of the profits and in conspiracy with the plaintiff had forged the agreement, moreover during the continuance of such an employment, he could not enter into an agreement with her, her other plea was that the value of the property being not less than twelve thousand rupees, a decree for the specific performance of the contract to sell should not be given. The Mukhtar, though he was impleaded as defendant 2 filed no written statement, but he has appeared as a witness on behalf of the plaintiff respondent 2 and has fully supported his case.

The trial Court, relying on the evidence of respondent 2, the scribe, and the two attesting witnesses as well as on the absence of any effort to have the thumb impression proved as forgery by export testimony, has hold the agreement duly executed, it has also held the assignment to be proved, and then rejecting the plea of non-registration and of the value of the property being of a value greater than the sale price, on the ground that the agreement did not require registration and the valuation was not shown to be higher than the price at the time of the contract, decreed the suit. No decision about proof of good faith of the transaction was-given, because the Court held that as no plea of undue influence was raised in the written statement it cannot be gone into. The lower appellate Court concurring in those findings has disallowed the appeal and hence, this second appeal before this Court.

I regret that questions as to whether the-position of respondent 2 is of active confidence and whether the presumption of undue influence arising therefrom has been discharged, have to be determined by us and answered without any assistance from the judgments of the Courts--below. This is entirely due to their erroneous decisions about the necessity of a specific plea of undue influence in the written statement. It is true that undue influence being, a species of fraud must be pleaded with precision, but this does not mean that the relevant particulars in the pleadings should be labelled as undue influence. Further, if there are sufficient facts OB record of a case to justify the inference of undue influence the omission to raise such a plea would not prevent the Court from deciding the case on that ground, provided there is no surprise to the opposite party. Several authorities support the, position I have taken. In AIR 1931 63 (Nagpur) the vendor of a house brought a suit for the-'' cancellation of its sale deed, on the ground that it was executed while he was under the influence, of drug and on misrepresentation of its being u mortgage, that the defendant, his cousin, taking unfair advantage of his position had induced him, an inexperienced youth, to sell the house worth rupees one thousand for rupees three. hundred; the lower appellate Court concurring with the original Court held that no misrepresentation was proved, but found the house to be worth rupees eight hundred, the plaintiff to have just attained majority and to have relied solely on the advice of the defendant, which it held, raised a presumption of undue influence, and the evidence being insufficient to discharge the burden about the defendant not having taken, undue advantage of his position it decreed the appeal. Niyogi A.J.O., dismissing the appeal observed that if there are facts on the record to justify the interference of undue influence, the Court has power to administer relief notwithstanding inartistic pleadings. In A.L. Rama Patter and Brothers by partner A.L. Rama Pattar Vs. Manikkam alias Lingappa Gounder, a suit was instituted against three persons for money as per account signed by all the three defendants; and the question in appeal was whether defendant 3 can also be held. liable, ho in his written statement had pleaded that from his infancy he had been living with and been under the protection of the other defendants and even after attaining majority had habitually affixed his signature on any paper he was directed to do by them, his signature on the account sheet sued upon was so affixed without understanding and on belief that there would be no deception or fraud; it was got because of a conspiracy between the plaintiff and the defendants to get him involved for the better security of the loan. It was held there that in the written statement all material facts were set out and the claim to relief must be decided with reference to them independently of their being labeled as fraud or undue influence. The written statement of the appellant in thy cause before us contains the facts of respondent 2 being employed as her Mukhtar, the period of his employment, and the date of the agreement being within that period. All this is there, and the more absence of the label of undue influence is of no importance. Even if the plea of the agreement being forged is rejected that does not justify denial of any relief on the admitted or proved facts of respondent 2 being Mukhtar and the non-discharge of burden of good faith by plaintiff-respondent 1.

In para. 9 of the written statement, the appellant says that she, an old lady, entrusted and appointed defendant 2 as her Mukhtar and during his Mukhtarship he could not have any agreement executed in his favour. In para. 7 of the plaintiff-respondent rejoinder, the facts of his assignor''s being appellant''s Mukhtar is admitted. This assignor has appeared as witness 4 on behalf of the plaintiff-respondent 1 and in the very first few line of his cross-examination, had admitted having been appointed as her Mukhtar four years back and to having been dismissed an year ago. This was being deposed to on 20th Meher 1353 Fasli (25th August 1944 A.D.) and if these periods of four and one year are deducted from the date the deposition was being recorded, it gives the dates mentioned in the written statement about his appointment and dismissal as agent. A letter by this witness dated 13th May 194a A.D. has also been produced by the appellant and it is proved by the scribe of the agreement in his cross-examination. In this letter the Mukhtar admits to having the management of the property in dispute and in one passage says that appellant had given him management of the property because of her trust in him. In such circumstances I do not think absence of the label of undue influence in the written statement is of much importance, and the appointment of respondent 2 as the Mukhtar, the duration of his appointment and the date of the contract and of assignment falling within the period are proved.

That the position of an agent entrusted,, with the management of an estate is one of active confidence to his principal has been decided by their Lordships of the Privy Council in AIR 1937 50 (Privy Council) . His position being such, u/s 90, Hyderabad Evidence Act, which is similar to Section 111, Evidence Act, the burden of proving the good faith of the transaction is on him, or on the person who claims through him i.e., plaintiff-respondent 1 in this case.

Now there are two ways to rebut this presumption of undue influence. One is by showing that the relation, with all its effects, which gives rise to the presumption, has ceased before the transaction was entered into; and the other is to prove that the person against whom the transaction is being enforced had independent advice. The first method is out of question in this appeal. As regards the other, it is well to remember that a person to be an adviser must be in possession of all the facts, otherwise his advice can hardly be of any value. Then again the word ''independent'' is not a mete decorative epithet. It means that the adviser must not be interested in any of the parties. In this appeal three persons have been produced to prove the agreement. The scribe is plaintiff-respondent''s witness No. 1, and he admits to being related to the appellant and to the Mukhtar. His advice regarding the transaction, if any, cannot, therefore, be independent. The attesting witnesses do not depose to any advice at all. Indeed one such witness at page 25 of the paper book says that he knew nothing regarding the transaction prior to the execution of the agreement to sell. The other is equally ignorant of facts relating to the property and says that he does not even know whether Respondent 2 was the Mukhtar of the lady for managing the plots. There are no other witnesses regarding execution and the evidence of these witnesses cannot be treated as proof of advice. In the absence of any such evidence the burden of proof could not be held to have been discharged, nor can the agreement be legally enforceable. The suit of specific performance in favour of the person who has failed to do so should not be decreed. There are other circumstances attaching suspicion to the agreement. No earnest money has been paid at the time the agreement was entered into, the capacity of the would be purchaser to pay the price is extremely doubtful, and in his letter after the performance was long due under the alleged contract no mention is made of the agreement. In these circumstances I hold that the suit for the specific performance has been wrongly decreed and should have been dismissed as against the appellant with coats.

The appeal is therefore allowed, the decrees of the lower Courts for the specific performance of agreement are sot aside and the suit dismissed as against appellant with costs.