V.P. Gupta, J.
1. The plaintiff claims herself to be the owner in possession of land measuring 9 bighas and' 11 biswas as detailed in the plaint and has prayed for a declaration to the effect that the gift deed D/- 19-2-1980 executed by her in favour of the defendant. Shri Charan Dass (now deceased) is a result of fraud, misrepresentation and undue influence and that the defendants be restrained by permanent injunction from interferingwith her possession of the suit land. Inthe alternative the plaintiff has claimed the possession of the suit land.
2. It is alleged that the plaintiff is an illiterate old woman with low intelligence and has been deserted by her husband. There is nobody to look after her. She filed a suit in the year 1978 against Hari Ram and Smt. Johmi Devi in the court of Senior Sub-Judge. Kulu and engaged Shri Charan Dass (deceased defendant) as her counsel. Shri Charan Dass wielded considerable influence on her and was in a position to influence her judgment. Shri Charan Dass was also her counsel in a criminal litigation pending, between her and Hari Ram and others in Kulu. Courts.
3. The plaintiff was called to Kulu by Shri Charan Dass on 19-2-1980 and she was taken to one or two courts. The plaintiff had full faith in Shri Charan Dass and did riot understand as to what she was doing at the instance of Shri Charan Dass. After about a month, the plaintiff came to know that Shri Charan Dass had got a gift deed executed in his favour from her. Thereafter she came to know that a special power of attorney was also got executed from her in favour of one Roshan Lal. By this deed, said Roshan Lal was authorised to give statements before revenue officers for mutation purposes. It is also alleged that Roshan Lal is the father of Shri Krishan Gopal Advocate. Kulu who was also an attesting witness of the gift deed. The mutation on the basis of the gift, deed was sanctioned on 6-3-1980 in another village in the absence of the plaintiff.
4. The plaintiff came to know about the fraud committed upon her and she approached Shri Charan Dass to get the gift deed cancelled. Shri Charan Dass however, refused to do so. It is alleged that the recitals in the gift deed are wrong and that Shri. Charan Dass never helped the plaintiff in any manner whatsoever except for the fact that he was her counsel. It is further alleged that the gifted land has fruit bearing apple trees and the disputed property is very valuable, and that there was no occasion for the plaintiff to execute any gift deed. The gift deed is challenged as being a sham transaction and having come in existence as a result of fraud, misrepresentation and undue influence. The plaintiff claims that the gift deed is a void document, and does not confer any title upon the defendants.. .... .
5. Vide order DA- 8-6 1981 the plain.-tiff was allowed to-file the suit as an in-digent person,
6. The defendants contested the suit. It is alleged that the plaintiff is being financed by one Hari Ram and that she is estopped from filing the suit by her acts, omission and commission. The suit is not properly-valued for the purposes of court-fee and jurisdiction and the plaintiff has no right to challenge the gift deed which was executed by her out of her free will. It is further alleged that the plaintiff has not given full particulars of the fraud, misrepresentation and undue influence etc. On merits the claim of the plaintiff is contested and all the 'allegations of the plaint are denied.
7. On the pleadings of the parties, the following issues were framed on 7-7-1981:
1. Whether the suit is correctly valued for purposes of court-fee and jurisdiction? OPP'
2. Whether the plaintiff is in possesrsion of, the disputed property? If not; with what effect'? OPP
3. Whether the plaintiff executed- thegift deed dated 19-2-1980 in favour ofthe defendant? OPD
4. Whether the suit is bad for want of full particulars with respect to fraud undue influence and misrepresentation? If so with what effect? OPD
5. If issue 3 is proved, whether the said gift deed was got executed from the plaintiff under fraud and misrepresentation as alleged? OPP
6. If issue 3 is proved, whether the defendant was in a position to dominate the will of the plaintiff and the said gift was a result of undue influence as alleged? OPP
7. Whether the plaintiff is only a figurehead as alleged? If so to what effect? OPD
8. Whether the plaintiff is estopped from filing the present suit by her acts and conduct as alleged? OPD.
8. I have heard Shri S.S. Mittal the learned counsel for the Plaintiff and Shri Inder Singh the learned counsel for the defendants, and have also gone through the records of the case. Issue 'No. 1..
9. This issue is not - contested by thedefendants' counsel.
10. According to the statement of Smt. Thakri Devi (P.W. 1) the marketvalue of the disputed land is Rs. 19/20thousand per bigha. Devi Dayal (D.W,4) has stated, the market value of the dispute ed land at Rupees 25 to 30 thousand per bigha and Roshan Lal (D.W. 9) has stated the market value of the disputed land at Rupees 25/26 thousand pejc bigha. The dispute land is 9 bighas and 11 biswas. Some of the land is under an orchard while the remaining is under cultivation. This land is also assessed to land revenue. In the gift deed Ex, D-1 the value of the land is stated to be Rupees 23,499/-. aS according 10 the statements of the witnesses the value of the land is about 'rupees two lakhs, but for the purposes of court-fee and jurisdiction the court-fee can be paid on ten times of the land revenue for agricultural land and on the market value for other property. In the plaint the valuation for court-fee and jurisdiction is fixed at Rs. 55,000/-. As the issue' is andcontested by the counsel for the defendants, therefore, this issue is decided in plaintiff's.' favour specially in view of the fact that there is some agricultural land also in the disputed-property.Issue-No. 2:
11. The learned counsel for the parties did not advance any arguments on this issue. The plaintiff (P.W. .1) states that she is in possession of the suit property. Smt. Rama Dogra D.W. 11 widow of the donee states that she is in possession of the property in the gift deed Ex. D-l, there is a recital regarding the delivery of possession to the donee. Both the counsel, however, stated that this issue is not material for the purposes of this suit as the plaintiff has also prayed for a decree for possession in the alternative. The entries of the revenue records from the date of the filing of the suit have not been produced. On the basis of the recitals in Ex. D-l and the statement of Smt., Rama Dogra (D.W. 1) it is held that the defendant is in possession of the suit land. This issue is decided accordingly.
Issue No. 4:
12. The learned counsel for the plaintiff contended that full particulars of fraud, misrepresentation and undue in-fluency have been stated in pares 3 to 7 Of the Plaint. The learned counsel for the defendants 'did 'not contest this issue for the reason that if such particulars are- missing, then the plaintiff is to begiven a chance for giving full particular. In these circumstances it is hold that the' full particulars of fraud, misrepresentation' and undue influence which the plaintiff could give have been given in the plaint and the issue is, decided against the defendants, Issue No. 3.
13. The execution of the Sift deed Ex. D-l is proved by Shri Krishan Gopal Advocate (D.W. 7) and Shri Murli Parkash Advocate (D.W. 8). The plain-tiffs counsel also admitted that the gift deeri Ex. D-l has been thumb, marked by the plaintiff. He, however, contended that the said execution, was not valid for the reason that it was executed under fraud, undue influence and misrepresentation. Issues 5 and 6 have been framed separately for this purpose. Therefore, this issue: is decided in favour of the defendants.
Issue- No. 5;
14. There is no evidence- that any fraud or misrepresentation) was practised by the defendant upon the plaintiff for the execution of the gift deed. The learn-ed counsel for the plaintiff also did not press this issue: Issue 5 is decided against the plaintiff. Issue No. 6:.
15. This issue is hotly contested by the parties. According, to the plaintiff the gift deed Ex, D-l is a, result of undue in-fluency while according to the defend-ants the said gift deed is- a result of free will of, the plaintiff.
16.. The admitted facts are (a) the plaintiff is an old illiterate- lady (b) the relations between the plaintiff and her husband Khekb Ram are not cordial for the last about tem years and they are living separately, (c) the plaintiff's mother died' on 26-2-1976: (d) the plain-tiff had civil and criminal litigation with Hari Ram and others, and (e) the plaintiff had engaged Shri Charan Dass Dogra, donee (now deceased) as her' counsel in the two civil and' criminal cases and was his client for the last about 5/6 years that is from 1976-77.
17. The plaintiff's case is that the gift deed Ex. D-l was got executed from her by Shri Charan Dass under undue in-fluence,
18. 'Undue influence' is defined in Section 16. Contract Act, and it reads as follows;--
'A contract is said to be induced by 'undue influence' where the relationssubsisting 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 tem-porarily 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 providing that such contract was not induced by undue influence shall lie upon the per-son in a position to dominate' the will of the other.
Nothing in this sub-section shall affect the provisions of Section 111, Evidence Act, 1872.
19. Illustrations (a) to (c) are as follows--.
(a) A having advanced money to his son. B, during his minority, upon B's coming of age obtains, by misuse of parental influence a bond from B for a greater amount than the sum due in respect of the advance A employs undue influence.
(b) A, a man enfeebled by, disease or age, is induced by B's influence over him as his medical attendant, to, agree to pay B an unreasonable sum- for his professional services. B employs undue influence.
(c) A being in debt to B, the moneylender of his village, contracts a. fresh loan on terms which appear to be unconscionable. It lies on B to prove that the contract was not induced by undue influence.
20. To prove undue influence the plaintiff has to prove that (a) the relations subsisting between the parties are such that the defendant was in a position to dominate the will of the plaintiff' and (b) the defendant used that position to obtain and unfair advantage form the plaintiff.
21. Admittedly the plaintiff was a client of the defendant. Such a relationship is one of confidence an which the lawyer is in a position of a dominating party aS the relationship is fiduciary, therefore, it can be presumed that Shri Charan Dass was in a position to dominate the 'will of the 'plaintiff. The first condition that due to fiduciary relation-ship the defendant was in a position todominate the will of the plaintiff is proved. The next important factor to be conSIDERED is, an to whether the defendant used his position to obtain an unfair advantage from the plaintiff or not. For this purpose the cumulative effect of the various circumstances has to be considered.
22. The value of the gifted property is about two lakhs and there is am apple or chard in this land The donee (Charan Dass (deceased) was a Bairagi by castewhile the plaintiff is a Brahmin. These is no relationship between the two (i.e. the donor and the 'donee). The plaintiff and the donee were living in different villages, which are at a distance of about 20 Kms. from one another. The plaintiff has practically gifted all landed property by the gift deed EX. D-l. In view of these circumstances, the transaction appears to be unconscionable.
23. The burden of proving that the gift deed Ex. D-1 is result of the free will of 'the plaintiff therefore shifts upon the defendant and it is now for the defendant to prove that the gift deedWAS NOT executed under undue influence, in taking this view I am supported bythe observations made in Afsar Shaikh .Soleman v. Bibi. AIR 1976 SC 163. Paras 23 and 24 of this judgment are as follows;--
'23. Sub-section (2) of Section 16 is illustrative as to when person is consideredto be in a position to dominate the will of the other. It gives three illustrations of such a position, which adapted to the facts of the present case, would be (a) whether the donee holds a real or apparent authority over the donor, (b) whether he stands in a fiduciary relation to the donor, or (c) whether he makes the transaction with a person whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress.
24. Sub-section (3) contains a rule of evidence. According to this rule person seeking to avoid a transaction on the ground of undue influence proves-
(a) that the party who had obtained the benefit was at the material time, in a position to dominate the will of the other conferring the benefit, and
(b) that the transaction is unconscionable,the burden shifts on the party (benefiting by the transaction to show that it was not induced by undue influence. If either of these two conditions is not established the burden will not shift. As shall be discussed presently, in the instant case the first condition had not been established, and consequently, the burden never shifted on the defend-ant.'
24. The judgment reported in AIR 1967 SC 878 (Subhash Chandra v. Ganga Parshad and in AIR 1924 PC 60 (Raghu-nath Prasad v. Sariu Prasad) were approved in AIR 1976 SC 163 (supra).
25. The learned counsel or the defendants contended that the gift deed Ex. D-l is a registered document. The plaintiff purchased the stamp papers and Sot the gift deed scribed by a petition writer. The deer was witnessed bytwo lawyers. The plaintiff also presented :the gift deed for registration to the Sub-Registrar and the Sub--Registrar read out the contents of the gift deed to the plaintiff, who alter admitting the sameto 'be correct, thumb marked the same. It was also contended 'that the gift was conditional and revocable. The learned counsel further contended that the plaintiff was visiting courts for her cases and was managing her property. On these facts, it was contended that no undue influence -was exercised by Shri Charan Dass upon the plaintiff.
26. In view of the various facts it has to be considered as to whether the gift deed Ex. D-l is the outcome of the free will of the plaintiff or is the outcome of any undue influence exerted by Shri Charan Dass upon the plaintiff.
27. Every influence cannot be characterised as 'undue'. A donee has every right to make all appeals to the donor and persuade the donor to execute a gift of the property. Such appeals or persuasions without any element of fraud or coercion cannot be considered as undue influence provided the donor retains the mental capacity. In the case of lawyer and a client due consideration has to be given to the fiduciary relation-ship between the parties.
28. In the present case the donee Shri Charan Dass (deoeased) obtained the benefit at a time when he was in a posi-tion to dominate the will of the plaintiff. As the transaction, prima facie is unconscionable, the donee has to satisfy this court, that the gift deed Ex. D-l wasthe outcome of the free will of the plaintiff.
29. The plaintiff is an old illiterate lady living in a village. She is living separately from her husband Khekh Ram for the last about 7/8 years, that is from 1973-74. Khekh Ram is not maintaining her. In January. 1978, she filed a suit against Hari Ram and Smt. Johmi for permanent prohibitory injunction for some land upon which she claimed possessor rights after the death of her mother Smt. Premi. The copy of the plaint is Ex. R-4. She engaged the donee (Charan 'Dass) as her counsel. This suit was compromised on 6-10-1980 vide compromise Ex. R-l and the Plaintiff was allowed to enjoy the usufruct of the property during her lifetime. She could not alienate the property.
30. The plaintiff had criminal litigation with Hari Ram and others. She engaged the donee (Charan Dass Dogra) as her counsel in this criminal litigation also. No evidence has been produced to prove that the plaintiff could take the advice of any of her relations, meaning thereby that she had nobody to advise her as Charan Dass was her counsel in cases, therefore, he had an opportunity to dominate the will of the plaintiff. The gifted property with a fruit bearing apple orchard is worth about two lakhs.
31. The plaintiff is a Brahmin while the donee is a Bairagi There is no evidence to prove that the donee was serving the plaintiff on any earlier occasions or was rendering any financial help etc. to her. Hence there was no occasion for the plaintiff to gift all her property in favour of Charan Dass who was otherwise a stranger to her.
32. The defendant led evidence to prove that donee spent upon the Cho-barkh ceremony of Smt. Premi (the mother of the plaintiff). Smt. Premi died on 26-2-1976. The Chobarkh ceremony could take place in the month of February 1980. The gif( deed 'Ex. D-l) is D/-19-2-1980. Smt. Rama Dogra (D.W. 1) widow of the donee states that the donee was looking after the plaintiff and was providing her with necessities of life and also spent upon the ceremony of Chobarkh. She could not deny the suggestion that the plaintiff started com-ing to the house of the donee during-the pendency of litigation only.
33. Udho Dass (D.W. 3) 'states that he took his lunch and tea during the Chobarkh ceremony and that he was told by the plaintiff. Ishroo and Roshan Lal that for the Chobarkh ceremony the plaintiff, spent for the grains etc. while on other things the expenditure was incurred by the donee. The residence of witness is about 9 kms. from the residence of the donee. He could not say as to how much, money was spent by the donee on this Chobarkh ceremony.
34. Devi Dayal (D.W/4) states that the donee was looking after the plaintiff for the last 4/5 years (from the year 1977-78) and the plaintiff turned her husband out of her house. He also states that the plaintiff wanted some cloth for the Chobarkh ceremony which he brought. He could not say as to who spent for the Chobarkh ceremony as he did not attend the Chobarkh ceremony. His statement is not helpful to the defendant.
35. Roshan Lal (D.W. 9) states that the cash amount for the Chobarkh was spent by the donee while the other things were given by the Plaintiff.
36. There is no evidence to prove that the donee or his familv members or any of his relations ever lived with the plaintiff or rendered any services or help to her in any manner. The only help suggested by the witnesses of the defendant is that the donee spent some cash amount for the Chobarkh ceremony of Smt. Premi. It is not proved that the plaintiff ever remained sick or ever required the services of the donee or any other person for her household work or otherwise.
37. A person with ordinary prudence will not gift whole of her property valued at about, rupees two lakhs for the help rendered to her in the kind of cash during a Chobarkh ceremony. The cash amount could be raised in many other means. In the gift deed Ex. D-l it is stated that the donee was rendering services to the plaintiff for the last about three years (from the, year 1977). There is no proof of this fact. The recital of the alleged services in the gift deed is apparently wrong. There is also no evidence to prove that the donee was managing or looking after the property of the plaintiff. The gift deed (Ex. D-1) is in lieu of past and future services. The past services are not proved and the ques-tion of future services does not arise because the suit was filed in May 1980 (after about 2 months of the gift deed). It is correct that the stamps for the execution of the sift deed were purchased by the plaintiff as is stated by Giria Nand (D.W. 2). It is also correct that the sift deed was scribed by Shri. Charan Dass. (D.W. 6) petition writer Kulu, Both Giria Nand (D.W. 2) and Charan Dass (D.W. 6) stated that they dire not know the plaintiff personally. Charan Dass (D.W. 6) has stated that the plaintiff was introduced to him by the two attesting witnesses and by the donee, who was accompanying her.
38. The two attesting witnesses are Shri Krishan Gopal Advocate of Kulu (D.W. 71 and Shri Murli Parkash Advocate Kulu (D.W. 81. Krishan Gopal (D.W. 71 is the son of Roshan Lal (D.W. 91 in whose favour the special power of attorney was executed by the plaintiff for the purposes of the attestation of the mutation. Krishan Gopal (D.W. 71 is a practicing Advocate at Kulu and he has stated that he belongs to village Rangri. The plaintiff is a resident of village Bharka. Murli Parkash (D. W. 81 is also a practicing advocate at Kulu. The donee was also a practicing advocate at Kulu. It is not understood as to why the Plaintiff chose only two advocates of Kulu as marginal witnesses for the gift deed. The plaintiff was the resident of village Bharka and if she had made UP her mind to execute a gift deed in favour of Charan Dass Advocate (donecl then in the natural course of circumstances she would have taken sonic persons of Bharka village as marginal witnesses for the deed, The only conclusion is that the transaction of gift is a suspicious one. It can be presumed that the donee being an advocate of Kulu procured the services of his colleagues as marginal witnesses.
39. The donee also got a special power of attorney executed from the plaintiff in favour of Roshan Lal (D.W. 91. This document was also executed on the same date. Roshan Lal (D.W. 91 states that this document was written in his absence and without his knowledge. He also states that prior to the execution of the document the plaintiff or the donee never informed him about this fact. This proves that Roshan Lal (D.W. 91 and his son Krishan Gopal (D.W. 71 had special connections with Charan Dass (doneel. If it was not so.then Charan Das (doneel could not get a power of attorney executed in favour of Roshan Lal (D.W. 91 without his knowledge and in his absence.
40. Further, the mutation on the basis of the gift deed was sanctioned in a different village, and a copy of the mutation appended with the plaint shows that the same was sanctioned on 6-3-1980 (after about 16 days of the gift deed There is no evidence that the plaintiff was unable to go to village Larakelo where the mutation was sanctioned. The mutation was entered on 2-3-1980 and was sanctioned within four days. All these facts also prove that the donee was in a haste to get the mutation sane-tioned at the earliest and was keeping the plaintiff in dark.
41. The gift deed Ex. D-l is a registered document and according to the endorsement on the back of the gift deed the contents of the same were read out to the plaintiff. The plaintiff has stated that she did not know about the contents of the gift deed. Her statement cannot be brushed aside lightly.
42. In AIR 1973 Madh Pra 252 (Smt. Koze v. Makhan Singhl an illiterate woman belonging to a Scheduled Tribe and having no independent advice executed a sale deed of her entire property. Subsequently she challenged the transaction claiming that the same was caused by 'Undue influence' or 'fraud'. It was held that in the circumstances the sale deed was the result of undue influence and fraud and as such the same was set aside. In AIR 1966 Andh Pra 104 (Bandarupalli Mastanamma v. Adinarayanl a young man of about 20/22 years wanted partition of joint family property, but his wishes were not complied with and he was driven out of his house by his brothers and father. He went to a distant relation and gave away his entire undivided share in the joint family property to a minor daughter of that distant relation and an enemy of the donor's family had taken a prominent part in the execution of the gift deed. This gift deed was cancelled on the ground that that transaction on the face of it was unconscionable and not of a right minded person and it was held that due to mental distress at the time of executing the gift deed, the gift was not the outcome of the free will of the' donor.
43. From the various circumstances already narrated and discussed by meT am of the view that the present transaction of gift deed evidenced by Ex. D-l is the result of 'undue influence' exercised by the donee upon the plaintiff as the donee was in a position to dominate the will of the plaintiff. This issue is accordingly decided in plaintiff's favour.
ISSUE No. 7.
44. There is no evidence on record to prove that this litigation is being financed by any person or that the plaintiff is a figurehead. This issue was not pressed by the defendant's counsel. It is decided against the defendant.
Issue No. 8.
45. There is no evidence on this issue and it was also not pressed by the defendant's counsel. This issue is decided against the defendant.
46. The result of the above discussion is that the plaintiff is entitled to a decree for possession of the suit property and as a consequence the plaintiff's suit for possession of the suit property is decreed with costs.