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1997 Supreme(Bom) 109
IN THE HIGH COURT OF BOMBAY
R.M. Lodha, J.
Shrimati w/o Motiram Sakharam
Maqdum since deecased by her heirs others .....Appellants.
Versus
Sudhakar R. Bhatkar others...... Respondents.
Second Appeal No. 401 of 1986, decided on 4-3-1997.
Advocates appeared :
D.S. Sawant, for appellants.
A.A. Kumbhkoni, for respondent No. 1.
Headnote:Section 16(3)-Question of proof of onus probandi-Court cannot decide as the first issue leaving the two issues (1) effect to dominate; (2) contract induced by under influence-Held- Transaction whether an unconscionable or not is not thing to be determined but the last aspect to be seen in the order of circumstances referred to sub- section (3) of Section 16.- The Court cannot go into the question of proof of onus probandi as the first issue leaving the other two issues namely, the relations between the parties to the effect that one was in a position to dominate the other and whether the contract was induced by the undue influence to be left for decision later on. If that be the approach, the mistake is bound to creep in because the transaction whether on unconscionable or not, is not the first thing to be determined but the last aspect to be seen in the order of the circumstances referred to in sub-section (3) of Section 16.
Section 16(3)-Undue influence-Proof-Suit for declaration that gift deed alleged to be executed by plaintiff not binding on her Plaintiff being owner of house and agricultural lands-Defendant being tenant in house became very intimate to plaintiff being illiterate widow-Defendant persuaded her to gift her entire property to him and got gift deed executed and registered-Held, such gift deed cannot be said to have been executed under his undue influence as persuasion is not same thing as inf1uence~Question of owns of proof arises only after it was concluded that transaction was result of undue influence.- The first thing that is required to be seen is whether the relation between the original plaintiff and the original defendant No.1 was such that the one was in a position to dominate the will of the other. That is what is required to be seen first while determining first stage is whether one of the parties could influence the decision of the other. In the facts on hand it would be seen that as it is there was no relationship between the original plaintiff and original defendant No. 1. That fact is not only, not disputed but rather admitted in the plaint itself where the original plaintiff has averred that there was no relationship as such between the parties, i.e. the original plaintiff and original defendant No. 1. Merely because the original defendant No.1 was residing in the part of the house owned by original plaintiff as an employee of the tenant. It cannot be said that the original defendant No. 1 was in dominating position who could influence the plaintiff, except this fact there is no material on record from which any inference can be drawn that the original defendant No.1 was in a position where he could dominate and influence the original plaintiff. Influence in the eye of law has to be contra distinguished with persuasion. Any and every persuasion by one party to the other to contract cannot lead to inference or conclusion that such party has influenced the other party. One may by his not and conduct convince and persuade the other party to do a particular act and if the other party does such an act freely and of own volition may be to his or her prejudice or to his or her disadvantage or even to his or her peril, it cannot be said that such act was influenced by the other. May be therefore, since the original plaintiff and original defendant were living in one house and the original defendant who was being treated like her son might have persuaded the original plaintiff to gift her entire property. By such persuasion, ito cannot be held that he has influenced the decision of the original plaintiff by dominating his will over her. The first element of influence is, therefore, missing. The second stage whether such influence was undue or not therefore, cannot be said to have arisen. There is absolutely no material muchless reliable evidence to show that the original defendant No. 1 induced the original plaintiff by undue influence for execution of the gift deed exhibit 56, of course, the original plaintiff has deposed and sought to set up the case that the original defendant No. 1 on the pretext of execution of bhade chitti took her to Rajapur and in the garb of execution of bhade chitti got executed the document which turned out to be gift deed. However, the said case is not only reliable but does not seem to be probable as well. It will be seen that M, the original owner and the husband of the original plaintiff had died long back and perhaps two decades before the execution of the gift deed in the year 1966. During this period of 20 years, the original plaintiff had been getting the agricultural land cultivated from various persons and was sustaining her livelihood there-from. The original plaintiff was illiterate having no formal education from school or college but she was intelligent enough to manage her properties and was getting agricultural land cultivated from various persons from time to time for about two decades and, therefore, from the available facts it cannot be inferred that she would sign a document without understanding the purport of such document gift deed, therefore, must have been signed by the original plaintiff after fully understanding its effect. The gift deed admittedly is the registered document.
2.One Motiram Mugdum was originally owner of the suit properties comprising of Survey No. 158/9, 164/3, 48/6, 48/9, 44/8 and 31/4 situate at village Tulsawade and house property being Grampanchayat No. 13 situate at Village Tulsawade. Motiram Magadum died and after his death Shrimati Motiram Sakharam Magadum (original plaintiff) became the owner and was in possession and enjoyment of the aforesaid properties. The part of the house property was let out by original plaintiff to Village Panchayat, Tulsawade for rent of Rs. 60/- per year somewhere in the year 1967. Shri Sudhakar Raghunath Bhatkar (original defendant) was Secretary and Gram Sevak of Village Panchayat, Tulsawade and he was also Talathi of the said village. The original defendant was residing in the premises owned by the original plaintiff and taken on rent by the Village Panchayat from her. The original plaintiff and original defendant are not related but they were well aquainted since the original defendant was residing in the premises owned by the original plaintiff. The gift deed dated 15-12-1966 is the bone of contention in the present litigation and according to the plaintiff the original defendant took original plaintiff in confidence and took her to taluka place Rajapur on the pretext that bhade chitti was to be executed but in garb thereof as later on she came to know that the original defendant got the gift deed executed from her relating to entire property held by her. The original plaintiff, according to her, came to know in the month of July 1976 that original defendant had mortgaged the property to Ratnagiri District Land Development Bank. On 8-3-1977 the original plaintiff accordingly filed a suit in the Court of Civil Judge, Junior Division, Rajapur against the original defendant and the, other defendants namely, Maharashtra State Co-operative Land Development Bank with whom the properties were mortgaged praying therein that the gift deed dated 15-12-1966 allegedly executed in favour of defendant No. 1 be treated as cancelled and it be declared that defendant No. 1 has got no right in the said properties pursuant to the said gift deed. The original plaintiff also sought the relief that it be declared that the original defendant No. 1 had no right to mortgage the property with the Maharashtra State Co-operative Land Development Bank and the said property was not liable for auction for re-payment of loan in favour of original defendant No. 1. The original defendant No. 1 filed written statement and denied the averments made in the plaint. According to original defendant No. 1 he looked after the original plaintiff as his mother for about 12 years and out of love and affection for the original defendant No. 1, she gifted her property at her Will and volition by the gift deed dated 15-12-1966 which was duly registered. He set up the defence that he was put in possession of the suit property by the original plaintiff on the date of execution of the gift deed and that he has made improvements in the suit house from his own income and loan. The original defendant No. 1 denied that the gift deed was obtained by practising fraud or exerting undue influence. The trial Court framed issues and thereafter the plaintiff examined herself and one witness Shri Sitaram Panchal. Though the original defendant No. 1 did not examine herself but examined two witnesses on his behalf namely, Shri Sitaram Narayan Chavan and Shri Kashiram Shivram Tanawadi. The gift deed dated 15-12-1966 has been exhibited as Exhibit 56.
3.The trial Court after rec
