1. These appeals are directed against the judgment of Ismail J. as he then was, in A. S. Nos. 843 and 844 of 1971. The learned Judge set aside the common judgment and decrees of the learned Subordinate Judge of Cuddalore in 0. S. Nos. 23 of 1967 and 144 of 1968 respectively.
2. O. S. 23 of 1967 is by the present appellant for setting aside the sale deed dated 17-7-1965 relating to the suit property marked as Ex. B 2, for recovery of possession of the said property and also for recovery of mesne profits, both past and future. Respondents 1 and 2 in L. P. A. 77 of 1978 are defendants 1 and 2 in that suit. The second respondent is an alienee of the suit property from the first respondent.
3. The case of the appellant is that Ex. B 2 sale for Rs. 8000 was brought about by undue influence, coercion and fraud. According to the appellant, the first respondent, her Manager Venkatarama Naidu and her husband (appellant's husband) were in a position to dominate her will having regard to the relative positions they occupied as against her. It is her further case that Ex. B 2 transaction is a most unconscionable one under which the first respondent had obtained an unfair advantage. She further alleged that she is an illiterate and at the time of execution and registration of Ex. B 2, she was not apprised of the nature and particulars of the transaction. Her further complaint is that D. W. 4, the first respondent's manager threatened that if Ex. B 2 sale deed was not executed, both her husband and herself would be sent to jail. It is her further case that the second respondent's guardian was quite aware of the fact that Ex B 2 sale is void and unenforceable and, therefore, the second respondent is not a bona fide purchaser for value. She also stated that she is the real owner of the suit property and the stand taken by the first respondent that she is benamidar for her husband is wholly baseless.
4. The first respondent's defence is that the appellant's husband is the real owner of the suit property, that he has been enjoying the property paying taxes etc., and that as he was in need of money he raised a loan with the Bank and executed the mortgage deed in favour of the bank in respect of the suit property along with his wife as the property stood in her name. As the appellant's husband was found guilty of criminal misappropriation to the extent of Rs. 25,000, the appellant voluntarily offered to execute Ex. B 2 in order to save her husband from being proceeded against for criminal misappropriation by the first respondent. It is common ground that the appellant's husband was employed in a petrol bunk owned by the first respondent. According to the first respondent, a large sum of nearly Rs. 25,000 was found due and payable by the appellant's husband to her and in partial discharge of the said liability, the appellant joined her husband and executed Ex. B 2 sale deed out of her Own accord. The charge of misrepresentation, coercion and fraud are false and are denied by the first respondent. It is further pointed out that nearly a year after Ex. B 2, sale and the execution of the promissory note marked as Ex. B 1, dated 20-7-1965 for the recovery of which the first respondent had instituted the other suit O. S. 144 of 1968 against the appellant and her husband, did the appellant give notice to him to which he gave suitable reply. Both the suit notice and the suit are at the instigation of the appellant's husband. It is immediately relevant to notice that the first respondent was the real owner but failed to put forward a defence on the assumption that the suit property belonged to the appellant contending that nevertheless the appellant's case of misappropriation, coercion and fraud are baseless. The second respondent, alienee from the first respondent, while adopting the written statement of the first respondent, resisted the suit on the ground that the appellant is a mere benamidar for her husband as she had no funds of her own to acquire the suit property and as she was never in possession in her own right, that her husband alone was in possession of the same that Ex. B 2, sale is true, valid and supported by consideration the same having been executed voluntarily by the appellant and her husband knowing its full implications and that in any event this respondent purchased the suit property for proper value without any notice of any defect in title.
5. O. S. 144 of 1968 is by the first respondent herein against the appellant and her husband for recovery of Rs. 1186-63 being the principal and interest due on Ex. B 1, promissory note dated 20-7-1965, executed for Rs. 9672-51 representing the balance due by the appellant's husband in respect of Rs. 25000 for which he had to account to the first respondent. It is unnecessary to refer to the defence taken by the appellant's husband in this action because though the trial Court dismissed the suit even as against him, he did not prefer any appeal against the judgment and decree made by the learned single Judge of this Court in A. S. 844 of 1971 setting aside the order of dismissal. It is needless to state that the judgment and decree of the learned single Judge of this Court had become final vis-a-vis the appellant's husband (first defendant in O. S. 144 of 1968). The appellant's defence in that action is that she did not execute Ex. B 1; nor did she receive any consideration therefore; even otherwise the consideration under it is illegal, void and opposed to public policy and therefore Ex. B 1 is unenforceable. According to her, her signatures were taken on various blank sheets of paper, one amongst them bearing stamps and her signatures were taken on the date on which Ex. B 2 sale was registered at Tindivanam Sub Registrar's office on 20-7-1975. She further submitted that Ex. B 1 must have been concocted by the first respondent and her partisans on blank sheets of paper, which contained her signatures. The recitals in Ex. B 1 are all false and fraudulent. She never undertook to discharge the liability of her husband; nor did she ever agree to pay the amount covered by Ex. B 1 to the first respondent.
6. The trial Court framed as many as 9 issues in O. S. 23 of 1967 which are as follows :
1. Whether the suit house had been purchased by the plaintiff with her funds and belonged to her and if not so the plaintiff was only a benamidar for her husband?
2. Whether the sale deed dated 17-7-1965 executed by plaintiff to first defendant is not valid, not supported by consideration and not true?
3. Whether the said sale deed dated 17-71965 is vitiated by undue influence, coercion and fraud and hence void as alleged by plaintiff?
4. Whether the sale deed dated 17-7-1965 is liable to be set aside for all or any of the reasons stated in the plaint?
5. Whether the second defendant is in any event a bona fide transferee for value from first defendant without notice of the rights of the plaintiff to avoid the transaction as alleged?
6. Whether the plaintiff is entitled to past profits and if so at what rate?
7. Whether the suit is not properly valued for the purpose of Court fee?
8. Whether even if so, the plaintiff is precluded from putting forward her title to the suit house?
9. To what relief is the plaintiff entitled?
The trial Court observed as regards issues 7 and 8 that they were not argued at all. On other issues it held in favour of the appellant and therefore decreed the suit as prayed for with costs but subject to the payment by the appellant of the mortgage amount which the first respondent paid to the Land Mortgage Bank while it relegated the question of mesne profits to be determined in separate proceedings under O. 20 R. 12 C.P. Code.
7. In the other suit O. S. 144 of 1968 the Trial Court framed the following issues:
1. Whether the suit pronote is true?
2. Whether the suit pronote was executed in the circumstances as mentioned in the written statement of defendants 1 and 2?
3. Whether it is not supported by consideration?
4. Whether it is illegal and opposed to public policy?
5. To what relief if any is plaintiff entitled?
The trial Court held issues 1 to 4 in favour of the appellant and her husband the other defendant in the suit and therefore dismissed the suit with costs.
8. On appeal, the learned single Judge of this Court framed four points for determination and they are : -
1. Whether it is true that P.W. 4 had misappropriated the amounts belonging to the appellant with regard to her business as Burmah Shell agent?
2. Whether the execution of Ex. B 2 sale deed by P.W. 1 is vitiated by exercise of undue influence, coercion and fraud?
3. Whether the property at Tindivanam sold under Ex. B 2 to the appellant was the absolute property of P.W.1 in whose name the title deed stood or was it purchased by P.W. 4 out of his funds in the name of P.W. 1 not intending to make P.W. 1 the exclusive beneficial owner of the said property? and
4. Whether the execution of Ex. B 1 by P.W. 1 and P.W. 4 was true and whether the said promissory note is enforceable against them?
9. As far as the third point was concerned, the learned Judge felt that it is really unnecessary to consider the same in view of his conclusions on points 1 and 2. As regards the first point his conclusion is that the misappropriation alleged against P.W. 4 (appellant's husband) by the first respondent (appellant before him) and her agent was true and was admitted by P.W. 4 himself. As regards the second point, he held that Ex. B 2 was not vitiated by the exercise of any undue influence as contended by P.W. 1 (appellant herein) and that the said document was executed by her with her free consent and with full knowledge that it was a sale deed by which P.Ws. 1 and 4 were attempting to discharge part of the amount due to the first respondent by P.W. 4 and as a result of the misappropriation of the moneys committed by P.W. 4.
10. Before we advert to the arguments advanced by Mr. R. Kesava Aiyangar, learned counsel for the appellant, which were pregnant with the substantial substance, it may be useful to take note of the scope of the Letters Patent appeal. In the decision in Ashu Devi v, Dukhi Sao : 1SCR611 , the Supreme Court has held that the limitation on the power of the Court imposed by Ss. 100 and 101 of the Civil Procedure Code cannot be made applicable to an appellate Court hearing a Letters Patent Appeal from the judgment and decree of the Court subordinate to the High Court, for the simple reason that a single Judge of the High Court is not a Court subordinate to the High Court and that there is no doubt that in an appropriate case a Letters Patent Bench hearing an appeal from an order of a learned single Judge of the High Court in a first appeal heard by him is entitled to review even findings of fact and that the contention of the appellant before them that the Letters Patent Appeal Bench was not in law entitled to reverse the concurrent findings of fact must be negatived and also that under Cl. 15 of the Letters Patent an appeal lies from a judgment and decree without any limitation being imposed upon the powers of the Appellate Court and the whole decree lies open before the Court. It is significant to note that in this case the learned single Judge of this Court reversed the finding of the learned trial Judge. If so, the principle enunciated by the Supreme Court will operate with more vigour here than in a case where both the trial Judge and the learned single Judge of this Court sitting in first appeal concurred with the findings of facts.
11. As the appeal L.P.A. 77 of 1978 is more comprehensive, we propose to deal with it in the first instance. It is also convenient to advert to the defence taken by the second respondent even at the outset. His principal defence is that he is a bona fide purchaser for value without any notice of any defect in title. We may add that as regards the other defence, viz. the appellant is only a benamidar for her husband, it would be dealt with by us in due course. It is needless to state that even if the defence of the first respondent were to be negatived yet the second respondent is entitled to succeed if he were to successfully establish his defence that he is a bona fide purchaser for value as aforesaid.
12. The immediate question that arises for consideration is whether the appellant had adduced proof of the second respondent's guardian's knowledge of the defect in title, In the instant case, we find that there is intrinsic evidence in the documents produced and relied on by the respondents themselves to positively suggest that the said guardian - be it the second respondent's paternal grandfather or his father was sufficiently put on notice of such defect. It is no gain saying that, the evidentiary value of a document is undoubtedly superior to the oral testimony. It is stated in Ex. B 2, the registration copy of which is marked as Ex. A 37, that the suit property was purchased from Shanmugham Pillai out of the earnings of the appellant's husband, that the said property had been in the possession and enjoyment of the appellant and her husband and that to compensate the amounts misappropriated by the appellant's husband as an employee in the first respondent's depot in Gingee, the appellant and her husband (executants of Ex. B 2) had agreed to sell the suit property for Rs. 8000 to the first respondent. It is further recited therein that the vendee (the first respondent) should redeem the mortgage from Tindivanarn Co-operative House Mortgage Bank. Had the guardian of the second respondent examined as Ex. B 2, as she is bound in law to do, she must have been put on notice that the consideration for the sale in the appellant's husband's misappropriation in the vendee's business at Gingee and that though the apparent title stood in the name of the appellant, it is alleged therein that she is only a benamidar for her husband. These averments, in our careful consideration, would have excited suspicion in the mind of any bona fide or reasonable person, particularly when the property purchased is to benefit a minor. Yet another aspect of intrinsic evidence, which would support an inference, is that while in Ex. B 2. it was stated that the suit property was purchased by the appellant's husband out of his earning but in the name of the appellant, in Ex. B 35, it is stipulated that the schedule mentioned property belonged to both the appellant and her husband. Thus there are two inconsistent and irreconcilable sources of title as regards the appellant on the one hand and her husband on the other. Further an enquiry was found necessary is evident from the lawyer's reply Ex. A 41 to the appellant's notice Ex. A 39 sent on behalf of the second respondent's grandmother acting as his guardian. That the grandmother is the guardian of the second respondent is stated in Ex. A 41 and asserted by D.W. 6 in his cross-examination. The evidence of D.W. 6 is that he was not shown as guardian in Ex. B 34, that his mother (the second respondent's grandmother) is the guardian of the second respondent and that it is the said grandmother who gave the reply Ex. A 41. It is also essential to notice at this stage that it is not the case of the second respondent that though the grandmother is the guardian D.W. 6 looked after, all the transactions since negotiation till the execution and registration of Ex. B 35 because the said guardian is very old. For a reference to Ex. A 41 discloses that the said reply was sent under instructions of the minor's grandmother. We had just now referred to the evidence of D.W. 6 in cross examination. He also asserted that it is his mother who is the guardian and gave instructions contained in Ex. A 4 1, reply notice obviously meaning that instructions were given by her to the counsel. While so, there is every force in the contention advanced by Mr. Kesava Aiyangar, learned counsel for the appellant, that in the light of the above admitted evidence, non-examination of the minor's grandmother is fatal to the defence. He fortified his submission by relying on the ruling of the Supreme Court reported in Gopal Krishnaji v. Mohd. Haji Latif : 3SCR862 . The Supreme Court succinctly laid down the principles in the said decision thus (at p. 1416) -
'Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.
In our view, the above dictum would be applicable with great vigour to the instant case, for, we had earlier pointed out that the contents in Exs. B 2 and B 35 are enough to put the minor's guardian on notice about the defect in title and that in Ex. A 41 it was alleged that such an enquiry was made. A fair reading of Ex. A 41 - would indisputably establish that the enquiry was made by the grandmother because she gave instructions to send the notice and because there is no evidence that on her behalf her son D.W. 6 played all the roles in all the transactions to put it differently, though the guardian was put on notice, no evidence was placed at the instance of the second respondent to prove that there was such an enquiry and that despite such enquiry the defect was not noticed. We have to reiterate that there is no reference to D.W. 6 ever taking any part either in the negotiations or in the end transaction, the sale under Ex. B 35 in Ex. A 41. It would immediately follow that no weight can be attached to the evidence of D.W. 6 on this vital aspect of enquiry. Even otherwise, as per the ruling of the Supreme Court, cited supra, the best witness is kept out of Court. These are not all. While Ex. B 35 was executed as early as on 29-12-1965 it came to be registered on 20-4-1966, Even D.W. 6 admitted that it is D.W. 4 (the first respondent's manager) who conducted all the negotiations and finalised the sale under Ex. B 35. We will be referring, in due course, that D.W. 4 is the arch villain in bringing about not only Ex B2, but also Ex. B 35. Further the evidence of D.W. 6 is that he did not notice who was the predecessor-in-title and that though he saw Ex. B 2, he did not care to read the contents thereof. He further deposed that he does not know in whose favour the prior title stood and under what circumstances the sale deed came to be executed by the predecessor-in-title, obviously referring to Ex. B 1. Even in the chief examination he would add that because the first respondent was doing business in a large scale, he thought that he could purchase the property. This admission on the part of D.W. 6 is enough to conclude that no enquiry at all was made on behalf of the minor purchaser notwithstanding that the documents themselves reveal that defect. If, according to D.W. 6, D.W. 4 was simply trusted and D.W. 4 brought about all the transactions resulting in the execution and registration of Ex. B 35, it is reasonable to infer that the minor's guardian is not a bona fide purchaser for consideration without notice of the defect. In the last but the third and fourth paras of the judgment of the learned single Judge, of this Court, this aspect has been dealt with. According to the learned Judge :
'There is absolutely nothing to indicate that a perusal of the sale deed Ex. B. 2 by any person will convince that person that the title of the vendee therein was not a perfect title. Equally there is nothing improbable or unnatural in a wealthy person disposing of a property, which he or she had purchased. Consequently, the case of P.W. 1 in this behalf that the purchase by the second appellant in the former appeal was not bona fide and that he was not a transferee for consideration has not been established.'
He relied upon the following circumstances to support his finding. Nearly a year after Ex. B. 2, the appellant caused Ex.A. 39 notice to be issued. The appellant's explanation for the delay that because she did not have enough money there was delay in sending the lawyer's notice was not acceptable. Her evidence that Ex.A. 39 came to be issued two months after obtaining the registration copy of Ex. A. 37 is therefore not correct. According to the learned Judge, therefore, 'This conduct on the part of P.W. 1 (the appellant herein) will lead to the inference that P.W. 1 and P.W. 4 (the appellant's husband) originally executed Ex. B. 2 with the full knowledge that it was sale deed and that it was being executed to liquidate the amount due by P.W. 4 to the appellant therein (first respondent before us) but only later, they wanted to make something out of it and probably they wanted to get some more money from the appellant and that was the cause for the present suit.' He further found that there is material discrepancy between the evidence of P.W 1 and her son-in-law P.W. 3, for P.W. 1 stated in her evidence that the second respondent came to her daughter's house and asked her whether she could purchase the suit house and that P.W. 1 told her that there was a case relating to the suit property and asked her not to purchase the same but then P.W. 3 had stated in his evidence that P.W. 1 did not come to his house at all during the relevant period. With great respect to the learned Judge, he has fallen into factual errors while he negatived that the explanation put forward is not true and that there is discrepancy between the evidence of P.W. 1 and P.W. 3. Ex.A. 37 is the registration copy of Ex.B. 2. For issuing the suit notice Ex.A. 39, the appellant had to obtain not only the registration copy of Ex.B. 2 sale but also that of Ex.B. 35 sale. We had earlier pointed out that Ex B. 37 is the registration copy of Ex B 2, while Ex, B. 38 is the registration copy of Ex. B. 35. A reference to Ex. A. 38 shows that the registration copy was applied for on 1-6-1966 and it was prepared and delivered on 3-6-1966. As between 3-6-1966 and 25-7-1966 when Ex.A. 41 was issued, the interval was only about 2 months. It is pertinent to notice what P.W. 1deposed is:
(Matter in Vernacular omitted - Ed.)
Factually P.W. 1 made no reference to Ex.A. 37 when she said that she gave notice 2 months after. On the other hand, her evidence is so clear that she gave notice 2 months after she obtained the registration copies of Ex. B. 2. and B. 35. If so, the reasoning of the learned Judge referred to above cannot be sustained. It is true that P.W. 1 had stated that the second defendant came to her daughter's house and asked her whether she (second defendant) could purchase the suit property for which she (P.W. 1) told her that since the said property is involved in a case, she should not purchase the same. The learned Judge is not right when he stated that P.W. 3 had deposed that P.W. 1 did not come to his house at all during the relevant period for his evidence is -
(Matter in Vernacular omitted - Ed.)
13-14. It is pertinent to notice that Ex. B. 2 is dated 17-7-1965 and Ex. B. 35 is dated 29-12-1965. From the evidence extracted above P.W. 3's wife would have given birth to a child in about 4 months. This priod certainly falls within the above interregnum. Therefore, we are unable to find any inconsistency. The other important factor to be noticed in this connection is that there must have been some misunderstanding by P.W. 1 and also by the learned trial Judge when the former spoke about the visit of 'D.2'. It is important to note that the second defendant is a minor though is represented by his father D.W. 6, as guardian. Thus a reference to the second defendant in the deposition of P.W. 1 is an obvious mistake. It might be that P.W. 1 was rather referring to the minor's grandmother because in the deposition as recorded by the learned trial Judge we find the following -
(Matter in vernacular omitted - Ed.)
It is significant to notice that the reply notice was sent only by the minor's grandmother but not by his father. In the cyclostyled copy of the deposition prepared by this office for the purpose of A.S. 843 of 1971 it is wrongly prepared as follows :
(Matter in Vernacular omitted - Ed.)
The expedient course is not to be, therefore, influenced one way or the other by that part of the evidence of P.W. 1 because of the foregoing circumstances. For the reasons stated above, we find that the finding of the learned Judge of this Court can hardly be supported by evidence.
14A. In the result, we are constrained to set aside his finding and restore that of the learned trial Judge.
15. The next question to which we propose to advert is the issue relating to benami theory. It is by now well settled that the burden is on the person who sets up the case of benami - in the instant case the respondents - and that if the burden is not discharged, the ostensible title will prevail. To substantiate a case of benami, the judicial pronouncements have laid down several factors have to be taken into consideration and on an over all assessment of such factors is the Court to render a finding. The relevant factors are: (a) the consideration; (b) possession and enjoyment of the property; (c) possession of the title deeds; (d) motive and (e) mutation in the public records. Further, if the benamidar and the real owner were to be related as wife and husband, or concubine and paramour, the payment of consideration by the husband or paramour, as the case may be, would not be decisive, for, it is most likely that the husband or paramour intended to benefit the wife or the concubine. We had already referred to the inconsistency as regards source of title to P.W. 1 or P.W. 4 as between Ex. B. 2 and. Ex. B. 35. We recall the same at this juncture to point out that there is no consistency in the defence on this vitial aspect. In Ex. B. 2, it is recited that out of the earnings of P.W. 4, the suit property was purchased. However, nothing was elicited from P.W. 4, as to the date of his employment, particular of his employment, particulars of - his salary and his savings. It has to be immediately pointed out that none of the defence witnesses had ever spoken to these relevant matters. Thus, no satisfactory evidence is placed before the Court in proof of the means of P.W. 4 at the time of purchase under Exs. A. 2 and A. 3. It may not be out of place to point out that from the evidence it is possible to conclude that P.W. 4 would not have been in employment at the time of Exs.A. 2 and A. 3. According to D. W. 5. P.W. 4 had 18 years of service. Evidence was given on 199-1971. This will take us to about 1953. D.W. 4 would depose that he came to be employed in the first respondent's service in 1951 and that even before that P.W. 4 was working under D.W. 5. All these will suggest that P.W. 4 would have got employed only in 1951. In any event, it is most unlikely that P.W. 4 would have saved Rs. 2000 to find the consideration for Exs.A. 2 and A. 3. As the parties are related as husband and wife, possession and enjoyment of the property would not throw any definite light and therefore we leave this out of consideration. As regards possession of documents of title, the property came to be mortgaged with the Tindivanam Co-operative House Mortgage Bank under Ex.B. 33 dated 24-9-1962, and the mortgage deed was executed both by P.W. 1 and P.W. 4. It is the evidence of P.W. 1, that as she happened to be a woman, the bank insisted that her husband should also join the execution of the mortgage deed. A reference to Ex.B. 33, would reveal that a printed form of mortgage deed was utilised by the Bank. Therefore, even this has to be left out of consideration. As regards motive, there is neither pleading nor evidence, as rightly pointed out by the learned trial Judge. Fortunately, for the appellant, the property is registered in her name in the records of Tindivanam Municipality as seen from Exs.A. 11 to A. 19, which are all house tax receipts issued in her name. On the top of it all, Ex.A. 20, dated 2-7-1956 is the plan submitted by the appellant for effecting improvements. In that document the appellant alone had signed as owner. The above conspectus will undoubtedly establish that far from the respondents discharging their burden, the appellant has satisfactorily established that she is not the benamidar but is the real owner. At any rate, we have to reiterate that the burden had not been discharged and in such a case as already pointed out, the ostensible title will have to be upheld.
16. With reference to this issue, the learned Judge of this Court has observed thus:-
'As far as the third point is concerned, it is really unnecessary to consider the same in view of my conclusions on points Nos. 1 and 2. Once it is held that P.W. 1 executed the sale deed Ex.B. 2, voluntarily and with full knowledge of its contents as a sale deed, it is totally irrelevant whether the property belonged to her or not.'
Two possibilities emerge from the above observations. The first is that he did not want to disturb the finding of the learned trial Judge while the other is that the learned Judge would have proceeded on the assumption that the real owner is P.W. 1, but yet her case regarding undue influence, coercion and fraud was not established.
17. According to Mr. Kesava Aiyangar, learned counsel for the appellants, the respondents restricted their defence that P.W. 4 is the real owner but failed to plead a case in the alternative to the effect that even assuming that P.W. 1 is the real owner, yet the case of undue influence and coercion is not true. He would further submit that in the absence of an alternative pleading, the Court shall not look into the evidence on this aspect. Relying upon the decision in Atta Md. v. Emperor, AIR 1930 PC 57 (2), the learned counsel would urge that the prohibition is addressed to the Court whereby the Court is refrained from looking into the evidence because there is no pleading on that matter. A proper reading of the written statement filed by the first respondent clearly shows that though such an alternative plea is not expressly pleaded, she had not only denied the undue influence and coercion but also stated that Ex.B. 2 transaction was a voluntary one entered into by the appellant with full knowledge and consent and that the first respondent had not had any unfair advantage. The said defence taken by the first respondent as regards undue influence and coercion will fairly indicate that they are setting forth the defence on the statements of fact in relation to undue influence and coercion are well brought the alternative case based on the assumption that P.W. 4 is the real owner. The draftsman is not the first respondent herself but luckily for out in the written statement. If so, it would be rather unjust to read the written statement as not raising a defence on the alternative case. We are therefore unable to agree with the learned counsel for the appellant that because no alternative case is pleaded, the evidence should not be looked into and also that the approach of the learned Judge of this Court in not deciding this issue relating to benami had vitiated his judgment;
18. So it is rather unnecessary to peep into the two decisions cited by the learned counsel for the appellant namely Atta Md. v. Emperor, AIR 1930 PC 57 (2) and Bhagat Singh v. Jaswant Singh, AIR 1966 SC 1861.
19. It is now convenient to advert to the first point for consideration as determined by the learned Judge of this Court, The finding of the learned Judge is that the misappropriation alleged against P.W. 4 by the first respondent and her agent D.W. 4 was proved and was admitted by P.W. 4 himself. The learned Judge also pointed out that Mr. Kesava Aiyangar who appeared for P.W. 1 and P.W. 4 dealt with this as the last point and did not, in fact, argue anything in the face of the evidence available on record. The learned counsel before us submitted that his contention on this aspect was not understood in the proper perspective. There is no need for us to get ourselves entangled on this very nice controversy. Fortunately for us, the substratum of the arguments advanced by the learned counsel hinged upon as to whether the appellant had not succeeded in substantiating that Ex.B. 2 was brought about under undue influence, coercion and fraud. In short, the submission turned upon the assessment of evidence in this case. This, in turn, takes us to examine issues Nos. 2, 3 and 4 as framed by the learned trial Judge and point No. 4 as formulated by the learned Judge of this Court.
20. Before we proceed to assess the evidence in this case, it is useful to look at the position of law. Immediately it has to be noticed that the appellant's case is not that the document is void ab initio as offending S. 23 of the Contract Act, but is voidable by virtue of undue influence, coercion and fraud practiced on her both by P.W. 4 and D.W. 4. S. 16 of the Contract Act defines what is undue influence. S. 16 reads as follows -
'16(1) A contract is said to lie induced by 'undue influence' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
(2) 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, illness, or mental or bodily distress.
3. 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 proof that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.'
21. A close examination of the said provision reveals that under circumstances set out in S. 16(l) a case of undue influence is established. If the circumstances set out either in sub-cl. (a) or sub-clause (b) in sub-sec. (2) are found to be established, a person is deemed to be in a position to dominate the will of another. Sub-sec. (2) is common to sub-sec. (1) and sub-sec. (3) of S. 16. As between sub-sec. (1) and sub-sec. (3), the common factor is that one of the parties was in a position to dominate the will of the other. Sub-sec. (1) and sub-sec. (3) cover two different fields, though at times, one may overlap the other. To attract sub-sec. (1) two things should be established, namely, (a) one of the parties was in a position to dominate the will of the other and (b) he used that position and obtained an unfair advantage over the other while to attract sub-sec. (3),(a) the person was in a position to dominate the will of the other and (b) the transaction appeared on the face of it or the evidence adduced was to be unconscionable. There is another vital difference between subsec. (1) and sub-sec. (3). In sub-sec. (3), if the two ingredients are established, the burden of proof that contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other. This presumption is absent in sub-sec. (1). This, in our view, is the proper reading of S. 16 of the Contract Act. Another special feature is found in S. 16(3), i.e., if it is established that a person who is in a position to dominate the will of another entered into a contract with him and if the transaction appeared either on the face of it or on the evidence adduced to be unconscionable, the burden is upon the person who was dominating the will of another to prove that such contract was not induced by undue influence. The word 'shall' found in S. 16(3) indicates that the presumption is mandatory. In the instant case, if the ingredients referred to in S. 16(3) were to be established by the appellant the burden would be on the respondents to satisfactorily prove that Ex.B. 2 sale was not induced by undue influence. The concomitant position is that if the burden is not discharged, the presumption shall prevail. It is further significant to notice that either on the evidence or on the face of the transaction it is enough if it appeared to be unconscionable. In other words, it is enough for the appellant to substantiate that the transaction was prima facie unconscionable and that she was under the domination of her husband P.W. 4 and the, first respondent's manager D.W. 4. To put it differently, positive proof that the transaction is unconscionable is dispensed with to raise a statutory presumption and the statutory presumption would be in force until the burden is rebutted. According to the learned counsel for the appellant, this import of Cl. (3) of S. 16 was not noticed by the learned Judge of this Court and the result was the learned Judge threw the burden wrongly on appellant. This, according to the learned counsel, has to a greater extent vitiated the judgment of the learned Judge. He would further urge that there are enough circumstances to project a prima facie case as envisaged by S. 16(3) and that in any event, there is ample evidence in this case to support misrepresentation, coercion and fraud.
22. S. 16(2) says what is domination. If a person should hold either a real or apparent authority over the other, he would be deemed to be in a position to dominate the will of another (emphasis by us). We shall not lose the significance of the expressions 'real' and 'apparent' employed in that sub-section. In our view, even if the circumstances were to project that one had apparent authority over the other, it would be deemed that the person dominated the will of the other as envisaged by sub-sec. (2) of S. 16. So too, if a person were to stand in a fiduciary relationship with the other, the former would be deemed to have dominated the will of the other. We are not referring to sub-sec. (b) as that is not relevant in this case. The plain meaning of sub-sec. (2) clearly points out that the relationship between the two has no relevance at all though it may in certain cases project a prima facie case.
23. It is now worthwhile to refer to the citations brought to our notice in this context. They are Tungabai v. Yeshwant ; Inche Noriah v. Shaik Allie AIR 1929 PC 3; Kaufman v. Gerson (1904). 1 KB 591; Rama Patter and Bros v. Manikam AIR 1935 Mad 726; Subhas Chandra v. Ganga Prosad, : 1SCR331 (This is relied on by both the counsel) and Ladli Prasad Jaiswal v. Karnal Distillery Co. Ltd., : 1SCR270 . These are all cited by the learned counsel for the appellant. The learned senior counsel for the respondents brought to our notice the decisions in Raghunath Prasad v. Sarju Prasad, AIR 1924 PC 60 and Poosathurai v. Kannappa Chettiar, AIR 1920 PC 65. The learned senior counsel for the respondents contended that in all cases if the facts were either under S. 16(l) or under S. 16(3), these provisions would not be attracted unless there is proof that P.W. 4 and D.W. 4 dominated the will of the appellant. He would further submit that on the evidence in this case the factum of domination as alleged by the appellant was not established at all. The facts in Tungabai v. Yeshwant Jog are : - The husband was heavily in debt; he had mortgaged all his own property and, being pressed for money had nothing to offer by way of security for a further loan than his already encumbered estate. He approached his creditor for a further loan of Rs. 7000 but the latter was unwilling to lend it either on the security of the husband's encumbered lands or on a promissory note. So the only security, which could be offered, was the wife's land. The wife was quite illiterate; unable to read or write, but could sign her name. Her husband managed the wife's property entirely; she was a submissive wife, and if her husband told her to execute a document she did so at his bidding and without informing herself of the contents. The wife's property brought some income on which the family had to depend and the wife executed the mortgage deed for Rs. 7000 for the husband's benefit and received nothing out of the amount herself. On those facts the Privy Council held that the wife was acting under the influence of her husband for whose benefit the mortgage was being executed and that the creditor who benefited by the transaction had notice of the facts, which raised presumption, and hence he was in no better position than the husband who exercised influence. It was further held that it was unnecessary to decide whether there was actual fraud by the husband; it was enough to show that the wife was acting under his influence and not as a free agent; considering that he was at the end of his resources and that the income from the wife's property was all that was to support the family it was a most improvident thing to mortgage their only means of livelihood for the purpose of using at any rate a substantial portion of the money to pay off antecedent debts of the husband, and an action which no right minded person ought to have entertained. This decision cited with approval the earlier decision of the Privy Council in Inche Noriah v. Shaik Allie, AIR 1929 PC 3. There the donee who is related as nephew of the donor took advantage of the fact that the donor was a feeble old woman unable to leave the house and entirely trusted the donee, the donee took a settlement deed, The principle is settled as follows by the Privy Council -
'That the relations between the donor and donee were sufficient to raise the presumption of the influence of the donee over the donor and to render it incumbent upon him to prove that the gift was the spontaneous act of the donor acting under circumstances which enabled her to exercise an independent will, and which justified the Court in holding that the gift was the result of the free exercise of her will.'
We do not find the principle laid down in Kaufman v..Gerson (1904) 1 KB 591 is ever applicable to the facts in this case, because, as already pointed out by u I s, it is not the case of the appellant that the consideration for Ex.B. 2 was to stifle the prosecution and opposed to public policy but then the document came to be executed by her because of undue influence, coercion and fraud. The ratio laid down by a Division Bench of this Court in Rama Pattar and Bros v. Manikkam, AIR 1935 Mad 726 as appropriate for the present case is that in a case of undue influence and fraud the mere fact that on one or two matters the Court does not accept a party's evidence will not disentitle him to relief, for in such cases conclusion of the Court rests not so much upon direct evidence showing that any deception was practised as upon inferences arising from the situation of the parties and nature and effect of the transaction and also that whether the creditor himself exercised undue influence or took benefit under that transaction with notice that that transaction was the result of undue influence exercised by the debtors, the nature of the transaction would suffer the same infirmity. In Subbash Chandra v. Ganga Prosad : 1SCR331 the facts are as follows :-
'The suit in, the present case was for declaring that a deed of settlement executed by the plaintiff's father and the plaintiff's sister in favour of the plaintiff's brother's son in respect of certain properties was fraudulent, collusive and invalid and for cancellation of the said document. The trial Court dismissed the suit. However in appeal the High Court proceeded on the basis that in the circumstances of the case and in view of the relationship of the parties the trial Court should have made a presumption that the donee had influence over the donor and should have asked for proof from the respondents before the High Court that the gift was the spontaneous act of the donor acting under circumstance which enabled him to exercise an independent will and which would justify the Court in holding that the gift was the result of a free exercise of the donor's will. The High Court went on to presume from the great age of the donor that his intelligence or understanding must have deteriorated with advancing years and consequently, it was for the, Court to presume that he was under the influence of the younger son at the date of the gift. In appeal before this Court it was contended on behalf of the defendant appellant that the judgment of the High Court had proceeded on an entirely erroneous basis and that there was no sufficient Pleading of undue influence nor was there any evidence adduced at the trial to make out a case of undue influence'.
On those facts, the Supreme Court laid down the following principle -
'The law as to undue influence is the same in the case of gifts inter vivos as in the case of a contract and the Court trying a case of undue influence must consider in view of S. 16(l) of the Indian Contract Act, 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 donee? Sub-sec. (2) of S. 16 illustrates is to when a person is considered to be in a position to dominate the will of another. These are inter alia (a) where the donee holds a real or apparent authority over the donor or (b) when he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress. Sub-sec. (3) of the section throws the burden of proving that a contract was not induced by undue influence on the person benefited by it when two factors are found against him namely that he is in a position to dominate the will of another and the transaction appears on the face of it or on the evidence adduced to be unconscionable.
Thus under S. 16 the unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relation of the parties. But the High Court neither determined the relationship of the parties as required in S. 16(l), nor did it find that the transaction was unconscionable. Therefore the presumption made by it were unwarranted by law.
(ii) Before 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. These conditions remained unsatisfied in the present case. I
(iii) On the evidence in the case the trial Court was right in its conclusion that the donor was fully aware of the fact that he had transferred the property to defendant No. 1. It had not been established that he was of unsound mind.
iv) There could be no presumption of undue influence merely because the donor and the donee were nearly related to each other. Nor could the fact that a grandfather made a gift of a portion of his properties to his only grandson a few years before his death show that the transaction was unconscionable'.
It is relevant to notice that the Supreme Court has only quoted the following observations from Raghunath Prasad v. Sarju Prasad, (1924) 51 Ind App 101 : AIR 1924 PC 60 -
'The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of these parties. Were they such as to put one in a position to dominate the other?'
24. A reading of the judgment of the Supreme Court will reveal that except what they have quoted above, the learned judges have not expressed their views one way or the other. Immediately after the quotation, the Supreme Court observed:
'It must also be noted that merely because the parties were nearly related to each other no presumption of undue influence can arise'.
Therefore, it cannot be understood that the Supreme Court had subscribed their concurrence to the above observations. We had taken some pains to refer to this passage because section as such does not make any reference to relationship. It may - be stated that in that case the Supreme Court set aside the judgment and decree of the High Court particularly because the case of undue influence had not been sufficiently alleged either in the pleadings or substantiated on the evidence adduced. Two matters on which the principle of law is settled by the Supreme Court are enough to be noticed. The first is that a vague or general principle regarding undue influence can never serve the purpose or satisfy the requirements of 0. 6. R. 4 of the Civil Procedure Code, that the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of are of the influence, and the unfair advantage obtained by the other that the rule had been evolved with a view to narrow the issue and protect the party charged with improper conduct from being taken by surprise and that a plea of undue influence must. To serve the dual purpose, be precise and all necessary particulars in support of the plea must be embodied in the pleading. The other principles relate to construction of S. 16 and we quote the following from the decision of the Supreme Court in Ladli Prasad Jaismal v. Karnal Distillery Co. Ltd., : 1SCR270 -
'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 the 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 position to dominate the will of another (such proof being furnished either by evidence or by the presumption arising under sub-sec. (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 sub-sec. (13) has manifestly a limited application: 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 that 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.
No doubt, in that case the Supreme Court, on the evidence, stated that the High Court was in error in relying upon the presumption under sub-sec. (3) of S. 16, because in their view the evidence does not justify the conclusion that the plaintiff was in a position to dominate the will of the defendants and that the resolutions gave an unconscionable advantage to the plaintiff. The decision in Raghunath Prasad v. Sarju Prasad, AIR 1924 PC 60 is referred to by the Supreme Court in Subhash Chandra v. Ganga,Prasad, : 1SCR331 and there is no need to advert to it once over. As for the decision in Poosathurai v. Kannappa Chettiar, AIR 1920 PC 65 it is enough to notice the ratio laid down therein which is as follows - '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 is 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 'influence' 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.'
Of course, in that case the Privy Council upheld the decision of the High Court, which reversed the decree of the learned Subordinate Judge and held that the undue influence was not proved.
24A. Let us now turn to the evidence While the learned counsel for the appellant covered this field with moot minute details, the learned Senior counsel for the respondents argued that we should go by the broad
probabilities in this case particularly emphasising on the finding that P.W. 4, the appellant's husband, had embezzled the moneys of the first respondent as her employee and also pointed out that it is not uncommon
that a Hindu dutiful wife would sacrifice her personal property for the sake of her husband. According, to the learned Senior Counsel, it is the feeling of reparation that has persuaded the appellant to voluntarily execute Ex.B. 2. Had the facts been so simple as suggested by the learned Senior Counsel and had the appellant's husband been once and for all exonerated in lieu of Ex.B. 2 transactions, it might be that the transaction cannot be presumed to be unfair or unconscionable. As a matter of fact, these submissions prevailed upon the learned single Judge of this Court as can be seen from his reasoning :- 'To save him from his predicament, P.W. 1 should have agreed to execute Ex.B. 2 as well as to join the execution of the promissory note and that would have been the natural reaction of any wife when she finds that her husband has misappropriated a huge amount of his employer and therefore he had to make good the amount' and 'the contention of Mr. A R. Narayanaswami is that what P.W. 1and P.W. 4 have done in the present case is to make a reparation and such making of reparation should be encouraged, and that P.W. 1 and P.W. 4 having offered to make the reparation and made the reparation ought not to be allowed to go back on what they have done. I am inclined to agree with this contention. The execution of Ex.B. 2, the sale of the lorry and the execution of Ex.B. 1 are all in the nature of making reparation with regard to the swindling of the appellant's money by P.W. 4 and there is nothing illegal about the making of such reparation, and the making of, such reparation could not be challenged on the ground of exercise of undue influence. Hence, my conclusion on this point is that no threat was administered to P.W. 1, in order to enable her to challenge Ex.B. 2, the sale deed, on the ground that it was vitiated by the exercise of undue influence and that her consent to the same was not free.' But, in this case, there are complex circumstances. The evidence adduced by the respondents is not only mutually contradictory but is also unconvincing and unworthy of acceptance and, on the top of it all, all the possessions of P.W. 1 and P.W. 4 were not only stripped off in the process of alleged reparation but they were also called upon to execute Ex.B. 1 promissory note.
25. As rightly pointed out by the learned counsel for the appellant, the learned Judge was not right when he expressed the opinion that the probabilities of the case are against such stand of P.W. 1, that he had already referred to the fact that the evidence of D.W. 4 was that he asked P.W. 4 to get P.W. I to the company's premises at Gingee on 16-7-1965 and that she accordingly came to the depot and agreed to execute the sale deed and that if that was true, it would mean that Ex.B. 2 was written and executed after P.W. 1 and P.W. 4 had agreed to execute the same and therefore the question of administration of any threat at the time of obtaining the signature on 17-71965 did not arise. Finally, he concluded as follows : 'Under these circumstances, I am clearly of the opinion that when P.W. 1 executed Ex.B.2 she was not subjected to any threat that she would be sent to jail or her husband would be sent to jail and the document was written and executed as a result of the prior understanding between the parties.' The prior understanding as already referred to is said to have taken place on 16-7-1965 at Gingee at the first respondent's company premises. First of all this case was not pleaded. Secondly this particular aspect was not put to P.W. 1, in the course of cross examination. Further, even. D.W. 5 the first respondent herself had not spoken to this in the witness box. Above all, for the first time, this is whispered by D. W. 4, the first respondent's manager in his cross examination and the relevant evidence is that on 16-7-1965 after meals D.W. 4 went to Gingee and asked P.W. 4 to get, P.W. 1 and that P.W. 1 on 16th evening agreed to execute the sale deed. It is also relevant to, notice that his further statement is to the effect that he did not instruct his counsel to put this ease to P.W. 1 and P.W. 4 because he thought that it was wholly unnecessary. It is this piece of evidence which was accepted by the learned Judge in spite of the infirmities stated supra and also to be stated infra. On the top of all, the above statement of 4 in the cross examination can hardly be reconciled with his evidence in chief. In the chief examination D.W. 4 had stated that on 6th evening the stamp papers for Ex.B. 2 work arranged to be purchased at Tindivanam and that, thereafter D.W. 4 and P.W. 4 went to Gingee and that it was agreed that as the title deeds stood in the name of P.W. 1, both P.W. 1 and P.W. 4 should join the execution of the sale deed agreed to be executed, that on 17th P.W. 4 was at Gingee, that the stamp papers were purchased on 17th and were brought by P.W. 4, that in Gingee depot Srinivasan prepared a draft, that the same was read over to P.W. 4, that P.W. 4 approved the same and that thereafter Ex.B. 2 was prepared. The above evidence will rule out the possibility of D.W. 4 having met P.W. 1 on the 16th evening. This self-contradictory statement made by D.W. 4 was also not noticed by the learned Judge. Quite rightly, therefore, was the learned counsel for the appellant well founded in his criticism that the learned Judge has wholly erred in believing that there is evidence that on the 16th evening P.W. 1 agreed to D.W. 4 to execute the sale deed, such an erroneous approach by the learned Judge will certainly have a telling effect on his decision.
26. According to the learned Judge, for the first time P.W. 1 stated in her evidence that D.W. 4 threatened that she as well as her husband would be sent to jail if she did not execute the document Ex.B. 2, that P.W. 2 did not say about anybody being sent to jail, that he merely stated that D.W. 4 stated that if P.W. 1 did not sign it could lead to a criminal case and that the evidence of P.W. 3 is different while he stated that D.W. 4 threatened P.W. 1 that P.W. 4 would be sent to jail. But in the plaint in para 5 the following averment is found : 'Petitioner learns that thereafter, the first respondent and her manager Venkatarama Naidu told Veerabadran Pillai that unless he along with the petitioner executed a sale deed of the under mentioned house to the 1st respondent for Rs. 8000 he would be prosecuted and, sent to jail for criminal dishonest misappropriation to the extent of Rs. 25000'. In para 8 it is stated thus : 'Venkatarama Naidu (D.W. 4) also threatened them that if the petitioner plaintiff did not put her signature to that document, she would also be arrested and sent to jail'. Thus, the learned Judge's statement that for the first time P.W. 1 stated in her evidence that D.W. 4 threatened that she as well as her husband would be sent to jail is not correct. So too, the other criticism that there is discrepancy between the evidence of P.W. 2 and P.W. 3 can hardly be accepted on the materials in this case. It is relevant to notice that P.W. 2 is an attestor to Ex.B. 2. It is equally relevant to notice that a fair reading of his evidence will disclose that he was not present right through the transactions resulting in the execution of Ex.B. 2. He did say as follows:-
(Matter in vernacular omitted - Ed.)
The reference to criminal case is comprehensive enough to take into its fold the threat of P.W. 1 and P.W. 4 being sent to jail. It is very important to notice that this statement of P.W. 2 was not challenged in the cross examination. Ruining to the evidence of P.W. 3, it will be seen that this witness also was not present right through the transaction P.W. 3 in chief examination had deposed as follows -
(Matter in ' vernacular omitted - Ed.)
We fail to understand as to how there is any inconsistency between the evidence of P.W. 2 and P.W. 3 with regard to the threat extended to P.W. 1. It is needless to state that the evidence of a witness should be read as whole while a comparison is made with that of the testimony of another witness. It is rather hazardous to expect that the corroboration by one witness should be in identical terms with the testimony of another witness. The reasonable course is to read the evidence of all the witnesses as a whole and to find out whether on the material aspect, which alone will have, an impact on the issue concerned was there corroboration. On the evidence in this case we reiterate that the evidence of P.W. 1 finds corroboration not only from P.W. 2 but also from P.W. 3; we exclude from our consideration the evidence of P.W. 4 who is after all P.W. 1's husband and also P.W. 5 ,and P.W. 6 for the present.
27. We will now demonstrate as to how the evidence of P.W. 5 and P.W. 6 is of assistance to the appellant though according to the learned Judge of this Court it was otherwise. It is seen from the testimony of P.W. 5 that he was not present at the time when P.W. 6 signed Ex.B. 6. At the same time, his evidence is that the moment P.W. 1 refused to sign he left the place. Thus this witness has spoken to the incident that had taken place as long as he was present. Even that evidence is to the effect that P.W. 1 refused to sign Ex.B. 2. This evidence is sufficient to sustain an inference that she was not prepared to execute the document voluntarily. Turning to P.W. 6 the important feature worthwhile noticing is that he is an independent and disinterested witness; he owns a soda factory. This witness has been categorical in his statement that only after D.W. 4 threatened P.W. 1 and P.W. 4 to send them to jail unless she (P.W. 1) signed the document, did P.W. 1 sign it. Nothing was suggested to this witness during the course of cross-examination to discredit his testimony. The only suggestion put to him in the course of cross-examination was that at the instance of P.W. 1 he was deposing falsely . It is pertinent to note that this witness has also spoken to the, fact that Ex.B. 2 was not read over, that P.W. 1 was somewhere in the interior portion of her house and that after the Manager (D.W. 4) sent for her, she came to the front portion of the house. Nontheless the learned Judge has stated that the evidence of P.W. 6 is not of much assistance. Thus it turns out that the rejection of the evidence of P.Ws. 2,5 and 6 in any event is not proper.
28. Now let us examine the evidence adduced on behalf of the first respondent. We had already dealt with the evidence of D.W. 6 the alienee's father. So far as D.W. 5 (first respondent) is concerned, it is very significant to notice that she made no reference to P.W. 1. Also in Ex.A. 40 which is the reply notice sent at the instance of the first respondent, there is no reference that instructions for the notice were conveyed by the first respondent through her manager D.W. 4. On the other hand, a reading of Ex.A. 40 will reveal that the first respondent herself had personally given instructions for the said reply. In the reply notice it is alleged that P.W. 1 was aware of her husband having misappropriated Rs. 25000, that the first respondent came to know about the same, the matter was discussed in the presence of P.W. 1, P.W. 4 and certain other persons who were interested in them and P.W. 1 and P.W. 4. This, according to the averment suggests that there must have between a discussion between the first respondent on the one hand and the appellant her husband and others on the other. But this vital aspect is not spoken to by D. W. 5 herself in her evidence. We had just now referred to the fact that D.W. 5 made no reference to P.W. 1. On the other hand, a reading of her evidence as a whole would show that she had met P.W. 4 only and all the transactions were dealt with by her with P.W. 4. The second crucial aspect to be noticed is that in Ex.A. 40 it is stated that out of the funds misappropriated, the suit house was improved and that P.W. 4 purchased jewels for P.W. 1, and that because of the same, P.W. 1 voluntarily agreed to make good the amount misappropriated by her husband. Again this material aspect was not spoken to by D.W. 5 in the witness box. It will be further seen that tile above stand taken by the defence will go a long way to give a death blow to the respondent's case. According to the averments in Ex.A. 10, P.W. 1 volunteered to make good the amount to the first respondent because out of the misappropriated amount the house was improved and jewels wefe purchased. This will repel the theory of reparation that is said to have worked in the mind of P.W. 1. The above* averments only exhibit the first respondent's anxiety to justify Ex. B. 6 as a fair deal by some means or other. As already pointed out not only did D.W. 5 fail to refer to this vital aspect but also was this case not put to P.W. 1. The documentary evidence, which we will be referring to presently, will destroy the above theory trotted out by the first respondent in her reply Ex.A. 40. It is seen from the evidence of D.W. 4 and Ex.B. 7 that the amounts said to have been misappropriated must be between 1-4-1965 and 30-6-1965. A reference to Ex.A. 20 which is the plan submitted by the appellant for improvement is dated 2-7-1965, and from this it is obvious that improvement should have been made somewhere in 1956. Thus it is conclusively established that the amount which is said to have been misappropriated in 1965 could not have been utilised for improving the suit house. It is further interesting to note that D.W. 4 would excel his master D.W. 5 as to how the alleged misappropriated amount was utilised, by P.W. 5. Even in the chief examination he had deposed.
(Matter in vernacular omitted - Ed.)
This is a new invention by D.W. 4 is beyond doubt. For, it is neither alleged in Ex.A. 40 nor in the written statement nor did D.W. 5 speak to this aspect. At any rate, the said statement is wholly false is obvious from the fact that the amount was misappropriated somewhere in 1965 while the suit house was purchased under Exs. A. 2 and A.3 as early as in 1950. How then are we to trust either D.W. 4 or D.W. 5. It is seen from the evidence of D.W. 5 that she was not personally aware of the alleged misappropriation. According to her, it is D.W. 4 who told her that P.W. 4 had misappropriated. Now if we turn to the testimony of D.W. 4 we will find that it is too difficult to act on his testimony. We have just now pointed out as to how his evidence is unworthy of acceptance. It is rather surprising that D.W. 1, who is an employee under D.W. 5 drawing a salary of Rs. 500 was able to amass much fortune as conceded by him in the course of cross-examination. The evidence recorded on 16-9-1971 shows that besides several investments in the name of his daughter and his wife he is owning a bus and a bungalow in the city of Madras opposite to Grama Vidyodaya. According to him he purchased the bungalow for Rs. 49000 while a bus for Rs. 35000. Besides he owns a house in Chittoor. Further he owns a lorry since 1965. He is now an income-tax assessee. We would also like to point out that his evidence as regards the alleged agreement between him and P.W. 1 whereby P.W. I agreed to execute the sale deed is but false. Above all D.W. 5 admitted that P.W. 4 was in her service for 18 years and till the alleged misappropriation she had no complaint whatever to make against P.W. 4. He had further referred to the fact that it is D.W. 4 who negotiated and finalised the sale under Ex. B 35 to the second respondent. It is, therefore, that we characterised. him as an archvillain. Therefore, we do not hesitate to reject the testimony of D.W. 4 as unworthy of credence. D.W. 1 is Also one of the attestors to Ex. B. 2. His testimony is that at about 4.30 p.m. on the date of execution, P.W. 4 and D.W. 4 took him to the house. He could remember the document having been read over, that when he signed P.W. 3 had already signed as a witness and that he did not know others who had signed. He would say in chief examination that P.W. 4 telephoned to him at about 11 a.m. on that day and asked him to go over to Gingee to collect the lorry dues due to him. He would also add that when he asked about P.W. 4 and D.W. 4 about lorry matter, he was informed that it would be settled in about a week after selling the lorry to another person. It is rather difficult to accept his evidence because it was suggested to P.W. 4 that he ever phoned to D.W. 1 on that day representing that he was having the cash ready to discharge the lorry dues and because it,is highly improbable that P.W. 4 would have phoned like that when, in fact, the lorry was not sold by them and he had no funds either.
29. D.W. 2 has not spoken to about Ex. B2. Therefore, his evidence will be of no use to the defence.
30. D.W. 3 is the scribe, but he is still working under the first respondent. It is not elicited from him that he is a document writer or well versed with such talents. Further, D.W. 4 would state that Sarangapani used to write documents. Why Srinivasan was chosen for Ex. B6 remains unexplained. The probability is that D.W. 4 would not like more persons to be brought into the scene. Even according to D.W. 3 he only acted under instructions of D.W. 4 but not under instructions of the first respondent. While D.W. 3 would state that the draft prepared by him was destroyed by him after Ex..132 was prepared, the evidence of P.W. 4 is that the draft is not with him. A reference to Ex. B2 shows that a sum of Rs: 3247.49 was undertaken to be paid by the first respondent purchaser to the appellant's mortgagee, namely, Tindivanam Co-operative House Mortgage Bank. Both D.W. 4 and D.W. 5 by P.W. 4. The description of the property in Ex. B2 refer to 4 boundaries, the measurements, municipal door Number ward number and survey numbers. These particulars, as already stated, were furnished by P.W. 4 from memory. The suggestion put at the instance of the appellant is that they got the particulars from the mortgagee bank and P.W. 4 could not have given such particulars from memory. We prefer the stand taken by the appellant to the evidence of D.W. 4 and D.W. 5 because it is too difficult to belive that P.W. 4 was able to carry all the particulars in his memory and also the figure due to the Co-operative Bank to the last pie. Thus, in our, view, the evidence of D.W. 4 is not only interested but is equally unsatisfactory to commend acceptance. We had already discussed the evidence of D.W. 4 and D.W. 5. Thus, a fair assessment of the evidence of D.Ws. 1 to 5 would go to show that there is no consistency in the defence on vital matters such as whether P.W. 4 is the real owner and P.W. 1 is the ostensible owner of the suit property and what really persuaded P.W. 1 to convey her property for her husband's alleged defalcation. In short, the evidence of D. Ws. do not carry conviction to us.
30A. The consequence is that the appellant's case appears to be nearer the truth. There are also additional circumstances which would fortify our conclusion. When Ex. B2 came to be executed on 17-7-1965 it was registered only on 20-7-1965 while Ex.A34 was registered on 20-4-1966. Secondly, the first respondent would expect the court to believe that notwithstanding no threat of prosecution or other criminal proceedings against P.W. 1, both P.W. 1 and P.W. 4 volunteered to execute Exs. B6 and Bl and that P.W. 4 voluntarily sold his lorry to discharge the balance duo in respect of his embezzlement. It is interesting to note that even the learned Judge of this court had observed that 'he (D.WA) would have made it clear that P.W. 4 might have handed over to the police or prosecution with regard to the misappropriation and the only way of avoiding that was by making good the amount misappropriated and naturally P.W. 4 would have offered to make good the amount by executing the sale of the house as Well as the sale of the lorry and executing the bond or the balance.' We will have to reiterate that that would have been in the natural and ordinary course of events if really it was found out by D.W. 4 and was made known to D.W. 5 that P.W. 4 had misappropriated to the tune of Rs. 25000. Yet the defence would not fairly accept that stand. In our opinion, it is not unlikely that D.W. 4 and D.W. 5 are not prepared to concede the factual position lest it should be complained that Ex. B2 would offend S. 23 of the Contract Act or might support the appellant's case of undue influence and coercion. How are we then to accept the, defence when it turns out that they had I 'impressed deliberately certain events that had really taken place. We had already pointed 'cut that all the possessions of P.W. 1 and PW. 4 were stripped off in the process of alleged reparation. P.W. 1 was asked to sell the house, P.W. 4 was asked to dispose of his lorry, the insurance amount in respect of that lorry was also appropriated by the first respondent through D.W. 4 and for the balance due Ex. B1 was taken from P.W.1 and P.W. 4. It is very hard to believe that all these transactions were volunteered by P.W. 1 and P.W. 4. P.W. I had a big family to be maintained and unless there had been a pressure brought to bear on P.W. 1, she would not have voluntarily parted with her only property. P.W. 1 case is that both her husband and D.W. 4 were in a position to dominate her will and used that position to obtain an unfair advantage over her by taking Ex. B2. She and also her- husband was threatened to be put behind the bars. The evidence of P.W. 1 that she is an illeterate and could only sign her name is not challenged in the course of cross examination. So too she had spoken that the contents of Ex. B6 were read over to her. There is also ample evidence that she first refused to sign but only after the threat by D.W. 4 did she execute Ex. B2. When she stated in re-examination that the property was worth Rs. 15,000/, in 1965 and though there was subsequent cross-examination her statement about valuation was not challenged. It may be interesting to notice, at this stage, the testimony of D.W. 5. According to her, she did not ascertain the value of the suit property. Even D.W. 4 had simply stated
(Matter in vernacular omitted - Ed.)
What is its market value is not spoken to by D.W. 4. The facts, which fell for consideration by the Privy Council in Tungabai v. Yeshwant Jog are, on all fours, or identical to the facts in the present case save the difference that in that case the wife was found to be submissive while in the instant case there is definite evidence 'that the wife was coerced to execute Ex.B2 under threat of being arrested. It is fairly established from the evidence in this case that on the one side P.W. 4 was urging P.W. 1 to execute Ex. B2 taking advantage of his status as her husband. In other words, P.W. 4 had the real authority over her to induce P.W. I to execute Ex. B2, while on the other hand, under threat of sending her to jail D.W. 4 had apparent authority over P.W. 1. But for such authority being exercised both by P.W. 4 and D.W. 4, P.W. 1would not have voluntarily executed Ex.B 2. From our assessment of the evidence we have no hesitation to conclude that the transaction is unconscionable. If P.W. 1 was asked to forgo her property for the sake of her husband and if in consideration therefore, the husband was once and for all relieved from the predicament in which he was placed by virtue of the alleged defalcation, it is possible to contend that the transaction B2 is not unconscionable. But in this case it is admitted that P.W. 1 was not called upon to forgo her property but also to execute Ex. BI promissory note for the balance. In addition there to, P.W. 4's lorry was sold. These circumstances will go a long way to suggest strongly that all these transactions are but unsconscionable. We may add that D.W. 4 had only acted as D.W. 5's -agent in all these transactions and therefore, the first respondent cannot escape from the undue influence practised by D.W. 4 on P.W. 1. From the foregoing assessment, we find that the appellant had succeeded in establishing that that D.W. 4 and P.W. 4 were not only in a position to dominate her will but also brought about Ex. B2 transaction which both on the evidence and on the face of it not only appeared to, be unconscionable but was actually proved to be so. In other words, the first respondent did not, discharge the onus that was on her by virtue of S. 16(3) but also miserably failed to adduce evidence to rebut such a statutory presumption.
31. The only, other point to be adverted to, is the issue whether the appellant could be held liable under Ex. B1 promissory note. Ex. B 1 is admittedly executed for the balance due in respect of Rs. 24858.74 said to have been misappropriated by P.W. 4. It is sighed not only by P.W. 4 but also by P.W. 1. When Ex. B2 was found to be voidable because of undue influence and coercion brought to bear on P.W. 1 by P.W. 4 and D.W. 4 it would automatically follow that Ex. B1 cannot be enforced as against P.W. 2. Further, so far as P.W. 1 is concerned, Ex. B is not supported by consideration. Both P.W. 1 and -P.W. 4 would depose that at the time they signed on the stamp in Ex. B1 it was blank. P.W. 4 also added that had he known that it was a promissory note, he would not have subscribed his signature to it. it is attested by P.W. 3 and. D.W. 2. P.W. 3 also stated that at the time he signed as a witness the contents therein were not written. For the reasons already stated, we do hold that Ex. B1 was not executed by P,W. 1 voluntarily. If so, she cannot be held liable under Ex. B1.
32. The result is that these appeals succeed; the judgment and decree of the learned single Judge. are set aside and those of the trial Court restored only as regards the appellant with costs here and in A.S. 843 of 1971. Advocate's fee one set.
33. This matter having been set down for being mentioned this court made the following Order : - At the time when the judgment was rendered, we have not provided for any directions as regards payment of court-fee, since the appeals have been presented by the appellant as an indigent person. The appellant has succeeded in the appeals. Accordingly, we direct the legal representatives of the first respondent in these appeals to pay the court fee due to Government in the L. P. Appeals.
34. L. P. Appeals allowed.