S.K. Ray, J.
1. This appeal is by the defendants from the confirming decision of Sri R. C. Jena, Subordinate Judge, Nayagarh, dated 7-11-69, passed in Title Appeal Nos. 36/28 of 1968, decreeing the plaintiff's suit.
2. There were two brothers, Hats and Nata. Plaintiff 1 is the widow of Nata who died on 18-6-64. Plaintiff 2 is his daughter. Defendants 1, 2 and 3 are the sons of Hata, and defendant 4 is the minor son of defendant 2, In a partition between these two brothers, the properties described in Schedules Ka and Kha of the plaint, the total extent of which is 2.50 acres, fell to the share of Nata. There was a maintenance proceeding under Section 488, Cr. P. C. by plaintiff 1 against her husband, Nata, in which the claim for maintenance was allowed. To satisfy the order for maintenance, Nata transferred Kha Schedule properties to his wife, plaintiff 1, and put her in possession on 17-10-47, and since then plaintiff' 1 is in possession, and by virtue of the Hindu Succession Act, 1956, she has become the absolute owner of the same. Thereafter Nata executed a sale-deed in respect of Ga Schedule properties in favour of defendants 1 to 3 on 20-11-52. On the same date he also executed another sale-deed in favour of defendants 1 and 2 in respect of Gha Schedule properties. These sale-deeds are alleged to be nominal transactions brought about by exercise of undue influence by these defendants 1 to 3 on Nata Bhol who was pretty old at the time. It is also averred that these sale transactions were without payment of any consideration, and that there was in fact no subsisting necessity for Nata Bhol to sell away these properties. Despite the execution of these two sale-deeds Nata continued to be in possession of these properties till his death. In the year 1961, plaintiff 2 became aware of these benami and illegal sale transactions, and complained to the village Bhadralokas about them. There was a settlement upon which defendants 1 to 3 agreed, in writing on 15-1-61, to transfer the lands in Schedules Ga and Gha in the name of Kuber Padhan, son of plaintiff 2. They, however, defaulted in carrying out the said agreement. Thereupon plaintiff 2 complained to the Lodhachua Grama Panchayat on 23-2-61 and also reported about it to Ranpur Tahasildar. An inquiry was made and a report was submitted by the Grama Panchayat on 30-5-61. It is said that at the time of inquiry Nata was alive and it was admitted by him before the inquiring officer that the sale-transactions of 20-11-52 were without consideration. No action was taken on the report because the matter was one of a civil dispute. Thereafter defendants 1 to 3 again on 13-7-62 obtained a fraudulent gift-deed from Nata in favour of defendant 4 in respect of the residential house and some other lands described in plaint-schedule Una, and it is said that this gift-deed was not acted upon and was invalid.
3. The defendants resisted the suit. It is admitted that Kha Schedule lands were given to plaintiff 1 towards her maintenance, but as she, being a female, could not cultivate the same, she took the help of defendant 3 who cultivated the same and paid half the produce to her for the last 17 years or more. Defendant 3, therefore, claims tenancy right in respect of Kha Schedule lands under plaintiff 1. Nata had incurred some loans to meet his litigation expenses in the maintenance proceedings and thereafter, when plaintiff 1 along with her daughter deserted him, he felt helpless and incurred further loans for his own maintenance. So, to clear the loans and to pay rent for his lands and to meet his other expenses Nata sold away his properties to defendants 1 to 3. Since their purchase in 1952, defendants 1 to 3 have duly mutated their names and are in peaceful possession of the suit-lands by paying rent for the same. They deny the plaint-allegations that they exerted any undue influence on Nata Bhol for these impugned transfers. They further assert that Nata Bhol, out of his own free-will, gifted away the Una Schedule properties to defendant 4. The defendants are in possession of the properties-insult in their own right, title and interest.
4. Nine issues were framed out of Which issue Nos. 6, 7 and 8 are the main issues in the case. They are:
'(6) Whether the sale-deeds executed by Nata Bhol in favour of defendants 1 to 3 are nominal and without consideration?
(7) Whether the gift-deed executed by Nata Bhol in favour of defendant 4 is legal, valid and binding on the plaintiffs? and
(8) Whether the plaintiffs are in possession of plaint Ka and Kha Schedule properties?.'
It may be stated here that the defendant-appellants do not press their appeal so far as Kha sch. lands are concerned. The result is that the suit must succeed in regard to that schedule of properties. The main dispute in this appeal, therefore, relates to properties in schedule Ga, Gha and Una.
5. The findings of the courts below are that no consideration was paid in respect of the impugned sale-deeds and Nata had no intention to convey title independent of payment of consideration, and therefore, the transferees acquired no title. The gift-deed is ineffective to convey title as the same has not been acted upon. Regarding possession it was found that Nata was in possession of the suit-lands along with the defendants, till his death in 1964.
6. As stated above, both the Courts have concurrently found that no consideration was paid under the two impugned sale-deeds, exts. A and B. In reaching this conclusion the Courts below have relied upon the patent discrepancy between the recitals in these documents and the evidence regarding the necessity for sale, and upon the fact that no details were set out in the written statement as to the identity of the person from whom Nata Bhol incurred previous loans. In evidence, the defendant's story is that the consideration was paid on the date of registration of the sale-deeds while in the written statement it has been stated that the consideration was by way of adjustment of the previous loans incurred by Nata from the defendants. Relying strongly on these circumstances, and feeling that in the context of these facts the testimony of defendant 3 as to payment of consideration is unacceptable without corroboration of which there was none on record, the aforesaid finding has been rendered. That finding must, therefore, stand and the contention that there is no evidence to reach this finding has no basis.
7. It is next contended that even assuming that there was no payment of consideration, the intention of the parties was that title would pass immediately upon registration and that it was not to be postponed till after the payment of consideration. The settled position is, that the intention is to be gathered from the recitals of the sale-deeds in question, without external aid, where they are clear and unambiguous. If the recitals are ambiguous or indecisive, the surrounding circumstances and the conduct of the parties will be relevant consideration.
According to the recitals of these sale-deeds, which I have perused, the conveyances were made in repayment of loans already incurred. In view of these express terms, no intention can be inferred that the vendor intended to convey title without being paid proper consideration. If there had been clear recital that the executant conveyed title in favour of the vendee from the date of execution of the document and the recital regarding consideration came later, independent of the clause regarding title, then it could be inferred that the parties intended that the title would pass independently without the question of consideration. Further, in view of the finding that the recitals are untrue, it may be said that an ambiguity or indecisiveness has crept into those two documents, and the surrounding circumstances have, therefore, to be looked into to gunge the intention of the parties. Such Surrounding circumstances are that Nata Bhol had been deserted by his wife when he was about 52 years or so old, and he was living with defendants 1 to 3 and enjoying his lands together with defendants 1 to 3. D.W. 2 has categorically stated;
'Nata Bhol and defendants I to 3 were all remaining together, and were enjoying the lands together. Nata Bhol was using the usufruct of his lands till his death.'
He also died while living with defendants 1 to 3. Some stress Is sought to be laid by the appellants on the fact that the custody of these documents came from them, but in view of Nata's joint mess and residence with them, it is of no importance. Even considering all these surrounding circumstances, 'the reasonable conclusion is that Nata Bhol never intended that he would convey title of his properties to these defendants independently of the payment of consideration.
The lower appellate Court has dealt with this question in paragraphs 9 and 10 of his judgment and has, in my opinion, considered all the relevant circumstances, and come to the right conclusion.
8. The next question is whether the plaintiffs have established that the conveyances and the gift-deed were obtained from Nata Bhol by exercise of undue influence. Section 16, Sub-section (1) of the Contract Act provides that 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, and Sub-section (2) provides that in particular and without prejudice to the generality of the provisions in Sub-section (1), a person is deemed to be in a position to dominate the will of another, where he stands in a fiduciary relation to the other, or where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason, inter alia, of mental or bodily distress. Sub-section (3) provides that 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 lie upon the person in a position to dominate the will of the other.
In this case it appears from the evidence that Nata Bhol was deserted by his wife and had been compelled by the latter to pay maintenance to her. There was nobody to look after him except these defendants who are his brother's sons. Though he had separated from his brother, nevertheless he was allowed, after his wife left him, to remain with the defendants jointly both in mess and residence. Nata Bhol was obviously under great mental distress on account of the desertion of his wife who had also taken away his minor daughter. Thus, the defendants were in a position to dominate the will of Nata Bhol. It has been found that no consideration had been paid and that a false recital of payment of consideration was made in the sale-deeds, and thus, the transactions of sale appear to be unconscionable. In the context of these circumstances, the law requires that the burden of proving that 'these sale-transactions were not induced by undue influence shall He on the defendants.
9. Both the courts below in coming to the conclusion that there was no payment of consideration and that the defendants were in a position to dominate the will of their vendor, relied upon the evidence of the defendants and upon some documentary evidence which had been admitted in the case without objection. The Courts below, I am further of the opinion, have not erred in the matter of placing the onus wrongly in dealing with the issue of 'undue influence'. Thus, the finding of undue influence reached by the lower appellate Court is a question of fact. It would be pertinent to quote a passage in this connection from the decision of the Supreme Court in the case of Ladli Parshad v. Karnal Distillery Co., AIR 1963 SC 1279:
'Whether a particular transaction is vitiated on the ground of undue influence is primarily a decision on a question of fact. But 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.' In my opinion, this is not a case where, as already stated, either the onus has been wrongly placed or the finding is based on no evidence, or there has been substantial error or defect in the procedure. In view of the fact that no consideration had been paid under the impugned sale-deeds and that the vendor never wanted to convey his title without being paid for it, and that the sale-transactions have been vitiated on account of undue influence exercised by the defendants, the sale-transactions evidenced by Exts. A and B must be treated as void.
10. I will now take up the case relating to the gift-deed, ext. C. This gift-deed is in favour of the minor son of defendant 2. According to Sections 122 and 123 of the Transfer of Property Act, in order to effect a valid gift there must be a transfer of the immovable property made voluntarily and without consideration by the donor and accepted by or on behalf of the donee, and such transfer must be effected by a registered instrument signed by the donor and attested at least by two witnesses. In this case, defendant 2, father of the minor donee, has not been examined, and there is no evidence of acceptance. There are cases where mere possession by or on behalf of the donee may amount to acceptance of the gift. In the present case the evidence is that both the donor and the donee were residing in the same homestead jointly and the subject-matter of the gift-deed is a portion of the homestead enjoyed jointly by the donor and the donee. In such circumstances, mere possession, which is not an unequivocal factor, cannot be treated as evidence of acceptance. That apart, from the very fact that defendant 2 is alive and is the father of the donee, but has not come to the witness-box to depose to the acceptance, an adverse inference that there has been no acceptance is to be drawn and necessarily, therefore, it must be taken that the validity of the gift has not been established. Further, it also appears that the attestation has not been proved in this case.
11. For the aforesaid reasons, I am of the opinion that the decisions of the Courts below are correct, and there is no merit in this appeal which is accordingly dismissed, but in the circumstances, there will be no order as to costs of this Court.