Nawal Kishore Thakur v. Dharnidhar Thakur

the rate of Rs. 200/- per month from the defendant no. 1 was also made. The details of the said suit has been given in the plaint by the plaintiffs with further assertion that in spite of the show cause notice issued on 08.04.1981, the defendant no. 1 Bhojal Thakur executed the registered gift deed on 08.04.1981 in favour of the defendant Dharnidhar Thakur and thereafter filed show cause as well as written statement in the said suit. It has been stated that Bhojal Thakur died on 11.07.1981 and his funeral ceremony was performed by his wife (plaintiff no. 1) and thereafter the earlier T.S. No. 04/1981 was withdrawn by her with liberty to file a fresh suit. The plaintiffs have thus alleged that the deed of gift executed by Bhojal Thakur in favour of the defendant Dharnidhar Thakur was not a voluntary act of Bhojal Thakur rather the said deed has been obtained by Dharnidhar Thakur by exercising coercion and fraud upon Bhojal Thakur who had lost his mentally equilibrium at that time. On the basis of these pleadings, the plaintiffs have prayed for the reliefs aforementioned.

The defendant appeared in the suit and has filed his written statement contesting the claim of the plaintiffs. It is the case of the defendant that the plaintiff no. 1 Tusia Devi deserted her husband Bhojal Thakur earlier and eloped with Babulal Thakur of another village with whom she later on married and lived with him as his wife Patna High Court FA No.75 of 1986 dt.12-11-2013 4 and thus the status of the plaintiff no. 1 Tusia Devi as widow of Bhojal Thakur has been denied. It has further been asserted by the defendant that Bhojal Thakur had orally gifted the homestead land of Plot Nos. 549 and 550 to the defendant, 30 years back and the defendant after accepting the said gift came in possession over the gifted property and since thereafter he has been continuing in possession of the same. The defendant has further denied to have exercised any undue influence, fraud or coercion upon Bhojal Thakur for the purpose of obtaining the gift in his favour and has also denied the fact asserted by the plaintiffs that Bhojal Thakur was suffering from senile disease and other diseases including loss of the power of understanding.

In view of the rival pleadings of the parties the trial court has framed altogether 11 issues out of which issue nos. 5,6 and 8, have been tried as material issues and are as follows:- Issue No.5: Whether Bhojal Thakur has executed the deed of gift dated 08.04.1981 voluntarily or under the influence of fraud, coercion or undue influence exercised by the defendant? Issue No.6: Whether the deed of gift dated 08.04.1981 executed by Bhojal Thakur in favour of the defendant is null and void and without operative? Issue No.8: Whether the plaintiffs are the legal heirs of Bhojal Thakur?

After scrutinizing the evidence led on behalf of the parties, the trial court has returned the finding that the plaintiffs are legal heirs of Bhojal Thakur and accordingly the issue no.8 has been Patna High Court FA No.75 of 1986 dt.12-11-2013 6 decided in favour of the plaintiffs. The trial court has further come to the finding that the deed of gift dated 08.04.1981 has been executed by Bhojal Thakur voluntarily and out of freewill in favour of the respondent Dharnidhar Thakur and accordingly, the issue no.5 and 6 have been decided against the plaintiffs. The trial court has also come to the finding that the story of oral gift by Bhojal Thakur in favour of defendant Dharnidhar Thakur could not be believed in view of the established principle of Hindu law where oral gift deed of immovable property is not permitted. On the basis of these findings the learned court below has dismissed the suit by the impugned judgment and decree.

Mr Dhrub Narain, the learned senior counsel appearing for the appellants while assailing the finding on the validity of the gift deed has submitted that the learned court below has not considered the pleadings and evidence led on behalf of the plaintiffs in correct perspective and has wrongly come to the conclusion that the gift deed in question is a genuine and valid document executed by the donor Bhojal Thakur out of his freewill and consent. It has been urged that the burden of proof was directly upon the defendant in view of the provision of Section 16 of the Contract Act as the gift deed admittedly includes the entire property of Bhojal Thakur and no provision has been made for the plaintiff no.1 Tusia Devi who was the wife of Patna High Court FA No.75 of 1986 dt.12-11-2013 7 Bhojal Thakur but the learned court below has wrongly placed the burden on the plaintiffs to establish the elements of undue influence and fraud vitiating the gift deed. Elaborating his submissions the learned senior counsel has canvassed that the statements in the plaint are sufficient to show that the gift deed in question has been assailed on the ground of undue influence and coercion which are the mental state of a person and can be gathered only by the circumstances and the details of the manner in which the fraud, undue influence or coercion have been exercised are difficult to be specifically pleaded. It has been pointed out that even prior to the execution of the gift deed the plaintiff no.1 was apprehending such transfer by her husband Bhojal Thakur which compelled her to file T.S.No.04/1981 praying for restraining her husband Bhojal Thakur from alienating the suit property. The emphasis therefore, has been laid on behalf of the appellants on the unconscionable nature of the bargain and it has been submitted that in similar facts and circumstances this Court in the case of Bhola Ram Lieri Vs Peari Devi, AIR 1962 Patna 168 has held that the gift deed was vitiated by undue influence. The learned senior counsel has also placed the deposition of the plaintiff no.1 in detail to buttress his submissions.

Per contra Mr Uma Shankar Prasad, the learned senior counsel appearing for the defendant-respondent has at the outset Patna High Court FA No.75 of 1986 dt.12-11-2013 8 stated that the provision contained in Section 16(2) of the Contract Act is not attracted in the facts and circumstances which suggest that the donor was not having cordial relationship with his wife and had also been dragged in litigation at the instance of his wife claiming maintenance from him on the basis of false allegations. The learned senior counsel has further submitted that there is no specific pleading of fiduciary relationship between the donor Bhojal Thakur and the donee Dharnidhar Thakur and there is also no such pleading that the donee Dharnidhar Thakur was in a position to dominate the will of the donor and had in fact obtained the gift deed in his favour by taking undue advantage of his position. It has been urged that even in her deposition the plaintiff no.1 has not stated that the gift deed in question had been obtained by exercise of undue influence, coercion and fraud upon her husband by the defendant Dharnidhar Thakur.

In view of the rivalised contentions of the parties to this appeal the following singular issue arise for determination in this appeal: Whether the registered gift deed dated 08.04.1981 executed Patna High Court FA No.75 of 1986 dt.12-11-2013 10 by Bhojal Thakur in favour of Dharnidhar Thakur is vitiated by undue influence, fraud and coercion, said to have been exercised by Dharnidhar Thakur in obtaining the said gift ?

At the outset, it would be pertinent to mention that the defendant-respondent has taken back the documentary evidence exhibited on his behalf in the suit when the records were still in the court below. When the appeal was taken up for hearing it was found that the exhibits filed on behalf of the defendant were not on record and on the prayer of the learned senior counsel appearing for the defendant-respondent, the hearing was adjourned granting opportunity to the respondent to file back the exhibits. Those exhibits have been filed back with service of prior photo copies of the same to the learned counsel appearing for the appellants. No objection has been raised by the learned counsel for the appellants in accepting those exhibits on record and proceeding with the hearing of the appeal.

Admittedly, the plaintiff no.1 Tusia Devi was the wife of the donor Bhojal Thakur. The status of two other plaintiffs who claimed themselves to be the daughters of Bhogal Thakur has also not been disputed in this appeal. The fact has also been admitted that Bhojal Thakur by registered gift deed dated 08.04.1981 had gifted his entire properties in favour of the defendant Dharnidhar Thakur. The plaintiffs have come out with the case that the donee defendant Patna High Court FA No.75 of 1986 dt.12-11-2013 11 Dharnidhar Thakur is the Bhagina of the donor Bhojal Thakur and has obtained the gift deed in his favour from Bhojal Thakur by exercising undue influence, fraud and coercion upon Bhojal Thakur who had become old and suffering from ailments at the time of the execution of the gift deed. The donor defendant Dharnidhar Thakur on the other hand has denied the allegation and asserted that the plaintiff no.1 had deserted her husband Bhojal Thakur long back and the gift deed has been executed by Bhojal Thakur in his favour voluntarily and out of freewill and consent. The perceptible note of discord between the parties is therefore, the validity of the gift deed which has been alleged to have been obtained by exercising undue influence, coercion and perpetration of fraud upon the donor Bhogal Thakur by the donee defendant Dharnidhar Thakur.

It would be fruitful to examine the averments made in the plaint by the plaintiffs with regard to undue influence in view of the provision of Order 6 Rule 4 CPC. The averments in this regard made in paragraph 7 and 8 are relevant where it has been stated that in the month of November and December 1980 Bhojal Thakur was suffering from various kind of senile diseases and several ailments due to old age and infirmities and had also exhausted his memory and lost power of understanding and became a tool in the hands of his Bhagina Dharnidhar Thakur who instigated and poked him to transfer Patna High Court FA No.75 of 1986 dt.12-11-2013 12 all his properties in his favour. It has been further stated that the plaintiff no.1, therefore, had apprehension that her husband might execute a transfer deed in favour of the defendant. It has, thereafter, been asserted that Bhojal Thakur executed the registered deed of gift on 08.04.1981 in favour of the defendant for the suit property during the pendency of the suit for injunction and maintenance filed by the plaintiff no.1 against him(Bhojal Thakur). Finally it has been averred that the gift deed is not voluntary but brought into existence by undue influence, coercion and fraud by the defendant as Bhojal Thakur had lost his mental equilibrium at that time. Except the bald statement, there are no further averments in the plaint describing the facts and circumstances in support of the allegations of undue influence, threat, pressure, coercion and fraud in obtaining the gift deed in question. There is no disclosure of the facts and circumstances as to how the defendant suddenly started dominating the will of Bhojal Thakur even in presence of his wife (plaintiff no.1) and the daughters (plaintiff nos. 2 and 3) and succeeded in coercing him to execute the gift deed in question in his favour.

The requirement of providing the details of fraud, coercion, undue influence in the pleading is there in the provision of Order 6 Rule 4 CPC and has also been recognized by the Apex Court in the case of Ladli Parshad Jaiswal Vs The Karnal Distillery Co. Patna High Court FA No.75 of 1986 dt.12-11-2013 13 Ltd. Karnal AIR 1963 SC 1279 where their lordships have held as follows:-

…Order 6 Rule 4 Civil P.C. provides that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms in the Appendix, particulars ( with dates and items if necessary) shall be stated in the pleading. A plea that a transaction is vitiated because of undue influence of the other party thereto, gives notice merely that one or more of a variety of insidious forms of influence were brought to bear upon the party pleading undue influence, and by exercising such influence, an unfair advantage was obtained over him by the other. A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. A plea of undue influence must, to serve that dual purpose, be precise and all necessary particulars in support of the plea must be embodied in the pleading; if the particulars stated in the pleading are not sufficient and specific the Court should, before Patna High Court FA No.75 of 1986 dt.12-11-2013 14 proceeding with the trial of the suit, insist upon the particulars, which give adequate notice to the other side of the case intended to be set up...

(emphasis supplied)

Tested on the anvil of the aforesaid principle, it becomes manifest that only a vague and general plea of undue influence, coercion and fraud has been made by the plaintiffs in the plaint. Much emphasis, however, has been laid on the fact that Dharnidhar Thakur was admittedly Bhagina of the donor Bhojal Thakur but that fact alone will not be sufficient to raise the presumption of undue influence to have been exercised by him upon the donor Bhojal Thakur for obtaining the gift deed. This fact only establishes that there was a relationship but the other fact that the said relationship was such as to lead to the inference of dominion upon one by other will have to be pleaded and established and, thereafter, the further fact that such influence was in fact exercised to obtain the unfair advantage will also have to be pleaded and proved. This principle has been succinctly reiterated by the Apex Court in the case of M. Rangasamy Vs Rengammal, 2003 (7) SCC 683 where it has been held that “… merely because the parties were nearly related to each other or merely because the donor was old or weak character, no presumption of undue influence can arise”. Patna High Court FA No.75 of 1986 dt.12-11-2013 15

The plaintiff no.1 has deposed in the suit in support of her case but it could not be pointed out on behalf of the appellants that she had made any statement that the donee Dharnidhar Thakur was continuously living with Bhojal Thakur and had taken control of his mind. Such further statement also could not be pointed out alleging that the donee Dharnidhar Thakur used his position to obtain the gift deed in question. At this juncture, the learned senior counsel on behalf of the appellants has pointed out that Dharnidhar Thakur has in his written statement accepted that he was living with Bhojal Thakur from his childhood and Bhojal Thakur had love and affection for him and his mother also as both were looking after him and taking his care. The submission is again misconceived so far as its use as evidence in support of undue influence. As pointed out above, mere close relationship will not lead to the presumption of exercise of undue influence by one upon the other and it requires something more in order to assail the validity of a registered document of transfer on that basis.

The learned senior counsel for the appellants has then relied upon the provision of Section 16(2) of the Contract Act to buttress his submission that the burden of proof of the genuineness of the gift deed was clearly upon the donee defendant as the bargain was unconscionable inasmuch as the entire property has been transferred Patna High Court FA No.75 of 1986 dt.12-11-2013 16 by the donor ignoring the interest of his wife and without making any provision for her maintenance. It has been urged that this fact alone is sufficient to raise doubts over the dealing in question. The fallacy in this submission is apparent in view of the provision of Section 16(2) and 16(3) of the Contract Act according to which the question of unconscionability of the bargain is the last aspect to be into notice for the purpose of deciding the question of burden of proof. It will be fruitful to take into notice the delineation of the principle by the Apex Court in this regard in the case of Subhas Chandra Vs Ganga Prasad, AIR 1967 SC 878 where their lordships quoted with approval the observation of the Privy Council in the case of Raghunath Prasad Vs Sarju Prasad, AIR 1924 P.C. 60 as follows:

…In the first place the relations between the parties to each other must be such that one is in a position to dominate the will of the other. Once that position is substantiated the second stage has been reached- namely the issue whether the contract has been induced by undue influence. Upon the determination of this issue 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. Patna High Court FA No.75 of 1986 dt.12-11-2013 17 Error is almost sure to arise if the order of these propositions be changed. The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of these parties. Were they such as to put one in a position to dominate the will of the other…

. (emphasis supplied)

Even otherwise also the facts reveal that Bhojal Thakur was entitled to transfer his property according to his own freewill and when he had done so, the consideration of the question of unconscionability of the transaction might have arisen when the subsisting good relationship between him and his wife would not at all have been in dispute. A transaction ipso facto will not become unconscionable only on the basis that it comprises the entire property of the transferor and no provision has been made for the maintenance of his close relatives including his spouse. As obvious such consideration will also vary from case to case. In the present case, the pleadings and evidence depict an entirely different picture altogether. Although the donor defendant Dharnidhar Thakur had alleged in his written statement that the plaintiff no.1 Tusia Devi deserted her husband 30 years back when she eloped with her paramour and started living with him as husband and wife but even though this fact could not be established, the plaintiffs in their plaint have admitted that the plaintiff no.1 filed a Title Suit No.

The aforesaid averments made in the plaint clearly disclose that the plaintiff no.1 was not having a good relationship with her husband and it is her case that her husband had been maltreating and torturing her and was not making any provision for her fooding and clothing. The plaintiff no.1 as deposing witness in the suit has not denied the filing of the previous suit against her husband for the relief for injunction and maintenance. However, she has tried to resile from her statements made in the previous suit, when she has stated that her husband had not been maltreating her and she was maintained by her husband throughout his life. These statements in the deposition are inconsistent with the pleadings in the plaint. The learned court below has examined her testimony in this regard and has rightly come to the finding that the fact of bitter relationship between Bhojal Thakur and his wife Tusia Devi (plaintiff no.1) is an admitted and glaring fact. In the backdrop of this fact, it cannot be ruled out that Bhojal Thakur might have decided in his wisdom to transfer his entire property by gift in favour of the defendant Dharnidhar Thakur. Furthermore, Bhojal Thakur appears to have exercised his freewill and discretion in transferring the suit property in favour of the defendant Dharnidhar Patna High Court FA No.75 of 1986 dt.12-11-2013 20 Thakur when he accepted this transfer by the gift deed and stated the reasons for its execution in his written statement (Ext.L) filed in T.S.No. 04/1981 by stating in para 9 that

the real fact is the defendant no.1 is an old man but is not aged about eighty years but he is 65 years old at present and has good physique and sound mind to understand and think over the matter of good and bad. He is not suffering from any kind of disease. Defendant no.2 who is really Bhagina of defendant no.1 has taking good care of him and meet all expenses from the last about 20 years

.

In the plaint in paragraph 14 the plaintiffs have accepted that Bhojal Thakur had filed his written statement and show cause in the previous suit i.e. T.S.No.04/1981. It is nowhere the case of the plaintiffs that the aforesaid written statement and show cause( Ext.L and Ext.N) were executed by Bhojal Thakur under undue influence or coercion of the defendant Dharnidhar Thakur. In her deposition also the deposing plaintiff no.1 has not made statement raising doubts over the statement made by Bhojal Thakur in his pleadings in T.S.No.04/1981. In view of these facts and circumstances when Bhojal Thakur himself had accepted to have executed the gift deed in question in favour of Dharnidhar Thakur, very little scope remains for the plaintiffs to establish the invalidity of the gift deed in question. The learned senior counsel appearing on behalf of the Patna High Court FA No.75 of 1986 dt.12-11-2013 21 appellants has also accepted that there is no specific challenge by the plaintiffs to the statements made in Ext.L and Ext.N and there is no pleading or evidence aliunde to show that the said written statement and show cause had been filed by Bhojal Thakur under the influence of the defendant Dharnidhar Thakur.

Thus it is apparent that the donor Bhojal Thakur on the first available opportunity had accepted to have executed the gift deed in question in favour of the donee Dharnidhar Thakur and that too in the suit filed by the plaintiff no.1 herself. Faced with this situation, the learned senior counsel for the appellants has submitted that the court should not be oblivious of the circumstances which are speaking for themselves indicating the fraud and undue influence exercised by the donee Dharnidhar Thakur. The learned counsel has also relied upon the decision of the Apex Court in the case of Yeshwant Deorao Vs Walchand Ramchand, AIR 1951 SC 16, and on that basis has submitted that fraud is a secret working of the mind of the perpetrator and it is not capable of direct proof. There is no dispute about this proposition but simultaneously, the well settled principle also cannot be ignored as succinctly laid down in the case of Union of India Vs Chaturbhai M. Patel & Co, AIR 1976 SC 712 that “ however suspicious may be the circumstances, however strange coincidences and however grave the doubts, suspicion alone can never Patna High Court FA No.75 of 1986 dt.12-11-2013 22 take the place of proof”.

Emphasis has been laid down on behalf of the appellants that Bhojal Thakur used to put his signature but the gift deed in question bears his LTI which itself smacks of the suspicious circumstances. There is no such averment in the plaint that Bhojal Thakur used to put his signature and his LTI on the gift deed is either not genuine or has been fraudulently obtained. However, on behalf of the defendants the scribe and the two attesting witnesses of the gift deed in question have been examined as defendant D.Ws.11,12 and

13. It transpires from their testimonies that the gift deed had been executed by Bhojal Thakur who had put his LTI on the said deed in presence of witnesses after its contents were read out to him. It also transpires that the witnesses had also attested the said deed at the instance of Bhojal Thakur. On behalf of the appellants no discrepancies could be pointed out in the depositions of these witnesses to disbelieve them. The trial court has meticulously scrutinized the evidence adduced by the parties and has reached to the correct finding that the allegation of undue influence, fraud and coercion, as pleaded, could not be established against the defendant.

The plaintiff no.1 in her deposition has also accepted the possession of the defendant Dharnidhar Thakur over the part of the suit house although, she has further stated that Dharnidhar Thakur has Patna High Court FA No.75 of 1986 dt.12-11-2013 24 forcibly entered in that premises. But there is no relief prayed by the plaintiffs for recovery of possession against the defendant. Even otherwise also if this fact is accepted, it goes against the case of the plaintiff herself as it shows that Dharnidhar Thakur was not residing with the Bhojal Thakur in that house. However, the oral evidence of the parties on the point of possession has been considered by the court below and thereafter it has been found that the defendant is in possession of the suit property. No special feature in the testimonies of the witnesses could be pointed out on behalf of the appellants to take a contrary view. Besides, the revenue rent receipts, municipal receipts and other documents pertaining to the suit premises have been produced by the defendant which further corroborate his case of title and possession.

On the basis of the aforesaid reasons and discussions, I find and hold that the plaintiff-appellants have not succeeded in establishing that the gift deed dated 08.04.1981 executed by Bhojal Thakur in favour of defendant Dharnidhar Thakur is vitiated by fraud, undue influence or coercion exercised by defendant upon Bhojal Thakur. It is accordingly held that the gift deed dated 08.04.1981 is genuine, legal and valid document executed by Bhojal Thakur out of his freewill and consent in favour of the defendant Dharnidhar Thkaur who has acquired valid , title and possession over the gifted property. Patna High Court FA No.75 of 1986 dt.12-11-2013 25

In result, this appeal, being sans merit, is, accordingly, dismissed and the impugned judgment and decree passed by the learned court below is upheld. In the facts and circumstances of the case, there shall be no order as to cost. Nitesh/- (V. Nath, J)