The absence of consideration does not affect the transfer of title if the deed of sale is intended to operate as a conveyance on the date of its execution.

( 1 ) PLAINTIFF-APPELLANTS have come up in second appeal feeling aggrieved by the judgement and decree of the lower appellate Court directing their suit for recovery of possession and mesne profits over a piece of land to be dismissed in reversal of the decree of the trial Court, which had decreed the suit.

( 2 ) ON 13-9-1979 this Court admitted the appeal for hearing parties on the following substantial question of law. Whether considering the facts and circumstances of the case, the lower appellate court, has correctly and properly decided the case on the basis of oral and documentary evidence, produced by the parties ?

( 3 ) THE suit property is O. 423 hectares, area of land, survey No. 160, situated at village Bawan Heda, Tahsil Shujalpur, delineated in red in the map filed with the plaint. The case of the plaintiffs was that they had purchased the suit property under a registered deed of sale dated 13-1-72, however, possession was not delivered to the plaintiffs. The suit was for possession on the basis of their title among with the relief of recovery of mesne profits; It appears that there were two deeds of sale executed on the same day between the parties. While the plaintiff transferred a piece of land to the defendant, the defendant too transferred the suit land to the plaintiff. Both the documents recite a consideration of Rs. 500/- peach, said to have been paid anterior to the execution and registration of the deed of sale. The trial Court found that in reality there was an exchange of the two pieces of land between the parties which exchange was outwardly evidenced by executing two separate deeds of sale. This theory of exchange has been discarded by the lower appellate Court holding that the contents of the two documents indicated two separate transactions having been entered into between the parties. The lower appellate Court further held that in so far as the documents executed in favour of the plaintiff-appellants was concerned, the same was vitiated for want of consideration and also by exercise of undue influence.

( 4 ) HAVING heard the learned counsel for the parties, this Court has formed an opinion that the appeal deserves to be allowed, restoring the decree of the trial Court, for the reasons to follows.

( 5 ) THE learned counsel for the appellants has rightly submitted that even if the theory of exchange set up by the appellants was to be discarded and even if the document was to be seen and acted upon as a deed of sale, as styled, even then the plaintiffs' right to recover possession could not have been defeated in spite of the finding of the lower appellate Court of absence of consideration being upheld. by this Court.

( 6 ) FIRST it has to be seen whether the defendant-respondents had succeeded in proving that the document was vitiated by undue influence. At the very outset let it be noted. that the lower appellate Court has not recorded any specific finding as to how and in what manner there was undue influence, within the meaning of S. 16 of the Contract Act, 1872, exercised by the vendee over the vendor.

( 7 ) WHENEVER a plea of undue influence is taken in pleadings, R. 4 of O. 6 of the Civil P. C. provides for particulars of such plea being given so as to enable the plea being tried. In Bishundeo Narain v. Seogem Rai, AIR 1951 SC 280 their Lordships have held (at page 283) :"in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Ct. ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion. "

( 8 ) IN Afsar Shaikh v. Soleman Bibi, AIR 1976 SC 163 their Lordships have laid down the law in the following terms (at page 169) :"it is not sufficient for a person seeking t