* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:
27. h September, 2013 + RFA362005 YOGENDER SINGH Through: ..... Appellant Mr. S.S. Tomar, Adv. Versus PREM LATA & ANR Through: .......Respondents Mr. G.P. Thareja and Mr. C.P. Puri, Advocates. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J.
1. The appeal impugns the judgment and decree dated 9 th December, 2004 of the Court of the Additional District Judge (ADJ), Delhi of dismissal of suit No.351/04/02 filed by the appellant.
2. The said suit was filed by the appellant for the reliefs of, (i) declaration, declaring/cancelling the documents if any in power and possession of the respondents/defendants alleged to have been executed by the appellant/plaintiff with regard to the sale of property No.A-39 (near Veer Arya Model School) Badli Extension, Village-Badli, Delhi as illegal, null and void and not binding upon the appellant/plaintiff; (ii) a decree for possession of the said property; (iii) a decree for mesne profits/damages for use and occupation; and, (iv) a decree for permanent injunction restraining the respondents/defendants from parting with possession or creating third party interest in the property, pleading: (a) that the appellant/plaintiff was the owner of plot No.A-39 aforesaid admeasuring 100 sq. yds.; (b) that the appellant/plaintiff sold 50 sq. yds. out of the aforesaid 100 sq. yds. to one Sh. Keshu Ram and with the sale consideration thereof raised the construction of a double storeyed house on the remaining 50 sq. yds. of the property; (c) that the respondent/defendant No.1 was working in the house of the appellant/plaintiff as a domestic help and was in financial distress and sought help of the appellant/plaintiff by seeking temporary use of the said house No.A-39 constructed over 50 sq. yds. of the appellant/plaintiff; (d) that the appellant/plaintiff as a matter of mercy and on human consideration allowed the respondent/defendant No.1 to occupy the said property and it was orally agreed that the respondent/defendant No.1 shall vacate the same within a period of two years, by which time her son Sh. Rakesh (respondent/defendant No.2) would get employed and start earning; (e) that the aforesaid agreement was an agreement of license; (f) that accordingly, in December, 1997 the appellant/plaintiff allowed the respondents/defendants to occupy the property; (g) that in October, 1999, the appellant/plaintiff asked the respondents/defendants to vacate the property and the respondent/defendant No.1 asked the appellant/plaintiff for some more time on the ground that the respondent/defendant No.2 had just been married and which was agreed to by the appellant/plaintiff; (h) that the appellant/plaintiff takes liquor almost every evening and it seems that the respondents/defendants exploited the situation and secured the signatures/thumb impressions of the appellant/plaintiff on some papers relating to the suit property which the appellant/plaintiff did not remember but believes that this might have happened, for the reason that in response dated 8th October, 2002 to the legal notice dated 25th September, 2002 got issued by the appellant/plaintiff the respondents/defendants claimed to have purchased the property from the appellant/plaintiff on 23rd May, 1997; (i) RFA No.36/2005 that no transaction of sale purchase had ever taken place Page 3 of 32 between the appellant/plaintiff and the respondents/defendants and the respondents/defendants in the year 1997 were not even in possession of any money to pay the sale consideration and thus the documents in possession of the respondents/defendants are illegal, null and void and not binding on the appellant/plaintiff.
3. The respondents/defendants contested the suit by filing a written statement, pleading: (i) that the respondent/defendant No.1 is an absolute owner in possession of the property, having purchased the same from the appellant/plaintiff on the basis of documents duly executed by the appellant/plaintiff in her favour; (ii) that the suit is undervalued for the purposes of court fees and jurisdiction and the market value of the property then was of Rs.7-8 laks; (iii) that the appellant/plaintiff had on 23rd May, 1997 executed an Agreement to Sell, Receipt of Payment, General Power of Attorney, Affidavit, Will etc. with respect to the property in favour of the respondent/defendant No.1 and since the date of purchase, the respondent/defendant No.1 is residing in the property as owner without any interruption and hindrance; (iv) that after purchase, the respondent/defendant No.1 had also spent a huge amount on its construction and constructed ground and first floors from time to time; (v) denying that the appellant/plaintiff had raised the construction of a double storeyed building on the property; (vi) denying that the respondent/defendant No.1 was working as a domestic help in the house of the appellant/plaintiff or that the appellant/plaintiff had allowed the respondent/defendant No.1 to reside in the house as a licensee; (vii) that the respondent/defendant No.1 was in occupation of the property much prior to the purchase of the same; earlier she was a tenant in occupation of only one temporary room and kitchen; (viii) denying that the appellant/plaintiff had in October, 1999 asked the respondents/defendants to vacate the property or that the respondents/defendants had sought more time; (ix) denying that the appellant/plaintiff had executed the documents in favour of the respondent/defendant No.1 under the influence of liquor and pleading that some of the documents were registered in the office of the Sub-Registrar; (x) denying that the respondents/defendants were not possessed of the means to purchase the property.
4. The appellant/plaintiff filed a replication reiterating that the documents of sale were got signed under the influence of liquor taking advantage of the weakness of the appellant/plaintiff and that no consideration was paid and the transaction was illegal for the said reason.
5. On the pleadings aforesaid of the parties, the following issues were framed in the suit on 5th March, 2003:
“1.
2.
3.
4.
5.
6. 7.
8. RFA No.36/2005 Whether the plaintiff allowed defendant No.1 to occupy the suit property as licensee?. OPP Whether the defendant secured signature/thumb impression of the plaintiff on various documents when the plaintiff was under the influence of liquor?. OPP Whether the plaint is likely to be rejected for want of cause of action under Order 7 Rule 11 CPC?. OPD Whether the plaintiff has no locus-standi as the property has been purchased by the defendant?. OPD Whether the plaintiff has not affixed the court fees as per market value of the property?. OPD Whether the defendant raised construction from time to time on the suit property after its purchase?. OPD Whether the plaintiff is entitled for the relief claimed?. OPD6 The appellant/ plaintiff besides himself, examined two other witnesses. The respondent/defendant no.1 examined the defendant no.2 and three other witnesses.
7. The learned Addl. District Judge has vide the impugned judgment dismissed the suit of the appellant/plaintiff, finding/observing/holding:(A). that the appellant/plaintiff had not placed on record any documentary evidence regarding creation of license in favour of the respondent/defendant no.1; the appellant/plaintiff had also not produced any document to show that the respondent/defendant no.1 was working as a domestic help in the house of the appellant/plaintiff; there was not an iota of evidence on record to show that the appellant/plaintiff had allowed the respondent/defendant no.1 to occupy the property as a licensee; accordingly issue No.1 was decided against the appellant/plaintiff; (B). that the documents viz. Agreement to Sell, Power of Attorney, Receipt etc. with respect to the property were executed on 23rd May, 1999 (supposedly incorrect for 23rd May, 1997); till filing of the suit in or about October, 2002 there was no whisper on behalf of the appellant/plaintiff about the aforesaid documents having been executed under the influence of liquor; (C). Shri S.N. Dixit, Advocate who had got the said documents registered and who was examined by the respondents/defendants had categorically stated that the appellant/plaintiff had put his signatures on the aforesaid documents and also received payment of Rs.30,000/- from the respondent/defendant no.1 in his presence; (D). the witness from the Sub-Registrar‟s office had proved registration of the said documents; (E). that the appellant/plaintiff had not agitated to any authorities that his signatures on documents were obtained under undue influence; (F). that it was thus abundantly clear that the Agreement to Sell, Receipt, Power of Attorney, Will etc. were not obtained by the respondent/defendant no.1 under the influence of liquor; rather the same were executed by the appellant/plaintiff out of his own sweet will; accordingly issue No.2 was decided against the appellant/plaintiff; (G). issues No.3 & 4 were decided against the respondent/defendant no.1 and in favour of the appellant/plaintiff; (H). issue No.5 was not agitated by the parties; (I). that the respondent / defendant no.2 in his evidence had stated that after purchase of the property in 1997 the respondents/defendants had raised construction thereon from time to time out of their own funds; the respondents/defendants had examined one Shri Rajesh Jain who had deposed that the respondent/defendant no.1 had taken the loan from him in this regard; and, (J). that the mere fact that the said Shri Rajesh Jain had advanced money for the purpose of construction did not substantiate that the respondents/defendants carried out actual construction on the suit property; for this purpose the respondents/defendants were required to lead evidence of the person concerned from whom they purchased the building material and the person who actually carried out construction on the suit property and in the absence of these it could not be ascertained that the respondents/defendants raised construction after purchase; accordingly the issue No.6 was decided against the respondents/defendants for want of evidence. In view of the finding that the appellant/defendant had failed to establish having inducted the respondent/defendant no.1 as a licensee, the suit was dismissed.
8. The appeal was admitted for hearing. The respondents/defendants on 18th July, 2006 gave a statement that they did not propose to transfer the title or possession of the suit property or encumber the same during the pendency of the appeal and will not do so without obtaining the prior permission of the Court. Vide order dated 2nd July, 2009 the appellant/plaintiff was permitted to amend the plaint by incorporating therein the valuation of the suit for the relief of cancellation of documents. Arguments were heard in the appeal and judgment reserved. Vide judgment dated 16th March,2011 it was held that there was also a dispute between the parties as to the nature of possession of the respondent/defendant no.1 of the property before the alleged transaction of sale; that the nature and character of such possession is relevant since in the event of it being held that there was no sale, the question would arise whether the appellant/plaintiff was still entitled to get a decree for possession and the answer to that question would depend upon whether the respondent/defendant no.1 was a tenant or a licensee. Accordingly exercising powers under Order XLI Rule 25 of the CPC, the following additional issue was framed:
“1A. Whether defendant no.1 was inducted in the suit property by the plaintiff as a tenant before 23rd May, 1997?. OPD” and the matter remanded back to the Trial Court for giving its finding on the said additional issue after giving opportunity to the parties to adduce evidence on the said issue.
9. The respondents/defendants again examined the respondent/defendant no.2 and one Shri Rajesh Jain and the appellant/plaintiff besides examining himself examined one Shri Joginder Singh.
10. The learned Addl. District Judge (Central) 12, vide judgment dated 27th February, 2012 (in CS2142011 Unique ID No.02401C0449522011) has decided the aforesaid additional issue against the respondents/defendants, finding/observing/holding:(I). that the respondents/defendants in the reply dated 8th October, 2002 to the Legal Notice dated 25th September, 2002 got issued by the appellant/plaintiff had claimed possession of the property as owners since 23rd May,1997 and had not uttered even a single word about the possession prior to that and if so on what terms and in what capacity; (II). that the plea in the written statement that prior thereto the respondents/defendants were tenants in the suit property is bald and without any particulars as to the rate of rent etc. (III). that from the stage of reply to legal notice, to the written statement and then to the evidence, there was a constant step by step improvement in their case on the part of the respondents/defendants; (IV). that the respondents/defendants had been successful in proving their possession of the suit property since prior to 23rd May, 1997 in as much as the driving license of the respondent/defendant no.2 w.e.f. 24th February, 1995 was from the address of the suit property; (V). that the appellant/plaintiff also had not seriously disputed the possession of the respondents/defendants in the property prior to 23rd May, 1997; (VI). that the respondent/defendant no.1 who was claimed to be the tenant and paying the rent had not appeared in the witness box; (VII). no explanation also was given for non-appearance of the respondent/defendant no.1 as a witness and adverse inference was drawn therefrom; (VIII). that though the respondent/defendant no.2 had pleaded that the appellant/plaintiff used to enter receipt of rent in his diary but the respondents/defendants did not give any notice to the appellant/plaintiff to bring the same to the Court; and, (IX). that on the preponderance of probabilities, the respondents/defendants had failed to discharge the onus of the additional issue.
11. After receipt of the finding aforesaid on the additional issue, the appeal was again posted for hearing. The counsels have been heard.
12. The counsel for the appellant/plaintiff has argued; (i) that the respondents/defendants had failed to establish that they had raised the construction as existing on the property; (ii) that the respondents/defendants have failed to establish payment of the purchase consideration of Rs.30,000/- to the appellant/plaintiff; (iii) that the respondent/defendant no.1 obtained the signatures of the appellant/plaintiff on the documents of sale of the property when the appellant/plaintiff was under the influence of liquor and exercising undue influence on the appellant/plaintiff; and, (iv) that the appellant/plaintiff was not even aware of the respondents/defendants having so taken his signatures on the documents and became aware of the same only on receipt of reply to the Legal Notice from the respondents/defendants; (v) adverse inference has to drawn from non-appearance of respondent/defendant No.1 who alone was in the know of facts, as a witness; (vi) reliance is placed on Krishna Mohan Kul Vs. Pratima Maity AIR2003SC4351without citing any particular passage of the judgment which may be applicable to the present controversy.
13. Per contra, the counsel for the respondents/defendants has argued that (i) though the appellant/plaintiff had in the plaint set-up a case of having raised construction in the year 1996-97 but gave up the same in his evidence and claimed the construction to have been raised in the year 1994-95; (ii) that no suggestion was given in the cross examination of Shri S.N.Dixit, Advocate who had attested the documents of sale, to the effect that the appellant/plaintiff at the time of execution was under the influence of liquor; (iii) on the contrary a suggestion was given to the said Shri S.N. Dixit, Advocate that he had not drafted the documents; the documents were drafted by a Deed Writer and he had signed only as a attesting witness; (iv) that the said suggestion itself to Shri S.N. Dixit showed that the appellant/plaintiff at the time of execution of the documents was in his senses; (v) that the nonexamination of the respondent/defendant no.1 as a witness is irrelevant in as much as it was for the appellant/plaintiff to prove execution of the documents under the influence of liquor; (vi) that even the electricity connection in the property is in the name of the respondent/defendant no.1that if the appellant/plaintiff was the owner and the respondent/defendant no.1 only a licensee, it is inconceivable that the electricity connection would have been in the name of the respondent/defendant no.1; (vii) that the appellant/plaintiff has failed to prove/establish that he had raised construction of the property; (viii) that the appellant/plaintiff is a driver with the DTC; and, (ix) that the appellant/plaintiff in the cross examination had admitted the possession of the respondents/defendants of the property since the year 1994.
14. The counsel for the appellant/plaintiff in rejoinder has argued (i) that for the sake of decency the appellant/plaintiff did not in the plaint plead that he was having extra matrimonial affair/relationship with the respondent/defendant no.1 but had volunteered the same during his cross examination; (ii) that the respondent/defendant no.1 was the one who was offering liquor to the appellant/plaintiff everyday; (iii) that the respondent/defendant no.2 in his evidence has also admitted the said fact; (iv) that the respondent/defendant no.1 got the documents executed from the appellant/plaintiff taking undue advantage of her intimacy with the appellant/plaintiff; and, (v) that it was only the respondent/defendant no.1 who could have been cross examined in this respect and her non-appearance as a witness ought to be taken as adversely against the respondents/defendants.
15. The counsel for the respondents/defendants interjects stating that no case of any such intimacy was pleaded and thus no adverse inference from non-appearance of the respondent/defendant no.1 to rebut the same can be drawn.
16. I have considered the rival contentions.
17. The question to be answered from the evidence on record is, whether the appellant/plaintiff has succeeded in proving that the documents agreeing to sell the property to the respondent/defendant no.1 and putting the respondent/defendant no.1 into possession thereof were executed by him under the influence of liquor so as to be not bound therewith. I may further add that even mere proving the execution of documents under the influence of liquor will not entitle the appellant/plaintiff to a decree relieving him from the otherwise binding nature of the said documents unless the appellant/plaintiff is able to establish that the said documents constituting an agreement in law between the appellant/plaintiff and the respondent/defendant no.1 are void or voidable under the provisions of the Indian Contract Act, 1872.
18. Section 19 of the Indian Contract Act, 1872 provides that where consent to an agreement is caused by coercion, fraud or misrepresentation, the same is voidable at the option of the party whose consent was so caused. Section 10 thereof provides that free consent of the parties competent to contract, lawful consideration and a lawful object are the essential ingredients of a legally enforceable contract. Section 11 provides that every person who is of the age of majority and who is of sound mind is competent to contract. Section 12 provides that a person is said to be of sound mind if at the time when he makes a contract he is capable of understanding it and forming a rational judgment as to its effect upon his interest. Free consent is defined in Section 14 as not caused by coercion, undue influence, fraud and misrepresentation or mistake. Section 16(2) provides that a person may be deemed to be in a position to dominate the will of another when he makes a contract with a person whose mental capacity is temporarily affected by reason of age illness or mental or bodily distress.
19. The appellant/plaintiff thus, in order to prove that the documents signed by him under the influence of liquor are not binding on him, has to prove that owing to consumption of liquor he was incapable of understanding what he was doing and/or was incapable of forming a rational judgment as to the effect of the said documents upon his interest or that owing to the consumption of liquor his mental capacity was under distress.
20. The appellant/plaintiff has neither in the plaint, nor in the evidence given any such particulars.
21. On the contrary, the plaint and the evidence proceed on the premise that merely by consumption of liquor, the appellant/plaintiff was incapable of understanding what he was doing or forming a rational judgment or that he was under distress.
22. No such presumption can follow. I am in this regard reminded of the answer given in the year 1952 by ARMON M. SWEAT, JR., a member of the Texas House of Representatives, when asked about his position on whiskey. He said:"If you mean whiskey, the devil’s brew, the poison scourge, the bloody monster that defiles innocence, dethrones reason, destroys the home, creates misery and poverty, yea, literally takes the bread from the mouths of little children; if you mean that evil drink that topples Christian men and women from the pinnacles of righteous and gracious living into the bottomless pit of degradation, shame, despair, helplessness, and hopelessness, then, my friend, I am opposed to it with every fibre of my being. However, if by whiskey you mean the oil of conversation, the philosophic wine, the elixir of life, the ale that is consumed when good fellows get together, that puts a song in their hearts and the warm glow of contentment in their eyes; if you mean Christmas cheer, the stimulating sip that puts a little spring in the step of an elderly gentleman on a frosty morning; if you mean that drink that enables man to magnify his joy, and to forget life’s great tragedies and heartbreaks and sorrow; if you mean that drink the sale of which pours into Texas treasuries untold millions of dollars each year, that provides tender care for our little crippled children, our blind, our deaf, our dumb, our pitifully aged and infirm, to build the finest highways, hospitals, universities, and community colleges in this nation, then my friend, I am absolutely, unequivocally in favour of it.”
23. It is thus not as if merely because a man has consumed liquor, that it can be said that he is incapable of understanding his actions or forming a rational judgment or that his body is under distress.
24. For the appellant/plaintiff to succeed in having the documents admittedly signed by him declared void, the appellant/plaintiff has to prove that the consumption of liquor at the time of signing of the documents was to such an extent as to make him incapable of understanding his actions, forming a rational judgment or being under distress.
25. For this Court to declare the documents admittedly executed by the appellant/plaintiff of sale of his property to the respondent/defendant no.1 to be void, a finding will have to be returned that the intoxication with liquor of the appellant/plaintiff at the time of executing the agreement was such for the appellant/plaintiff to be said to be of unsound mind or under mental distress of the kind to affect his mental capacity. Not only so, the suit having been filed after nearly five years of the date of execution of the agreement and the limitation under Article 59 of the Schedule to the Limitation Act, 1963 to seek such a declaration being three years from the date when the facts entitling the appellant/plaintiff to have the instrument cancelled or setaside became known to him, the appellant/plaintiff will also have to establish that the said unsoundness of mind owing to intoxication and depletion of mental capacity continued right from the year 1997 till 2002 when the appellant/plaintiff got issued the notice preceding the suit. No such pleadings or evidence are found. The case in the plaint, as aforesaid, only is of the appellant/plaintiff being under the influence of and having weakness for and/or being habituated to “liquor almost every evening”. Significantly, it is not the case that the appellant/plaintiff from the year 1997 till the year 2002 was perpetually drunk to an extent to affect his mental capacity. When the appellant/plaintiff pleads consumption of liquor “almost every evening” the appellant/plaintiff is to be understood to be in his senses at least at some point of time in the day and to be not under the influence of liquor 24 hours.
26. For the appellant/plaintiff to prove being under the influence of liquor 24 hours, the appellant/plaintiff ought to have given evidence of his other affairs which also were affected for the said reason. There is neither any pleading nor evidence to the said effect. On the contrary, during the hearing, it was informed that the appellant/plaintiff was/is a DTC driver. As a driver of a public transport vehicle, he cannot be expected to be in a continuous state of intoxication as is now being argued.
27. The appellant/plaintiff in his examination-in-chief also has not deposed any such thing and has merely stated that the documents have been procured by the respondents/defendants from him under the influence of liquor. The documents as aforesaid are registered and which registration, judicial notice can be taken of the fact, happens only in the morning hours till the afternoon and not in the evenings. The plea as aforesaid is of the appellant/plaintiff RFA No.36/2005 consuming liquor almost every evening. appellant/plaintiff thus cannot be expected to be drunk at the time when he at least went for registration of the documents.
28. The counsel for the respondents/defendants is correct also in contending that the suggestion by the appellant/plaintiff in the cross examination of DW1 Shri S.N. Dixit, Advocate to the effect that the documents were prepared by a Deed Writer at Kashmiri Gate and not by him and he was merely witness thereto shows the awareness of the appellant/plaintiff of where the documents were prepared and who witnessed the same. Had the appellant/plaintiff been in a drunken state even at that time, the question of his knowing who prepared the documents and who witnessed the same would not have arisen. It is not the case of the appellant/plaintiff that anyone else present at that time had informed him so. In the same vein is the other suggestion in the cross examination that the respondent/defendant no.1 had not gone to Kashmiri Gate on that date.
29. Once the appellant/plaintiff is found to have failed in establishing his mental incapacity at the time of execution of the documents, the entire edifice on which the appellant/plaintiff has built his case falls.
30. The counsel for the appellant/plaintiff has also sought to argue that the respondent/defendant no.1 got the documents executed from the appellant/plaintiff owing to then being in relationship with the appellant/plaintiff and the appellant/plaintiff having executed the documents owing to the undue influence of the said relationship and not for any monetary consideration.
31. Not only is that not the case with which the appellant/plaintiff approached the Court but even if such a case were to be believed, I am unable to find the influence of an extra matrimonial relationship to be undue influence within the meaning of Section 16 of the Contract Act. A lover or a concubine cannot in the absence of anything more be said to be having a real or apparent authority or to be standing in a fiduciary capacity qua the person pleading undue influence. For a case of undue influence to be made out, the relationship has to be shown to be such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. Even if the appellant/plaintiff is to be deemed to be in relationship with the respondent/defendant no.1 for over five years, I fail to see as to how the said relationship can be said to be placing the respondent/defendant no.1 in a position to dominate the will of the appellant/plaintiff.
32. Significantly no family member of the appellant/plaintiff who only could have deposed about the true state of affairs at the relevant time has been examined. On the contrary a false case of the respondent/defendant no.1 working as a domestic help and which fact also could have been best proved only by the wife of the appellant/plaintiff, has been made out.
33. There is another very interesting aspect of the matter. Not only did the appellant/plaintiff execute the Agreement to Sell and other documents in favour of the respondent/defendant no.1 but also handed over the original title documents relating to the property to the respondent/defendant no.1. Rather it is the appellant/plaintiff who in his cross examination when asked to produce the original documents deposed that he could not do so as the same were handed over to the respondents/defendants and identified the said documents. He in his cross examination has also deposed that the documents were drafted by Shri S.N. Dixit, Advocate, again showing that the appellant/plaintiff was fully in the know of what was happening and how the documents were prepared. The original documents could not be on the person of the appellant/plaintiff to have been taken away by the respondents/defendants. The appellant/plaintiff must have taken the same out from his residence or other place wheresoever they may have been kept, to be handed over in pursuance to the transaction of sale. All this also shows that the appellant/plaintiff was fully in his senses while transacting with the respondent/defendant no.1.
34. Before delving into the issue of whether the agreement can be set aside for being induced by undue influence, it is incumbent upon the Courts to scrutinise the pleadings to find out whether such a case has been made out in the pleadings and sufficient particulars thereof have been given, as mandated by Order 6 Rule 4. The Supreme Court in Subhas Chandra Das Mushib Vs. Ganga Prasad Das Mushib AIR1967SC878 following its earlier dicta in Ladli Prasad Jaiswal Vs. Karnal Distillery Co. Ltd. AIR1963SC1279 laid down that with regard to undue influence “a vague or general plea can never serve the 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”. In the present case, a scrutiny of the plaint reveals no case of „undue influence‟ having been put forward, much less one with full particulars as required by law. The appellant/plaintiff in the plaint has chosen to describe respondent/defendant No.1 as domestic help employed in the house of the appellant/plaintiff and being under financial distress. No other relationship between the two giving rise to a presumption of undue influence or domination of will of one by the other is suggested or even hinted at. Although, the appellant/plaintiff has subsequently tried to improve his case in evidence by disclosing that the documents were got signed under the influence of respondent/defendant No.1 with whom he had developed intimacy and had illicit relations, the same is also hopelessly bereft of details or particulars and is at best a vague and general plea which would not pass muster in light of Order 6 Rule 4 and the clear and authoritative dicta of the Supreme Court discussed above.
35. As far as the plea of drunkenness is concerned, the same is also afflicted by the malady of lack of particulars and details. The plaint states that the plaintiff has only one weakness - that of drinking in the evenings and that the same „seems‟ to have been exploited to procure his signatures/thumb impressions on the documents sought to be cancelled. In evidence, it is deposed that the appellant/plaintiff used to take liquor very frequently and during the years 1996-2000 he used to take liquor even during day-hours. It is stated that it was during the aforesaid period that signatures had been fraudulently procured while he was under the influence of alcohol. It can thus be seen that the pleas taken and evidence adduced are highly vague, hazy and general and no particulars or details have been put forward for the Court to infer contractual incapacity. The pleas and evidence of the appellant/plaintiff seem to suggest that he was in a self-induced stupor for nearly four years and has no recollection of his acts during that time; the same is not only preposterous but also impossible and implausible. As pointed out, there is no evidence adduced of other activities of the appellant/plaintiff (such as work/profession) having suffered on account of this alleged four year oblivion. The appellant/plaintiff cannot be permitted to disturb the sanctity that law attaches to duly executed documents, particularly registered ones, by taking such an unsubstantiated and absurd plea.
36. Moreover, even in law, mere drunkenness is not sufficient to dislodge a contract which is otherwise binding. Section 12 of the Contract Act which defines as to when a person can be said to possess a sound mind for entering into a contract, seems to suggest, especially under illustration (b) thereto, that intoxication can render a person incapable of making a contract; however, the drunkenness envisaged thereunder is of a severe variety - as can be gauged from the expression „so drunk‟ used in the aforesaid illustration – it must have the effect of crippling a person‟s ability to form a rational judgment. Moreover, such inebriation should be shown to affect the cognitive capacity of the person at the precise time when the contract is executed as the Section recognises that a person who is usually of unsound mind may make a contract when he is of a sound mind, as is also well brought out by illustration (a) appended to the Section. As is felicitously explained by the statement of Armon M. Sweat Jr. supra intoxication has several gradations – which may be beneficial or detrimental – and law permits only such drunkenness which is severe and capable of destroying the mental faculty of a man to set aside a contract. Further, at the cost of repetition, it must be emphasised that such inebriation has to be proved to exist at the time the contract is entered into, in order to successfully bail the maker out of a contractual obligation. The pleas and evidence of the appellant/plaintiff neither indicate the severity of drunkenness nor suggest that he was so affected by it at the precise time when he entered into the agreement with the defendant no.1.
37. The view taken by me finds resonance in the judgment of the High Court of Karnataka in S. Basavaraj Vs. V.N. Adilakashmamma MANU/KA/0324/1998 wherein the Court seized of the same question - as to whether a plea of a contract having been executed under the influence of alcohol or the defence that the party was addicted to the consumption of alcohol is a sufficient ground to have the contract set aside under Section 12 of the Contract Act – held that though under normal circumstances if it is established that the executant was not only given to the consumption of alcohol but what one may categorize as a long term addict, a Court would take judicial notice of the fact that such a person would for the greater part sink to a very weak mental condition, but stated however that one cannot generalize with regard to such situations because there may be lucid breaks when the party is perfectly and completely sober and it is for this reason that even in the case of such a person that the law requires that there must be strict factual proof of the fact that the infirmity was present at the point of time when the contract was being executed. The Court relying upon the minority judgment of the High Court of Australia in Bromley Vs. Ryan (1956) 99 CLR362further pointed out that unlike other forms of mental illnesses depriving a party of exercise of a sound mind, alcohol addiction is virtually a self-induced condition and therefore such defense should be very sparingly upheld and that too in extremely rare cases. It observed that there is a well-settled principle of jurisprudence which postulates that a party cannot take advantage of its own wrong and in this view of the law, if a person puts himself into a position of alcoholic addiction, executes contracts after accepting money from third parties and creates rights, the law would be extremely slow in allowing such a party to escape the consequences of the contract unless it is demonstrated to the hilt that the executant virtually did not know what he was doing when the contract took place. Thus, for this reason as well, the general and vague plea that the appellant/plaintiff was a habitual drinker for four years cannot suffice (see also judgment of UK Court of Appeal Irvani Vs. Irvani [2000]. C.L.C477. A general discussion on the aspect of contractual capacity of a party can also be found in Sona Bala Bora Vs. Jyotirindra Bhatacharjee (2005) 4 SCC501where the Supreme Court has held that a person of unsound mind need not necessarily be a lunatic and it is sufficient if the person is incapable of judging the consequences of his acts. It pointed out that in civil matters the issues have to be decided on balance of probabilities and need not be established only by medical evidence and may be established by proving such conduct as was not only not in keeping with the person concerned‟s character but such that it could be not explained on any reasonable basis. It lastly reiterated that the burden of proof lies on the person pleading unsoundness of mind but in the facts of the case found the onus to have been sufficiently discharged. Here, no other conduct of the appellant/plaintiff to show that he was in such a state of drunkenness is pleaded or proved and the conduct of transfer of property to respondent/defendant No.1, even if for consideration below market price is not such as no reasonable person would do, specially when intimacy with respondent/defendant No.1 is also argued. In law i.e. Section 25 of the Contract Act, mere inadequacy of consideration is not a ground for declaring a contract void.
38. As regards undue influence, the Courts have scarcely been inclined to readily raise a presumption of undue influence even in cases of husband and wife–where the partners share both physical as well as emotional intimacy (see Tungabai Bhratar Purushottam Shamji Kumbhojkav Vs. Yeshvant Dinkar Jog AIR1945PC8and Jean Mackenzie Vs. Royal Bank of Canada AIR1934PC210. The Supreme Court too in Subhas Chandra Das Mushib (supra) held that merely because the parties are nearly related to each other, no presumption of undue influence can arise. It quoted with approval the following passage by the Judicial Committee of the Privy Council in Poosathurai v. Kappanna Chettiar AIR1920PC65and which deserves to be reproduced in verbatim: "It is a mistake (of which there are a good many traces in these proceedings) to treat undue influence as having been established by a proof of the relations of the parties having been such that the one naturally relied upon the other for advice, and the other was in a position to dominate the will of the first in giving it. Up to that point "influence" alone has been made out. Such influence may be used wisely, judiciously and helpfully. But whether by the law of India or the law of England, more than mere influence must be proved so as to render influence, in the language of the law, "undue". (emphasis supplied) 39. I also find the Division Benches of the High Courts of Andhra Pradesh and Bombay in Shivdas Loknathsing Vs. Gayabai Shankar Surwase MANU/MH/0966/1992 and Sathi Sattemma Vs. Sathi Subbi Reddy AIR1963AP72to have not allowed a general plea of undue influence in the case of illicit relationships with a paramour or mistress to set aside a contract which was otherwise duly executed in law.
40. Whichever way one looks at, I am unable to find any merit in the appeal which is dismissed; however in the facts no costs. Decree sheet be drawn up. RAJIV SAHAI ENDLAW, J SEPTEMBER27 2013 bs/pp..