D.B. Lal, J.
1. This second appeal has been directed against the judgment dated 24th June, 1968 of the District Judge, Kangra, whereby reversing the decision of the Sub-Judge First Class Una, he has dismissed the suit of the plaintiff which was for recovery of possession over landed property which was gifted by the plaintiff's ancestor to the defendants. Shrimati Kartari appeared in Court with the allegations, that her mother Shrimati Basanti was the exclusive owner of 20 Kanals and 16 Marias of land situate in 'Mauza' Badhara (P. S. Una) of which the Khasra numbers were given in the plaint. It was alleged that Shrimati Basanti was an old, feeble, helpless and illiterate woman. She was 'paroanashin' and was not in a sound state of mind as she used to remain sick. In fact, the plaintiff used to look after her and usually resided with her as she was her only daughter and had become widow within four years of her marriage. The plaintiff has no issues of her own. According to plaintiff, her mother was attached to her and she was looking after her properties. Sometimes in March or April, 1961, the plaintiff went to reside at her husband's house and the defendants Kewal Krishan and Mula Ram who were collaterals in the fourth degree, of the husband of Shrimati Basanti, taking advantage of her absence and of the helpless condition of Shrimati Basanti, brought to bear undue influence upon her and brought her to Una under the pretext of getting her treated by some doctor. There on 4th April, 1961 they managed to obtain a gift-deed from her which they got registered on that veryday. In this manner Shrimati Basanti was divested of her entire landed property and the defendants claimed ownership on the basis of the gift-deed. When the plaintiff came back to her village, she came to know from people that some transaction of gift was obtained by the defendants from her mother. Accordingly she made enquiries from her mother who did not remember anything but simply asserted that she was made to sign some transfer deed in favour of the defendants. Thereafter, at the instance of Shrimati Basanti, the two ladies went to Una on 24th April, 1961 and got scribed a complaint to the Superintendent of Police, Hosiarpur, to the effect that under undue influence and 'fraud, some transfer deed was obtained from Shrimati Basanti by the defendants and that the same would not be binding upon them. Three or four days thereafter, Shrimati Basanti died. The defendants had come in possesion over the disputed land and did not vacate possession. Therefore, the plaintiff was compelled to file the suit for recovery of possession after cancellation of the gift-deed.
2. The defendants contested the suit on the allegations, that Shrimati Basanti was neither old nor feeble nor incapable of understanding. Rather she fully understood the document which she executed in favour of the defendants. According to defendants, she did not want her properties to descend upon the heirs of the plaintiff who was daughter and rather wanted the properties to go to the heir of her deceased husband. That was a reason, according to defendants, why a gift-deed was executed by her in favour of the defendants. It was denied that any undue influence was exercised upon the lady and that any fraud was practised upon her.
3. The learned Sub-Judge found in favour of the plaintiff and after cancelling the gift-deed, decreed the suit for possession. The defendants came in appeal before the learned District Judge and he disagreed with the decision of the learned sub-Judge and dismissed the suit. The plaintiff has now come up in this second appeal.
4. There is a specific allegation in the plaint that undue influence was exercised and in the absence of the plaintiff, the defendants, had taken the lady who was ailing, to Una under the pretext that she was to be given a treatment by some doctor. She was, thus, brought under the influence of the defendants and the gift-deed was obtained. The Court trying a case of undue influence must consider two things to start with, namely:--
(i) 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
(ii) Has the donee used that position to obtain an unfair advantage over the donor?
Upon the determination of these issues, a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. See AIR 1967 SC 878, Subhash Chandra v. Ganga Prosad. It was thus to be ascertained if the defendants were in a position to dominate the will of Shrimati Basanti and have they used their position to obtain an unfair advantage over her. Certain circumstances were established by evidence and these circumstances need be reiterated. As to the age of the lady, according to plaint case, she was 90 years old. In the gift-deed itself the age is mentioned as 60 years. Madho Ram (PW. 3), however, stated that her age was 75 years Shero (D.W. 3), assessed her age to be 70 years, while Kewal Krishan defendant (DW-4) stated that her age was 60 or 65 years. It is, therefore, abundantly clear that the age of the lady was near about 70 years which was sufficiently an advanced age, specially when she was ailing. According to Shero (D. W. 3) the defendants had brought her for treatment by some doctor. The plaintiff herself, of course, stated that she was not in a sound state of mind and that she was in a position to tell facts about the transaction only when she could collect her wits. It was, therefore, established that Shrimati Basanti was an aged lady who was ailing at the time of the execution of the gift-deed. Apparently she must have been attached to the plaintiff who was her only daughter. The gift-deed was obtained while the daughter was absent and had gone to her husband's place. In fact, the defendants avoided the presence of the plaintiff at all relevant time of the execution and registration of the deed. The defendants were, no doubt, collaterals and being male-members of the family of her husband, came to her and brought her to Una for treatment. In this manner they were in a position to dominate the will of the lady, at any rate during that short period of time when the plaintiff remained absent. In the plaint, however, it was stated that the defendants were not even on visiting terms with the lady. This assertion was obviously made as a counterblast to the defendants' assertion in the gift-deed itself that they were serving the lady since long and the gift was obtained in lieu of that service. There is no evidence worth the name to prove that any service was rendered by the defendants to the lady. It is obvious that she must have been attached to her only daughter and, as stated by her, it was she who was to serve her up till her death. The beneficiary Kewal Krishan defendant played a prominent part in execution and registration of the deed. He had taken witnesses from the village and according to Shero (D. W. 3), he was also one of the witnesses taken from thevillage, but only Jakha (D. W. 2) stood as witness and one more witness was taken from Una. For some reason, Shero (D. W. 3) was given up. However, he was produced in the Court and it is he who admitted that the lady was taken by the defendants for treatment to Una. However, he was not in a position to tell as to whether any treatment was given to her at all. It appears therefore, that the lady was taken to Una under the pretext of giving her a treatment. That is the reason why the witness is not in a position to give out any detail regarding such treatment. It is, therefore, evident that Kewal Krishan defendant engaged his scribe for writing the deed. He presented the lady for registration of the document. In this connection, reference can be made to Vellaswamy Servai v. L. Sivaraman Servai, AIR 1930 PC 24 which was a case of will. But the ratio of the case is equally applicable to the circumstances of this case. Their Lordships made the following observation:--
'Where the propounder of a will is the principal beneficiary under it and has taken a leading part in giving instructions for the execution of the will and procuring its registration and execution, the circumstances are such as would excite the suspicion of any probate Court and require it to examine the evidence in support of the will with great vigilance and scrutiny. The propounder is not entitled to probate unless the evidence removes such suspicion and clearly proves that the testator approved of the will.'
The defendant being the principal beneficiary thus took a leading part in execution and registration and this by itself is sufficient to prove that he dominated the will of the lady and exercised his influence in obtaining an unfair advantage inasmuch as he deprived the natural heir namely the plaintiff of the entire properties. The natural affection of the mother should have been for the daughter who was a widow and not under affluent circumstances. Admittedly she has no issues and according to her statement, she does pot possess any landed property at her husband's place. Amar Nath, Sarpanch, (P. W. 2) stated that the plaintiff has no male-member to look after her at her father-in-law's place. She has no landed property, except half portion of a house of which compensation has been paid to her. Kewal Krishan (D.W. 4) the defendant himself admitted that the plaintiff does not have any relation of hers at her father-in-law's place. The defendants asserted that the donor did not want to change the line of descent from her husband and that is why, she gifted the disputed property to them. If that was the reason for making the gift, why it was not mentioned in the deed itself? There it was stated that the defendants were doing service for her and the gift was being executed in lieu of thatservice. Above all, the lady herself came to Una subsequently and questioned the deed of gift. She got a complaint written by Sant Ram scribe (P.W. 1) on 25th of April, 1961. This witness produced his register which contained the thumb impression of the lady. The substance of the complaint was written in the register which was, obviously, kept in the regular course of business. A copy of the register (Ex. P.W. 1/1) has been filed. The original complaint was not summoned from the office of the Superintendent of Police. There was some controversy as to the admissibility of this register entry. There can be no denying that the register entry is by itself a primary evidence of a document. In fact, two documents were brought into existence, one was the complaint sent to the Superintendent of Police and the other was the register entry made by the scribe. The plaintiff produced the register entry and could not produce the complaint itself. The register entry was thus primary evidence of the document and could be taken into evidence. At any rate, this document proved that Shrimati Basanti had her own objection for the document which she was made to execute on 4th April, 1961 at the instance of the defendants. She did not know the details of that document, which is manifest from the register entry (Ex. P.W. 1/1) which specifies that all the four brothers including the two defendants had taken the transfer in their favour. In fact, the gift was executed in favour of only two brothers, namely, the defendants. This circumstance also proves that the lady was not aware of the details of the transaction of which she was made a party. According to Kewal Krishan (D.W. 4), she was an illiterate lady.
5. The learned District Judge pointed out that the defendants' witnesses were not put questions by the plaintiff as to which document other than the gift Was intended to be executed. In fact, no such questions could be put to the witnesses because the plaintiff never relied upon any other document. Rather her case was that a gift under undue influence was executed. The learned District Judge further pointed out that the scribe was not cross-examined by the plaintiff upon the question as to whether the document was read out and explained to the lady. He has further stated that Jakha Ram (D.W. 2) Stated that the lady had come by foot upto Una, and from this, it could be inferred that she was hale and hearty. These suggestions made by the learned District fudge do not carry us any further. Jakha Ram was the own person of the defendant and was brought from the village to stand as witness for the deed. As such, he was out to support the defendant. As against him, Shero (D.W. 3) very much stated that she was ailing at that time and was brought by Kewal Krishan for treatment. Thescribe (D.W. 1) rather stated that whatever the lady said was got written in the deed, which is obviously incorrect because the language utilised for scribing the deed could not have been stated by her. The witness could have very well stated that he had heard the lady and understood her. Thereafter, he wrote down the substance of her talk and scribed the deed, but this he has not stated. The learned District Judge, then relied upon the endorsement of the Sub-Registrar. It is obviously correct that such endorsements are made out, in a routine fashion and whatever presumption is attached to such endorsements, it can be rebutted by proper evidence. The learned District Judge then stated that the particulars of fraud were not given out in the plaint. It may be correct to say that a case of fraud was not established, but nonetheless the case of undue influence was proved and that is sufficient to set aside the document.
6. As a result to all that I have stated above, inferences can be drawn to the effect that the defendants were in a position to dominate the will of the lady and that they exercised their influence and obtained an unfair advantage for themselves. The transaction of gift was itself unconscionable inasmuch as the mother deprived her dependent daughter of her entire share in the properties. Besides this, the donor herself never kept any land for her maintenance. Had she remained alive for some substantial period, she would have been entirely dependent for livelihood upon the defendants. She would not have agreed to such a transaction. The burden of proof thus lay upon the defendants to establish that undtie influence was not exercised and this they failed to establish. The learned District Judge placed a wrong burden of proof upon the plaintiff which is clear from the reasoning that he has adopted in the judgment. It is, therefore, abundantly clear that the disputed gift-deed was obtained by undue influence and need be set aside.
7. Rules regarding transactions by 'pardanashin' women are equally applicable to illiterate and ignorant women though not 'pardanashin'. This is so held in Chinta Dasya v. Bhalku Das, AIR 1930 Cal 591. There is no reason, say their Lordships, why a rule which is applicable to pardanashin ladies on the ground of their ignorance and illiteracy should be restricted to that class only and should not apply to the case of a poor woman who is equally ignorant and illiterate and is not pardanashin, simply because she does not belong to that class. If that view of the matter were adopted the effect clearly would be to confer an unfair advantage upon rich women as compared with poor women. The object of the rule of law is to protect the weak and helpless and it would not be restricted to a particular classof the community. In Mt. Farid-un-nisa v. Mukhtar Ahmad, AIR 1925 PC 204 the following observation has been made which pan be profitably understood in the case:--
'The law of India contains well-known principles for the protection of persons, who transfer their property to their own disadvantage, when they have not the usual means of fully understanding the nature and effect of what they are doing. In this it has only given the special development, which Indian social usages make necessary, to the general rules of English law, which protect persons, whose disabilities make them dependant upon or subject them to the influence of others, even though nothing in the nature of deception or coercion may have occurred. This is part of the law relating to personal capacity to make binding transfers or settlements of property of any kind.
The real point is that the disposition made must be substantially understood and must really be the mental act, as its execution is the physical act, of the person who makes it.
The parties to prove the state of the settlor's mind are the parties who set up and rely on the deed. They must satisfy the Court that the deed has been explained to and understood by the party thus under disability, either before execution, or after it under circumstances which establish adoption of it with full knowledge and comprehension.
Further, the whole doctrine involves the view that mere execution by such a person, although unaccompanied by duress, protest or obvious signs of misunderstanding or want of comprehension, is in itself no real proof of a true understanding mind in the executant. Evidence to establish Such comprehension is most obviously found in proof that the deed was read over to the settlor and, where necessary, explained. If it is in a language which she does not understand, it must, of course, be translated, and it is to be remembered that the clearness of the meaning of the deed will suffer in the process. The extent and character of the explanation required must depend on the circumstances Of each case.'
In the instant case, it was the duty of the defendants to prove that the lady Substantially understood the document and her physical act of signing such document coincided with the mental act of approval of its contents. This the defendants have failed to establish and hence the plaintiff must succeed. In Ram Kalap Pande v. Bansidhar, (AIR 1947 Oudh 89), the following observation was made which may be of some interest:--
'When the parties to a transaction do not stand upon an equal footing, the law raises in a suitable case a presumption of fraud. In order to bind persons who, bytheir acts or contracts, have divested themselves of the bulk of their property, there must be a free and full consent, and in transactions in which one of the parties is not a free and voluntary agent and is unable to appreciate the import of what he does, the main elements which render the act his own are wanting. Accordingly, when a person, who from his state of mind, age, weakness or other peculiar circumstances is incapable of exercising a free discretion, is induced by another to do that which may tend to injure him, that other is not allowed to derive any benefit from, his improper conduct.'
The ratio of these cases equally applies to the circumstances made out in the instant case.
8. The respondents made rather a desperate attempt of raising the plea of limitation. It was urged on their behalf, that 3 years period of limitation is prescribed under Article 59 of the Limitation Act and because the gift-deed was executed on 4th April, 1961, the suit should have beenfiled upto 4th April, 1964. Rather it was filed on 2nd May, 1964 and as such, according to respondents, the suit was timebarred. It has to be understood by reference of Article 59, that this period of 8 years begins to run from the date whenthe facts entitling the plaintiff to have the instrument cancelled or set aside first be come known to him. It is, therefore, aquestion of fact as to when the facts of the deed became known to the plaintiff and as pointed out by the learned counsel forthe appellant, such facts could only be known from the deed itself, which wasentered in the registration books only on 1st September, 1961. At any rate, that is the date which has been mentioned in theendorsement that has been made on the back of the deed itself. Therefore, a certified copy of the deed could only be obtained after 1st September, 1961 and if this date is accounted for, the suit was filed well within time. It is obviously correct that the plaintiff or Shrimati Basantiwere not aware of the full contents of the gift-deed because in Ex. P.W. 1/1, which is a copy of the register entry maintained bythe scribe, they specified that four of the brothers were the donees under the transfer deed. This was an incorrect statement. The indication is that the ladies were not aware of the true contents of thedocuments and therefore for the purpose of limitation, the facts entitling them to have the instrument cancelled, could become known to them only after 1st September, 1961. Apart from this, as held in Banarsi Das v. Kanshi Ram, AIR 1963 SC1165 a new plea of limitation which wasnot purely one of law but a mixed question of law and facts cannot be allowed to be raised for the first time at the stageof arguments in second appeal before the High Court.
9. In this view of the matter, it was amply proved that the gift-deed was executed under undue influence and hence the agreement did not convey a free and full consent of Shrimati Basanti. A valid contract never came into existence. Shrimati Basanti herself objected to the deed and lodged a complaint to Police in respect of it. The defendants could not derive any title under the gift-deed. The plaintiff being the natural heir of the deceased, is entitled to get possession from the defendants and the gift-deed is liable to be set aside.
10. The appeal is, therefore, allowed and the judgment and the decree of the learned District Judge are set aside and the plaintiff's suit for possession is decreed, with costs all throughout.