C.B. Bhargava, J.
1. This appeal arises from the decree of the District Judge Jaipur City dismissing the plaintiff's suit for declaration that the deed of gift dated 27th March, 1954 (Ex. A I) executed by Kalu Khan, father of the appellants in favour of respondent was void as it was obtained by undue influence, fraud and misrepresentation in order to defeat the claim of his rightful heirs i.e., son and daughters.
2. The suit was decreed by the trial court but the learned District Judge has reversed that decree. The suit was instituted by the donor Kalu Khan. He died during the pendency of the suit and thereafter, the suit was continued by his son and daughters.
3. It cannot be disputed that Kalu Khan who had executed the gift deed was an old man of 61 years, had no source of income, was illiterate, had three daughters to be married--his wife having already died, relying upon the respondent--his grand nephew for everything even for his maintenance. His relations with his son who was living separately were strained. These facts are borne out from the contents of Ex. A I as also from the statement of Kalu Khan and respondent's own witnesses Wajid Bux, (D. W. 3), Nazir Khan (D. W. 5) and Abdul Hamid (D. W. 6). It is also indisputable that Kalu Khan had no other property besides the house in dispute.
4. The trial court in view of the above circumstances came to the finding that there was clearly a fraud played upon Kalu Khan and the Hiba was obtained in pursuance thereof. The court however held that there was no evidence of undue pressure though fraud was established.
5. The learned District Judge did not take notice of the relationship of the donor and donee and the fact that the latter was in a position to dominate the will of the donor. The learned Judge held that there was no evidence on record to suggest that when the Hibanama was executed the donee intended to defraud the donor. He further observes that
'Kalu Khan was advised by his friends at the material time that he should desist from making a gift of his property, but that advice fell on his deaf ears vide depositions of Kamruddin (P. W. 4) and Karim Khan (P. W. 6).'
Both the courts failed to take notice of the provisions of Section 16 of the Indian Contract Act and section in of the Indian Evidence Act.
6. Undue influence is defined in Section 16 of the Indian Contract Act. In the case of Poosathurai v. Kannappa Chettiar, AIR 1920 PC 65 it was pointed out by the Judicial Committee that:
'It is a mistake to treat undue influence as having been established by a proof of the relations of the parties having been such that the one naturally relied upon the other for advice, and the other was in a position to dominate the will of the first in giving it. Up to that point 'influence' alone has been made out. Such influence may be used wisely, judiciously and helpfully. But whether by the Law of India or the Law of England, more than mere influence must be proved so as to render influence, in the language of the law, 'undue'. It must be established that the person in a position of domination has used that position to obtain unfair advantage for himself, and 'so to cause injury to the person relying upon his authority or aid.
And where the relation of influence, as above set forth, has been established and the second thing is also made clear, viz., that the bargain is with the 'influencer' and in itself unconscionable then the person in a position to use his dominating power has the burden thrown upon him, and it is a heavy burden, of establishing affirmatively that no domination was practised so as to bring about the transaction, but that the grantor of the deed was scrupulously kept separately advised in the independence of a free agent'.
Again in the case of Raghunath Prasad v. Sarju Prasad, AIR 1924 PC 60 it was stated by the Judicial Committee that:
'By Sub-sectiion (3) of Section 16 three matters are dealt with. In the first place the relations between the parties to each other must be such that one is in a position to dominate the will of the other. Once that position is substantiated the second stage has been reached, viz., the issue whether the contract has been induced by undue influence. Upon the determination of this issue a third point emerges, which is that of the onus probandi. The burden of proving that the contract was not induced by undue influence is to He upon the person who was in a position to dominate the will of the other. Error is almost sure to arise if the order of these propositions be changed. The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of the parties. Even though a bargain, had been unconscionable a remedy under the Contract Act does not come into view until the initial fact of a position to dominate the will has been established. Once that fact is established, then the unconscionable nature of the bargain and the burden of proof on the issue of undue influence come into operation.'
As stated earlier in the instant case Kalu Khan before the execution of the gift deed was wholly dependant upon the respondent for his maintenance. Due to Kalu Khan's old age, illiteracy,his financial stringency and his strained relationd with his son, the respondent on account of closer relationship was surely in a position to dominate the will of Kalu Khan. Kalu Khan had three daughters of marriageable age at that time and had no other source of income. By the gift deed the entire property which he possessed was given away to the respondent. If the principles laid down by the Judicial Committee in the above two cases are applied to the facts of his case it was for the respondent to show that the gift was not made by undue influence (Section 16(3) Indian Contract Act and section in Evidence Act). This aspect of the case was completely overlooked by the courts below, though the trial court remarked that:
'The defendant was a close relation of the plaintiff. He is admittedly his grand son, though not a real one. He relied on help of the defendant, and the latter had to some extent obliged him. Thus the age and ignorance of Kalu Khan, his acute financial problems, his separation from his son after some strained relations with him, close relationship with the defendant and his obligations all continued created some special fiduciary relationship between the donor and the donee, which may to some extent shift the burden on the defendant. In any case these are the circumstances in the background of which we have to examine the evidence adduced by either party.'
The court further remarked that:
'There is another aspect of the case. Kalu Khan was very old, earning nothing and having no property to save the one in dispute. He had three daughters to be maintained and married by him. Does it appeal to ordinary common sense that he would have willingly made a free gift of his only house or rather the only property to the defendant leaving himself entirely to his fate.''
The facts mentioned above found by the trial court clearly make out a case of undue influence ay defined in Section 16 of the Indian Contract Act and the burden of proving that such contract was not induced by undue influence should have been on the defendant. But the trial court instead of holding that the gift, in question was induced by undue influence held that fraud was established. As observed by the 'Privy Council in Someshwar Dutt v. Tribhawan Dutt, AIR 1934 PC 130 that:
'Acts of undue influence must range themselves under one or other of these heads -- coercion or fraud.'
Undue influence is said to be a subtle species of fraud whereby mastery is obtained over the mind of the victim, by insidious approaches and seductive artifices. Sometimes the result is brought about by fear, coercion, importunity or other domination, calculated to prevent expression of the victim's true mind. It is a constraint undermin-ing free agency overcoming the powers of resistance, bringing about a submission to an overmastering and unfair persaasion to the detriment. of the other. (See Karnal Distillery Co., Ltd: v. Ladli Prashad, AIR 1958 Punj 190). The learned District. Judge did not advert to the cir-cumstances that the defendant was in a position to dominate the will of the plaintiff and the transaction on the face of it appeared to be unfair, although as would appear from his judgment, it was pointed out to him that Kalu Khan was an old man and he could not have gifted the whole of his property to Abdul Rahim, who was in his activeconfidence disinheriting his own son and daughters. Some cases were also cited in this connection before the learned Judge but he held that
'one (each ?) case dealt with Section 16 of the Contract Act and had no bearing on the facts of the case befroe him.'
The learned Judge considered the evidence of the parties in regard to the question of fraud and held that it was not established.
7. It may be pointed out that the plaintwas clearly founded on ground of undue influenceI though grounds of fraud and misrepresentationwere also alleged. In paragraph I facts wereset out as a basis for a plea of undue influence.It was stated that the plaintiff was an old man of75 years, had been suffering from diarrhea forthe last four years, had no source of income, was unfit to do any work, his wife had already died,had new three daughters one of whom was aged 18 years. Besides, he had a son of 30 years of ageand after his marriage some 10 or 12 years backhad been living separately from him and was not looking after him but instead was badly treating him. In paragraph 2 it was alleged that thedefendant who was his grand son in relation wanted to take advantage of his above conditionand pressed him to make a gift of his property iq his favour and gave false assurances that in casehe made a gift in his favour he would continue topay RSection 20/- p. m. for his maintenance and would also discharge all his debts and would marry his three daughters. In paragraph 6 (gha) it was alleged that the gift had Been made on account of defendant's undue influence. The defendant denied the above allegations and issue No. 2 which was in the following terms was tried by the trial court.Issue No. 2.
'Whether the Hiba was obtained under undue pressure, fraud and by making false promises availing of the age of the deceased plaintiff and hence the plaintiff could revoke it.'
Though the issue is unhappily worded but it is clear that the question of undue influence was clearly brought out in issue. Thus it is not for the first time as urged by the learned counsel for the respondent that the question of undue influence is being raised in this Court. The question israised in the pleadings and issue was framed on it and the parties also led evidence in proof ofthat issue. It was observed by the Privy Council in Someshwar Dutt's case AIR 1934 PC 130 above referred that
'Their Lordships of the Privy Council will be disinclined to stress the structure of the pleadings in a suit too strictly, if fair notice of the case to be made by the plaintiff has been given, and issue has been joined on an enquiry but faintly adumbrated in the pleadings.'
8. The rule laid down in Section 16 of the Indian Contract- Act is not restricted to cases wherestrictly or technically fiduciary relationship is established. The rule applies to all varieties of relations where the possibility of exercise of dominion and influence exists. The. rule has been extended to cases where possibility of exercising influence exists from confidence created or established by the relations between the donor and the donee. On the facts above stated it was thus for the respondent to establish that it was free act of Kalu Khan. Unless this burden was discharged, it should have been held by the courts below that the gift deed was executed by Kalu Khan on account of the undue influence of the respondent. The learned District Judge has observed that Kalu Khan was advised by his friends to desist from making the gift but he did not pay any heed to it. The presumption of undue influence arising under Section 16(3) of the Contract Act can be rebutted by showing that the donor had independent legal advice.
In Inche Noriah v. Shaik Allie. AIR 1929 PC 3 it was held that:
'Independent legal advice is not the only way in which the presumption of undue influence can be rebutted; nor does the fact that independent legal advice was given^ rebut the presumption, un-less it be shown that the advice was taken.'
In that case although evidence was led on behalf of the defendant that before executing the deed plaintiff had independent advice from Mr. James Aitken a lawyer of Singapore yet their Lordships observed that:
'Their Lordships do not doubt that Mr. Aitken acted in good faith, but he seems to have received a good deal of his information from the respondent; he was not made aware of the material fact that the property which was being given away constituted practically the whole estate of the donor, and he certainly does hot seem to have brought home to her mind the consequences to herself of what she was doing, or the fact that she could more prudently, and equally effectively, have benefited the donee without undue risk to herself by retaining the property in her own possession during her life bestowing it Upon him by her will. In their Lordships' view the facts proved by the respondent are not sufficient to rebut the presumption of undue influence which is raised by the relationship proved to have been in existence between the parties; and they regard it as most important from the point of view of public policy to maintain the rule of law which has been laid down and to insist that a gift made under circumstances which give rise to the presumption must be set aside unless the donee is able to satisfy the Court of facts sufficient to rebut the presumption.'
The learned District Judge in this connection has referred to the evidence of Kamruddin (P. W. 4) and Karim Khan (P. W. 6).
The question, therefore, is whether the respondent has rebutted the presumption of undue influence by showing that Kalu Khan had independent advise before or at the tune he executed the gift deed. Kamruddin plaintiff's own witness has stated that Kalu Khan had told him that he was getting the. property registered in favourof his grand son, i. e., the respondent On which he told him that why was he depriving his heirs but he paid no heed to it and got the document registered. He had Also stated that Kalu Khan was an intelligent person and was in his perfect senses. The witness says that he was on intimate terms with Kalu Khan for a long time. Karim Khan (P. W. 6) another witness stated that his house was opposite to the house of Kalu Khan and he had very good relations with him. He further stated that before Kalu Khan executed the gift deed in favour of the respondent the matter was talked over at the workshop of his (i. e., witness) brother-in-law which was opposite to Kalu Khan's house. Kalu Khan informed him that he was unable to maintain himself with the money which his son Mahboob Khan was paying him and the respondent had promised to continue paying Rs. 20/- p. m. until his daughters were married and thereafter would feed him and keep him with him. The witness states that he told him that he should not do so because after all he had to give, sqmething to his son Mahboob also; but Kalu Khan told him that he had to pass his life and therefore, he executed the gift deed.
Besides the above evidence Nazir Khan (D, W. 5), who is the attesting witness of the gift deed has stated that he had told Kalu Khan that the latter had no other property and if he made a gift of it how would he perform the marriages of his daughters but Kalu Khan told him that somehow or other he would manage it. The above evidence therefore, shows that before the execution of the gift deed he was advised by persons that he should not do it. These persons knew the relationship between the parties. They were aware of the material fact that the property which was being gifted constituted the donor's entire property. They also informed the donor of the consequences of his act. In such circumstances I agree with the learned District Judge that Kalu Khan had independent advice before he executed the gift deed in favour of the respondent.
Besides it appears that on 25th February, 1954 about a month before the gift deed was executed respondent had paid Rs. 272/- to redeem this house from Mohd. Yamin with whose father it was already mortgaged. It is established from the endorsement on the back of Ex. A 2 which is proved by the evidence of Mohd. Yamin. There is also evidence that Kalu Khan was indebted to one Mumtaz Khan and the respondent had paid Rs. 40/- to him on behalf of the former to discharge his debt. It is also admitted that some small amounts were paid by the respondent to discharge Kalu Khan's debts. The house which was gifted to the respondent is valued at Rs. 1,000/- and the respondent had paid the above amounts in cash on behalf of Kalu Khan and was defraying the expenses for maintaining him and his daughters. The present suit was filed on 31st October, 1955 after 19 months of the gift deed and Kalu Khan in his own statement said that his only grievance and the reason for filing the suit was that the respondent had not fulfilled his promise. Having regard to all the above circumstances even though the respondent was in a position to dominate the will of Kalu Khan and thelatter had made a gift of his entire property I am of the view that the gift deed was made by Kalu Khan of his free volition and the presumption oi undue influence in this case stands fully rebutted.
9. Learned counsel for the respondent also urges that under the Mohammadan Law a gift can only be revoked by the donor but not by his heirs after his death. It is urged that no decree on the ground of undue influence can be passed in this suit in favour of the heirs of Kalu Khan because of the above rule of Mohammadan Law. In thia connection learned counsel has referred to paragraph 167 of the Principles of Mohammadan Law by Mulla 1961 Edition and several other books on Mohammadan Law. But in my view the argument is not well founded. Section 19A of the Indian Contract Act provides that:
'When consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the party whose consent was so caused.
Any such contract may be set aside either absolutely or, if the party who was entitled to avoid it has received any benefit thereunder, upon such terms and conditions as to the Court may seem just'.
10. This section lays down the general law and even though a party may be a Mohammadan he can avoid the contract on the ground that his consent was obtained by undue influence. The option of avoiding a contract procured by undue influence under Section 19A can also be exercised by the heirs of a party is not disputed. What is urged is this that the option of revoking a contract is not available to the heirs of a Muslim even under Section 19A.
11. In my view Section 19A is applicable to all persons including Mohammadans and even an heir of a Mohammadan can have the option of avoiding contract procured in the manner mentioned in Section 19A. This right of his is not curtailed by the provisions of the Mohammadan Law. On the other hand the Mohammadan Law gives a further right of revoking the gift and in that case it is not necessary for the donor to establish that the transaction was brought about on account of undue influence of the donee. Had the suit been simpliciter for the revocation of gift without having been based on the ground of undue influence, fraud and misrepresentation, then the) objection by the learned counsel would have been available to him. But the present case is governed by Section 19A.
As regards the relief for revocation of giftunder the Mohammadan Law it is the personalright of the donor and after his death his heirshave not the right of revocation. See the following Principles of Mohammadan Law byMulla -- Article 167(3).
'A gift may be revoked by the donor, but not by his heirs after his death'.
'Once possession is delivered, nothing short of a decree of the Court is sufficient to revoke the gift. Neither a declaration of revocation bythe donor nor even the institution of a suit for resuming the gift is sufficient to revoke the gift. Until a decree is passed, the donee is entitled to Use and dispose of the subject of the gift'.
Anglo-Muhammadan Law by Sir Wilson Article 316:
'A gift once valldly made must be rescindedby a Civil Court on the application of the donor,unless the right of revocation is barred by one ofother of the under-mentioned circumstances,namely-
.. .. ..
(3) The death of the donee or of the donor.'Mohammadan Law by Syed Ameer Ali, Vol. IThird Edition.
(3) When the donee has died and the property has passed to his heirs.'Mohammaden Law by Faiz D, Tyabji 3rd EditionArticle 423:'Under Hanafi law, the revocation of a gift is completed either by an order of the Court cancelling the gift, or by the donee consenting thereto
.. .. ..'
'A gift may become irrevocable on the death of the donor or donee.'
Hamilton's Hedaya Vol. III Chapter II page 301Retraction of Gifts.
'The death of one of the parties; for if the donee should die, his property shifts to his heir, and becomes the same as if it had shifted during his lifetime and if the donor should die, his heirs are strangers with respect to the contract, since they made no tender of the thing given'.
From the above it would be clear that the right of a gift is tO' revoke a personal right and dies with the death of the donor. A revocation becomes complete only with a decree of the court and the mere institution of a suit is not sufficient. Therefore, even though the present suit was filed by Kalu Khan but he died before any decree in his favour was passed and as such his heirs -- the present appellants cannot exercise the option of revoking the gift.
12. The result therefore, is that the plaintiffs have failed to establish that gift deed in question was executed by Kalu Khan on account of the undue influence of the respondent, further they themselves have no right to revoke it.
13. This appeal therefore, fails but in the circumstances of the case I leave the parties to bear their own costs of this appeal.