Gouri Shankar Misra and anr. Vs. Fakir Mohan Dash and ors. - Court Judgment

G.B. Patnaik, J.

1. Plaintiff was the appellant against a confirming judgment in a suit for possession in respect of a house described inSchedule A of the plaint by evicting thedefendant there from and for any otherappropriate relief to which the plaintiff maybe entitled law and equity. During thependency this appeal, the plaintiff havingdied his legal representatives have beensubstituted.

2. According to the plaint case, the defendant executed a registered agreement on 31-1-1968 where under on consideration of Rs. 20,300/- arranged to be paid by the plaintiff, the plaintiff would be put in possession of the house in question for a period of thirty years and during the said period of plaintiffs possession, the plaintiff would pay annual rent of Rs. 300/- and would have the liberty of constructing a double-storied building at his own cost. It was also agreed that possession of the house would be delivered to the plaintiff on 1-2-1968 and plaintiff would also have a right of renewal for a further period of thirty years from February, 1998. It was also stipulated that on the failure on the part of the defendant to put the plaintiff in possession on 1-2-1968, the defendant would be liable to pay damage at the rate of Rs. 7/- per day for three months and on expiry of the said period, at the rate of Rs. 8/- per day till possession is delivered. Out of the consideration money of Rs. 20,300/-, Rs. 11,300/- was to be advanced by the plaintiff from 'Rajkumari Trust Estate' of which the plaintiff was the Managing Director. Another registered tripartite agreement also was executed between the plaintiff, the defendant and 'Rajkumari Trust Estate' that the defendant would execute a sale deed in favour of the Trust for Rs. 13,500/-out of which on adjusting the advance of Rs. 11,300/- paid on 31-1-1968, a cash of Rs. 2,200/- would be paid at the time of registration. This document is Ext. 12 and was also executed on 31-1-1968. Apart from the same, a receipt for Rs. 9,000/-acknowledging rent for thirty years at the rate of Rs. 300/- per annum was also granted by the defendant in his own hand which is Ext. 5. It is the plaintiffs case that notwithstanding the aforesaid agreement between the parties, though the plaintiff requested on several occasions subsequent to February, 1968, yet the defendant never put the plaintiff in possession. Plaintiff then served a notice on 25-9-1968 requiring the defendant to pay the arrear damages. On 3rd October, 1968, the defendant intimated that the document on the basis of which the plaintiff claims possession of the house was obtained from the defendant who signed the same without realising its implications and, therefore, the defendant was not in a position to give possession of the house to the plaintiff. It is the plaintiffs assertion that the plaintiff has also paid a sum of Rs. 9,000/- to the defendant which is the entire money payable by the plaintiff for his possession of thirty years. On these assertions, the plaintiff filed the suit for the reliefs as already stated.

3. The case of the defendant in the written statement is that one Premraj Patnaik was the original owner of the house in question and the defendant had taken a portion of the said house on rent. On 8-1-1963, Premraj entered into an agreement with the defendant to sell the house for a consideration of Rs. 18,000/-. But as he did not execute the sale deed, the defendant filed a suit for specific performance against Premraj which was Title Suit No. 9 of 1966 and the present plaintiff. Shri G. S. Misra was his Advocate all through. That suit was decreed on 30-11-1966. It was directed in the decree that on defendant depositing a sum of Rs. 21,750/- by 1-2-1967, said Premraj would execute the sale deed. It was also a condition in the decree that if the defendant failed to deposit the money in time then his right to have specific performance would stand forfeited. The defendant filed an application in the said suit that the cost awarded in his favour might be adjusted and he might be required to make deposit of the balance, but that application was rejected. Then on 2-2-1967, the defendant filed another application for extension of time for deposit of the money, but that was also rejected. He then carried a First Appeal and also a Civil Revision to this Court being First Appeal No. 64 of 1967 and Civil Revision No. 71 of 1967. Both these matters were disposed of on the basis of a compromise between the parties, namely the defendant and said Premraj Patnaik, to the effect that defendant would deposit Rs. 19,147.60 by 31-1-1968 with interest thereon at the rate of 6% per annum from 1-2-1967 till 31-1-1968 and in default of the said deposit, the defendant's right to specific performance would be forfeited and his decree for specific performance would be unexecutable and further he would be required to pay the arrear house rent. Thereafter the defendant tried his level best to get the money on loan for the purpose of depositing the same in the Court. But having failed in his attempts he approached the plaintiff who was in money-lending business and also on whom the defendant had ample faith and confidence as the plaintiff was his counsel throughout. The plaintiff agreed to give a loan of Rs. 20,000/- provided the defendant would agree to pay interest at the rate of 12% per annum. The plaintiff then asked him to get some stamps and handover the same so that the plaintiff would take necessary steps for preparing documents and ultimately the defendant purchased the stamp and handed it over to the plaintiff on 27-1-1968, but the plaintiff never paid the cash to the defendant. It is only on the last day i.e. on 31-1-1968, the plaintiff told the defendant that necessary documents had been drafted by him and the defendant should go to Court for registration. At that point of time when the defendant requested the plaintiff to explain the contents of the document, the plaintiff avoided on the ground that there would be unnecessary delay and the money could not be deposited in the bank. On such a precarious position, the defendant put his signature on some documents prepared by the plaintiff believing in good faith that the plaintiff was his advocate and would not do anything to harm the defendant. He executed the same without the document being explained to him and without understanding the implications of the terms of the document and the sum of Rs. 20,000/- was deposited by the plaintiff in the State Bank of India, Sambalpur Branch. Thus, according to the defendant the plaintiff being in a position to dominate the will of the defendant utilised the said position and obtained an unfair advantage over the defendant and the defendant executed the document in questionwithout knowing the contents thereof.Therefore, the said document is vitiated on.account of undue influence. The defendantdenied the allegations made in the plaint andcontended that the sum of Rs. 20,300/- hadbeen paid to the defendant by way of loan.On these averments it was prayed that thesuit was liable to be dismissed.

4. On these pleadings, the learned Subordinate Judge framed five issues and recorded the following findings: --

(a) The defendant is a literate man andknows English and he cannot be treated onthe same footing as a Pardanasin or anilliterate man.

(b) The burden lies on the defendant to prove that he executed Exts. 5, 6, 12 and 13, without knowing the contents of the same.

(c) It cannot be believed that defendant executed Exts. 12 and 13 without understanding the terms and conditions laid down therein and Exts. 5, 6, 12 and 13 were executed by the defendant after understanding the contents and implications of the same.

(d) The plaintiff was the advocate for thedefendant in the suit filed by the defendantagainst Premraj Patnaik for specificperformance.

(e) Since the plaintiff was the advocate of the defendant all through, he was in a position to dominate the will of the defendant and exercise undue influence for getting the deeds Exts. 12 and 13 executed.

(f) The very fact that the lease deed was executed on the last day fixed for depositing the decretal amount in Title Suit No. 9 of 1965 in the Court had put the defendant in a position where from he could not escape and he was pressed under the circumstances to execute the deeds (Exts. 5, 6, 12 and 13).

(g) The transaction in question was of anunconscionable nature and by the time thedefendant executed the deeds he was in greatmental distress.

(h) The impugned transaction is vitiated by undue influence and as such the lease deed executed in favour of the plaintiff is not valid.

(i) The plaintiff has paid the consideration or in the language of the plaintiff, 'rent in lump-sum' to the extent of Rs. 9,000/- to the defendant for execution of the deed of lease in his favour and he can recover the said amount with interest, but as the plaintiff has not prayed for recovery of the said amount, the relief cannot be granted.

On these findings, the trial Court dismissed the suit.

5. On appeal, the learned Additional District Judge affirmed the finding of undue influence exercised by the plaintiff by coming to the conclusion that the facts that the plaintiff was the lawyer for the defendant in Title Suit No. 9 of 1965 and the defendant was required to deposit the money by 31-1-1968 and the documents (Exts. 5, 6, 12 and 13) were executed on 31-1-1968, are sufficient for the conclusion that the documents were not explained to the defendant and he did not know the implications of Exts. 5, 6, 12 arid 13 though he executed the same, He also found that the contract covered under Ext. 13 was clearly unconscionable in nature and the plaintiff was in a position to dominate the will of the defendant. The lower appellate Court further found that the defendant had successfully established that the plaintiff had dominated the will of the defendant being the lawyer of the defendant and further established that the plaintiff had obtained an unfair advantage by using that position and hence the lease deed in question was vitiated by undue influence. On these findings, the lower appellate Court affirmed the judgment arid decree of the trial Court and dismissed the appeal.

6. Mr. Sinha, the learned counsel for the plaintiff-appellants, assailing the affirming judgments and decrees of the two Courts below contends that the defendant having made but a case of undue influence has failed to give sufficient particulars and such failure on the part of the defendant has not only caused great prejudice to the plaintiff but there has been an infraction of the provisions of Order 6, Rule 4, Code of Civil Procedure, and, therefore, the conclusions of the Courts below cannot be sustained. The learned counsel further contends that a finding that a document is the outcome of undue influence alone will not vitiate the transaction unless it is further found that the party to the document obtained an unfair advantage and the said finding not being there, the transaction (Ext. 13) cannot be said to be vitiated. Mr. Sinha, the learned counsel for the appellants, lastly urges that the Courts below having found that the plaintiff had parted with a sum of Rs. 9,000/- as well as the money which was deposited by the defendant to obtain specific performance in accordance with the compromise decree in the High Court committed gross error in not directing the defendant to pay back the benefits received from the plaintiff and completely ignored the provisions of Section 19A of the Contract Act and consequently the judgments of the two Courts below are vitiated thereby.

Mr. Patra, the learned counsel for the defendant-respondent No. 1, on the other hand, contends that on the materials on record, the two Courts of fact having found that the plaintiff was in a position to dominate the will of the defendant and the agreement (Ext. 13) is of unconscionable nature and is vitiated by undue influence exercised by the plaintiff, this Court in second appeal is not entitled to reverse the same. The learned counsel further urges that no relief for refund of the amount paid by the plaintiff having been claimed in the plaint, this Court will not be justified in granting that relief to the plaintiff. The rival contentions require careful examination.

7. Coming to the first submission of Kr. Sinha as to whether there has been infraction of Order 6, Rule 4 of the Code of Civil Procedure or not, it is no doubt true that undue influence being a species of fraud must be pleaded with precision and unless it is supported by particulars, it will not be investigated by Courts. General allegations are often treated as insufficient and the person alleging that another person was in a position to dominate his will and exercise influence and he actually exercised such influence must prove the same. But where there are facts on the record to justify the inference of undue influence, the omission to make an allegation of undue influence specifically is not fatal and all that the Court has to see is whether there has been a surprise to the party against whom allegation has been made. In the written statement filed by the defendant all material particulars have been pleaded right from the decree against Premraj which ended in compromise in the High Court as well as under what circumstances the defendant approached the plaintiff on 31-1-1968 which was the last day to make the deposit failing which the right to specific performance would have been forfeited. It had also been pleaded in the written statement that finding no other way out and being under the pressure of circumstances and under great mental strain, the defendant believed the plaintiff who was his advocate all through and executed the documents which would indicate that the plaintiff was in a position to dominate the will of the defendant and actually used that position to obtain an unfair advantage over the defendant and in fact, has been successful in obtaining, which was vitiated by undue influence. In view of the aforesaid assertion in the written statement. I really fail to appreciate the contention of Mr. Sinha that material particulars a of undue influence have not been pleaded. In my considered opinion, there has been no infraction of the provisions of Order 6, Rule 4 of the Code of Civil Procedure and all material particulars with regard to undue influence exercised by the plaintiff have been pleaded in the written statement itself. The first contention of Mr. Sinha, the learned counsel for the appellants, is accordingly rejected.

8. So far as the second contention of Mr. Sinha is concerned, the same is based on the ground that there has been no finding that plaintiff had obtained an unfair advantage and, therefore, even if Ext. 13 can be said to have been executed under undue influence being exercised by the plaintiff, the transaction will not be vitiated in law. In support of the aforesaid contention, the learned counsel places reliance on the decision of the Supreme Court in the case of Ladli Parshad Jaiswal v.Karnal Distillery Co. Ltd., AIR 1963 SC 1279.After applying Section 16 of the ContractAct, the Supreme Court summarized the lawon the subject in the following words (atP. 1290) :

'A transaction may be vitiated on account of undue influence where the relations between the parties are such that one of them is in a position to dominate the will of the other and he uses his position to obtain an unfair advantage over the other. It is manifest that both the conditions have ordinarily to be established by the person seeking to avoid the transaction : he has to prove that the other party to a transaction was in a position to dominate his will and that the other party had obtained an undue advantage by using that position. ............'

Their Lordships further held (at P. 1290) :--

'............Where it is proved that a person is in a position to dominate the will of another (such proof being furnished either by evidence or by the presumption arising under Subsection (2)) and he enters into a transaction with that other person which on the face of it or on the evidence adduced, appears to ,be unconscionable the burden of proving that the transaction was not induced by undue influence lies upon the person in a position to dominate the will of the other. But Sub-section (3) has manifestly a limited application : the presumption will only arise if it is established by evidence that the party who had obtained the benefit of a transaction was in a position to dominate the will of the other and that the transaction is shown to be unconscionable. If either of these two conditions is not fulfilled the presumption of undue influence will not arise and burden will not shift.'

Bearing in mind the aforesaid dictum of the Supreme Court and examining the findings of the Courts below, I cannot but reject the submission of Mr. Sinha, the learned counsel for the appellants. Taking into consideration the fact that the plaintiff was all along acting as the lawyer for the defendant in an earlier litigation; the defendant was required to deposit the money in question on or before 31-1-1968 so as to save the property in question; the defendant's failure to arrange the money in question within time; the defendant's approach to the plaintiff two or three days prior to the last date and plaintiff agreeing to pay the money and yet not making any payment till the last day and further getting the documents executed by the defendant on the last day after making the necessary payment which documents on the face of them appear to be unreasonable and unconscionable in nature, the Courts below have concurrently held that the plaintiff was undoubtedly in a position to dominate the will of the defendant and under the documents in question obtained advantage to him and the transaction was of an unconscionable nature. In that view of the matter, the ultimate conclusion of the two Courts below on this score cannot be held to be contrary to the decision of the Supreme Court in Ladli Parshad Jaiswal's case, AIR 1963 SC 1279 on Which Mr. Sinha relies, but on the other hand, it is in consonance with the ratio of the aforesaid Supreme Court decision.

In this connection, it would also be necessary to examine another submission of Mr. Sinha to the effect that merely because the plaintiff was the lawyer for the defendant, ipso facto it does not establish that he was in a position to dominate the will of the defendant. In support of the aforesaid contention, Mr. Sinha strongly relies upon the decision of the Oudh High Court in the case of Ram Sumran v. Sarjoo Parshad, AIR 1929 Oudh 67, as well as the decision of the Supreme Court in Ladli Parshad Jaiswal's case, AIR 1963 SC 1279 (supra). So far as the Supreme Court decision is concerned, I fail to understand how it supports the contention of Mr. Sinha. In paragraph 26 of the decision, their Lordships have held : --

'..........., Clause (2) lays down a special presumption that a person is deemed to be in a position to dominate the will of another where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other or where he enters into a transaction with a person whose mental capacity is temporarily pr permanently affected by reason of age, illness or mental or bodily distress. .........'

In my considered opinion, the aforesaid observation goes against Mr. Sinha's submission.

The question has been directly considered in a Special Bench case of the Punjab High Court in the case of Amrit Lal C. Shah v. Ram Kumar, AIR 1962 Punjab 325. It has been held by their Lordships : --

'..,..... The relationship of lawyer and client is unequal and the personal ascendancy of lawyer over client is a factor which cannot be lost sight of. A client is more susceptible to undue influence from his lawyer and to the latter's dominance than any two persons who do not bear to each other a fiduciary relationship. .........'

In view of the aforesaid authoritative pronouncement of the Special Bench, and the fact that plaintiff was the lawyer for the defendant in all previous litigations and the defendant approached him for money when he was in a helpless condition under great mental strain, the conclusion that the plaintiff was in a position to dominate the will of the defendant must be sustained and I do not find any legal infirmity in the same so as tc interfered with. Mr. Sinha's contention on this score is accordingly rejected.

It is worthwhile to notice a decision of the Supreme Court in this connection on which the learned counsel for the defendant-respondent. No. 1 strongly relies. In the case of Afzar Shaikh v. Soleman Bibi, AIR 1976 SC 162, their Lordships of the Supreme Court held (at P. 168): --

'It is well settled that a question where a person was in position to dominate the will of another and procured a certain deed by undue influence, is a question of fact, and a finding thereon is a finding of fact and if arrived at fairly, in accordance with the procedure prescribed is not liable to be reopened in second appeal. .........'

In view of the aforesaid authoritative pronouncement of the Supreme Court, Mr. Patra, the learned counsel for the defendant respondent No. 1 is right in his submission that when the two courts of fact have fully appreciated the evidence on record and have come to the conclusion that the plaintiff was in a position to dominate the will of the defendant, the said conclusion cannot be interfered with by the second appellate court. On this ground also, the conclusion of the two courts of fact remains unassailable. Necessarily, therefore, the plaintiffs case based on Ext. 13 has rightly been rejected by both the courts below and the same cannot be interfered with by this Court in second appeal. The main relief sought for by the plaintiff in the suit has rightly been rejected.

9. The only other submission of Mr. Sinha which deserves consideration is whether the plaintiff is entitled to refund of the money paid by him, which has already been found by the courts below even in the absence of a specific prayer to that effect. According to Mr. Sinha, in a case for specific performance of contract, the plaintiff having failed to obtain specific performance is yet entitled to receive the benefit which the defendant obtains, within the meaning of section 70 of the Contract Act and since the courts below have found that the plaintiff had paid the money to the defendant for being deposited by the defendant as well as also paid the sum of Rs. 9,000/-, the plaintiff is entitled to at least refund of that sum. Mr, Patra, the learned counsel for the defendant-respondent No. 1, on the other hand, submits that no such claim having been made in the plaint itself, the Court has no jurisdiction to grant that relief by making out a third case for the plaintiff. The plaintiff in the present case has prayed for putting the plaintiff in possession of Schedule-A property for a period of thirty years pursuant to Ext. 13 and also prayed for any other fit and proper relief which the plaintiff is entitled to under law and equity. Section 70 of the Contract Act is based on two essential conditions, namely (i) a benefit must have been lawfully conferred; and (ii) the act must have been done by a person not intending to do it gratuitously and the person for whom it is done must have been really benefited by it. The language of the aforesaid Section 70 is quite wide and can be applied at the discretion of the Court to enable the Court to do substantial justice. If that is the true meaning of Section 70 of the Contract Act, on the finding that the plaintiff did pay the money to the defendant on 31-1-1968 and the defendant obtained benefits out of the said money by way of saving the house in question, even if the plaintiffs suit for specific performance of Ext. 13 fails, there cannot be any justification to deny the plaintiff the relief of refund of the money which he had paid to the defendant and the defendant had obtained sufficient advantage out of the said money. In the case of Mali Bewa v. Dhunda Samal, AIR 1970 Orissa 161, it was held by this Court that once specific performance was refused, the part payment which had been made by the plaintiffs to the defendant No. 1 must be ordered to be refunded. In Second Appeal No. 105 of 1968 (Sri Arjoon Charan Sahu v. Rama Patra (1971) 37 Cut LT (Notes) 192, a learned single Judge of this Court analysing section 19 of the Specific Relief Act has held that in a suit for specific performance, the wide discretion a court has in granting relief to the two parties to the contract is incapable of strict definition and must depend on the facts of each case. Of course, that observation had been made in relation to a stand on behalf of the defendant that there had been no averment in the plaint that plaintiff is ready and willing to perform his part of the contract

In the case of Damaeherla Anjaneyulu v. Damacherla Venkata Soshaiah, AIR 1987 SC 1641, in a suit for specific performance, the Supreme Court observed : --

'.......we are of the view that whilst the High Court was right in upholding the finding that the plaintiffs were ready and willing to perform the contract whereas the defendant was guilty of the breach thereof, the High Court might well have invoked Section 20 of the Specific Relief Act, 1963 in order to do complete justice between the parties. Inasmuch as godowns and other costly structures have already been built on the land in question by the appellants (defendants) it would result in special hardship to grant specific performance. This is accordingly a fit case where the problems can be resolved by directing that instead of executing a sale deed of the land in favour of the plaintiff, the defendant shall pay to the plaintiffs Rs. 25,000/- being the approximate present value of 10 kunthas of land,............'

10. In the premises, as aforesaid, even though the plaintiffs prayer to put him in possession of the suit schedule house for thirty years pursuant to Ext. 13 cannot be granted, the facts and circumstances of the case and the findings of the two courts below warrant a direction that the defendant should pay the plaintiff the sum of Rs. 9,000/- (nine thousand)* *(Corrected as per order No. 39 dt. 17-3-1989) together with interest at the rate of six per cent per annum, which amount the defendant has admitted to have received, from the date of filing of the suit. The decrees of the courts below are modified accordingly and this second appeal is allowed to the extent indicated above. There will, however, be no order as to costs of this appeal.