Gogineni Venkateswara Rao vs Gogineni Raghavaiah Died
2021 Latest Caselaw 4864 AP

            HON'BLE SRI JUSTICE M.VENKATA RAMANA

                  SECOND APPEAL No. 375 of 2010

JUDGMENT :

The defendant is the appellant.

2. Sri Gogineni Raghavaiah, since deceased, was the plaintiff.

He died during pendency of the first appeal. He is arrayed as the 1st

respondent in the second appeal. The respondents 2 to 5 are his legal

representatives. Smt. Sambrajyamma is the wife of Sri Gogineni

Raghavaiah. She died on 11.04.1990.

3. The 3rd respondent and the appellant are the sons of Sri

Gogineni Raghavaiah. The respondents 2, 4 and 5 are their daughters.

The appellant is the last issue to Sri Raghavaiah and Smt.Sambrajyamma.

Sri Gogineni Raghavaiah and his two brothers acquired an extent of Ac.2-

80 cents by inheritance from their father. Thereafter, by their exertions

they could pool up sufficient landed property. In a partition among Sri

Gogineni Raghavaiah and his brothers, he was allotted Ac.9-20 cents

towards his share apart from a thatched house.

4. He got constructed the house later on and his eldest son,

namely the 3rd respondent got married in the year 1975. There was a

partition among Sri Gogineni Raghavaiah and his two sons, namely the 3rd

respondent and the appellant evidenced by an unregistered instrument of

partition in the nature of a partition list dated 05.07.1977. It was acted

upon in which Ac.2-52 cents that included items 1 and 2 of the plaint

schedule properties apart from a four roomed tiled house at Ramachandra MVR,J S.A.No.375 of 2010

Puram, Pedakakani Mandal, Guntur District, were allotted to him among

others.

5. During the lifetime of Sri Raghavaiah and Smt.Sambrajyamma,

all their children got settled upon performance of their marriages. The

marriage of the appellant was celebrated on 15.05.1981. The 4th

respondent Smt.Chittemma along with her husband Sri Satyanarayana

was living at Sriranga Puram, which is about 20 K.Ms., away from

Ramachandrapuram, whereas the other sisters were living at Takkellapadu

including his brother, who is about 3 K.Ms.away from Ramachandrapuram.

At the instance of Smt. Sambrajyamma, who was suffering from cancer in

or about 1977 or 1980, the 4th respondent Smt.Chittemma migrated to

Ramachandrapuram and began to live with her parents. By then, the

appellant was a minor and was living with them.

6. The contention of the deceased 1st respondent in the suit was

that at the instance of his wife Smt.Sambrajyamma, he executed a

registered settlement deed dated 19.02.1982 retaining life interest to her

after his lifetime and vested remainder to the appellant to confer after

lifetime of Smt. Sambrajyamma in respect of item No.3 of the plaint

schedule properties. Thereafter, it was his contention that Smt.

Sambrajyamma purchased Ac.1-05 cents of land in D.No.228/B of

Takkellapadu under registered sale deed dated 25.07.1982.

7. It was also the contention of the deceased 1st respondent that

since his wife Smt. Sambrajyamma expressed her desire to give a house

site to the 4th respondent and Ac.1-00 of land purchased by her to the

appellant. As per the arrangement in the family, the appellant had agreed MVR,J S.A.No.375 of 2010

to convey Ac.0-06 cents towards west of his land adjoining the village to

the 3rd respondent as a house site and Smt.Sambrajyamma to execute a

gift deed in his favour in respect of Ac.1-00.

8. It was the specific contention of the deceased 1st respondent in

the suit that the appellant took him and his wife to office of the Sub

Registrar, Guntur on 2 or 3 occasions and obtained his thumb impressions

on the documents representing that they relate to the gift deeds stated

above and that believing such representation of the appellant the

deceased 1st respondent had put his thumb impressions wherever

required honestly believing that it was for the purpose of these two gift

deeds. It was also the contention of the deceased 1st respondent that the

contents of the documents where his thumb impressions were obtained

were not read over and explained to him and that he was always under

the impression that these documents related to the aforestated

transactions.

9. He specifically contended that he never intended to execute any

documents for any part of his land out of items 1 and 2 of the plaint

schedule, which he was in continuous possession and enjoyment paying

land revenue and for which pattadar passbook and ryotwari passbook

were also issued, on which he was also raising loans.

10. Specific contention of the 1st respondent was that wife of the

appellant was ill-treating his wife Smt.Sambrajyamma that made them to

live separately along with the 3rd respondent and her family.

11. The deceased 1st respondent specifically contended that the

appellant apprehended that he would convey his property to the 4th MVR,J S.A.No.375 of 2010

respondent and on account of it the appellant got issued a legal notice

dated 31.05.2000 alleging that the deceased 1st respondent had already

executed three registered settlement deeds dated 20.08.1987,24.08.1987

and 24.08.1987,retaining life interest to him and vested remainder in

favour of the appellant. It was also stated in this notice that any

document executed by the deceased 1st respondent would not be valid.

12. It was specifically contended by the deceased 1st respondent

that upon receiving this legal notice, he was shocked and surprised to

know about these gift deeds, which the appellant had obtained without

his knowledge playing fraud upon him taking undue advantage of his

illiteracy and ignorance and who was enjoying his active confidence.

13. Thus, he specifically alleged that these gift deeds were

obtained by making false representations, by which the deceased 1st

respondent had never intended to convey the lands to the appellant. Thus

specifically denying that he executed these settlement deeds voluntarily

with the knowledge of their recitals, he questioned their nature as void

and not binding on him since vitiated by fraud and misrepresentation.

14. Thus setting out in the plaint, the deceased 1st respondent

sought declaration that these settlement deeds dated 20.08.1987 and

24.08.1987 in respect of items 1 and 2 of the plaint schedule properties

are illegal, vitiated by fraud, misrepresentation, null and void, as well as

not binding on him and for consequential permanent injunction restraining

the appellant from in any way interfering with his peaceful possession and

enjoyment of these lands.

MVR,J S.A.No.375 of 2010

15. The appellant resisted the claim of the deceased 1st respondent

totally denying the case so set up. He specifically contended that after the

partition on 05.07.1977, he began to live with his father jointly and being

an illiterate and affectionate towards his parents, he used to work as per

the directions of the deceased 1st respondent in fields, leading to

generating sufficient income from the agricultural operations. He further

contended that he and his wife were looking after his parents, serving

them with all sincerity, caring and providing all comforts. He further

contended that out of love and affection, the deceased 1st respondent

settled items 1 and 2 of the plaint schedule properties under the

impugned settlement deeds, which were prepared as per the instructions

of the deceased 1st respondent, who was fully aware of their contents,

which he had executed out of free will and consent upon spending for

purchase of the stamps as well as registration. He further contended that

the deceased 1st respondent had accepted these settlement deeds in toto

that were acted upon and which are irrevocable. He further contended

that the deceased 1st respondent delivered these settlement deeds to him,

which are in his custody and that the deceased 1st respondent did not

have any right to enter into any transaction or create any encumbrances

thereon.

16. The appellant further contended that he came to know that the

deceased 1st respondent by suppressing these registered settlement

deeds, applied to the Revenue authorities to issue pattadar passbook and

title deed in respect of these lands, with an intention to secure a loan

either from the Credit Society in the village or from the local banks, on

which he issued notice raising objections on 25.05.2000 to these MVR,J S.A.No.375 of 2010

authorities. He further contended that he also came to know that the

deceased 1st respondent, at the instance of his daughters, wanted to

create certain transactions against him.

17. While referring to the gift deed executed by him in favour of

the 4th respondent in respect of Ac.0-06 cents of house site and also the

gift deed executed by his mother for Ac.1-00 in his favour, the appellant

specifically contended that the deceased 1st respondent had agreed to

register items 1 and 2 of the plaint schedule properties which he did on

22.08.1987 and on 24.08.1987. Denying that he played fraud and

misrepresented to the deceased 1st respondent, he asserted that the

impugned settlement deeds were truly executed by the deceased 1st

respondent and therefore, they cannot be declared null and void, which

are binding on the deceased 1st respondent. Thus mainly contending in his

written statement, raising other pleas the appellant requested to dismiss

the suit.

18. Basing on the pleadings, the trial Court settled the following

issues:

"1. Whether the plaintiff is entitled for the declaration and consequential permanent injunction prayed for?

2. To what relief?"

19. At the trial, the deceased 1st respondent was examined as

P.W.1 and who relied on Ex.A1 to Ex.A10 in support of his contention. The

appellant examined himself as D.W.1, one of the attestors of the

impugned settlement deeds as D.W.2 and D.W.3 being one of the

attestors to the gift deed covering item No.3 of the plaint schedule

property while relying on Ex.B1 to Ex.B10.

MVR,J S.A.No.375 of 2010

20. The trial Court accepted the contention of the deceased 1st

respondent and decreed the suit as prayed. In the appeal by the

appellant, the decree and judgment of the trial Court were confirmed.

21. In these circumstances, this second appeal is presented.

22. Heard Sri N. Sri Rama Murthy, learned counsel for the appellant

and Sri P.Veera Reddy, learned senior counsel, for Sri K.Murali Krishna,

learned counsel for the respondents. Both the learned counsel addressed

elaborate arguments in this second appeal referring to the pleadings as

well as the evidence on record.

23. This second appeal was admitted on the following substantial

questions of law:

"1. Whether the 1st issue in the suit is "whether the plaintiff is entitled for the declaration and consequential permanent injunction?" and thus when the burden of proof is on the 1st respondent/ plaintiff to establish that the settlement deeds, Ex.B2,B4 and B5 dated 20.08.1987, 24.08.1987 and 24.08.1987 respectively executed by the 1st respondent/ plaintiff in favour of the appellant/defendant in respect of items 1 and 2 of the plaint schedule were due to fraud and misrepresentation made by the appellant/ defendant, whether the Courts below are justified in decreeing the suit of the plaintiff on the ground that the appellant/ defendant failed to prove that the said documents were not obtained by playing fraud and misrepresentation; and

2. When the particulars as required under Order-VI, Rule-4 are not stated in the plaint, whether the lower Court is justified in dismissing the appeal?"

24. Both these substantial questions of law, relate to predominant

plea set up by the deceased 1st respondent in the plaint as well as at the

trial and as to validity of impugned settlement deeds that are Ex.B2, Ex.B4

and Ex.B5.

MVR,J S.A.No.375 of 2010

25. The plaint pleadings and the evidence of P.W.1, namely the

deceased 1st respondent set out the events and circumstances under

which the deceased 1st respondent allegedly participated in execution of

these settlement deeds.

26. Ex.B4 and Ex.B5 relate to item No.1 of the plaint schedule.

Ex.B2 relates to item No.2 of the plaint schedule.

27. The events so projected are that Smt.Sambrajyamma desired

that the 4th respondent Smt.Chittemma was given a house site from and

out of the land of the appellant of Ac.0-06 cents and she had offered to

give away Ac.1-00 of land to the appellant. It was in the nature of a family

arrangement. On that occasion when these documents for this purpose

are sought to be executed, the specific case set up by the 1st respondent

was that he and his wife were taken to the Sub Registrars office where his

thumb impressions were obtained on several documents representing that

they were required for the proposed gift deeds.

28. It is the specific case pleaded setting out details of the manner

of fraud and misrepresentation played on him is seen in paras-4,5,7 and

10 of the plaint. At the trial, it was also the case of the deceased 1st

respondent that he was made to understand that his participation is

required in execution of the settlement deeds by the appellant as well as

his mother for the purposes stated above, since there was no registered

partition deed entered into relating to properties of the family by the

deceased 1st respondent, the appellant and his brother and that these

impugned settlement deeds were obtained on account of the collusion

among the appellant, attestors and scribe of these settlement deeds.

MVR,J S.A.No.375 of 2010

29. Sri N.Sri Rama Murthy, learned counsel for the appellant,

strenuously contended that there is departure from the pleadings in the

plaint in this context and it is one strong circumstance to suspect the story

so propounded by the deceased 1st respondent in the plaint as well as at

the trial. However, Sri P.Veera Reddy, learned senior counsel, copiously

referring to averments in the plaint and from the deposition of P.W.1 has

sought to repel such contentions, that either the evidence of P.W.1 or the

suggestions made to the witnesses examined on behalf of the appellant at

the trial, were only in furtherance of the core defence set up by the

deceased 1st respondent and therefore, they cannot have any bearing to

suspect the case set up by the deceased 1st respondent or to reject his

version.

30. The foundation laid by the deceased appellant in this cause is

well substantiated. Execution of a gift deed by the appellant in favour of

the 3rd respondent of Ac.0-06 cents, which is adjoining the village, is

admitted and a registration extract of the same is available on record as

Ex.B6. Admittedly, the 3rd respondent has constructed a house in this suit

and she is living therein along with her family. Undisputedly, the deceased

1st respondent during his lifetime was living with them.

31. There are allegations set out by the parties that the wife of the

appellant was not well disposed towards this old couple, namely Sri

Raghavaiah and Smt.Sambrajyamma, who was going to the extent of

beating her mother-in-law, abusing and ill-treating her, which forced them

to stay away from the appellant. However, the fact remained that the

appellant and his wife were living away from Sri Raghavaiah and

Smt.Sambrajyamma even during their lifetime and that they were being MVR,J S.A.No.375 of 2010

taken care of by the 3rd respondent. This fact is well proved from the

material on record in this case.

32. Smt.Sambrajyamma had executed a settlement deed on

20.08.1987 and registered in favour of the appellant as seen from Ex.A4

its registration extract. It is also on record that the deceased 1st

respondent had executed a registered settlement deed on 19.02.1982 vide

Ex.B1 conferring the property thereunder to enjoy for life by his wife and

vested remainder in favour of the appellant.

33. The evidence of the appellant as D.W.1 also reflected that his

parents were showering affection on him and he too was affectionate to

them. The differences, if any, between the appellant, his wife on one hand

and the deceased 1st respondent arose only after the above events of

execution of settlement deeds covered by Ex.B6 and Ex.A4 on 20.08.1987.

34. When this backdrop is considered, when Smt. Sambrajyamma

was made to visit the office of Sub Registrar for execution of the gift deed

in favour of the appellant, the claim of the deceased 1st respondent that

he was made to attend the office of the Sub Registrar on such occasion,

cannot in any manner be rejected.

35. The testimony of the appellant as D.W.1 also reflected that he

was informed of the gift covered by Ex.A4 of the land by his mother about

2 or 3 days prior to 20.08.1987 as well as another gift covered by Ex.B6.

On that occasion, his testimony is, he, his parents, 3rd respondent, D.W.2-

Sri Nageswara Rao and Sri Chigurupati Koteswara Rao, who is figured as

attestor, as well as the scribe went to the Registrars office.

MVR,J S.A.No.375 of 2010

36. Thus, the premise so set up by the deceased 1st respondent

and as the foundation is well established. The circumstances which then

existing, made use of by the appellant for obtaining the impugned gift

deeds making the deceased 1st respondent to subscribe his thumb

impressions on certain documents cannot as such be ruled out.

37. By then the appellant was enjoying active confidence of his

parents. He was living with them by then and was attending their affairs

on his own showing. They trusted and believed him immensely without

spec of suspicion of his intentions.

38. Therefore, the circumstances under which he was made to

apply his thumb impressions on the documents, namely Ex.B2, Ex.B4 and

Ex.B5 propounded in the plaint as well as at the trial by the deceased 1st

respondent required acceptance.

39. The testimony of P.W.1 is quite clear and categorical in this

respect. Added to it the deceased 1st respondent was an octogenarian

described in the plaint being 86 years old and the appellant was only 38

years old by then.

40. Though the appellant denied such version of the deceased 1st

respondent and contended that there was no such occasion or necessity

for him to play fraud as alleged and to misrepresent to his father, claiming

that he attended the Sub Registrars Office at Guntur only for once for

such purposes, the testimony of P.W.1 along with the surrounding

circumstances pointed out above, clearly bely his version.

MVR,J S.A.No.375 of 2010

41. D.W.2 is an attestor not only to the three impugned settlement

deeds but also the originals of Ex.A4 and Ex.B6. Along with him, Sri

Chigurupati Nageswara Rao attested these documents. He is said to be no

more, as was deposed by P.W.1.

42. D.W.2 though an attestor to these documents, in his deposition

given almost all the transactions including the partition among the

deceased 1st respondent and his sons, marriages in their family and

manner of enjoyment of these properties. He owns land is nearer to the

lands of these parties. His testimony is that it was at the instance of

P.W.1, he appeared as an attestor and who had informed him his

intention to execute gift deeds in favour of the appellant. However, his

interestedness in the appellant is profoundly depicted. Statement elicited

in cross-examination from him reflected that he and the appellant closely

move with each other. Thus, he admitted his close association with the

appellant. Hence, he is highly interested witness in the appellant.

43. Another intriguing circumstance is the manner of bringing out

three separate settlement deeds covering items 1 and 2 of the plaint

schedule properties. When the deceased 1st respondent was admittedly

owner of these lands, a single settlement deed could have been executed

than three. D.W.1 and D.W.2 could not explain this circumstance, when

specifically cross-examined on this aspect. Version of D.W.1 that it was so

done to facilitate avoidance of Gift tax is not appreciable. In fact, Ex.B7

and Ex. B8 relate to Gift tax proceedings of the authorities concerned, did

not throw any light in this respect. They relate to Ex.A4 and Ex.B6

transactions and that of D.W.1 as well as his mother Smt. Sambrajyamma.

MVR,J S.A.No.375 of 2010

44. The impugned settlement deeds, originals of Ex.A4 and Ex.B6,

were attested by D.W.2 and Sri Chigurupati Koteswara Rao. Scribe of

these documents is Sri Peddi Seetha Ramaiah, a document writer of

Takkellapadu. Though D.W.2 claimed that he and other attestors appeared

at the instance of P.W.1 and it is also the version of D.W.1 and D.W.2 that

the stamp papers for the purpose of impugned settlement deeds were

purchased by P.W.1 himself, the manner of bringing out these impugned

settlement deeds in association with D.W.2, who is a close friend of D.W.1,

make these versions a suspect. It is an outcome of their collusion, as

these instances surrounding Ex.B2, Ex.B4 and Ex.B5 holdout.

45. Suggestion to D.W.2 on behalf of the deceased 1st respondent

at the trial is that there is collusion among them. It cannot as such be

ruled out. It is not specifically pleaded in the plaint. Yet, when this

circumstance is in relation to questioning the veracity of D.W.1 and his

defence as well as of D.W.2, it need not be a part of the pleadings.

46. Explaining what is 'collusion' and its implication, Sri N.Sri Rama

Murthy, learned counsel for the appellant relied on Rupchand Gupta v.

Raghuvanshi (Private) Limited and another1. Observations in Para-9

are relevant for this purpose and they are as under:

"9. One of the simplest definitions of collusion was given by Mr. Justice Bucknill in Scott v. Scott, 1913 p.52, "Collusion may be defined", said the learned Judge, "as an improper act done or an improper refraining from doing an act, for a dishonest purpose". Substantially the same idea is expressed in the definition given by Whatron's Law Lexicon, "Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose". This definition of collusion was approved by the Court in Nagubai Ammal & ors. vs. B.Shamma Rao, AIR 1956 SC 593."

. AIR 1964 SUPREME COURT 1889 MVR,J S.A.No.375 of 2010

47. Sri N.Sri Rama Murthy, learned counsel for the appellant,

strenuously contended in this context. It cannot be a factor or reason by

itself to disregard this question of collusion among D.W.1 and D.W.2 apart

from another attestor or the scribe.

48. Thus, on behalf of the deceased 1st respondent acceptable and

reliable material and evidence was placed at the trial impugning Ex.B2,

Ex.B4 and Ex.B5-settlement deeds.

49. Both the Courts below considered the material in this context in

proper appreciation of the material. Both the Courts below in these

circumstances held that the burden is on the appellant to establish that

the impugned settlement deeds are outcome of a true and genuine

transaction entered into by the deceased 1st respondent.

50. Reliance was placed by both the Courts below in returning such

findings on Krishna Mohan Kul alias Nani Charan Kul and another

v. Pratima Maity and others2. In this ruling relied on by both the

learned counsel, effect of fraud, misrepresentation, undue influence and

proof required therefor as well as burden of proof to establish them is

considered. In this context, application of Section 111 of the Indian

Evidence Act placing burden on the person in fiduciary relationship, in a

position of active confidence to prove absence of fraud, misrepresentation

or undue influence and when he was in dominating position upon

executant of the impugned documents, is explained in this ruling.

51. In paras-12 and 13 of this ruling, the relevant observations are

as under:

. AIR 2003 SUPREME COURT 4351 MVR,J S.A.No.375 of 2010

"12. .....The onus to prove the validity of the deed of settlement was on defendant No. 1. When fraud, mis-representation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with zealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position. This principle has been engrained in Section 111 of the Indian Evidence Act, 1872 (in short the ' Evidence Act'). The rule here laid down is in accordance with a principle long acknowledged and administered in Courts of Equity in England and America. This principle is that he who bargains in a matter of advantage with a person who places a confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The transaction is not necessarily void ipso facto, nor is it necessary for those who inpeach it to establish that there has been fraud or imposition, but the burden of establishing its perfect fairness, adequacy and equity is cast upon the person in whom the confidence has been reposed. The rule applies equally to all persons standing in confidential relations with each other. Agents, trustees, executors, administrators, auctioneers, and others have been held to fall within the rule. The Section requires that the party on whom the burden of proof is laid should have been in a position of active confidence. Where fraud is alleged, the rule has been clearly established in England that in the case of a stranger equity will not set aside a voluntary deed or donation, however, improvident it may be, if it be free from the imputation of fraud, surprise, undue influence and spontaneously executed or made by the donor with his eyes open. Where an active, confidential, or fiduciary relation exists between the parties, there the burden of proof is on the donee or those claiming through him. It has further been laid down that where a person gains a great advantage over another by a voluntary instrument, the burden of proof is thrown upon the person receiving the benefit and he is under the necessity of showing that the transaction is fair and honest.

13. In judging of the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even de hors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before Court."

MVR,J S.A.No.375 of 2010

52. Reference is also made in this decision to Mst. Kharbuja

Kuer vs. Jangbahadur Rai and others3 where observations were

recorded in the context of a pardanashin lady. Applying the same to

instances of old, illiterate and ailing persons, in para-17 of this ruling, it is

as under:

"17. The logic is equally applicable to an old, illiterate, ailing person who is unable to comprehend the nature of the document or the contents thereof. It should be established that there was not mere physical act of the executant involved, but the mental act. Observations of this Court, though in the context of pardahnashin lady in Mst. Kharbuja Kuer v. Jang Bahadur Rai and others (AIR 1963 SC 1203) are logically applicable to the case of the old, invalid, infirm (physically and mentally) and illiterate persons"

53. Therefore, in the given facts and circumstances of the case,

when the admitted situation presented that the appellant was the ultimate

beneficiary, in position of active confidence in relation to his parents, who

was able to exert influence on them by the date of these transactions,

namely under Ex.B2, Ex.B4, Ex.B5, Ex.A4 and Ex.B6, as rightly observed

by both the Courts below, the burden rests on him to prove and show that

the impugned settlement deeds are not of such tainted nature or outcome

of fraud and misrepresentation.

54. However, Sri N.Sree Rama Murthy, learned counsel for the

appellant, strenuously contended that in case of fraud, misrepresentation

and undue influence, the burden is always on the propounder of such

factors and it never gets shifted to the person in whose favour the

document stands. It is further contended that the material is making out

that Ex.B2, Ex.B4 and Ex.B5 being registered documents, are outcome of

such transactions which are regular in nature. It is also contended by the

.AIR 1963 SUPREME COURT 1203 MVR,J S.A.No.375 of 2010

learned counsel for the appellant that there is categorical version from

P.W.1 in cross-examination that he did not put his thumb impressions on

the originals of the disputed documents, even before Sub Registrar,

Guntur and that the Sub Registrar did not ask him anything. In the

presence of these statements of P.W.1, it is contended by the learned

counsel for the appellant that the contention of the respondents cannot

stand nor both the Courts below could have drawn such inferences

rejecting these documents.

55. In support of these contentions Sri N.Sri Rama Murthy, learned

counsel for the appellant, relied on Constitution Bench judgment of

Hon'ble Supreme Court in Ladli Prashad Jaiswal v. The Karnal

Distillery Co.Ltd., Karnal and others4. In the context of application of

Section-16(3) of the Indian Contract Act and Section-111 of the Indian

Evidence Act, in paras-25 and 26 it is stated as under:

"25. The' doctrine of undue influence under the common law was evolved by the Courts in England for granting protection against transactions procured by the exercise of insidious forms of influence spiritual and temporal. The doctrine applies to acts of bounty as well as to other transactions in which one party exercising his position of dominance obtains an unfair advantage over another. The Indian enactment is founded substantially on the rules of English common law. The first sub-section of Section 16 lays down the principle in general terms. By subsection (2) a presumption arises that a person shall be deemed to be in a position to dominate the will of another if the conditions set out therein are fulfilled.' Sub-section (3) lays down the conditions for raising a rebuttable presumption that a transaction is procured by the exercise of undue influence. The reason for the rule in the third sub-section is that a person who has obtained an advantage over another by dominating his will, may also remain in a position to suppress the requisite evidence in support of the plea of undue influence.

26. 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

.AIR 1963 SUPREME COURT 1279 MVR,J S.A.No.375 of 2010

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 unfair advantage by using that position. 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 or permanently affected by reason of age, illness or mental or bodily distress. 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 sub-section (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."

56. Further reliance is placed in the same context for the appellant

in Raja Ram v. Jai Prakash Singh and others5. In para-11 of this

ruling, the observations in the given facts and circumstances are, as

under:

" 11. ......... The pleadings in the plaint are completely bereft of any details or circumstances with regard to the nature, manner or kind of undue influence exercised by the original defendants over the deceased. A mere bald statement has been made attributed to the infirmity of the deceased. We have already held that the deceased was not completely physically and mentally incapacitated. There can be no doubt that the original defendants were in a fiduciary relationship with the deceased. Their conduct in looking after the deceased and his wife in old age may have influenced the thinking of the deceased. But that per se cannot lead to the only irresistible conclusion that the original defendants were therefore in a position to dominate the will of the deceased or that the sale deed executed was unconscionable. The onus would shift upon the original defendants under Section 16 of the Contract Act read with Section 111 of the Evidence Act, as held in Anil Rishi vs. Gurbaksh Singh (supra), only after the plaintiff would have established a prima facie case....."

. AIR 2019 SUPREME COURT 4374 MVR,J S.A.No.375 of 2010

57. The effect of pleadings in this context is also pointed out in this ruling

referring to observations in Bishundeo Narain and others vs. Seogeni Rai

and Jagernath6. They are as under:

"12.In Bishundeo Narain (supra) it was observed as follows:

"We turn next to the questions of undue influence and coercion. Now it is to be observed that these have not been separately pleaded. It is true they may overlap in part in some cases but they are separate and separable categories in law and must be separately pleaded.

It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion.""

58. Sri N.Sri Rama Murthy, learned counsel for the appellant,

contended that in the case of Raja Ram, Krishna Mohan Kul is

distinguished on facts and that relevant observations are in Para-15 of this

ruling.

"15. Krishna Mohan (supra) is distinguishable on its own fact. The executant was undisputably over 100 years of age. The witnesses proved that he was paralytic and virtually bedridden. None of the witnesses could substantiate that the executant had put his thumb impression."

59. In Anil Rishi vs. Gurubaksh Singh7, which is referred in

Raja Ram above, Krishna Mohan Kul is considered. One of the

observations in this ruling is with reference to application of Section-111

of the Indian Evidence Act thus:

"Section 111 of the Evidence Act will apply when the bona fides of a transaction is in question but not when the real nature thereof is in

. AIR 1951 SC 280

.(2006) 5 SCC 558 MVR,J S.A.No.375 of 2010

question. The words `active confidence' indicate that the relationship between the parties must be such that one is bound to protect the interests of the other."

60. It is also stated in this ruling that when application of Section

111 of the Indian Evidence Act is sought, there should be a finding as to

proof of fiduciary relationship between the person against whom an

inference is to be drawn that he is in position of active confidence vis-a-vis

the alleged executant of the document.

61. Sri N.Sri Rama Murthy, learned counsel for the appellant,

further relief on Jamila Begum (dead) through L.Rs. v. Shami Mohd

(dead) through L.Rs. and another8. Where the effect of undue

influence is considered in Para-26:

"26. Insofar as the plea of undue influence, merely because the parties are related to each other or merely because the executant was old or of weak character, no presumption of undue influence can arise. Court must scrutinise the pleadings to find out that such plea has been made out before examining whether undue influence was exercised or not."

62. The material on record in this case, as discussed above, clearly

invites application of Section-111 of the Indian Evidence Act. Admittedly,

the appellant stood in a position of dominance upon the deceased 1st

respondent. The manner of acceptance of the gift of land in terms of

Ex.A4 from his mother in lieu of giving away Ac.0-06 cents of land to his

sister-3rd respondent covered by Ex.B6, is an instance in this regard. He

was in a position to extract such benefit from his mother. On his own

showing, his parents were very affectionate to him, which is reflective of

the confidence he was enjoying as stated above. His father was of such

age by then of about 86 years or so and when he was by then living with

. 2019 AIR SC 72 MVR,J S.A.No.375 of 2010

his parents, inference that he was enjoying their trust or belief, is

irresistible. Therefore, as rightly observed by both the Courts below the

burden is on the appellant rather than the deceased 1st respondent at the

trial to prove the nature of Ex.B2, Ex.B4 and Ex.B5-settlement deeds in

respect of their true and valid nature and that, they were not an outcome

of such factors and circumstances projected by the deceased 1st

respondent, at the trial.

63. Contention advanced on behalf of the appellant that Krishna

Mohan Kul is not applicable since distinguished on facts in Raja Ram ,

which is a complete answer in respect of the findings returned by both the

Courts below is not correct. The ratio laid down in Krishna Mohan Kul is

squarely applicable to this case which was considered in approval in Anil

Rishi stated above.

64. The effort of the appellant through his evidence as D.W.1 and

the attestor D.W.2 did not discharge such burden nor the effect of

Section-111 of the Indian Evidence Act is satisfied.

65. Further, it is to be noted that the evidence of the deceased 1st

respondent at the trial was with reference to fraud and misrepresentation

played on him by his son, namely the appellant and that the impugned

settlement deeds-Ex.B2,Ex.B4 and Ex.B5 are outcome of such factors. It

was never the case of the deceased 1st respondent that these documents

are outcome of undue influence nor this case is covered by any of the

instances under Section 16 of the Indian Contract Act. Therefore, all the

contentions so advanced on behalf of the appellant by Sri N.Sri Rama MVR,J S.A.No.375 of 2010

Murthy cannot stand as rightly contended by Sri P.Veera Reddy, learned

senior counsel for the respondent.

66. The learned counsel for the appellant further contended that

the plaint is bereft of pleadings, when such factors like fraud,

misrepresentation etc., are sought to be informed and thus there is

violation of the mandate under Order-VI, Rule-4 CPC.

67. In support of his contention, reliance is placed in Neelamsetti

Kataji Rao and others v. Regati Ramaraju9. Kuppuswamy Chettiar

v. A.S.P.A.Arumugam Chettiar and another10 is also relied on by the

learned counsel for the appellant apart from Kona Kanthamma v.

Guntamukkala Srinivasa Rao11.

68. Order-VI, Rule-4 CPC requires specific and better particulars

when a case rests upon questions relating to fraud, misrepresentation,

undue influence etc. There cannot be any quarrel about this proposition of

law. The averments in the plaint, as already stated, are meeting this

requirement, since there are specific details and instances averred,

demonstrative of such requirement. Therefore, this contention as such

cannot stand.

69. The learned counsel for the appellant further contended that

the appellate Judge completely misconceived the scope of this case and

observations and findings recorded are on the fringe of perversity. In such

. 2001(3) ALD 709

.AIR 1967 SUPREME COURT 1395

.2009(2) ALD 389 MVR,J S.A.No.375 of 2010

instances, it is contended for the appellant, this Court sitting in second

appeal in terms of Section 100 CPC, is required to interfere.

70. Instances of this nature pointed out by the learned counsel for

the appellant are in relation to the observations of the appellate Court to

the effect that the appellant failed to obtain pattadar passbook, title deed

in his favour basing on the impugned settlement deeds, that no mutation

was carried out thereupon in revenue records in his favour, failure of the

appellate Court to appreciate that there is only interested testimony of

P.W.1 available on record without any corroboration and failure of the trial

Court to consider the testimony of P.W.1 and D.W.1 in proper perspective.

It is also pointed out that when the impugned settlement deeds relating to

conferring vested interest to the appellant, there cannot be any basis for

transfer of entries in revenue records in his favour nor any discussion is

found in the judgment of the appellate Court as to fraudulent intention

attributed to the appellant. These are all the factors which vitiate the

process of reasoning and improper appreciation of evidence on record as

per Sri N.Sri Rama Murthy, learned counsel for the appellant.

71. To support this contention, the learned counsel for the appellant

relied on Bharatha Matha and another v. R. Vijaya Renganathan

and others12. The relevant observations in given facts in this context are

in paras 17 and 18 of this ruling. They are thus:

"17. The High Court has decided the issue regarding the factum of marriage between Alagarsami and Rengammal only placing reliance upon the statement of Smt. Seethammal, DW1, step mother of Muthu Reddiar who had been disbelieved by the Courts below by giving cogent reasons and taking note of the fact that she had arranged their marriage spending a sum of Rs.10 only. The High Court has also reappreciated the

. 2010(4) ALD 152(SC) MVR,J S.A.No.375 of 2010

documentary evidence and took a view contrary to the view taken by the court's below. It was not appropriate for the High Court to re-appreciate the evidence in Second Appeal as no substantial question of law involved therein. Both the Courts below found that Rengammal was legally wedded wife of Alagarsami. The Courts below had placed very heavy reliance upon the witnesses examined by the appellant/plaintiff particularly, Kumarasamy- PW 2 and Kandasamy- PW 5.

18. In view of the fact that the High Court did not even take note of the deposition of the plaintiff's witnesses, findings recorded by the High Court itself become perverse and thus liable to be set aside."

72.The learned appellate Judge could have avoided such findings

particularly with reference to mutation of revenue records in favour of the

appellant having regard to the contents of Ex.B2, Ex.B4 and Ex.B5.

However, inappropriate appreciation of evidence of certain facts which

have effect collaterally by itself is not a circumstance of reckonance in the

given facts and circumstances of the case.

73. In the same context, referring to role of this Court in terms of

Section 100 CPC, particularly when there are concurrent and consistent

findings on facts recorded by both the Courts below, Sri P.Veera Reddy,

learned senior counsel for the respondents, referred to the observations of

the Hon'ble Supreme Court in Narayanan Rajendran v. Lekshmy

Sarojini13.

74. Referring to observations in Gurdev Kaur and Others v. Kaki

and Others (2007) 1 SCC 546 and several other decisions of the

Hon'ble Supreme Court prior to amendment of C.P.C. in the year 1976 and

later displeasure was expressed in not maintaining discipline in terms of

Section 100 CPC while considering the second appeal by the High Court ,

where it has no jurisdiction to interfere with the findings of fact.

Observations in Paras 40 to 42 are as follows:

. (2009) 5 SCC 264 MVR,J S.A.No.375 of 2010

"40. In the same case, this court observed that in a case where special leave petition was filed against a judgment of the High Court interfering with findings of fact of the lower appellate court. This court observed that to say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This court further observed that the High Court in second appeal cannot substitute its own findings on re-appreciation of evidence merely on the ground that another view was possible.

41. This court again reminded the High Courts in Commissioner, Hindu Religious & Charitable Endowments v. P. Shanmugama [(2005) 9 SCC 232] that the High Court has no jurisdiction in second appeal to interfere with the finding of facts.

42. Again, this court in the case of State of Kerala v. Mohd. Kunhi [(2005) 10 SCC 139] has reiterated the same principle that the High Court is not justified in interfering with the concurrent findings of fact. This court observed that, in doing so, the High Court has gone beyond the scope of Section 100 of the Code of Civil Procedure."

75. The findings recorded by the learned appellate Judge are not

on the verge of perversity. Considering the findings of the trial Court and

material on record in general the learned appellate Judge returned the

findings concurring with them. In these circumstances, holding that the

judgments of both the Courts below did not suffer from any vice to attract

Section 100 CPC, all these contentions advanced on behalf of the

appellant stand rejected.

76. These instances projected by the deceased 1st respondent at

the trial through his pleadings and evidence, are clear manifestations of

the fraud he was subjected to by his youngest son. When the

circumstances are on record clearly establishing such facts which included

instances of misrepresentation, making his old and infirm father believe

such version, the findings recorded by both the Courts below on these

factors are clearly within realm of facts and upon proper application of law

relating to burden of proof. Therefore in this second appeal, they do not

call for any interference.

MVR,J S.A.No.375 of 2010

77. Notwithstanding these factors, Sri N.Sri Rama Murthy, learned

counsel for the appellant tried to raise in this second appeal filing I.A.No.1

of 2021, two new substantial questions of law relating to bar of limitation

and maintainability of the suit for declaration without seeking for the relief

of cancellation of Ex.B2, Ex.B4 and Ex.B5-registered settlement deeds. Sri

P.Veera Reddy, learned senior counsel, rightly contended that these two

questions cannot be raised in this second appeal for the first time, for, no

such defence was taken in the written statement nor raised in the course

of trial on behalf of the appellant.

78. A plea of limitation is based on fact and law. It is not a pure

and simple legal plea.

79. However, Sri N.Sri Rama Murthy, learned counsel for the

appellant, relied on Rattan Singh and others v. Nirmal Gilland

others14 pointing out that the present case is hopelessly barred by

limitation, since the deceased 1st respondent failed to establish existence

of fraud. Observations in paras-80 and 81 of this ruling are relied on for

the appellant, which are as under:

"80. It is settled that the standard of proof required in a civil dispute is preponderance of probabilities and not beyond reasonable doubt. In the present cases, though the discrepancies in the 1990 GPA are bound to create some doubt, however, in absence of any tangible evidence produced by the plaintiff to support the plea of fraud, it does not take the matter further. Rather, in this case the testimony of the attesting witness, scribe and other independent witnesses plainly support the case of the defendants. That evidence dispels the doubt if any; and tilt the balance in favour of the defendants.

81. Suffice it to observe that since the plaintiff could not establish the existence of fraud, it must follow that the suits are ex-facie barred by limitation."

. AIR 2021 SUPREME COURT 899 MVR,J S.A.No.375 of 2010

80. As seen from the plaint, cause of action to file this suit arose

on 31.05.2000 and 07.06.2000 when the deceased 1st respondent had

received Ex.A6 and Ex.A7 notices when he had come to know the fraud

played by the appellant in obtaining the impugned settlement deeds.

81. The facts established or otherwise undisputed in this case are

that the deceased 1st respondent was enjoying items 1 and 2 of the plaint

schedule lands, which are subject matter of these settlement deeds. In

fact, as seen from the legal notices issued by the appellant, one of the

instances raised was attempt of the deceased 1st respondent applying to

the revenue authorities for issuance of Pattadar passbook and title deed.

Another circumstance pointed out is that the original settlement deeds

were in the custody of the appellant. Though he claimed that they were

delivered to him by his father, in the circumstances, it cannot be believed

since it is a clear case of fraud played by him on his father. Therefore, the

right to sue accrued to seek such declaration was upon receipt of notices

in May or June, 2000. The suit was filed on 27.07.2000. By this measure,

it cannot be stated that the suit claim is barred by time.

82. Frame of the suit sought to be raised for the first time in this

second appeal, contending that cancellation of these settlement deeds

should have been sought in terms of Section 31 of the Specific Relief Act

than a general declaration in terms of Section 34 of the said Act also

cannot stand not only for the above reason but also upon consideration

the facts and circumstances of the case.

83. In support of this contention, Sri N.Sri Rama Muthy, learned

counsel for the appellant, relied on Mabeeba Begum and others v.

MVR,J S.A.No.375 of 2010

Gulam Rasool and others15. In case of a completed registered

transaction, a suit for declaration of title is not maintainable at the

instance of signatory to such document and that cancellation of such

document should be sought as per the observations in this ruling.

84. As seen from the pleadings and evidence as well as proved and

established facts, the deceased respondent became entitled to the relief

against the appellant. The nature of relief sought is in terms of Section 34

of the Specific Relief Act not only for declaration but also for consequential

relief of permanent injunction. When the facts as established are setting

out the case of the deceased 1st respondent clearly, technical relief upon

application of section 31 of the Specific Relief Act, for relief of cancellation

of the documents in the given circumstances is unnecessary.

85. The whole case presented by the deceased 1st respondent at

the trial and established, is in that direction. When a relief of declaration

along with the consequential relief is more comprehensive than what is

contemplated in terms of Section 31 of the Specific Relief Act, even at the

instance of the signattory to a registered document, suit of this nature is

maintainable. It is not barred. Nor Section 31 of the Specific Relief Act

prohibits such approach whoever be the plaintiff, directly or by implication.

Therefore, frame of suit as such cannot be found fault with. For this

reason alone it appears no such defence was raised in the written

statement nor pursued at the trial on behalf of the appellant. The ruling

relied on by the learned counsel for the appellant shall be considered in

. 1999(4) ALT 496 MVR,J S.A.No.375 of 2010

the light of the facts addressed therein and cannot be made applicable in

all circumstances as a general preposition of law.

86. Even otherwise, the requirement to consider in such context is

only with reference to payment of court fee. One of the rulings relied on

by Sri N.Sri Rama Murthy, learned counsel for the appellant, in this respect

is in Suhrid Singh @ Sardool Singh v. Randhir Singh and others16.

With reference to application of Section-7 of the Court Fee Act, 1870,

pointing out the nature of relief to seek when an executant of deed

requires it to be annulled and when such relief is sought by a non-

executant of such deed, observations are recorded with reference to

payment of Court fee.

87. As seen from the plaint, the relief is valued for the purpose of

Court fee under Section 24(b) of APCF & SV Act on the market value of

items 1 and 2 of the plaint schedule. The total value of this property is

shown at Rs.3,89,854/- in the plaint and court fee was paid on half of

such value, at Rs.4,426/-. In terms of Section 31 of Specific Relief Act, if

cancellation of these three sale deeds is sought, the Court fee is payable

in terms of Section 37 of APCF & SV Act. For this purpose, the value of the

properties shown in those settlement deeds at Rs.47,830/- (Ex.B2),

Rs.33078/-(Ex.B4) and Rs.31,740/-(Ex.B5) should be considered. Thus,

total value for the purpose of Court fee for this purpose is Rs.1,12,648/-

and ad valorem fee to be paid thereon under Section 37 of APCF & SV Act

is Rs.3,626/- only. Whereas Court fee paid on the plaint is much more at

. AIR 2010 SC 2807 MVR,J S.A.No.375 of 2010

Rs.4,426/- than Rs.3,626/-. Even if such contention of the appellant is

concerned, there is no infraction as such.

88. A genuine claim established on the material cannot be negated

on a technical plea of this nature. These two substantial questions of law

sought to be raised for the appellant, therefore, do not arise. Hence,

I.A.No.1 of 2021 has to be dismissed.

89. It is also contended for the appellants that the Court is

precluded from granting a relief when not sought by a party. For this

proposition, reliance is placed in State of Uttarakhand and another v.

Mandir Sri Laxman Sidh Maharaj17. In this ruling, it is observed that

the Courts cannot travel beyond the pleadings for granting any relief and

it should be claimed by the plaintiff in the plaint. There is no quarrel in

respect of this preposition of law. What is sought in the suit has been

granted by the Courts below and not beyond it.

90. In these circumstances, upon consideration of the decrees and

judgments of both the Courts below, this Court is satisfied that there are

no such substantial questions of law requiring consideration and to

interfere with the concurrent findings recorded by both the Courts below.

Therefore, this second appeal must necessarily fail.

91. In the result, the second appeal is dismissed with costs of the

respondents. Consequently, the decrees and judgments of both the Courts

below stand confirmed. The trial Court is directed to forward the decrees

i.e., in the suit, appeal and this second appeal to the jurisdictional

Registration authority to record that Ex.B2, Ex.B4 and Ex.B5 settlements

. AIR2017 SC 4472 MVR,J S.A.No.375 of 2010

are declared null and void and that have no legal effect and to cause

necessary endorsements/remarks in the concerned registers.

I.A.No.1 of 2021 is dismissed. Pending miscellaneous petitions, if

any, stand closed. Interim Orders, if any, stand vacated.

_______________________ JUSTICE M.VENKATA RAMANA

Dt: 29.11.2021 RR MVR,J S.A.No.375 of 2010

HON'BLE SRI JUSTICE M.VENKATA RAMANA

SECOND APPEAL No.375 of 2010

Dt: 29.11.2021

RR