KRISHNA MOHAN KUL @ NANI CHARAN KUL AND ANR.versusPRATIMA MAITY AND ORS.

A       KRISHNA MOHAN KUL @ NANI CHARAN KUL AND ANR.
                                         V.
                         PRA TIMA MAITY AND ORS.

                              SEPTEMBER 9, 2003

B           [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

         Code of Civil Procedure, 1908 :

         Section 100.-Second Appeal-Appellants claiming possession of
C property on the basis of a registered settlement deed purported to be
  executed by executor, who was old and not in a fit condition mentally and
  physically-Respondents filing suitfordeclaration and permanent injunction
   before trial court allegingfraud and undue irifluence exercised by appellants
   on executor-Trial court dismissing the suit for failure by respondents to
  prove the validity of the deed-First Appellate Court confirming the
D judgment ofthe trial court-High Court reversing the concurrentfindings-
   On appeal, held, the lower courts wrongly placed onus on the respondents
  to prove validity of the settlement deed-Burden ofproof on the appellants
   on ground offiduciary relationship with the executor-Hence, interference
   by High Court justified-Evidence Act, 1872-Section 111.
E
          Appellant-defendants claimed possession over suit property from
    respondent-plaintiffs on the basis of a registered deed of settlement
    purported to have been executed by the executor on 11.7.1970. The
    respondents filed a suit for declaration and permanent injunction
F   before trial court contending that the executor was more than 100
    years of age; that the executant was paralytic and was not in a fit
    condition physically and mentally at the time of the execution of the
    deed; and that there were no witnesses to prove the left thumb
    impression stated to have been affixed by the executor on the deed of
    settlement. The trial court dismissed the suit since the respondents
G   failed to prove the validity of the settlement deed. The first appellate
    court confirmed the trial court judgment and held that the age of the
    executant was not proved by the respondents. The High Court allowed
    the second appeal of the respondents holding that the onus of proving
    the validity of the settlement deed was on the appellants and that the
H   deed of setlement was void and invalid.
                                       496
            KRISHNA MOHAN KUL v. PRA TIMA MAITY                       497
    In appeal to this court, the appellants contended that the High          A
Court, in an appeal under section 100 CPC, cannot interfere with the
concurrent findings recorded by the lower courts; and that the
executant was in a fit physical and mental state at the time of execution.

     Dismissing the appeal, the Court
                                                                             B
     HELD: I. The scope for interference by High Court with concurrent
findings of fact while exercising jurisdiction under section 100 CPC is
very limited. But where the trial court and/or the first appellate court
misdirected themselves in appreciating the question of law and placed
the onus on the wrong party to prove the validity of the settlement deed,    C
then there is a scope for interference under section 100 CPC after
formulating a substantial question of law. 1501-H, 502-A, BJ

     Yadarao Dajiba Shrawane (dead) by Lrs. v. Nani/al Harakchand
Shah (dead) & Ors., [20021 6 SCC 404 and Neelikantan & Ors. v. Mallika       D
Begum, 12002) 2 SCC 440, relied on.

    Chandra Bhan v. Pamma Bai & Anr., 12002) 9 SCC 565 and
Sakhahari Parwatrao Karahale & Anr. v. Bhimashankar Parwatrao
Karahale, 12002) 9 SCC 608, distinguished.
                                                                             E
      2. The first appellate court totally ignored the relevant materiills
and recorded a completely erroneous finding that there was no
material regarding age of the executant when the document in question
itself indicated the age. The courts below have wrongly placed onus to
prove execution of the deed on the respondents. There was challenge          F
by the respondents to the validity of the deed. The onus to prove the
validity of the deed of settlement was on the appellants. [502-E-G)

      3. When fraud, misrepresentation or undue influence is alleged by
a party in a suit, the burden is on the party to prove such fraud, undue
influence or misrepresentation. But when a person is in a fiduciary          G
relationship with another and the latter is in a position of active
confidence, the burden of proving the absence of fraud,
misrepresentation or undue influence is upon the person in the
dominating position i.e. the party who is in a position of active
confidence. He has to prove that there was fair play in the transaction      H
    498                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A and that the transaction is genuine and bona fide. In such a case, the
    burden of proving the good faith of the transaction is thrown upon the
    dominant party. A person standing in a fiduciary relation to another
    has a duty to protect the interests given to his care and the Court
    watches with zealously all transactions between such persons so that
B   the protector may not use his influence or the confidence to his
    advantage. When the party complaining shows such relation, the law
    presumes everything against the transaction and the onus is cast upon
    the person holding the position of confidence or trust to show that the
    transaction is perfectly fair and reasonable that no advantage has been
C   taken of his position. This principle has been engrained in section 111
    of the Indian Evidence Act, 1872. (502-G, H, 503-A-CI

         4. In judging the validity of the transactions between persons
    standing in a confidential relation to each other, it is very material to
    see whether the person conferring a benefit on the other had competent
D   and independent advice. The age or capacity of the person conferring
    the benefit and nature of the benefit are of very great importance in
    such cases. It is always obligatory for the donor/beneficiary under a
    document to prove due execution of the document in accordance with
    law, even de hors the reasonableness or otherwise of the transaction
E   to avail of the benefit or claim rights under the document irrespective
    of the fact whether such party is the defendant or plaintiff before
    Court. An old, illiterate, ailing person is unable to comprehend the
    nature of the document or the contents thereof. It should be established
    that there was not mere physical act of the executant involved, but the
    mental act. (504-A-C, H, 505-A)
F
         Mst. Farid-un-Nisa v. Munshi Mukhtar Ahmed and Anr., AIR (1925)
    PC 204 and Mst. Kharbula Kuer v. Jang Bahadur Rai and Ors., AIR
    (1963) SC 1203, relied on.

          Ashburner 's Principles of Equity, 2nd Ed., Page 229, relied on.
G
         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7133 of
    2003.

         From the Judgment and Order dated 29.1.2002 of the Calcutta High
H   Court in S.A. No. 133 of I999.
       KRISHNA MOHAN KUL v. PRATIMA MAITY [PASAYAT, J.]                 499

     S.C. Ghosh and Satish Vig for the Appellants.                              A
     G .S. Chatterjee and Tara Chandra Shanna for the Respondent.

       The Judgment of the Court was delivered by

     ARIJIT PASAYA T, J, : Leave granted.                                       B

      By the impugned judgment, learned Single Judge of the Calcutta High
Court held that the deed of settlement purported to have been executed by
Dasu Charan Kul (hereinafter referred to as the 'executant') was a void and
invalid document. The fight between relatives of the executant centers          C
round a registered deed of settlement purported to have been executed on
11. 7.1970 by the executant. A suit for declaration and permanent injunction
was filed by Pratima Maity, daughter of Phani Charan Kul, son of Dasarathi
Ku!. The suit property originally belonged to Dasarathi Ku! who died in
the year 1972. His Son Phani Charan Kul died in the year 1979. Averments        D
in the plaint were to the effect that on coming to know from the office of
the Block Land Reforms Officer that defendant No. 1 - Krishna Mohan
Ku! (appellant No. 1 in the present appeal) had filed a registered deed of
settlement dated 11.7.1970 it was necessary to get the deed declared to be
void and invalid as the same was a forged document. There was no                E
existence of the witnesses whose names appeared in the said deed which
was created to grab the property of the plaintiffs. It was in this background
alleged that the deed of settlement was created by Krishna Mohan Kul
(defendant No. 1) with oblique motive. The contesting defendants took the
stand by filing written statements that the deed was perfectly in order and     F
no illegality was attached thereto.

      Before the trial Court several witnesses were examined to contend
that the executant was more than 100 years of age at the time of alleged
execution of the deed in question. He was paralytic and his mental and
physical condition were not in order. He was practically bed ridden with        G
paralysis and though his left thumb impression was stated to be affixed on
the document, there was no witness who could substantiate that in fact he
had put his thumb impression. That being the position, the deed was to be
declared as void and invalid. The contesting defendants took a stand that
it was not as if executant was not in a fit condition physically or mentally    H
    500                   SUPREME COURT REPORTS [2003) SUPP. 3 S.C.R.

A at the time of execution of the deed. The trial Court disbelieved the plea
    of plaintiffs and dismissed the suit.

         Similar was the fate before the first Appellate Court. On being
    approached by the plantiffs the following questions were framed by the
B High Court in the Second Appeal :

                   "Whether the deed of settlement executed by the predecessor-
             in-interest of the parties is valid in law". In fact, such substantial
             question of law should also embrace the question as to whether
C            the judgments of the courts below are perverse in appreciating the
             said deed of settlement."

           High Court took the view that the approach of both the trial Court
    and the first Appellate Court was erroneous. The following factual aspects
D   were considered relevant. Plaintiffs produced certified copy of the deed,
    while defendants produced the original one. It was a deed of settlement
    where Dasu Charan Kul was described as the donor, and curiously the
    donor and two others namely Nani Charan Kul and his minor son Jagdish
    Kul. The L.T.l. was identified by one Hriday Krishna Das. The deed was
E   typed by one N.R. Dutta and in the column meant for the names of
    witnesses, names of scribe Hriday Krishna Das along with two others
    namely Nantu Bihari Ray and P.K. Maity appeared. In the deed of
    settlement donor indicated his age to be 106 years. It was also indicated
    that he was becoming lackluster due to old age and various ailments and
    for other mental shocks. According to High Court, courts below wrongly
F   placed the onus on the plaintiffs to prove the validity of the deed of
    settlement. It was observed that the first Appellate Court dealt with the
    matter in a very slip shod manner even coming to a conclusion that age
    of the executant was not proved. It was pointed out that the deed in question
    indicates that the executant was l 06 years old at the time of execution.
G   None of the witnesses of the deed in question was examined to prove the
    deed of settlement and not even the person who had identified the L.T.I.
    of the executant. The High Court came to hold that executant was an
    illiterate person, was not in proper physical and mental state and, therefore,
    the deed of settlement and trust dated 11.7.1970 was void and invalid. The
H   defendatns were injuncted permanently from disturbing the possession of
       KRISHNA MOHAN KUL v. PRATIMA MAITY [PASAYAT, J.)                  501

the plaintiffs in the suit property.                                            A
     Learned counsel for the appellants submitted that the High Court
should not have interfered with the concurrent findings recorded by the trial
Court and the first Appellate Court while dealing with an appeal under
Section 100 of the Code of Civil Procedure, 1908 (for short the 'CPC').         B
It was submitted that there is no material to conclude that the executant
was not in a fit physical and mental state at the time of execution of the
deed. That being so, the High Court should not have interfered with the
conclusions arrived at by the trial Court and the first Appellate Court.

      In response, learned counsel for the respondents (plaintiffs l, 2 and     C
3) submitted that the High Court has rightly interfered with the lower
Court's orders as the conclusions were totally on misreading of the
provisions of law. The High Court rightly noticed that onus was wrongly
placed on the plaintiffs to prove validity or otherwise of the deed of
settlement.                                                                     D
       We shall first deal with the question relating to jurisdiction of the
High Court to interfere with the concurrent findings of fact. Reference was
made by learned counsel for the appellants to Chandra Bhan v. Pamma
Bai and Anr.. [2002] 9 SCC 565, Sakhahari Parwatrao Karahale and Anr.           E
v. Bhimashankar Parwatrao Karahale, [2002] 9 SCC 608. So far as the
first decision is concerned, in view of the factual findings recorded by the
lower Court and the first Appellate Court it was held that interference with
the concurrent findings of fact are not justified. The question related to
possession and two Courts primarily considering factual position had            F
decided the question of possession. Jn that background, this Court observed
that jurisdiction under section 100 CPC should not have been exercised.
So far as the second decision is concerned, the position was almost similar
and it was held that findings contrary to concurrent findings of lower
Courts and having no basis either in pleadings, issues framed or in
questions actually adjudicated upon by any of the lower Courts cannot be        G
sustained. That decision also does not help the appellants in any manner
as the factual scenario is totally different in the present case.

     Though as rightly contended by learned counsel for the appellants the
scope for interference with concurrent findings of fact while exercising        H
    502                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A jurisdiction under Section I 00 CPC is very limited, where the trial Court
    an,d/or the first Appellate Court misdirected themselves in appreciating the
    question of law and placed the onus on the wrong party certainly there is
    a scope for interference under Section I 00 CPC after formulating a
    substantial question of Jaw.
B
          As was noted in Yadarao Dajiba Shrawane (dead) by Lrs. v. Nani/al
    Harakchand Shah (dead) and Ors., [2002] 6 SCC 404 ifthe judgments of
    the trial Court and the first Appellate Court are based on mis-interpretation
    of the documentary evidence or consideration of inadmissible evidence or
C   ignoring material evidence or on a finding of fact has ignored admissions
    or concession made by witnesses or parties, the High Court can interfere
    in appeal.

          In Neelakantan and Ors. v. Mallika Begum, [2002] 2 SCC 440 it was
D   held that findings of fact recorded must be set aside where the finding has
    no basis in any legal evidence on record or is based on a misreading of
    evidence or suffers from any legal infirmity which materially prejudices
    the case of one of the parties.

        As has been pointed out by the High Court, the first Appellate Court
E totally ignored the relevant materials and recorded a completely erroneous
  finding that there was no material regarding age of the executant when the
  document in question itself indicated the age. The Court was dealing with
  a case where an old, ailing illiterate person was stated to be the executant
  and no witness was examined to prove the execution of the deed or putting
F of the thumb impression. It has been rightly noticed by the High Court that
  the courts below have wrongly placed onus to prove execution of the deed
  by Dasu Charan Ku! on the plaintiffs. There was challenge by the plaintiffs
  to validity of the deed. The onus to prove the validity of the deed of
  settlement was on defendant No. I. When fraud, mis-representation or
G undue influence is alleged by a party in a suit, normally, the burden is on
  him to prove such fraud, undue influence or misrepresentation. But, when
  a person is in a fiduciary relationship with another and the latter is in a
  position of active confidence the burden of proving the absence of fraud,
  misrepresentation or undue influence is upon the person in the dominating
H position, he has to prove that there was fair play in the transaction and that
               KRISHNA MOHAN KUL v. PRATIMA MAITY'[PASAYAT, J.)                    503

        the apparent is the real, in other words, that the transaction is genuine and      A
        bona fide. In such a case the burden of proving the good faith of the
        transaction is thrown upon the dominant party, that is to say, the party who
        is in a position of active confidence. A person standing in a fiduciary
        relation to another has a duty to protect the interest given to his care and
        the Court watches with zealously all transactions between such persons so          B
        that the protector may not use his influence or the confidence to his
        advantage. When the party complaining shows such relation, the law
        presumes everything against the transaction and the onus is cast upon the
        person holding the position of confidence or trust to show that the
        transaction is perfectly fair and reasonable, that no advantage has been           C
        taken of his position. This principle has been engrained in Section 111 of
        the Indian Evidence Act, 1872 (in short the 'Evidence Act'). The rule here
        laid down is in accordance with a principle long acknowledged and
        administered in Courts of Equity in England and America. This principle
         is that he who bargains in a matter of advantage with a person who places         D
         a confidence in him is bound to show that a proper and reasonable use has
        been made of that confidence. The transaction is not necessarily void ipso
        facto, nor is it necessary for those who inpeach it to establish that there
        has been fraud or imposition, but the burden of establishing its perfect
         fairness, adequacy and equity is cast upon the person in whom the
         confidence has been reposed. The rule applies equally to all persons              E
        standing in confidential relations with each other. Agents, trustees, executors,
        administrators, auctioneers, and others have been held to fall within the
        rule. The Section requires that the party on whom the burden of proof is
         laid should have been in a position of active confidence. Where fraud is
         alleged, the rule has been clearly established in England that in the case        F
         of a stranger equity will not set aside a voluntary deed or donation,
         however, improvident it may be, if it be free from the imputation of fraud,
         surprise, undue influence and spontaneously executed or made by the
         donor with his eyes open. Where an active, confidential, or fiduciary
        relation exists between the parties, there the burden of proof is on the donee     G
         or those claiming through him. It has further been laid down that
        where a person gains a great advantage over another by a voluntary
         instrument, the burden of proof is thrown upon the person receiving the
        benefit and he is under the necessity of showing that the transaction is fair
         and honest.                                                                       H
    I
j
    504                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A         Jn judging of the validity of transactions between persons standing
    in a confidential relation to each other, it is very material to see whether
    the person conferring a benefit on the other had competent and independent
    advice. The age or capacity of the person conferring the benefit and the
    nature of the benefit are of very great importance in such cases. It is always
B   obligatory for the donor/beneficiary under a document to prove due
    execution of the document in accordance with law, even de hors the
    reasonableness or otherwise of the transaction, to avail of the benefit or
    claim rights under the document irrespective of the fact whether such party
    is the defendant or plaintiff before Court.

c         It is now well established that a Court of Equity, when a person
    obtains any benefit from another imposes upon the grantee the burden, if
    he wishes to maintain the contract or gift, of proving that in fact he exerted
    no influence for the purpose of obtaining it. The proposition is very clearly
D   started in Ashburner's Principles of Equity, 2nd Ed., p. 229, thus :

                  "When the relation between the donor and donee at or shortly
             before the execution of the gift has been such as to raise a
             presumption that the donee had influence over the donor, the
             Court sets aside the gift unless the donee can prove that the gift
E            was the result of a free exercise of the donor's will."

         The corollary to that principle is contained in Clause (3) of Section
    16 of the Indian Contract Act, 1872 (in short 'Contract Act').

F       At this juncture, a classic proposition of law by this Court in Mst.
    Kharbuja Kuer v. Jang Bahadur Rai and Ors., AIR (1963) SC 1203 needs
    to noted :

                  'It is, therefore, manifest that the rule evolved for the
             protection of pardahnashin ladies not be confused with other
G            doctrines, such as fraud, duress and actual undue influence, which
             apply to all persons whether they be pardahnashin ladies or not".

          The logic is equally applicable to an old, illiterate, ailing person who
    is unable to comprehend the nature of the document or the contents thereof.
H   It should be established that there was not mere physical act of the
       KRISHNA MOHAN KUL v. PRATIMA MAITY [PASAYAT, J.]                 505

executant involved, but the mental act. Observations of this Court, though     A
in the context ofpardahnashin lady in Mst. Kharduja Kuer v. Jang Bahadur
Rai and Ors., AIR (1963) SC 1203 are logically applicable to the case of
the old, invalid, infirm (physically and mentally) and illiterate persons.

      Above being the position, the High Court was justified in holding that   B
the judgments of the trial Court and the first Appellate Court were perverse
and indefensible. We find no scope for interference with the impugned
judgment of the High Court. The appeal is dismissed. There shall be no
order as to costs.

B.S.                                                     Appeal dismissed.     C