S.K. Ray, J.
1. This appeal is by defendant No, 2 from the order dated 17-7-1971 passed by the Subordinate Judge in the final decree proceedings whereby the application of one Hadibandhu Panda under Order 22, Rule 10, Civil P. C. to be impleaded as a party in that proceeding as the legal representative of the deceased plaintiff. Surivamoni Dibya, has been allowed on the basis of a deed of gift executed by the said Surjyamoni Dibya in his favour, after holding the said deed of gift to be valid and genuine.
2. The facts leading upto the present proceeding may now be briefly stated. Suriyamoni Dibya filed a partition suit (T.S. No. 84 of 1950) on 23-11-1950 against respondent No. 2 as defendant No. 1 and appellant as defendant No. 2. A preliminary decree was passed on 22-9-1951. An appeal from this decree was carried to this Court by Respondent No. 1 in F. A. No. 6 of 1952 which was ultimately dismissed. Thereafter. Surjyamoni started final decree proceeding. During its pendency, a joint petition was filed by the parties to drop that proceeding on the ground of amicable settlement of disputes between, them, This joint petition was dismissed on 28-7-1966. and M. A. 164 of 1966 was filed in this Court against that order of dismissal. One day prior to the dismissal of this joint petition, that is on 27-7-1966. Suriyamoni Dibya executed a deed of gift in favour of Hadibandhu Panda in respect of her properties including what she got in the partition suit. Thereafter, Hadibandhu filed his petition under Order 22, Rule 10, Civil P. C. on 5-9-1966 in the Court of the Subordinate Judge for being substituted in place of Suriyamoni, and to carry on the final decree proceeding. Suriyamoni died on 11-10-1967. Subsequently on 5-1-1970 M. A. No. 164/66 was disposed of containing the following direction:--
'The status of Hadibandhu Panda who had applied in the Court below to be substituted under Order 22, Rule 10, Civil P. C. in place of the plaintiff has to be first determined. In case it is found that the plaintiff's interest devolved on Hadibandhu. Hadibandhu would be competent to support the objection which had been filed earlier to the dropping of the final decree proceeding. In case Hadibandhu loses his stand, there would be no occasion to make any further enquiry into the proceeding as the legal representatives of the plaintiff would be the defendants.'
Thereupon, an enquiry was made into the allegations contained in the petition of Hadibandhu under Order 22, Rule 10, Civil P. C. and the counter allegations of the appellant and respondent No. 2 which they had separately made in their counters. All the contending parties to this proceeding adduced their respective evidence on the question of validity of thedeed of gift executed by Surivamoni Dibya in favour of Hadibandhu, Ultimately, the Subordinate Judge by his order dated 17-7-1971 held that the deed of gift was a valid and genuine one and the interest of Surivamoni Dibya developed on Handibandhu by virtue of that gift deed and directed that he should be impleaded as a party to the final decree proceeding. It is from this order that this appeal has been preferred.
3. The objections of the appellant and of respondent No, 2 were, in substance, (a) that the deed of gift was a fraudulent, inoperative and invalid deed, and (b) the Hadibandhu had obtained this deed from Surivamoni an illiterate paradanasin lady, by exercising undue influence on her. They raised a third objection, which is no longer pressed here, that the claim of Hadibandhu to be the legal representative of Suriavamoni must be held to be barred by constructive res judicata because he was allowed in C. R. No. 209 of 1968 by this Court to be impleaded as a necessary party on the strength of the deed of sift in the adoption suit No. 16 of 1965 filed by the present appellant on condition that he paid Rs. 100/- as costs to the opposite party in C. R. No. 209/68 but failed to get himself impleaded on account of his default in paying the costs.
4. The Subordinate Judge held that the impugned deed of gift was a genuine document validly executed by Surjyamoni Dibya after due compliance of all legal requirements in that regard and that the interest of Surjyamoni devolved on Hadibandhu in pursuance of that deed of gift and directed that he be added as a party to the final decree proceeding.
5. The main contentions here are that the impugned deed of gift was obtained from Surivamoni by exercise of undue influence and that the said deed of gift has not been Droved to be the product of Surjvamoni's mental act she being admittedly an illiterate paradanasin lady.
The ground of challenge of the validity of the deed of gift has been set out in para. 7 of the petition of objection of defendant No. 2. the appellant The averments of that paragraph are as follows :
'7 That the real facts are that the deceased Survamoni Dibya was a pretty old lady aged about 80 years and the said Hadibandhu Panda who is a most mischievous litigant in order to have illegal gain won over her and created confidence on her and the said Survamoni Dibya having been cheated by one Sanatan Khadanga who created false documents to grab the properties of her became a victim to the mischievous design of the said Hadibandhu Panda who in her anxiety to look after the litigation in different Courts then pending executed and registered a power of attorney in his favour and as such was completely under the clutches of the said Hadibandhu Panda who dominated her will.'
To the same effect is the objection of defendant No. 1. His case is that one Sanatan Khadanga was acting as the authorised agent and Power of Attorney Holder of Suryamani in her partition suit After passing of the preliminary decree, the said Sanatan Khadanga and his sons managed to obtain a deed of gift purported to have been executed by Survamoni in favour of said Sanatan Khadanga and his sons though in fact that deed of sift was executed by another lady Chandramani Dibya falsely impersonating Survamoni Dibya. This led to institution of a criminal case against Sanatan Khadanga and some others. During the pendency of that criminal case, respondent No. 1 extended his help to Suryamoni and acted for her under a power of attorney obtained in the year 1965. Since then Suryamoni was completely under the clutches of the said Hadibandhu. who was in a position to dominate her will. Taking advantage of her weak physical condition he brought her to Cuttack and fraudulently got a deed of gift executed in his favour. That deed of gift is forged, fabricated and never saw the light of the day till 5-9-1966. when the petitioner filed the present application for substitution under Order 22. Rule 10. Civil P. C. After reciting these facts this defendant No. 1 proceeded to say that--
'That the defendant believes that the petitioner has thus obtained a gift deed by exercising undue influence, fraud and coercion upon an illiterate old lady of 80 years, who was not in a sound state of mind for about three years before her death due to her prolonged sufferings from asthma. Such a deed of gift as alleged by the petitioner was never acted upon at all nor has been accepted nor possession delivered thereunder.'
6. The first question to be considered is whether the deed of gift was the mental act of Survamoni. The evidence in this regard is to be scanned in the context of the law which has thrown a special cloak of protection on the paradanashin ladies as regards documents taken from them. This scope of such protection has been elaborated in the case of Mst Kharbuja Kuer v. Jangbahadur Rai, AIR 1963 SC 1203 their Lordships said that--
'As regards documents taken from pardanshin women the Court has to ascertain that the party executing them has been a free agent and duly informed of what she was about. The reason for the rule is that the ordinary presumption that a person understands the document to which he has affixed his name does not apply in the case of pardanashin women. The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardana-shin lady to establish that the said document was entered into by her after clearly understanding the nature of the transaction. It should be established that it was not her physical act but also her mental act. The burden can be discharged not only by proving that the document was explained to her and that she understood it but also by other evidence, direct and circumstantial.'
The burden of proof is obviously on Hadibaridhu. That onus can be discharged by proving that the document was explained to her and that she executed the document after understanding the contents thereof. This burden has sought to be discharged by examining 3 witnesses, P. Ws. 1, 2 and 3. P.W. 1 is the attesting witness and is also the cousin of Suryamoni. He deposed that he read over the contents of the document and explained the same to her and she put her thumb mark after understanding the contents thereof. Of course P. W. 1 does not expressly say that Suryamoni understood the contents of the document, but the statement that he read and explained the contents to her and thereafter Suryamoni gave her thumb mark is clear evidence that she executed the document after understanding its contents, That also proves that independent advice was available to her from P. W. 1. P. W. 3 affords adequate corroboration to the testimony of P W. 1 and the Court below has rightly relied upon his evidence (P. W. 3's) as he has not been shown either to be interested in Hadibandhu or inimical towards the appellant and respondent No. 2. Thus the burden laid by law upon Hadibandhu to prove that this deed of gift was a mental act of Suryamoni has been sufficiently discharged.
7. There are some circumstances in the case indicated hereinbelow which greatly probabilise the fact that Suryamoni executed the deed of gift voluntarily and with full knowledge of the implication of the said transaction. There was long standing enmity between Survamoni on the one hand and defendants 1 and 2 on the other since 1950. The partition suit was instituted in the year 1950 and the order sheet of that suit will show that they were contesting every interlocutory proceedings in the suit and the losing party used to go up in appeal. The inimical complex of defendants 1 and 2 towards Survamoni which bad originated in 1950 did not cease even after passing of the preliminary decree in the partition suit or after dismissal of F. A. No. 6/52 from that preliminary decree. After being defeated in that partition suit, the defendant No. 2 filed an adoption suit (T. S. No. 16/65). It was well known to Survamoni that upon her death, her property would go to the defendants 1 and 2 and it would be natural for her to see that her enemies did not profit from her. Hadibandhu had married Kamala, who is the sister's daughter of Survamoni and whom Survamoni had fostered. Normally Survamoni will be attached to Kamala and Hadibandhu. her husband. It will, therefore, be very natural for her to think of giving away all her properties to Hadibandhu. her fostered daughter's husband since she had no other natural heir, so that her deadly enemies, defendants 1 and 2, would not have the chance to get the properties by inheritance from her. There is another circumstance which goes to show the bona fide character of the transaction evidenced by deed of gift which is that the deed of gift was registered on 27-7-1966 and was taken return from the Sub-Registrar's office on 26-8-1966 and thereafter Hadibandhu filed this application under Order 22, Rule 10, Civil P. C. on 5-9-1966. Survamoni died on 11-10-1967 about one year thereafter. This defendant never filed any objection to that application under Order 22. Rule 10, Civil P. C. until Survamoni died. These chronological dates show that Hadibandhu acted bona fide in filing his application under Order 22. Rule 10, Civil P, C. which he would not have dared to do during the lifetime of Survamoni, if that transaction was a fraudulent one or had been effected by exercise of undue influence upon Survamoni. The defendants also did not like to join the issue with Hadibandhu on the validity of the deed of gift during the lifetime of Survamoni, presumably because they had no clear evidence in support of fraud or undue influence and that they thought it inadvisable to concoct any false evidence during her lifetime because if that issue came to trial during Survamoni's lifetime the manufactured evidence would be short lived. Further, it will be seen that the question of fraud and plea of adoption raised by defendant No. 2 is an afterthought. In C. R. No. 209/69 which was directed against an order passed in the adoption suit (T. S. No. 16/65) rejecting the application of Hadibandhu under Order 1, Rule 10, Civil P. C. to be impleaded in that suit on the footing of the deed of gift, the appellant and respondentNo. 2 who were also parties in that Civil Revision did not attack it as having been obtained by fraud or undue influence. This Civil Revision was disposed of by this Court on 5-11-1969. It is only when they filed their objections to the petition under Order 22. Rule 10, Civil P. C. In the month of November or December, 1970 that the plea of fraud and undue influence was raised. Similarly, defendant No. 2, who contested Suryamoni's partition suit never raised the plea of adoption in that suit Thus the defendant No. 2 appellant and the respondent No. 2 branded themselves as not very straightforward persons and made their story of fraud and undue influence greatly suspect.
8. I will now proceed to deal with the question of undue influence and fraud. The Rule of pleading is clear that where fraud is alleged as having been perpetrated on pardanashin lady in getting a document from her. the party alleging fraud must set out clearly the particulars of fraud. No such particulars of fraud have been disclosed in the objection petition of the appellant or respondent No. 2 except a bare assertion of fraud. This plea of fraud must be dismissed as not entertainable.
The law also requires that the party who raises a plea of undue influence shall also set out full particulars thereof. The plea of undue influence must be precise and all necessary particulars in support of the plea must be embodied in the pleading. Regarding the doctrine of undue influence, the Supreme Court in the Case of Ladli Parshad Jaiswal v. The Karnal Distillery Co. Ltd., Karnal, AIR 1963 SC 1279 has said as follows:
'A transaction may be vitiated on account of undue influence where the relations between the parties are such that one of them is in a position to dominate the will of the other and he uses his position to obtain an unfair advantage over the other. It is manifest that both the conditions have ordinarily to be established by the person seeking to avoid the transaction: he has to prove that the other party to a transaction was in a position to dominate his will and that the other party had obtained an unfair advantage by using that position. Clause (2) lays down a special presumption that a person is deemed to be in a position to dominate the will of another where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other or where he enters into a transaction with a person whose mental capacity is temporarily or permanently affected by reason of age. Illness or mental or bodily distress. Where it is proved that a person is in a positionto dominate the will of another (such proof being furnished either by evidence or by the presumption arising under Subsection (2)) and he enters into a transaction with that other person which on the face of it or on the evidence adduced, appears to be unconscionable the burden of proving that the transaction was not induced by undue influence lies upon the person in a position to dominate the will of the other. But the presumption will only arise if it is established by evidence that the party who had obtained the benefit of a transaction was in a position to dominate the will of the other and the transaction is shown to be unconscionable. If either of these two conditions is not fulfilled the presumption of undue influence will not arise and burden will not shift'
In the case of Subhas Chandra Das Mushib v. Ganga Prosad Das Mushib, AIR 1967 SC 878 it is said :--
'The Court trying a case of undue Influence must consider two things to start with namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor, and (2) has the donee used that position to obtain an unfair advantage over the donor Upon the determination of these issues a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other.
Merely because the parties were nearly related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arise. Generally speaking the relations of a solicitor and client, trustee and cestui que trust, spiritual adviser and devotee, medical attendant and patient, parent and child are those in which such a presumption arises.'
9. There is no evidence worth the name to prove that Hadibandhu was in a position to dominate the will of Survamoni and that he used his oosition to obtain an unfair advantage over her by getting her to execute the impugned deed of gift. The circumstantial evidence, indicated earlier, clearly shows that the transaction appears to be a natural one on the part of Survamoni, who has been harassed by the defendants in protracted series of litigations and it is Hadibandhu who has been helping her in such litigations. Defendant No. 2, who has examined himself, has stated that he did not know of Suryamani executing any gift deed in favour of Hadibandhu. It showsthat he was ignorant of the circumstances immediately preceding the execution of the deed of gift by Survamoni. If so, all his objections that the deed of gift was obtained by fraud or by undue influence stand self-condemned as without any factual basis. The other witnesses examined on his behalf have not Droved any circumstance which would go to show that Hadibandhu was in such a position or held such a real or apparent authority or stood in such a fiduciary relationship with Survamoni that a presumption could legitimately arise that he was in a position to dominate the will of Survamoni and utilised that position to obtain the deed of gift from her. One fact stressed upon by the appellant in support of his plea of undue influence is that the execution and registration of the deed of gift took place at Cuttack instead of at Baramba, where there is a Sub-Registrar's Office near their house. Satisfactory explanation has been given. It is said that the reason for coming to Cuttack was that the Khatians from which the property list was to be prepared were with her Advocate at Cuttack.
10. Thus, on the aforesaid analysis of the evidence and circumstances in the legal perspective stated above my conclusion is that the deed of gift was the mental act of Survamoni. She executed that deed after it was read over and explained to her and she understood its contents. At the time of execution of the deed of gift independent advice from P. W. 1. a relation of hers, was available. Hadibandhu was not in a position to dominate the will of Survamoni nor did he utilise that position to obtain an unfair advantage from her in the shape of the impugned deed of gift. It is more likely that having regard to the long standing and protracted litigations Survamoni had with defendants 1 and 2. she wanted to gift away her properties to Hadibandhu, who happened to be the husband of her foster daughter. The plea of fraud or undue influence raised by defendant No. 2 appellant is a belated one and an afterthought not having been raised in the earlier proceeding in C. R. 209/68 and not having been raised during the lifetime of Survamoni. The plea of undue influence raised by defendant No 2 appellant in view of his own testimony that he was ignorant of the execution of the deed of gift, and, as such, could not obviously be cognizant if the transaction was brought about either by undue influence or fraud, must be discarded as not substantiated. I am, therefore, of opinion that the Sub-Judge was justified in holding that the deed of gift executed by Survamoni in favour of Hadibandhu was a genuine and valid document, that it was the product of Survamom's mental act and that the said transaction was not affected by undue influence and fraud, and that therefore, in pursuance of that deed of gift interest of Survamoni devolved on Hadibandhu Panda. He has, therefore, been rightly impleaded as a party in the final decree proceeding.
11. In the result, therefore, there is no merit in this appeal, which is accordingly dismissed with costs.