R.N. Misra, J.
1. Not far away from the Town of Sambalpur and within that district lay the impartible estate of Kolabira until it was abolished by the Orissa Estates Abolition Act, 1951, in November, 1952. Succession to this estate was governed by the rule of primogeniture. At the close of the Nineteenth Century one Chintamoni Singh was the proprietor of this estate. He died on 21-12-1903 leaving behind a son, Nruplal Singh who was then aged about 17, a daughter and two brothers. The estate was taken over by the Court of Wards for management and was released to Nruplal on 15th of January, 1910. During the period the Court was in management, Nruplal had been given some schooling as also training in estate administration.
2. Sometime in the year 1939, Brusabhanu (defendant No. 1), a young man of the locality, came into employ-ment of the ex-proprietor. It is stated that he first served as a cleaner and soon became the proprietor's driver and was very much in his confidence. Nruplal was suffering from partial paralysis of the body and required constant assistance. Defendant No. 1 apart from rendering service as a driver was also giv-ing various other services to Nruplal. He had even been meddling in the domestic life of the ex-proprietor. Defendant No. 1 was thus in a position to dominate the will of Nruplal. By exercise of undue influence Brusabhanu prevailed upon Nruplal to execute an agreement (Ext. M/2) to sell the only house of the family at Sambalpur and about fifteen months after the agreement obtained a sale deed of this property purporting to be for a consideration of Rs. 7,500/- (Ext. B). The proper valuation of the - house would have been more than Rs. 30,000/- at the time of the sale. Nruplal had plenty of money and was never in need of it. There was no occasion for him to sell the property to raise funds for any necessity. It is stated that he was in affluent circumstances having a decent income from land revenue, forests and various other sources. A suit was filed on 26th of March, 1962, by Bira Mahendra, the eldest son of Nruplal and his son Dalim for cancellation of the sale deed (Ext. B) dated 28-6-1951 and for a declaration that the plaintiffs along with defendants 3 to 7 were entitled to the said property and they should be put into possession thereof on eviction of defendants 1 and 2, In October, 1965, the relief prayed for in the suit was amended and it was also claimed that there be a declaration that Ext. B does not bind the plaintiffs and defendants 3 to 7. During the pendency of the suit, Bira Mahendra died and his heirs were substituted. The genealogy given in the plaint is extracted below for convenience :--
| | | | | | |
Bira Jagada- Ashlya Kousalya Sarojini Man Mohini Bira Bikram
Mahendra nanda (D.5) (D.6) (D.10) (D.7) (D.9)
(died in 1963) ---------------------------
widow - Bishnu Priya | | |
(p-1/a) Krushna Girish Anil Kumar
| Chandra Chandra
| | | | |
Dalim Janak Kumari Kumud Rajendra Jagmohan
(P-2) (P-1/b) Kumari (p-1/c) (D.3) (D.4)
3. The disputed property is 28 decimals of land and a house standing thereon. The first defendant had alienated 9 decimals out of it under a registered sale deed dated 19-12-1960 (Ext. J) in favour, of the second defendant. These two defendants filed separate written statements. Brusabhanu claimed that Nruplal was a person of extravagant habits and was always in need of money. He had borrowed from him a sum of Rs. 2,000/- on 17-7-1949, Rs. 2,000/- on 3-9-1949, Rs. 2,000/- on 31-12-1949 and Rs. 1,500/- on 24-3-1950 in all Rs. 7,500/-under Ext. L series. He was unable tosatisfy the loans under these promissory notes and ultimately agreed to sell the property in dispute and entered into an agreement on 26th of March, 1950 (Ext. M/2) and in due course executed the sale deed (Ext. B). He claimed that he was only a driver and denied all the allegations of undue influence. He alleged that the suit was barred by limitation and the plaintiffs had no cause of action.
The second defendant supported the sale under Ext. B and laid claim to a part of the property purchased by him under Ext. J.
4. At the trial, plaintiffs examined eleven witnesses while on behalf of the defendants fifteen witnesses in all were examined. Both parties produced several documents. The learned Trial Judge came to the following findings:--
(i) The disputed property was not a joint family asset but was separate property in the hands of Nruplal and he was the exclusive owner thereof:
(ii) Parties were governed by Hindu Law;
(iii) The alienation under Ext. B was not vitiated by undue influence;
(iv) Ext. B was for consideration of Rs. 7,500/- and the said amount represented the true value of the property at the time of alienation;
(v) Plaintiffs have no right, title or interest in the property. Besides, they have also acquiesced in the impugned transaction;
(vi) Even if the property be held to have belonged to the joint family of which Nruplal was the karta, the alienation is justified by antecedent debts of the karta and the debts being not immoral, the alienation is binding on his children and grand children;
(vii) Defendant No. 1 is a bona fide purchaser and
(viii) The suit is barred by limitation. On these findings, the learned Trial Judge dismissed the suit.
5. Plaintiffs appealed to this Court and the first appeal was heard and disposed of by our learned brother B. K. Ray, J. Before the learned Single Judge, for the appellants, it was claimed that the disputed property was not the separate property of Nruplal and belonged to the joint family; the sale deed was not supported by consideration and, therefore, did not convey any title; the consideration of Rs. 7,500/- was grossly inadequate and, therefore, it must be held that the sale was not valid; there was no legal necessity and the sale was vitiated by undue influence exercised by defendant No. 1 over the transferor and the finding that the suit was barred by limitation was not sustainable.
Appellants filed two separate petitions under Order 41, Rule 27 of the Code of Civil Procedure for acceptance of additional evidence. The learned Single Judge dealt with these two applications in his judgment and directed some of the documents to be received in evidence while he rejected the claim in respect of some others.
On the basis of the evidence already on record and the new material received as additional evidence, the learned Single Judge came to hold that plaintiffs had signally failed to make out a case of undue influence. Dealing with the question of passing of consideration, the learned Single Judge held that the sale deed was for a consideration of Rs. 7,500/- and the same had passed. A further finding was recorded that Rs. 7,500/- as consideration for the disputed house was not grossly inadequate. On the question of limitation, the learned Single Judge agreed with the Trial Court that the suit was barred by time. Dealing with the question as to whether the property was joint family asset or separate property of Nruplal which came to be dealt with in paragraph 10 of the learned Single Judge's judgment, it was held that the disputed property belonged exclusively to Nruplal and even if it did not. by application ofthe doctrine of pious obligation, the children of Nruplal were bound by the alienation. On these findings, the appeal was dismissed.
6. Counsel for both sides agreed, on the authority of the recent decision in the case of Asha Devi v. Dukhi Sao (1975) 1 SCR 611 = (AIR 1974 SC 2048) of the Supreme Court that a Letters Patent Appeal does not suffer from the limitations of an appeal under S, 100 of the Code of Civil Procedure and we are, therefore, to examine the entire case on facts and in law.
7. In view of the pleadings, the decisions of the two courts and the arguments advanced at the Bar, we are of the view that the following aspects have be be considered for disposal of this appeal :--
(1) Is the alienation under Ext B vitiated by undue influence?
(2) Is the alienation supported by consideration and in case it is, is the consideration of Rs. 7,500/- grossly inadequate so as to vitiate the transaction?
(3) Did the house in dispute belong to Nruplal exclusively or was it an asset of the family?
(4) Is the suit barred by limitation?
We may now deal with each of these points seriatim. Point No. 1
8. Counsel for respondent No. 1 has contended before us that there is no adequate averment to sustain the plea of undue influence and, therefore, plaintiffs should not have been permitted to lead evidence at the trial for making out a case of undue influence. The entire plea of undue influence has to be found in paragraphs 4, 7, 7 (a) and 13 of the plaint. We think it worthwhile to extract these allegations in their original form :--
'4. That the defendant No. 1 being resident of Kolabira and a cultivator of few acres of lands was first appointed as a cleaner in 1936 and then as a driver about 6 years after, and served in those capacities for a pretty long time i. e. till the year 1953. Though appointed as a cleaner and driver he rendered all sorts of services to plaintiff No 1's ailing father who had crossed the age of 60 and thus made himself indispensable to his master, i. e. father of the plaintiff No. 1. In short, he had considerable influence on plaintiff No. 1's father and he was in a position to dominate the will of plaintiff's father so much so that he was the cause of the differences of opinion be-tween the plaintiff No. 1 and his fatherin many domestic matters in which thedefendent No. 1 intermeddled at times toserve his purposes.
7. That because of the influence and dominating position defendent No. 1 had on plaintiff No. 1's father, the defendant No. 1 managed to get a sale deed executed without the knowledge of the plaintiff and other members of the family in the year 1951 by the plaintiff No. 1's father. The sale deed contains many false recitals such as, the self-acquisition of the property and exclusive possession thereof, the advancement of the sale price of Rs. 7,500/- on 26-3-50 for house hold expenses end income-tax purpose and the like.
7(a). It appears from the recitals of the sale deed that defendant No. 1 has also taken some documents from plaintiff No. 1's father on or about 26-3-50 by exerting his influence without the knowledge of the plaintiff No. 1 and other members of the family and without any consideration to gain an undue advantage to himself.
13. That the sale deed dated 27-6-51 having been executed without consideration and under influence of defendant No. 1, and .for inadequate consideration even if sale price as per recital is proved to have been paid, the sale is vitiated on account of undue influence and inadequacy of consideration as defendant No. 1 thereby has gained an un- due advantage by getting a property worth Rs. 30,000/- (Rupees thirty thousand) for either no sum or a nominal sum of Rs. 7,500/- in view of his influence and dominating position.'
It is claimed that these averments do not satisfy the requirement of Order 6, Rule 4 of the Code of Civil Procedure. That Rule runs thus:--
'In all cases in which the partypleading relies on any misrepresentationfraud, breach of trust, wilful default, orundue influence, and in all other casesin which particulars may be necessary beyond such as are exemplified in the formsaforesaid, particulars (with dates anditem if necessary) shall be stated in thepleading.'
'Undue influence' has been defined in Section 16(1) of the Indian Contract Act thusi- '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 usesthat position to obtain an unfair advantage over the other.'
Sub-section (2) is illustrative and provides :--
'In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another :--
(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other, or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illlenss, or mental or bodily distress.'
Sub-section (3) deals with rule of evidence and provides :--
'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 aposition to dominate the will of theother.'
In the case of Bishundeo v. Seogeni Rai, AIR 1951 SC 280, Bose, J. pointed out :--
'It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in caseg of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice, however strong the language in which they are couched may be, and the same applies to undue influence and coercion. .....'
In the case of Ladli Parshad v. Karnal Distillery Co. Ltd, AIR 1963 SC 1279, Shah, J (as the learned Judge then was) spoke for the Court thus :--
'Order 6, Rule 4, Civil P. C. provides that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms in the Appendix, particulars (with dates and items if necessary) shall bestaled in the pleading. The reason of the rule is obvious. A plea that a transaction is vitiated because of undue influence of the other party thereto, gives notice merely that one or more of a variety of insidious forms of influence were brought to bear upon the party pleading undue influence, and by exercising such influence, an unfair advantage was obtained over him by the other. But the object of a pleading is to bring the parties to a trial by concentrating their attention on the matter in dispute, so as to narrow the controversy to precise issues, and to give notice on either side in support of their respective cases. A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. This rule has been evolved with a view to narrow the issue and protect the party charged with improper conduct from being taken by surprise. A plea of undue influence must, to serve that dual purpose, be precise and all necessary particulars in support of the plea must be embodied in the pleading; if the particulars stated in the pleading are not sufficient and specific the Court should, before proceeding with the trial of the suit, insist upon the particulars, which give adequate notice to the other side of the case intended to be set up. (underlining is ours)'
The following observation made in the case of Bharat Dharma Syndicate v. Harish Chandra, AIR 1937 PC 146, was quoted with approval :--
'Their Lordships desire to call attention to the great difficulty which is occasioned both to persons charged with fraud or other improper conduct, and to the tribunals which are called upon to decide such issues, if the litigant who prefers the charges is not compelled to place on record precise and specific details of those charges. In the present case, the petitioner ought not to have been allowed to proceed with his petition and seek to prove fraud, unless and until he had, upon such terms as the Court thought fit to impose, amended his petition by including therein full particulars of the allegations which he intended to prove. Such cases as the present will be much simplified if this practice is strictly observed and insisted upon by the Court, even if, as in the present case, no objection is taken on behalf of the parties whoare interested in disproving the accusations.'
This position was reiterated toy the Supreme Court in the case of Subhas Chandra v. Ganga Prasad, AIR 1967 SC 878. Hitter, J, spoke for the Court thus :--
'Before, however, a court is called upon to examine whether undue influence was exercised or not, it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6, Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal (AIR 1963 SC 1279) above referred to. .....'
The pleadings in this case do not satisfy these , requirements and in fact the plaintiffs have not pleaded anything more than saying that tihe two documents -- the agreement (Kxt. M/2) and the sale deed (Ext. B) -- were taken from Nrup-lal by exercise of undue influence and the defendant No. 1 Nruplal's driver, was very much in confidence of the master and was rendering varieties of services to him over and above being his driver and was dominating this will. These, in our view, are no particulars as required by law to sustain a charge of undue influence.
The evidence led to support the plea of undue influence is equally unsatisfactory. As already pointed out, the oral evidence in support of the story of undue influence comes from P. Ws. 4, 5, 6 and 7. P. W. 4 claims to be a priest. He has nowhere stated anything more than these :--
'I know defendant No. 1- After he discontinued studies served as a motor cleaner under Zamindar for three years. At that time P. W. 2 was the driver. Afterwards he worked as driver for 6 to 7 years. When the Zamindar fell ill, he used to nurse him and attend to sundry errands like calling doctors. I have seen him casually giving him medicine and helping the Zamindar to wear dress and also casually applying medicine on the head. These works he used to do when the servants were absent. .....'
This evidence does not support the case of the plaintiffs to any extent.
P. W. 5, a witness aged about 80 years, claims to have been a teacher in the employment of the District Board of Sam-balpur. He has stated that defendant No. 1 was a cleaner for three or fouryears and a driver for ten or eleven years in the employment of Nruplal and was nursing him. This again is no evidence to support the plea of undue influence.
P. W. 6 is another priest. He has stated :--
'.....I know defendant No. 1 whowas for 3 years a cleaner under Zamindar Nruplal Singh, At that time, P. W. 2 was the driver. After that, he worked as a driver for 8 or 9 years. Subsequently when Nrunlal fell ill due to rheumatism, he worked as a Piada. He used to call doctor and bring medicine and make arrangements for his food. Besides he helped Nruplal to wear dress and get up from bed when required. He used to work in that manner under Nruplal from 7 A. M. to 8 P. M., but having intervals for food and tiffin Nruplal used to relv on defendant No. 1 I know this because once during Zamin-dar's illness, I approached him for help in connection with a marriage ceremony and on that occasion defendant No. 1 gave me Rs. 25/-.'
This evidence -also does not support aplea of undue influence. P. W. 7 is the remaining witness. He is the third defendant in the suit and during the relevant time must have been a young boy because in 1965. when he gave evidence in court, he stated his age to be 29. That apart, according to his own evidence for six years pr'or to 1952, he was in the Raikumar College at Raipur as a student, Therefore, at the material time he was not at Kolabira. Apart from his incompe-tency to depose on the point in iss-ue, his evidence is also not worthy enough to be noticed on the question of undue influence. The oral evidence of undue influence, therefore, is meagre--nay, worth nothing.
Another aspect of the oral evidence to support the plea of undue influence is that Nruplal was ill for some years prior to execution of the agreement as also the sale deed. Though it was not clearly pleaded that Nruplal was of weak mind and there was not much of evidence to support such an aspect, arguments had been advanced on such basis. Nruplal appears to have been ill with an attack of paralysis of a part of his foody. With such ailment, he was capable of moving about and as the evidence shows, he had even undertaken a pilgrimage around the period when the impugned transaction took place. P. W. 4 has stated in his cross-examination :--
'.....Nruplal died six or sevenyears back, Nruplal had been to pilgrimage to Allahabad side 7 or 8 years be--fore his death in 1958. He had been ill 7 or 8 years before his pilgrimage due to paralysis. He was doing all the zemindary work till 2 years before bis death. .....'
D. W. 14 was a Revenue Mohurrir of the estate. He has stated that Nruplal was in the management of the sherista personally. In cross-examination, this witness further stated :--
'There were about 40 or 45 employees of the zemindary sherista in all departments and 5 or 7 of us were always in the office -- such as authorised agent, forester, manager, 2 clerks. The treasury and cash chest were inside the residential premises of the zemindar and not in the office building. The accounts were in the office. All collections were entered in the accounts and signature of the zamindar was taken against entries.....'
Defendant No. 1 as D. W. 16 has stated that the zamindar was not bed-ridden though he suffered from paralysis of his left side. His limbs were affected, but he was able to move about. He could move his left hand and was able to dress himself. In this view of the evidence, the plea of illness for yielding scope for exercise of undue influence has no basis.
9. As regards documentary evidence, great reliance has been placed on the fact that defendant No. 1 was keeping the diary of Nruplal. In support of this plea, entries in Exts, 5 series and 6 series have been relied on. It is claimed that unless Brusabhanu was in a very conspicuous position, he could not have access to the personal diary of the Zamindar. As we find, the diary of 1949 (entries under Ext. 5 series) and the diary of 1950 (entries under Ext. 6 series) are indeed no diaries at all in the true sense of fche term. On the other hand, they contain notings of movements of Nruplal and in various pages thereof accounts of daily expenses appear to have been maintained. There is evidence to show that defendant No. 1 was required to make purchases on behalf of the proprietor and there is nothing unusual if he rendered accounts by making entries in these books labelled as diaries. It is pertinent to notice that several other persons have also made entries in these diary books. Exts. 5 and 6 cannot be given the status of private and personal diaries of Nruplal which would not be available to any other person and. therefore, no importance can be attachedto the fact that defendant No. 1 was making entries in these books though he was a mere driver.
10. There are certain circumstances which clearly go against the plea that the alienation was the outcome of exercise of undue influence and we may briefly note them here:--
(i) The agreement is of March, 1950(Ext. M/2). The sale deed is of June, '1951(Ext. B). The original plaintiff (BiraMahendra) was contemporaneouslyaware of the fact that Nruplalhad executed the sale deed (Ext. B).This is evident from the notice (Ext. O)Which he issued to defendant No. 1 onthe same day as Ext. B was executed andregistered at Sambalpur. His notice wasalso issued from Sambalpur. Defendant No. 1' sent a reply on 2nd July,1951 (Ext. O-1), denying all the allegations and claimed that the had made agenuine purchase. He in fact clearly indicated that Bira Mahendra had no rightto challenge the sale deed. Nruplal liveduntil 1958, i. e. for seven more years.The plaintiffs did not take any steps forsetting aside the sale deed during thelifetime of Nruplal, for they werealways apprehensive that Nruplal wouldstand by his transaction because it wasa genuine one. Otherwise, the longsilence of the plaintiffs has no other explanation.
(ii) Under the agreement (Ext. M/2) possession of the house was said to have been made over. In the last paragraph of the said document, it has been stated that as the house was under requisition by Government, the requisitioning authority would be informed of the alienation As we find, Nruplal did inform the Deputy Commissioner of Sambalpur about the transaction. On 4th April, 1950, under Ext. V, the Deputy Commissioner required the house to be repaired as it was in a dilapidated condition. On 18th of April, 1950, under Ext. V/10, Nruplal informed the Deputy Commissioner that the house has since been sold to defendant No. 1. There is clear evidence that defendant No. 1 applied for derequisitioning the house. As Ext. V/5 shows, on 22-8-1950, he was informed by the Deputy Collector in charge of the Collectorate of Sambalpur that it is not possible to vacate the premises immediately. Defendant No. 1 wanted payment of the rent and the evidence on record clearly shows that he received the rent on the basis of being the owner of the house. When the rent was being taken away by defendantNo. 1, if plaintiffs ibad really any grievance to make, they would certainly have come forward to resist the drawal of rent by defendant No. 1. There is evidence to show that the original plaintiff was participating in the estate's management. He must have been aware of the true situation at that point of time. If he or his other relations were interested in disputing the transactions, even without coming to court, they could have raised dispute before the requisitioning authorities regarding entitlement of rent. That also was not done.
(iii) There is overwhelming evidence that Nruplal was very much indebted. As a matter of fact, it is not Nruplal alone, but several of his relations who appear to have been equally indebted. Defendant No. 1 has clearly pleaded that Nruplal found no other way to satisfy his debts borrowed from him and decided to alienate the property. Ext. L series are the promissory notes totalling Rs. 7,500/-. These promissory notes have been admitted to be in the hand of Nruplal by P. W. 7. Indebtedness of Nruplal proba-bilises the alienation to have been a voluntary transaction and not an outcome of undue influence. The plaintiffs attempted to give a picture that Nruplal was rolling in plenty and was never in need. As it appears, the position was very much otherwise. In fact, when Nruplal was to succeed to the estate and the Court took over, the financial position was very bad. When the estate vest-ed and Nruplal lost it, the estate was in arrears of considerable amounts even in regard to public dues, as would appear from tine compensation papers and the evidence of D. W. 1. P. W. 7's evidence clearly indicates that both Nruplal as also several members of the family had run into debts and now and then they were raising loans.
(iv) Contemporaneous conduct of defendant No. 1 evidenced by documents indicates against his domineering position. For instance, Ext. 7 is a letter from defendant No. 1 to Nruplal and is dated 6-12-1949. When translated into English, it reads thus :--
'Respected Sriman Zamindar Saheb,
I beg to pray that I require a sum of Rs. 2,000/- in respect of handnote account; if I do not lift the yarn quota, the licence would be cancelled. I, therefore, sincerely pray that a cheque of Rs. 1,500/-which is with Hazoor and cash ofRs. 500/- be given; otherwise, I will suffer immensely. On account of urgency, I have been forced to approach. Hazoor is Malik and protector.'
Below it is an endorsement that the cheque of Rs. 1,500/- and cash of Rs. 500/-totalling Rs. 2,000/- were paid by Nruplal on that date. This letter with the endor-sement thereon has been proved by the plaintiffs and its genuineness is not in dispute. If defendant No. 1 was indeed dominating in the manner alleged, there would be no occasion for a letter of this type; much less, the language of the letter be what it is. On the other hand, the tone of the letter indicates the distance between defendant No. 1 and the proprietor. The dignity maintained in the prayerful approach of defendant No. 1 is indicative of defendant No. I being aware at the time of writing the letter of his own status and that of the person he was seeking to approach. This certainly speaks very much against the plea of domination. There are certain other documents to support this conclusion. It is unnecessary, however, to make any detailed reference to them.
(v) It appears to be the common case of parties that defendant No. 1 had not been paid his salary from the very beginning. Defendant No. 1 was not a very needy person. As evidence shows, he was a man with some property. They had also business. There was also money-lending. He was not anxious to receive salary forthwith because he was not required to depend upon salary income. He was looking for some property from the beginning. In fact on one or two occasions he had taken leases of immovable properties from the ex-proprietor. It is quite possible that defendant No. 1 was anxious to have a house in Sambalpur. His desire to acquire property and Nrup-lal's (debtor's) failure to satisfy the existing loans from defendant No. 1 went together to culminate in the alienation.
(vi) If undue influence had to be established, more competent witnesses to speak about it should have come. Un-doubtedly, the ladies, for instance, Nrup-lal's widow who is still alive and was im-pleaded in the litigation as defendant No. 8, Bira Mahendra's widow (plaintiff No. 1/a) and some of the other relation-defendants would have been more competent than P. W. 7. As the records of the trial court show, steps at one stage were taken, to get these ladies examined on commission. The matter was not pursued. Bira Bikram, the 9th defendantwas present in court, when P. W. 7 was being examined (as would appear from his evidence in cross-examination). P. W. 7 has also stated that he had several witnesses who knew about defendant No. 1 nursing and taking care of Nruplal during his illness. Yet, more competent witnesses though available have been withheld from the court. The Judicial Committee of the Privy Council in the case of Murugesam Piliai v. Gnana Sam-bandha, AIR 1917 PC 6, pointed out that it is not open to parties to keep away the best evidence from the court and when that is done, adverse inference has to be also drawn.
11. There is yet another aspect which is relevant to the question of undue influence. Lord Penzance in Hall v. Hall, (1868) 1 P & D. 481 in an inimitable language stated :--
'But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, these are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has the courage to resist, moral command asserted and yielded to for the sake of peace and quiet or of escaping from distress of mind or social discomfort -- these, if carried to a degree in which the free play of the testator's judgment, discretion, or wishes is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led, but not driven; and his will must be the offspring of his own volition, and not the record of some one else's.'
This passage has been quoted with approval by the Supreme Court in the case of Naresh Charan v. Paresh Charan, AIR 1955 SC 363 and Venkatarama Ayyar, J. summarized the position by saying :--
'It is elementary law that it is not every influence which is brought to bear on a testator that can be characterised as 'undue'. It is open to a person to plead his- case before the testator and to persuade him to make a disposition in his favour. And if the testator retains his mental capacity, and there is no element of fraud or coercion--it has often been observed that undue influence may in thelast analysis be brought under one or the other of these two categories -- the will cannot be attacked on the ground of undue influence.'
What has been stated for a will equally) applies for any disposition. Keeping the circumstances of the case, the position of the parties, the relationship indicated, the serviceability of defendant No. 1 to Nruplal and the like in view, it would not need any amount of conjecture to accept the contention of Mr. Misra for respondent No. 1 that at the best defendant No. 1 had been able to entreat and persuade Nruplal to sell the property in question in his favour. If Nruplal made a sale deed voluntarily, where was the occasion for undue influence?
We think, the story of undue influence has been rightly discarded by the two courts. Though Mr. Somnath Chat-terjee for the appellants tried to make the best out of a bad case, we do not think, we can take a different view. Point No. 2.
12. The alienation purports to be for a sum of Rs. 7,500/-. The agreement (Ext. M/2) shows that on that day the entire amount was received in cash. Ext. B is the sale deed. Therein it is stated that on 26th of March, 1950, the entire consideration of Rs. 7,500/- had already been received. In paragraph 4 (d) of the written statement, defendant No. 1 pleaded :--
'Nruplal had borrowed from this defendant Rs. 2,000/- on 17-7-49, Rs. 2,000/-on 3-9-49, Rs. 2,000/- on 31-12-49 and Rs. 1,500/- on 24-3-50, all for justifying necessities and all on execution of hand-notes. He was in further need of money even thereafter but this defendant was unwilling to advance further and wanted back the money. Hence, Nruplal being unable to pay up the amount, contracted to sell the house to this defendant for the total pronote dues of Rs. 7,500/- as indicated above, and executed an unregistered agreement dated 26-3-50 in favour of the defendant No. 1 acknowledging receipt of the sum of Rs. 7,500/-in cash, and delivering possession of the house to this defendant in pursuance thereof promising to execute and register a regular sale deed on this behalf later.'
It is contended on behalf of the appellants that the loans evidenced by the promissory notes under Ext L series were paper transactions under which no loan had been advanced. Even if it is found that the promissory notes were for consideration, in view of the clear state-ment in Ext. M/2 that payment was made in cash, the loan amounts under the promissory notes could not constitute consideration for the alienation. It is also claimed that the change in the stand relating to passing of consideration and its form from time to time should be given due weight and on that footing the claim of defendant No. 1 that the alienation was for consideration should be discarded. Mr. Chatterjee has further argued that for the first time defendant No. 1 gave out in his written statement that the consideration for the alienation was the loans evidenced by the four promissory notes under Ext. L series though the contemporaneous documents showed that the consideration had been paid in cash. He also emphasises upon the fact that Nruplal being in urgent need of money for specific pressing necessities, repayment of loans of the defendant No. 1 could not have satisfied the necessities and, therefore, he wants us to hold that in fact no consideration had passed under the document and it was all a myth.
P. W. 7 who is no other than the third defendant himself in ihis evidence has accepted Exts. L to L/3 (the four promissory notes in question) to be handnotes executed by Nruplal. He has also admitted that these promissory notes contain endorsements made and signed by him. These endorsements show that the loan under the promissory note was taken into consideration for the agreement (Ext. M/2).
Once the plea of undue influence is rejected and it is held that Nruplal was a prudent person, action according to his own will and volition, these promissory notes must be taken to tiave been executed for loans. The fact that Nruplal or for the matter of that, some of the members of his family were taking loans from defendant No. 1 goes beyond dispute. Apart from the evidence of P. W. 7 accepting the position, Ext. 7 itself is also a proof that Nruplal was taking loans on execution of promissory notes from defendant No. 1. Mr. Misra for the respondent No. 1 contends that it is quite possible that Nruplal being the proprietor of a fairly good-sized estate was not prepared to take loans openly from outsiders and had found it convenient to make borrowings according to necessity from defendant No. 1. In Ext. 5, the diary, there is an entry on 7-12-1949 showing payment of Rs. 2,000/- to defendant No. 1 also towards a promissory note. P. W. 7 has also admitted execution of several other promissory notes byNruplal in favour of defendant No. 1. We must hold, in agreement with the two courts, that these promissory notes were for consideration. Nruplal's own endorsements on these documents establish the relationship between these promissory notes and the agreement (Ext. M/2) and it must be held that the loan amounts under these promissory notes constituted the consideration under Ext. M/2. It is true, as Mr. Chatterjee, has rightly pointed out, that the legal necessity indicated therein could not have been satisfied by satisfying the existing loans but it is very probable, as Mr. Misra for the other side contends, that the legal necessity justifying the loans has been reiterated as legal necessity in these documents because the promissory notes were taken as equal to cash. Since Nruplal, a prudent Zamindar as he admittedly was, has not disputed the alienation even after defendant No. 1 left service though he lived for about seven years after the transaction was completed, the claim of the plaintiffs that the alienation was without legal necessity cannot readily be accepted. The courts below have discussed the evidence regarding legal necessity at length and we do not feel like reiterating the discussion here. We would accordingly hold that the sale deed (Ext. B) was for legal necessity and consideration thereunder was Rs. 7,500/-.
13. The next question for examination is, was the consideration oiRs. 7,500/- grossly low so as to vitiatethe transaction? Plaintiffs have claimedthat the true valuation of the house soldunder Ext. B was Rs. 30,000/-. We havealready stated that the total area of theproperty was 28 decimals. The house inquestion was raised during the time ofthe Court of Wards and, therefore, priorto 1910. The construction expenses didnot exceed three to four thousand rupeesas can be gathered from the report submitted by the Deputy Commissioner ofSambalpur to the Commissioner of OrissaDivision dated 18th April, 1912, printedat page 179 of the paper book.
By 1950, the house was already 40 years' old. The condition of the house by then was very dilapidated. In a letter dated 4th April, 1950, sent to Nruplal, the Deputy Collector-in-charge had complained that the roof was leaking, bamboo mats should be fitted to the ceiling and the out-houses and the motor garage should be fitted with roofing and other minor repairs to the doors, windows as also walls should be immediately undertaken. When Nruplal informed the DeputyCommissioner that the house had already been transferred to defendant No. 1, on 29-4-1950, defendant No. 1 was asked to make such repairs. At the foot of the letter, a copy was enclosed to Nruplal with the following endorsement :--
'.....I am directed to say that theKolabira House which is under requisition is in a very dilapidiated condition and requires immediate extensive repairs.' (vide Ext. V/2)
In this view of the matter, apart, from normal depreciation for a 40-year old house, it must also be found as a fact that the house was in a bad state of repairs. Added to these features is the evidence of P. W. 7. As it appears, he bad started purchasing the shares of the heirs of Nruplal. In his evidence he has stated :--
'Rukmini, the widow of Nruplal, had 1/7th share in the suit house. I purchased her share for Rs. 500/- as per Ext. 4. On 13-1-62 under Ext. 4/a, I purchased 1/7th share of Sundari Sarojini for Rs. 500/-. Nruplal had 2 sons. I have purchased the share of Bira Bikram and his sons for Rs. 1,000/- as per Ext. 4/b.'
On the basis indicated, the total value of the house was not exceeding Rs. 3,500/-. Mr. Chatterjee explained away the position by saying that property was in litigation or a litigation was imminent. Title was in dispute. Relations were buying the property. Therefore, a low valuation had been indicated. Conceding that Rs. 3,500/- was not the true value, there is no material to hold that Rs. 7,500/- for which the sale was made was inadequate consideration. On this basis, we must hold that the sale was for consideration and the consideration was not grossly inadequate so as to vitiate the transaction. Point No. 3.
14. Parties have not placed any document of title in respect of the disputed property for assisting the Court to determine whether the house belonged to Nruplal or was an asset of the joint family. The learned Trial Judge after discussing the evidence on record came to hold that the house was not a joint family property in the hands of Nruplal and that it was an accretion to the impartible estate of Kolabira of which he was the owner. The learned Single Judge has dealt with this aspect in paragraph 10 of his judgment. Our learned brother took into consideration Ext. A, the Dewar Settlement Record-of-Rights, which is said to be of the year 1909. The addi-tional evidence admitted by the learned Single Judge goes to show that the land was already in existence and one Basu Mistry had supplied bricks for raising of a compound wall around the land during the lifetime of Chintamoni Singh. Having read the evidence placed before us and having examined also the judgments of the two courts, we are of the view that it must be held that the vacant site was held by Chintamoni and the construction upon it has been raised during the time the estate was under the management of the Court. In fact, paragraph 8 (a) of the report of the Deputy Commissioner, already referred to, shows :--
'During the 6 years a big pucca building at Kolabira, a comfortable house for the wards at Sambalpur were constructed at a total cost of Rs. 6,784/-. ...'
The asset statement as on 30th September, 1905, shows that during that year Rs. 953/~ had been spent for the construction of the house at Sambalpur (vide page 175 of the paper book). The evidence of D. W. 11, a retired Deputy Collector, supports the stand that during 1902 to 1904, there was no house or boundary wall on the disputed site. There is nothing to discard the statement of this witness. We would accordingly accept the position that the property was held by Chintamoni and upon his death it came to Nruplal. The building was constructed by spending estate funds during the time the Court was in management of the estate. There is absolutely no material on record to hold that this property was treated as different from, and independent of, the impartible estate itself. Law is settled that the holder of an impartible estate can acquire new assets and add to the estate and such acquisition would be impressed also with impartible character. In the absence of any other material to the contrary and relying on the facts as gathered from the evidence, namely that the vacant site was held by Chintamoni and the building was raised out of the estate funds in the early years of Nruplal's succeeding to the estate and the general treatment of the property, we would hold that this property was a part of the estate and. was not a separate property in which the members of the joint family could have right, title and interest. Plaintiffs and heirs of Nruplal by their own conduct have also supported this position. We have already pointed out how after Nruplal's death, the property has been taken to be his and eachof the heirs has claimed 1/7 th share. If it was a property of the Hindu Undivided Family and not the separate property of Nruplal or a part of the impartible estate, the heirs could not have claimed 1/7th share for each of them. There has been some confusion in the findings of the learned Trial Judge as also the learned Single Judge on this issue. But on the analysis indicated above, it would be appropriate to hold that the disputed house in Sambalpur was a part of the impartible estate. It is not necessary that the property must have been located within the estate so as to be impressed with impartible character. The property was alienated before vesting of the estate and the holder of the impartible estate as the owner of the property for the time being was entitled to make a valid alienation and the members of the joint family have no right to dispute such an alienation. (See Shiba Prasad v. Prayag Ku-mari, AIR 1932 P. C. 216). In this view of the matter, the plaintiffs have no locus standi to dispute the alienation and, therefore, had no cause of action for the suit.
Even if the property be held to be belonging to the joint family, as the learned Single Judge indicated, we would agree with him that the alienation was for necessity and for satisfying antecedent debts of their father Nruplal. It being not the case that the debts were tainted with immorality or were of Av-yavaharika character, by the doctrine of pious obligation, plaintiffs should be estopped from challenging the alienation. In any view of the matter, the alienation is not open to challenge.
Point No. 4.
15. The agreement (Ext. M/2) is dated 26th of March, 1950, under which possession was delivered to the defendant No. 1. The suit has been instituted on 26th of March, 1962, i. e. on the last day of a 12-year period from that date. In paragraph 13 of the written statement, defendant No. 1 pleaded :--
'That the plaintiffs are not entitled to challenge the sale or claim ejectment as alleged in para 14 of the plaint. They had never any right or title nor were any of them in possession within 12 years of suit.'
Though a specific plea regarding limitation was not raised, the question was examined in the suit, because several issues framed in the suit could accommodate the plea of limitation. In paragraph 33 of his judgment, the learned Trial Judge dealtwith it. In paragraph 9 of his judgment, the learned Single Judge dealt with the question of limitation and has stated :--
'On the question of limitation, the learned Subordinate Judge has held that under Article 91 of the Indian Limitation Act 1908, the suit for setting aside the sale deed (Ext. B) on the ground of undue influence should have been instituted within a period of three years either from the date of the sale deed or from the date of knowledge of the plaintiffs about the sale deed. In the present case the plaintiffs served a notice on defendant No. 1 in June, 1951, which was received by defendant No. 1 on 30-6-51. In the said notice, the plaintiffs challenged the sale deed on the ground of undue influence. It is thus clear that the fact that the sale deed (Ext. B) was tainted with undue influence was known to the plaintiffs in 1951. Therefore, they should have instituted the suit within three years from the date of their knowledge, if not, from the date of the sale deed. The suit not having been brought within the prescribed period, the trial court is right in holding that the plaintiffs' cause of action to challenge the sale deed on the ground of undue influence was barred by limitation by the time the present suit was instituted. Mr. Sinha challenges this finding by saying that plaintiffs' right to the suit property has to be decided independently of the impugned sale deed. Such a suit, according to him, need not be instituted within a period of three years from the date of the sale deed. For this position, he relies upon a decision reported in, AIR 1945 All 367 (Aisha Begam v. Kun-dan Jan). A reading of the plaint as well as of Ext. O/1, the reply of defendant No. 1 to the plaintiffs' notice dated 27-6-1951, clearly goes to show that the plaintiffs are challenging the sale deed on the ground of undue influence. That being the position, the plaintiffs' suit for setting aside Ext. B is bound to fail, the same not having been instituted within the prescribed period of limitation.....'
Article 91 of the First Schedule of theLimitation Act of 1908 reads thus :--
'To cancel or set aside an instrument not otherwiseprovided for.
When the facts entitl-ing the plaintiff to have the instrumentcancelled or set aside become known to him.'
The learned Single Judge is absolutely correct in holding that to the suit as framed, Article 91 of the old Limitation Act is applicable. The limitation actually ran either from the date of thetransaction or from the date of knowledge which in this case is contemporaneous.
The Allahabad decision referred to by the learned Single Judge has taken the view that for a suit for declaration that a deed was null and void, Article 120 of the Limitation Act was applicable. Even taking that view, the period under Article 120 being six years, the suit was also barred by limitation.
16. Before us, Mr. Misra for respondent No. 1 has relied upon a Bench decision of the Madhya Pradesh High Court (Sukaloo v. Punau, AIR 1961 Madh Pra 176) where it has been held that the right of a vendor to challenge a sale deed for want of consideration arises on execution of the deed and it can only be done within three years from the date of its execution under Article 91 of the Limitation Act. Whether Article 91 or Article 120 applied to a suit of this type, the suit instituted on the last day of the 12-year period from the date when the cause of action arose is plainly out of time and it must be concluded that the cause of action, if any, had become barred by limitation. We would, therefore, uphold the finding of bar of limitation as well.
17. In the result, we would accordingly uphold the decision of the learned single Judge and dismiss this appeal with costs throughout. We place on record our appreciation for the able assistance rendered by learned counsel for both the parties.