T.P. Naik, J.
1. This is a second appeal by the plaintiffs-appellants.
2. The suit of the plaintiffs-appellants, which was for a declaration of their title to and possession of certain agricultural lands situate in village Ghat Pipariya, tahsil Multai, district Betul, was, inter alia, based on the following allegations; that the suit fields belonged to the mother of the plaintiffs-appellants who were Gond illiterate women; that on the death of their mother, the suit fields along with some other fields were inherited by them; that after the death of their mother, the husband of plaintiff Koze looked after her fields; that the husband of Koze also died a few years before the filing of the suit; that the defendant-respondent, who was also a Gond, taking advantage of the illiteracy of the plaintiff Mst Koze, induced her to go and live with him with a view to exploit her ignorance; that during the course of her stay with the defendant, the latter fraudulently got a sale deed executed by Mst. Koze in his favour on or about the 18th of February 1963; that thereafter the defendant induced the plaintiff Koze to go with him to Multai for the registration of the deed telling her that she had only to execute a theka-chitthi in respect of the suit fields in favour of the defendant on condition that the defendant would maintain her and give her Rs. 40/-per year as maintenance allowance; that instead of getting a theka-chitthi executed, the defendant fraudulently got a sale deed executed by her for an ostensible consideration of Rs. 1,000/-; that the plaintiff Mst. Koze did not receive the said consideration nor any part of it then or ever; that the document was not read over to her nor explained to her; that at the time of the registration one currency-note was handed over to her which was subsequently taken back from her by the attesting witness Zanak; that after the execution of the said deed of sale, the defendant turned the plaintiff Mst. Koze out of his house; and that the deed of sale dated 18-2-1963 was obtained from her by fraud and was invalid and ineffective against her. In the result, the plaintiff Koze claimed that it be declared that the sale deed aforesaid was a bogus and fraudulent document and that possession of the suit fields be restored to her.
3. The defendant-respondent contested the suit alleging, inter alia, that the plaintiff Mst. Koze was the sole and exclusive owner of the suit fields; that she had sold them to him of her own free will and volition; that he had practised no fraud or undue influence on her to induce her to execute the sale deed in question in his favour; that the consideration mentioned in the deed of sale had been paid to the plaintiff Koze; that the suit had been brought by her at the instance of one Jiyalal who was financing the litigation and who had an eye on the fields.
4. The trial Court dismissed the suit holding that the suit fields belonged to Mst. Koze and that she had executed the sale deed in question of her own free will and for a consideration. It further held that there was no fraud or undue influence practised on the plaintiff Mst. Koze to induce her to enter into the transaction in suit. On appeal, the judgment and decree of the trial Court were affirmed by the Additional District Judge, Betul.
5. In this second appeal, the learned counsel for plaintiffs-appellants contends that on the fact and circumstances of the case it should have been held that the transaction in question was vitiated because of fraud and undue influence. The facts and circumstances on which he contends that the inference of fraud and undue influence should be drawn are as follows: that the woman (the plaintiff Koze) was a Gond widow; that she was illiterate with no male member to help or guide her in her decisions; that the amount of the consideration had not been paid before the Sub-Registrar and, according to the plaintiff Mst. Koze, no amount of the sale consideration had ever been paid to her and that a currency-note of Rs. 100/-, which was given to her before the Sub-Registrar, had been taken back from her by one of the attesting witnesses after the registration of the sale deed; that the purchaser had admitted that he had not seen the fields before their purchase by him; that the defendant-purchaser had not made any enquiry as to why Mst. Koze was selling the suit fields; that the suit fields measuring about 13 acres and odd constituted Mst. Koze's entire property and that they were the sole means of her livelihood; that there was no evidence that the defendant-purchaser had even seen the revenue papers relating to the suit fields; that there was no receipt to evidence the payment of Rs. 700/- to the plaintiff Mst. Koze prior to the execution and registration of the sale deed; and that the defendant-purchaser could not say what the real value of the fields was on the date of the sale. On the other hand, the facts and circumstances on which the learned counsel for the defendant-respondent relies for contending that there was no case of any undue influence or fraud are: that the plaintiff Mst. Koze lived with her brother-in-law Nazarsingh from whom she could take advice if it became necessary for her to do so; that, according to the defendant, the plaintiff Mst. Koze had bargained regarding the consideration for sale--she had initially asked for a price of Rs. 1,100/- and the bargain was ultimately struck at Rs. 1,000/-; that she had independent advice from the said brother-in-law of hers named Nazarsingh and could not, therefore, complain that she had no independent advice from anybody.
6. It cannot be gainsaid that the suit fields were the sole means of livelihood of the plaintiff Mst. Koze who was an ignorant, illiterate Gond widow. The defendant-respondent, even though a Gond, was a male and the evidence on record shows that he was certainly in a better position to strike an advantageous bargain with the plaintiff Mst. Koze. It is stated by 'Kerr on Fraud and Mistake', Seventh Edition, page 223, that-
'The principle on which the Court acts in relieving against transactions on the ground of inequality of footing between the parties is not confined to cases where a fiduciary relation can be shown to exist, but extends to all the varieties of relations in which dominion may be exercised by one man over another, and applies to every case where influence is acquired and abused, or where confidence is reposed and betrayed. Indeed, there is no fixed limit to this equity to set aside transactions on this ground. In cases where a fiduciary relation does not subsist between the parties, the Court will not, as it does where a fiduciary relation subsists, presume confidence put and influence exerted; the condence and the influence must in such cases be proved extrinsically, but when they are proved extrinsically the rules of equity are just as applicable in the one case as in the other.'
In tbo leading case of Allcard v. Skinner, (1887) 36 Ch D 145 at P. 182, Lindlay, L. J. said:
'It would obviously be to encourage folly, recklessness, extravagance, and vice if persons could get back their property which they foolishly made away with. . . . On the other hand, to protect people from being forced, tricked or misled in any way by others into parting with their property is one of the most legitimate objects of all laws.'
7. In Inche Noriah v. Shaik Allie Bin Omar, 1929 AC 127, a Malay woman, who was a widow of great age and wholly illiterate, had executed a deed of gift of landed property in Singapore in favour of her nephew who had the management of all her affairs. Before executing the deed, the donor had independent advice from a lawyer who was held to have acted in good faith. He was, however, unaware that the gift constituted practically the whole of the donor's property and did not bring home to her mind that she could more prudently and equally effectively benefit the donee by bestowing the property upon him by will. Their Lordships of the Privy Council set aside the gift holding that-
'In their Lordships' view the relations between the appellant and respondent are correctly summarized in the judgment of the trial Judge, and they are amply sufficient to raise the presumption of the influence of the respondent over the appellant and to render it incumbent upon him to prove that the gift was the spontaneous act of the appellant, acting trader circumstances which enabled her to exercise an independent will, and which justified the Court in holding that the gift was the result of the free exercise of her will.' (p. 133).
XXX XXX XXX
It is necessary for the donee to prove that the gift was the result of the free exercise of independent will. The most obvious way to prove this is by establishing that the gift was made after the nature and effect of the transaction had been fully explained to the donor by some independent and qualified person so completely as to satisfy the Court that the donor was acting independently of any influence from the donee and with the full appreciation of what he was doing; and in cases where there are no other circumstances this may be the only means by which the donee can rebut the presumption.' (p. 135).
8. In Fry v. Lane, (1888) 40 Ch D 312, the poverty and ignorance of the vendor were held enough to throw the burden of proof on the purchaser. The result, said Kay, J., 'is that where a purchase is made from a poor and ignorant man at a considerable undervalue, the vendor having no independent advice, a Court of equity will set aside the transaction. ...... The circumstances of poverty and ignorance of the vendor and absence of independent advice throw upon the purchaser the onus of proving, in Lord Selborne's words, that the purchase was fair, just and reasonable'.
9. In the instant case, the plaintiff vendor, besides being a member of a scheduled tribe, viz., 'Gond', was a woman and illiterate. There is no adequate proof that she had independent advice. There is no convincing proof that the sale consideration was paid to her. The suit property constituted her entire property on which her livelihood depended; and there is nothing on record to establish that she was, for some reason, in urgent need to sell the property in suit. According to the plaintiff Mst, Koze, the stamp for the purchase had not been purchased by her but by the vendee and that the document had never been read over to her. According to Karansingh (P. W. 3), the suit fields were worth about Rs. 3,000/- at the time of the sale; while, according to Biraj (P. W. 4), they were worth Rs. 4,000/- in 1965 when he was examined. No doubt, these were estimates of the witnesses; but then the defendant-vendee himself says that he could not say what the value of the lands on the date he was examined was, nor could he say what the value of the lands was on the date of the purchase, which amply suggests that he did not want to commit himself to the position that he had purchased the suit lands at an undervalue. The evidence of the defendant Makhansingh, who was examined as D. W. 1, was read over to me; and, in my opinion, that evidence does not satisfactorily establish that the transaction was fair and above-board.
10. In the result, I am of opinion that the sale deed dated 18-2-1963 must be set aside on the ground of undue influence and fraud and as the initial burden which lay on the plaintiff Mst. Koze that she had been the victim of a fraud had been discharged by her and the defendant-respondent had not been able to establish that the sale was fair, reasonable and equitable.
11. The appeal is, therefore, allowed and the suit of the plaintiffs-appellants is decreed with costs throughout. The judgments and decrees of the Courts below are hereby set aside.