P.D. Mulye, J.
1. This appeal filed by the defendant-appellants is directed against the judgment and decree dated 18th August, 1979 passed by the First Additional District Judge, Mandleshwar, in C.S. No. 11-A of 1976, whereby he has decreed the plaintiff-respondent's suit for declaration and possession in respect of the disputed agricultural property bearing Khata No. 57, Kh. Nos. 37 and 38, having an area of 16.50, lagan 42.03 p. situated in village Jaimalpura, Tab. Barwaha holding that the sale deed Ex. D-2 dated 24-3-1972 in respect of these lands is not binding on the plaintiff and is void on the ground that the same was obtained by fraud and without consideration.
2. The plaintiff's case in the trial Court was as under : Defendant-appellant No. 1 Hajra Bai is the wife of appellant No. 2 Shamshuddin; appellant No. 3 Gaffur Khan is the brother of appellant No. 2 Shamshuddin; that the plaintiff's husband died on 6-7-1971; that she was the owner and in possession of agricultural lands situated in village Jaimalpura Tah. Barwaha, bearing Khata No. 57, Kh. Nos. 37 and 38 having an area of 16.50, lagan 42.03 p.;that the appellants Nos. 1 and 2 are the neighbours of the plaintiff; that the plaintiff's husband and appellant No. 2 Shamshuddin were fast friends having close relations and that similarly plaintiff also has friendly relations with appellant No. 1 Hajra Bai. The Brihatakar Co-operative Society, Barwaha, had to recover a sum of Rs. 3000/- to Rs. 4000/- from the plaintiff. On receipt of a notice from the said Society for payment of the dues she was perturbed. As her husband did not have any other close relations at Barwaha and as the plaintiff had close relations with appellants Nos. 1 and 2, being also neighbours she approached appellants Nos. 1 and 2 for their guidance regarding the notice received from the Society. That at that time the plaintiff was suffering from flu and also stone trouble. She was, therefore, not in a fit physical and mental conditions, being sufficiently old apart from the fact that she was illiterate. Thus, being perplexed she was not in a position to take proper decision regarding the amount to be paid to the Society. It was, therefore, impossible for her to consult anyone also on this point apart from the defendants. Further according to her the defendants taking undue advantage of the situation explained and assured the plaintiff that if she would execute a patta in their favour of the agricultural land for a period of one year and deliver possession thereof to them for carrying on the agricultural operations, they would make payment to the Co-operative Society on her behalf and after expiry of the period of one year they would deliver back the possession of the said lands to her. Relying on the word of the defendants she agreed with their suggestion and thus executed the document Ex.D-2 which was registered and handed over possession of the said land to them though in the capacity of a sub-tenant.
3. Thereafter when the plaintiff received notice from the Tahsil office she went there along with the defendants where the defendants again explained to her that some proceedings regarding the measurement of the disputed lands is going on and she was also under the impression that the proceedings pending before the Tahsil are in relation to the measurement of the land. But after the decision in the Tahsil case about l 1/2 years before the filing of the present suit, she came to know that the defendant No. 1 has got hername mutated on these lands by removing that of the plaintiff, whereupon for the first time she learnt from the defendants that the name of defendant No. 1 was mutated on the basis of the registered sale deed executed by her. Thus, according to her fraud was practised upon her in this manner.
4. It is also the case of the plaintiff that even though the defendants got the sale deed executed from her, no consideration as mentioned therein was paid to her, except the amount of Rs. 3000/- which was paid on her behalf in the Co-operative Society. Besides, according to her, the value of the land at the relevant time was Rs. 60,000/- and, therefore, it was unlikely that she would have sold the suit land for Rs. 30,000/-. Thereafter, she filed the present suit for a declaration and possession on the ground that the document of sale-deed having been obtained by fraud is not binding on her.
5. The defendants Nos. 1 and 2 contested the plaintiffs claim by denying all the allegations made against them. According to them the plaintiff voluntarily and by her free will executed and registered the sale deed after obtaining the full consideration. It was further specifically averred that the plaintiff has not given any particulars and details about the alleged fraud as required by Order 6, Rule 4 CPC. They also denied that the value of the land at the relevant time of the sale deed was Rs. 60,000/-. On the contrary, according to them part of the land is charnoi and a nala passes through the land with the result that the entire land is not useful for the agricultural purpose; that the plaintiff was at first paid a part consideration of Rs. 3000/- which on her behalf was deposited with the Co-operative Society and the balance was paid to her before the registration of the sale deed, that the plaintiff herself remained present in the mutation proceedings pending before the Tahsil where she raised no objections and never challenged the mutation of defendant No. 1.
6. The learned trial Court on the basis of the pleadings of the parties framed following issues and gave his findings as indicated against them, after recording evidence of the parties :
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Hence this appeal.
7. The learned counsel for the appellantssubmitted that there is no iota of evidenceagainst the appellant No. 3 on the basis ofwhich any decree could be passed against himand, therefore, on this very short ground thesame deserves to be set aside against appellantNo. 3 Gaffur Khan. The learned counsel forthe plaintiff-respondent frankly and in fairnessconceded that in absence of any evidence andmaterial on record he cannot support the saidfinding so far as appellant No. 3 is concernedand he, therefore, submitted that the decreepassed against the appellant No. 3 cannot besustained in law. Therefore, the judgment anddecree passed against appellant No. 3 are setaside, even though he was ex parte in thelower Court.
8. The documentary evidence consists of Ex. P-1 (which is the same as Ex. P-9) dated 25-2-74, which is a reply given to the notice Ex. P-8, dated 4-2-74 given on behalf of the plaintiff; Ex. P-2 is an extract of the patwari record relating to die said land; Ex.P-3 is an application dated 4-9-72 given by the plaintiff before the Tahsildar; Ex.P-4 is a notice dated 7-12-73 given to the plaintiff by the patwari to remain present before the Certifying Officer; Ex. P-5 are the proceedings before the Tahsildar; Ex.P-6 is a mortgage deed dated 5-7-72 executed by Jadav Bai in favour of one Jagannath; Ex.P-7 is the rent note executed by Jadav Bai in favour of Jagannath,
9. The documents produced by the defendants consist of Ex.D-1, which is a receipt dated 20-3-72 issued by the Brihatakar Sahakari Society, Barwaha in the name of the plaintiff for Rs. 2768.50 which amount was paid by defendant No. 2 on her behalf, Ex. D-2 is the registered sale deed in respect of the suit land; Ex. D-3 is an application signed by the plaintiff and submitted before the Tahsildar stating that she has no objection in mutating the name of defendant No. 1 on the basis of the sale-deed executed by her; Ex. D-4 is the order sanctioning mutation.
10. The plaintiff in support of her case examined herself as P.W. 1, Badrilal (P.W. 2), Rattan (P.W. 3), Rajaram (P.W. 4) and Bholu (P.W. 5).
11. The defendant Shamshuddin has examined himself as D.W. 1, Kanhaiyalal (D.W. 2) the petition writer, the scribe of the registered sale-deed Ex.D-2 and Nathu (D.W. 3).
12. Out of the witnesses examined by the plaintiff P.W. 2 Badrilal and P.W. 3 Rattan are on the point of valuation of the land of the sale-deed. Their testimony does not help the plaintiff in any way as both of them have categorically admitted that they have no personal knowledge about other lands having been sold by their owners for some consideration. Therefore, from the evidence of these witnesses admittedly and undisputedly it has not been proved that on the relevant date the value of the disputed land was Rs. 60,000/-. The learned counsel for the plaintiff-respondent also did not dispute this position.
13. P.W. 4 Rajaram has been examined to prove that after the death of the plaintiffs husband she was indisposed for a period of about 2 1/2 years and that defendant No. 2 some times used to visit the house of Himmat Singh, who was not in any way indebted. However, the testimony of this witness is quite vague and cannot be relied upon. Similar is the statement of P.W. 5 Bholu, But his evidencealso being quite vague cannot be implicitly relied upon. However, this witness Bholu (P.W. 5) and Rattan (P. W. 3) have categorically admitted that there is a nala in the disputed land on account of which it is not a very productive land which indicates that the value of the land could not be Rs. 60,000/- on the relevant .date. In fact the plaintiff herself has only vaguely stated that the value of the land could not be less than Rs. 80,000/- nor has she led any evidence to prove that from this land she could earn a profit of Rs. 3,000/- per year.
14. The learned counsel for the appellants however, vehemently urged that so far as the case of fraud is concerned, apart from the testimony of the plaintiff herself there is absolutely no other evidence adduced by her on this point. He also submitted that no particulars or details of fraud have been given in the plaint even though the defendants in their written statement had raised a specific plea that the plaintiff ought to have given the particulars as contemplated by Order 6, Rule 4 of the Code of Civil Procedure. He also submitted; that not only this objection was taken in the written statement but the defendants had filed an application (I.A.I.) dated 6-5-77 before the trial Court seeking better particulars. But despite taking time, the plaintiff did not file any reply to the same and ultimately on 30-6-77 the plaintiff refused to give any particulars as is clear from the proceeding of the trial Court dated 30-6-77. The learned counsel for the appellant, therefore, submitted that in absence of these particulars in the pleadings coupled with the fact that even her deposition is silent regarding these details, the plea of fraud has not at all been established.
15. On the contrary, the counsel for the appellants submitted, that the plaintiff had voluntarily executed and registered the sale deed, had herself submitted an application before the Tahsildar stating no objection to the mutation of defendant No. 1's name. That apart, from the fact as mentioned by her that she was an illiterate old lady she has not given any particulars regarding her alleged illness or her physical condition nor has she examined any doctor on the basis of which it could be inferred that really she was so much indisposed that she was physically and mentally unable to understand what she was doing; that she hasimproved the case from time to time; that there is variance between pleading and proof; that there are material contradictions in the pleas taken by her; that the conduct of the plaintiff is such that she kept quiet for a long time after the execution of the sale deed Ex.D2 or even after the expiry of the period of one year of the alleged patta and thus she has not explained the delay.
16. The learned counsel for the appellant on the question of fraud submitted that the plaintiff has tried to create an impression that her relations and that of her husband also with the defendants were so close, friendly and intimate that they had inspired confidence in her; that being in difficulty she wanted to take the advice of the defendants for which purpose she approached them, but they misused the confidence and practised fraud upon her by getting a sale deed executed and registered by her instead of a patta; that there is absolutely no allegation or any evidence about undue influence or coercion nor there is anything on record to indicate that the defendants were in a dominating position to compel her to do anything which they liked and get any such document by taking undue advantage of her position of old age and illiteracy. He, therefore, after taking us through her evidence submitted that her evidence does not at all inspire confidence as it is full of falsehood, she having denied even the execution of any document, non-receipt of any consideration though she has admitted at least a receipt of part consideration of Rs. 3000/-; that she has also gone to the extent of denying that no proceedings were taken for mutation; that she has filed Ex.P-2 as a patta which was said to have been given to her, but in fact Ex.P-2 is not a patta at all; that even though she handed over possession of the land to the defendants she has the guts to state that she was still in possession; that she has even gone to the extent of stating that the defendants obtained possession of the land after beating her, which is not the case set up either in the notice given prior to the institution of the suit nor in the plaint; that even after the death of her husband in 1971 she herself cultivated the land for a period of three years and thereafter only the defendants Nos. 1 and 3 forcibly took possession thereof, though admittedly the plaintiffs husband died in 1971 and the present document of sale deed was executed in 1972.
17. Therefore, this completely exposes her to falsehood because there was no occasion for the defendants to take forcible possession after a period of three years; that she has even gone to the extent of stating that her signature on the sale deed was obtained by force; that the plaintiff in the notice Ex.P-8 has stated that it is only after three or four months of the said transaction that she came to know that a fraud had been practised upon her whereas her case in the plaint has been that it is after about 11/2 years that she came to know about the said fraud. He, therefore, submitted that there is absolutely no consistency in her statement; that there are thus several contradictions and variations; that she has tried to improve her case according to her convenience. He, therefore, submitted that the plaintiff has miserably failed to prove her case and the finding of the learned trial Court is not based on proper consideration of evidence and material on record as he has ignored all these material facts as would be apparent that even though there is not an iota of evidence against appellant No. 3, in posthaste he has even passed a decree against appellant No. 3. Thus, it is clear that the learned trial Judge has not carefully gone through the pleadings as also the evidence and material on record.
18. On the question of not giving better particulars and the effect thereof the learned counsel for the appellant placed reliance on the decisions reported in AIR 1951 SC 280 (Bishundeo Narain v. Seogeni Rai); AIR 1963 SC 1279 (Ladli Parshad Jaiswal v. Karnal Distillery Co. Ltd); AIR 1952 Nagpur 84 (Pannalal v. Kisanlal) and AIR 1963 Madh Pra 37 (Firm Gopal Company Ltd., Bhopal v. Firm Hazarilal Company, Bhopal) which have all taken a view that in absence of material particulars a party cannot succeed and allowed to lead evidence thereon nor any decree in such a situation can be passed as the same is bound to prejudicially affect the defendant who has no chance of meeting the case set up by the plaintiff in a proper manner.
19. On this point the learned counsel for the plaintiff-respondent placed reliance on the decisions reported in 1973 MPLJ 610 : (AIR 1973 Madh Pra 255) and 1975 MPLJ 156 : (AIR 1975 Madh Pra 136). But those are distinguishable on facts and, in our opinion, do not help the respondent-plaintiff in any
20. The plaintiffs case is not of undue influence, but of fraud though the learned counsel for the plaintiff-respondent, while making his submission urged that this was a case of undue influence and consequently a case of fraud. However, we are not persuaded and impressed with this sort of submission, A party has to come with a positive case either of fraud or undue influence or coercion or misrepresentation or all of them or some of them. But here the plaintiff has restricted her case to the case of fraud alone though sometimes in certain cases they may overlap to some extent.
21. Section 16 of the Contract Act defines 'undue influence', which is as under :
'16,(1) A contract is said to be induced by 'undue influence' where the relations subsisting between the parties are 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.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another --
(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.
Nothing in this sub-section shall affect the provisions of Section 111 of the Indian Evidence Act, 1872.'
Section 17 defines 'fraud', which is as follows :
'17. 'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract: --
(1) the suggestion, as to a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent.
Explanation. -- Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech.'
'Misrepresentation' is defined in Section 18 thus:
'18. 'Misrepresentation' means and includes --
(1) the positive assertion, in a manner not warranted by the information of the person, making it, of that which is not true, though he believes it to be true;
(2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or anyone claiming under him, by misleading another to his prejudice or to the prejudice of any one claiming under him;
(3) causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement.'
22. Thus, after considering the provisions of law we are of opinion that in the present case the plaintiff has failed to prove either a case of fraud or undue influence or misrepresentation. The mere fact that the plaintiff; as alleged by her, was an illiterate and old lady, by itself would not make us to infer that the transaction in question is vitiated in any such manner because the initial burden lies on her to prove all these facts. Even assuming that the relations between the parties were friendly or close on that basis it cannot be readily inferred that the defendants were in a dominating position or that they were exerting any undue influence or were trying to take undue advantage of her position andthus wanted to practice fraud upon her. It is unlikely that the plaintiff even after coming to know of the alleged fraud would have waited for such a long period and in order to justify the delay she has introduced a peculiar case in her notice, which is not consistent with the pleadings. There is no satisfactory evidence that at the relevant time of the said transaction she was indisposed to such an extent that she was physically and mentally so upset that she was incapable of understanding what she was doing. It is, therefore, difficult to rely on the solitary testimony of the plaintiff in absence of any other convincing, satisfactory and reliable evidence.
23. As regards the allegation that the sale deed was executed without any consideration, the plaintiff has come up with a case that no consideration was paid at all. But now in evidence she has admitted that only Rs. 3000/-were paid to her. The sale deed clearly mentions the entire receipt of consideration of Rs. 30,000/-. Therefore, a presumption can be drawn that the plaintiff had received the full consideration. It was for her to rebut the same. D.W. 2 Kanhaiyalal, the scribe of the sale deed Ex.D-2 has clearly stated that he had written the sale deed as instructed by the plaintiff; that the said document was read over to her; that she admitted the receipt of Rs. 30,000/-; that she signed on every page of the sale deed in his presence; that she raised no objection at that time. Nothing is suggested to him in his cross-examination which would indicate that he is telling lies. He has flatly refuted the suggestion that the stamps were purchased for execution of an agreement for a period of one year because it cannot be lost sight of the fact that an agreement would not require so many stamps as are required for a sale deed especially when admittedly -the plaintiff herself had purchased the stamps for the sale deed Ex.D-2. It is no doubt true that there are some contradictions in the testimony of the defendant regarding the payment of Rs. 30,000/- as mentioned in the sale deed. But in our opinion on that basis it cannot be inferred that full consideration as mentioned in the sale deed was not paid at all, especially when the plaintiff herself has not come with a clean case and the burden is upon her to dispel that presumption.
24. As a result of the aforesaid discussionwe are unable to agree with the reasoning adopted by the learned trial Court in decreeing the plaintiffs suit as he has not considered the evidence in proper perspective nor the same has been assessed in accordance with law as he has implicitly relied on the solitary oral testimony of the plaintiff on the question of fraud and consideration and also on her witnesses without trying to find out whether such reliance could be placed in absence of any legal proof of the facts alleged.
25. In the result this appeal succeeds and is allowed. The judgment and decree passed by the trial Court are set aside against all the defendants. However, considering the facts and circumstances of the case the parties are directed to bear their respective costs of this appeal. The appellants who have, as per order passed by this Court on 6-2-1980 so far deposited a sum of Rs. 12,000/- shall be entitled for restitution in accordance with law.