Syed Noor vs Qutbuddin

Kumarayya, J.—This appeal was once disposed of by this Court by the judgment dated 8-2-1950. On a review petition the said judgment was set aside by virtue of an order dated 17-12-1954. The appeal is now once again before this Court for consideration.

The facts out of which this appeal arises are few and simple. The Plaintiff-Appellant brought his suit on 2nd Isfandar 1352F., for declaration of his right to get his shikmi recorded to the registers concerned on the oasis of a registered sale deed dated 11th Dai 1352F., executed by the Defendant Qutbuddin. The said deed contained both an admission that the Defendant had handed over possession of the property and also a covenant that he will get the name of the Plaintiff recorded in the shikmidari register.

The Plaintiff''s case is that the Defendant had put him in possession of the property, but had failed to get the shikmi recorded as promised. With this allegation he brought his declaratory suit. A few months later, Plaintiff came with a further plea that he was dispossessed from the suit property on 17th Amardad 1354F., and applied for an amendment of his plaint, which was allowed.

The Defendant admitted the execution of the sale deed but contended that no sale in fact was intended by the parties. The sale deed, according to him, was executed at the instance of the Plaintiff in his most anxious moments of life when he (Defendant) on account of his serious illness could see no ray of hope of his survival and was greatly worried because he had no money to meet even day to day expenses. In such a state of great helplessness the Plaintiff with the assurance that he will meet the medical and daily expenses induced him (Defendant) to execute a sale deed in his favour.

It was however, agreed between the parties that despite the sale deed the Plaintiff will be entitled only to the money expended by him on maintenance and medical attendance of the Defendant together with interest and in case the Defendant did not recover from his illness, Plaintiff will be entitled to a share of four annas in the lands mentioned in the sale deed and the remaining one- fourth share shall go to the Defendant''s wife.

Defendant''s case is, as a result of this agreement the possession of the suit property remained with the Defendant. He complains that the Plaintiff was not as good as his word and turned away the Defendant Mid his wife from his house sometime s after the deed and contends that as the Plaintiff is entitled only to the amounts expended, the suit [ for possession of the property and declaration of his right is liable to be dismissed.

The Court of first instance on these pleadings framed six issues and after due enquiry repelled the contention of the Defendant that the execution of the sale deed was a product of undue influence and decreed the suit of the Plaintiff.

The Court of first appeal remanded the case for further enquiry. The trial Court there-after having found that the document was executed under undue influence expressed its opinion for the dismissal of the suit. The appellate Court agreed with this view and dismissed the suit.

In this second appeal before us, it is strenuously urged tin it having regard to the pleadings no question of undue influence could arise in the case and that when the Defendant had admitted the execution of the registered sale deed the suit for possession and declaration ought to have been decreed. On behalf of the Respondents a preliminary legal objection was-first raised as to the non-maintainability of the suit.

It was urged that the permission of the Collector for alienation of land was not sufficient in law as the Defendant after the said transfer was left without the essential minimum acreage of arable land in his possession and hence the alleged alienation is void in law. The suit on that account should have been dismissed in limine. We allowed the parties to address their arguments on this point first. The learned Counsel during the course of argument realised the weakness of his plea and withdrew his objection. Needless to observe that the act of the learned advocate is fully justified by the clear provisions of law.

On the merits, the arguments of the parties centre round two facts. Firstly that the sale deed is a nominal or fictitious document not intended by the parties to be effective as a sale transaction and was obtained under undue influence. Secondly, that it is not supported by consideration.

In relation to the first plea, the Defendant- Respondent laid great stress on the fact that at the time of the deed possession of the property was not in fact given which by itself must suggest the fictitious nature of the transaction. The Plaintiff denied this fact and produced one Kublyat dated 11th Dai 1352F., executed on an unstamped paper and also examined two witnesses in this behalf. The Court of first instance which passed the decree did not rely on this evidence mainly because the receipt bears the thumb impression and not the signature of the Defendant.

The Court of first appeal too has agreed with this view. But this ground, in our view, is not sufficient to reject the alleged Kublyat. Admittedly, at that time, the Defendant was suffering from a septic wound to his right hand and could not, therefore, make his signature. The endorsement on the sale deed which was executed on the same day bears full testimony to this. Another plea advanced by the Defendant is that the Kublyat has not been produced on or before the date of framing of issues and hence it must be thrown out of evidence.

Though we feel that any document sought to be produced after the issues are framed ought to be filed and admitted in evidence only under the express orders of the Presiding Judge and that this document bears the endorsement of the office Superintendent instead for its being filed, yet it is evident from the record that the Court of first appeal after due consideration allowed the party to adduce his rebuttal evidence and remanded the case for that purpose. As a result, the procedural defect alleged pales into insignificance.

The result is that the sworn testimonies of Waman Rao and Shaik Umar in support of this document cannot be ignored. It is argued that since Shaik Umar at one place has deposed that this Kublyat and the receipt of Meher 1351F. (Ex. 2) were executed only at an interval of four or five days though at another place he showed a difference of few months between them and the other, witness has shown this interval as of six or seven months, their depositions are not entitled to any credit.

It must be noted, however, that the witnesses are giving their statements after lapse of a few years. Margin should be allowed to an honest, error of two or three months in computing the period. Such discrepancies cannot outweigh their positive evidence. There is no doubt that Kublyat is proved by their sworn statements. The Defendant did not venture to get his thumb impression compared to disprove the document.

For all that, the fact remains that Kublyat produced does not prove the delivery of actual possession but proves only a promise for the same after the crop is removed for which some amount was paid by the Defendant. The Plaintiff, however, sought to prove subsequent actual delivery by independent evidence. But the evidence adduced in relation to this actual possession consists of the sole testimony of a witness from another village which cannot be believed.

However, In our opinion, non-delivery of actual possession when there was standing crop cannot be a circumstance in support of the fictitious nature of sale. So then the question is whether the fact that the sale deed is fictitious is borne out by any positive or circumstantial evidence.

The Defendant, in his written statement, has not categorically stated that in no circumstance was it intended to be a sale. According to his own averment if he died of the ailment it was agreed that the Plaintiff will execute a registered sale deed for one-fourth portion of the lands in the name of his (Defendant''s) wife and of the remainder one-fourth, the Plaintiff will continue to be the owner and the possessor.

This is sufficient to conclude that sale transaction was in fact intended, for there could .be ho question of transfer of a moiety by the Plaintiff in favour of the Defendant''s wife, if the Plaintiff could get no title under the agreement. No doubt, it is also the assertion of the Defendant that according to the oral agreement, it was the intention of the parties that in case the Defendant survived and paid all the expenses incurred with due interest, the sale deed will be returned and the Plaintiff will have no proprietary interests in the property, but this agreement alleged is denied by the Plaintiff in toto.

The contract reduced to writing and duly registered does not contain any such provision. But on the contrary, such terms seem to be in conflict with those embodied in the sale deed. The question arises whether such oral agreement can be proved at all under law.

If the first part of the alleged oral agreement is to be considered as constituting a condition precedent to the attaching of the obligation under the registered contract, for it is said that the sale was to be effective only in case the Defendant dies of the illness without paying the expenses incurred by the Plaintiff, such oral agreement can indeed be admissible in evidence under the provisions of Section 92 proviso (3), Evidence Act.

But the difficulty may arise as regards the other part of the agreement which contains a provision that the Plaintiff shall be the owner only to the extent of one-fourth which is against the term of the contract. However, there is also a stipulation that the Plaintiff shall convey one-fourth portion of the property to the Defendant''s wife and this stipulation presupposes title and interest of the Plaintiff to the extent of 1/2 as provided in the document and also that the Plaintiff will be the owner of one-fourth residue after re-conveyance of the Defendant''s wife.

Thus the seeming inconsistency between the terms of the deed and the oral contract dissolves itself. But proviso (4) of Section 92, Indian Evidence Act may still be made to stand in the way. Nevertheless so far as this case is concerned, when actual delivery of possession is not proved the provisions of Section 6, Prevention of Alienation of Agricultural Land Act must come to the rescue of the Defendant to substantiate what he has alleged. The rulings, therefore, reported in 27 D LR 801 (A) and 37 DLR 140 (B), relied on by the learned advocate on behalf of the Appellant have no application to this case.

The next Question that arises is whether the Defendant has proved the oral agreement alleged. The trial Court which passed the decree held this point against the Defendant though the District Court holding that undue influence is proved decided the same in his favour. The evidence adduced in this behalf consists of the sworn testimonies of the Defendant and his servant, Shaik Ibrahim.

Shaik Ibrahim admittedly was not living with the Defendant. He was the servant to whom was entrusted the work of the shop at Gandgaon. It is unlikely that he could remain at Parbhani when he had a shop at a distant village solely in his charge. However, he states that he was at Parbhani for a couple of days when the oral agreement was arrived at. Curiously enough, he is said to be present even at the time of the sale deed which, according to him, took place a month later. Shaik Ibrahim must, therefore, be presumed to be only a chance witness.

The Defendant in this way has brought on record the testimony of only the interested witnesses. This no doubt by itself does not discredit their testimony but renders their statements subjected to close scrutiny especially when it is against the admitted registered document. Shaik, Ibrahim states that the oral agreement took place a month before the actual sale deed but the Defendant says that there was hardly an interval of a week or two between the two.

According to Shaik Ibrahim, the Defendant stayed only for a couple of months there and this talk took place just a month after the Defendant had come and stayed with the Plaintiff and that soon after the execution of the registered sale deed he was turned out of door. This is not borne out by the averment in para (3) of the written, statement which is to the effect that the medical treatment continued for a few months even after the registration of the sale deed and the Plaintiff defrayed the medical charges and maintenance expenses during that period.

As regards the witnesses at the time though both of them show the presence of Datta, the Defendant as against his witness states that he, was at a distance attending to his account work. This suggests that he could not be a witness to the talk that took place.

The statements of these witnesses which are not free from discrepancies and are against the tenor of the registered deed which was admittedly executed on a subsequent date cannot be safely relied on especially when they do not fully accord with the pleadings as well. Of course, Plaintiff has failed to come into the witness box, but when the onus was on the Defendant who has not satisfactorily discharged the same, the alleged default of the Plaintiff is of no consequence.

Plaintiff has examined two witnesses, Waman and Shaik Umar, who depose about Exs. 2 and 3. Shaik Umar, the attesting, witness categorically states that there was a contract for sale a consideration of Rs. 3,500/- and the receipt I which contains the terms of the contract was executed by the Defendant in his presence, (SIC)lyat was executed later on. He describes at length how the account was rendered and Rs. 100/- was paid in cash. He further states that it was about 1-1/2 month since the Defendant had come over there when this agreement was arrived at and the receipt Ex. 2 was executed.

We find nothing in his statement that goes to discredit his testimony. No doubt, as stated earlier, he has at one place deposed that four or five days after the receipt, Kublyat was executed. But this appears to be either a slip of tongue or of pen for only three lines below that he has clearly stated at what interval these documents were executed. This cannot adversely affect his testimony.

It is also pointed out that Waman Rao, Police Patel of Pondool, who is examined as a witness on behalf of the Defendant has deposed with the help of his register that the Defendant on the date when the receipt is alleged to have been executed had been to Kondur Nalli as the solitary passenger in the boat that sailed on Godavari that day.

The register that is produced is not closed for the years, but it is still kept open for further entries. This entry is one of the few last entries. No copy of the same is sent to the Tahsil. Entry of such a register and the statement of the witness based thereon cannot, therefore, be relied on. In our opinion, the testimony of these two witnesses of the Plaintiff corroborated by Ex. 2 is sufficient to rebut the Defendant''s evidence. It follows that the Defendant has failed to substantiate that there was an oral agreement against the tenor of the document.

It is also urged that since the document was executed at a time when the Defendant was suffering from a serious malady which had dislocated his mental equilibrium, he can avoid the same as being a sequel of undue influence or even fraud. In this connection the learned advocate has relied on Sakina Begum v. Salahuddin 32 D LR 20(C) and Ganbia v. Sliamrao 30 D LR 211(D) and also on the case of Allahabad Bank Delhi v. Firm of Madan Mohan Kishen- lal reported in (AIR 1917 Lah 421 V4) (E).

We find it difficult to agree with the contention of the learned advocate. The doctor who has been examined no doubt states in examination- in-chief that the Defendant was greatly worried on account of the septic wound and had become fickle minded. But in the cross-examination he states that his mental condition was sound, only that he was worried on account of pain. He further states that within ten or twelve days after he started treatment he began to improve.

This certainly does not suggest that the mental condition of the Defendant was such as may raise presumption of his being easily amenable to undue influence. That apart the doctor has stated that he had started treatment in the month of October. Evidently the sale deed was executed on 11th Dai 1352F which falls in the month of November. Under these circumstances, question of undue influence does not arise at all.

Undue influence, according to Sir Fredrick Pollock, "consists in any influence brought to bear upon a person entering into an agreement or consenting to a disposal of the property which having regard to the age and capacity of the party, the nature of transaction and all the circumstances of the case appears to have been such as to preclude the exercise of free and deliberate judgment."

Section- 16, Contract Act explains the term ''''Undue influence'''' and lays down various circumstances which give rise to the presumption of undue influence. The first requisite is that the relations between the parties to each other must be such that one is in a position to dominate the will of the other. Admittedly, the Plaintiff does not hold any authority over the Defendant, nor does he stand in a fiduciary relationship to him.

As stated above, no circumstances are proved which may bring the transaction within the ambit of Section 16(2) (b), Contract Act also. So then question of undue influence does not arise. It cannot be said having regard to the terms of the contract in the sale deed that the transaction is substantially unfair and unconscionable either.

In Raghunath Prasad v. Sarju Prasad (AIR 1924 PC 60 V11) (F) their Lordships of the Privy Council have dealt with the essentials of Section 16, Contract Act and observed that it should be first established that relations between the parties are such that one is in a position to dominate the will of the other. It is only then-that the issue arises whether the contract has been induced by undue influence. On the determination of this issue there arises further question of onus probandi.

If the contract appears to be unconscionable the burden of proving that it is not induced by undue influence lies on the person who is in a position to dominate the will. In short, the question of unconscionableness of the transaction comes for consideration only when it is determined that the relationship between the parties is such that one is in a position to dominate the will of the other and not otherwise.

It is clear that neither the requisite relationship nor unconscionableness of the contract has been established in this case. Under these circumstances, we cannot agree with the view that the suit transaction is induced by undue influence and can be avoided at the option of the Defendant. No case of alleged fraud, actual or constructive has been made out by the material on record.

The rulings cited by the learned advocate do not apply to this ease. The circumstances of the case of 30 DLR 211 (D) are entirely different. The facts of the case of Sakina Begum, a minor and pardanashin lady who was alleged to have been induced by her own husband to enter into contract favourable to him arc evidently distinguishable. We, therefore, repel the contention of the Defendant.

The last point relates to the question of passing of consideration. The Plaintiff-Appellant''s first contention is that he has proved by his witness, the receipt Ex. 2 and the admission in the registered sale deed that not only there is consideration for the contract but it has been fully paid.

Another contention is that when the title in the property passes by a registered sale deed the question whether consideration in full was actually paid or not cannot be made a matter for consideration in this suit which is for possession, based on a registered sale deed duly executed by the Defendant and admitted by him. If the Defendant has still a right or claim to any part of consideration he can bring a separate suit wherein full evidence in regard to the same may be adduced.

There is, however, some difference of opinion among the Courts in India whether in the event of non-payment of consideration a conditional decree can be passed in the case or not. All the Courts are at one that the vendor has a statutory charge on the property for the unpaid sum. But the question is whether it should be enforced by a separate suit or not.

The Madras High Court is of the view that if the vendor sues for possession after the execution of the registered sale deed but before payment of price, the Court has no power to put him on equitable terms as to payment of price. In Yella Krishnamma v. Kotepalli Mali (AIR 1920 Mad 7) (G) a Divisional Bench of the Madras High Court held that the vendee in his suit for possession on the basis of registered sale deed which is absolutely unqualified on the face of it, is entitled to a decree of possession of the property without paying the purchase money which be agreed to pay.

In Poomalai Padayachi v. Annamalai Padayachi (AIR 1944 Mad 124 V31) (H) it has been held that the vendor is entitled to an unconditional decree for possession. A conditional decree enforcing the statutory charge of the seller on the property for unpaid purchase money is improper.

The Calcutta High Court however has taken a different view following the Allahabad case and held that both the rights of the purchaser to obtain possession u/s 55(l)(f) and the right of the vendor to realise the unpaid balance of the purchase money u/s 55 (4) (b) may be recognized arid enforced in one action Nilmadhab Parhi v. Haran Prosad 20 Ind Cas 325(Cal) (I).

The Bombay High Court in Basalingava Revanshiddappa Umbarji Vs. Chinnava Karibasappa, (J) took the same view but with this difference that the payment of the balance of the purchase money shall not be made condition precedent for obtaining possession. The purchaser''s suit for possession will be decreed but in the decree at the same time, there will also be a declaration of vendor''s charge with the: direction that the vendor could on payment of the, court fee recover the amount by sale of the property.

This Court in Rastam Rao v. Vithoba 26 DLR 726 (K), Laxman v. Sombargir Chela 2 Nazair Osmania 305(L) and Ketri Antiah v. Tadanpur Kishtiah 3 Nazair Osmania 682(M) had held the view that the suit by vendee for possession should be decreed unconditionally and vendor''s lien may, however, be enforced by a separate action. In Sayeed Bin Saleh v. Nand 33 DLR 715(N), however, the iew taken up by the Bombay High Court was followed and a decree for vendor''s money with a charge on the property was granted.

Thus the recent trend of decision seems to favour the view that no separate action is necessary and the vendor''s lien may be recognized and enforced in the same action. But it may, however, be noted that it is a relief that can be granted on equitable grounds in the action brought by the vendee. So then unless the material is full and complete to enable us to arrive at a definite conclusion we are not bound to grant such relief in this action.

In the present case it is apparent that Rs. 3,000/- were admittedly not paid at the time of the execution of the sale deed. The Plaintiff, however, has produced a receipt in the shape of an agreement bond wherein it is mentioned that Rs. 2,900/- were advanced to the Defendant on different occasions and Rs. 100/- were paid in cash at the time. The witnesses are examined to the extent of Rs. 100/- paid in cash at the time, of the receipt, but the evidence has not been let in to prove previous advancements.

The account books which must be in possession of the Plaintiff are not produced. Plaintiff himself has not come in the witness box. Shaik Umar no doubt has stated that the accounts were rendered at the time of the receipt. But when the Defendant denies the same, it was the duty of the Plaintiff to produce the account books.

It is stated that as this was not a suit whereto the Plaintiff had to establish to the hilt the payment of purchase money to get the relief claimed, he did not think it necessary to produce further evidence than the admission of the Defendant himself and the sworn testimony of some of the witnesses. When we peruse the deposition of the Defendant himself, the fact that there were in sooth dealings between the parties and the Plaintiff used to pay amounts becomes obvious.

The Defendant admits that he an inhabitant of a distant village is acquainted with the Plaintiff for the last eight or ten years and that the Plaintiff had paid Rs. 200/- once and Rs. 700/- to the pleader on his behalf in connection with the murder charge in which the Defendant was involved. The repayment of Rs. 700/- is not alleged by the Defendant in his statement. Rs. 500/- admittedly were paid at the time of registration and the proof of its return is most unsatisfactory and incredible.

Thus on the basis of the material on record it is difficult to state with precision whether any part of purchase money is yet unpaid and if so how much. When the Defendant has yet a right to sue for his money if due and has in fact a statutory charge for the same u/s 55(4) (b), Transfer of Property Act, we do not wish to consider his claim-in this action brought by the Plaintiff.

We are of the opinion that this appeal must be allowed and the Plaintiff''s suit for possession be decreed. We allow the appeal accordingly and, decree the suit of the Plaintiff with costs of all the Courts for possession of the suit lands and, also for declaration of his right to record his name in the shikmidari register in place of the Defendant.