1. This appeal has arisen out of a suit for confirmation of possession on declaration of title by plaintiffs who sued on a kabala executed in their favour by Harananda, defendant 4, on 30th October 1929. Plaintiffs allege that defendants 1 to 3 who are the sons of Harananda offered resistance to his taking possession of this land included in the kabala which is their bastu land. The suit was instituted on 14th November 1929. On 22nd November 1929 the defendants filed a petition for time to file objection to a temporary injunction granted at the time of the filing of the suit and they asked for time to file a written statement on 16th December 1929. Defendant 4 Harananda died on 30th December 1929. His heirs were substituted on 2nd January 1930 and a written statement was filed by defendants 2 and 3 on 18th January 1930. The defendants in contesting pleaded that their father was of unsound mind at the time of the alleged kabala, that it was executed under undue influence, and through fraud, that it was bad for want of consideration and that therefore the plaintiffs were not entitled to the lands in suit. The trial Court found that Harananda was of sound mind, that there was no evidence of undue influence or fraud and that the necessary money had been paid. The trial Court accordingly decreed the suit. The lower appellate Court on the other hand held that there was in fact undue influence, that there was no consideration and that therefore the kabala must be said to have been vitiated. That Court accordingly dismissed the suit.
2. The chief points urged in this appeal are (1) that the Court of appeal below should have held that it was not open to defendants 1 to 3 who are strangers to the transaction to take the defence of undue influence, (2) that the Court should have held that the transaction was not void but voidable at the option of the executant and as he did not seek to avoid it, but on the other hand by his omission to defend the suit ratified it, it was not competent to his heirs to raise the plea of undue influence ; and (3) that in fact the plea of undue influence was not taken, that the Court, of appeal below Wrongly construed para. 8 of the written statement and that as the plea of undue influence was not properly raised the plaintiffs had no opportunity to contest the same. It is quite clear from para. 8 of the written statement that the question of undue influence was in fact raised and as this was actually the subject matter of an issue, namely issue 3, there can be no doubt that the plaintiffs had an opportunity of meeting this defence. As regards the contention that the contract was (voidable and not void the cheif point raised was that as Harananda did not appear in the suit the fact of undue influence was not sufficient to avoid the contract. Under Section 19 (a), Contract Act, 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. The finding of the trial Court was that the plaintiffs were no parties to undue influence, but in the appellate Court below the learned Judge found that the plaintiffs Bhupendra Naskar and Pyari acted in collusion with each other to produce kabalas and other documents from Harananda and thus deprive him of his property. They did so partly owing to a long standing dispute between Hararianda's Bastu and Bhupendra's Bastu. That being so there can be no doubt that on this finding the plaintiffs took part in the undue influence which was brought to bear upon Harananda.
3. As regards the fact that Harananda did not appear in the suit it may be (noted that the contract made under undue influence naturally could not be cancelled until the undue influence was removed. According to the finding of the lower appellate Court in this case Harananda was living up to the end of his life in the house of Pyari who was exercising undue influence upon him. He had therefore no opportunity to cancel the contract after the removal of the undue influence. The only time when it could be done was after his death and by his representatives defendants 2 and 3. It is therefore open to them to raise this defence of undue influence within three years after the contract and they were quite in time in raising their defence in 1929. As regards consideration the Court of appeal below found that no consideration passed. Although this would not in itself affect the title of the vendees it went to show that the sale-deed was the result of undue influence. This appeal therefore fails and must be dismissed with costs.
4. I agree.