Yogender Singh vs Prem Lata & Anr
2013 Latest Caselaw 4452 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                    Date of decision: 27th September, 2013

+                               RFA 36/2005
       YOGENDER SINGH                                         ..... Appellant
                   Through:            Mr. S.S. Tomar, Adv.

                                Versus

       PREM LATA & ANR                                   .......Respondents
                    Through:           Mr. G.P. Thareja and Mr. C.P. Puri,
                                       Advocates.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and decree dated 9 th December,

2004 of the Court of the Additional District Judge (ADJ), Delhi of dismissal

of suit No.351/04/02 filed by the appellant.

2. The said suit was filed by the appellant for the reliefs of, (i)

declaration, declaring/cancelling the documents if any in power and

possession of the respondents/defendants alleged to have been executed by

the appellant/plaintiff with regard to the sale of property No.A-39 (near

Veer Arya Model School) Badli Extension, Village-Badli, Delhi as illegal,

null and void and not binding upon the appellant/plaintiff; (ii) a decree for

possession of the said property; (iii) a decree for mesne profits/damages for

use and occupation; and, (iv) a decree for permanent injunction restraining

the respondents/defendants from parting with possession or creating third

party interest in the property, pleading:

(a) that the appellant/plaintiff was the owner of plot No.A-39

aforesaid admeasuring 100 sq. yds.;

(b) that the appellant/plaintiff sold 50 sq. yds. out of the aforesaid

100 sq. yds. to one Sh. Keshu Ram and with the sale

consideration thereof raised the construction of a double

storeyed house on the remaining 50 sq. yds. of the property;

(c) that the respondent/defendant No.1 was working in the house

of the appellant/plaintiff as a domestic help and was in

financial distress and sought help of the appellant/plaintiff by

seeking temporary use of the said house No.A-39 constructed

over 50 sq. yds. of the appellant/plaintiff;

(d) that the appellant/plaintiff as a matter of mercy and on human

consideration allowed the respondent/defendant No.1 to occupy

the said property and it was orally agreed that the

respondent/defendant No.1 shall vacate the same within a

period of two years, by which time her son Sh. Rakesh

(respondent/defendant No.2) would get employed and start

earning;

(e) that the aforesaid agreement was an agreement of license;

(f) that accordingly, in December, 1997 the appellant/plaintiff

allowed the respondents/defendants to occupy the property;

(g) that in October, 1999, the appellant/plaintiff asked the

respondents/defendants to vacate the property and the

respondent/defendant No.1 asked the appellant/plaintiff for

some more time on the ground that the respondent/defendant

No.2 had just been married and which was agreed to by the

appellant/plaintiff;

(h) that the appellant/plaintiff takes liquor almost every evening

and it seems that the respondents/defendants exploited the

situation and secured the signatures/thumb impressions of the

appellant/plaintiff on some papers relating to the suit property

which the appellant/plaintiff did not remember but believes that

this might have happened, for the reason that in response dated

8th October, 2002 to the legal notice dated 25th September, 2002

got issued by the appellant/plaintiff the respondents/defendants

claimed to have purchased the property from the

appellant/plaintiff on 23rd May, 1997;

(i) that no transaction of sale purchase had ever taken place

between the appellant/plaintiff and the respondents/defendants

and the respondents/defendants in the year 1997 were not even

in possession of any money to pay the sale consideration and

thus the documents in possession of the respondents/defendants

are illegal, null and void and not binding on the

appellant/plaintiff.

3. The respondents/defendants contested the suit by filing a written

statement, pleading:

(i) that the respondent/defendant No.1 is an absolute owner in

possession of the property, having purchased the same from the

appellant/plaintiff on the basis of documents duly executed by

the appellant/plaintiff in her favour;

(ii) that the suit is undervalued for the purposes of court fees and

jurisdiction and the market value of the property then was of

Rs.7-8 laks;

(iii) that the appellant/plaintiff had on 23rd May, 1997 executed an

Agreement to Sell, Receipt of Payment, General Power of

Attorney, Affidavit, Will etc. with respect to the property in

favour of the respondent/defendant No.1 and since the date of

purchase, the respondent/defendant No.1 is residing in the

property as owner without any interruption and hindrance;

(iv) that after purchase, the respondent/defendant No.1 had also

spent a huge amount on its construction and constructed ground

and first floors from time to time;

(v) denying that the appellant/plaintiff had raised the construction

of a double storeyed building on the property;

(vi) denying that the respondent/defendant No.1 was working as a

domestic help in the house of the appellant/plaintiff or that the

appellant/plaintiff had allowed the respondent/defendant No.1

to reside in the house as a licensee;

(vii) that the respondent/defendant No.1 was in occupation of the

property much prior to the purchase of the same; earlier she

was a tenant in occupation of only one temporary room and

kitchen;

(viii) denying that the appellant/plaintiff had in October, 1999 asked

the respondents/defendants to vacate the property or that the

respondents/defendants had sought more time;

(ix) denying that the appellant/plaintiff had executed the documents

in favour of the respondent/defendant No.1 under the influence

of liquor and pleading that some of the documents were

registered in the office of the Sub-Registrar;

(x) denying that the respondents/defendants were not possessed of

the means to purchase the property.

4. The appellant/plaintiff filed a replication reiterating that the

documents of sale were got signed under the influence of liquor taking

advantage of the weakness of the appellant/plaintiff and that no

consideration was paid and the transaction was illegal for the said reason.

5. On the pleadings aforesaid of the parties, the following issues were

framed in the suit on 5th March, 2003:

"1. Whether the plaintiff allowed defendant No.1 to occupy the suit property as licensee? OPP

2. Whether the defendant secured signature/thumb impression of the plaintiff on various documents when the plaintiff was under the influence of liquor? OPP

3. Whether the plaint is likely to be rejected for want of cause of action under Order 7 Rule 11 CPC? OPD

4. Whether the plaintiff has no locus-standi as the property has been purchased by the defendant? OPD

5. Whether the plaintiff has not affixed the court fees as per market value of the property? OPD

6. Whether the defendant raised construction from time to time on the suit property after its purchase? OPD

7. Whether the plaintiff is entitled for the relief claimed?

OPD

8. Relief."

6. The appellant/ plaintiff besides himself, examined two other

witnesses. The respondent/defendant no.1 examined the defendant no.2 and

three other witnesses.

7. The learned Addl. District Judge has vide the impugned judgment

dismissed the suit of the appellant/plaintiff, finding/observing/holding:-

(A). that the appellant/plaintiff had not placed on record any

documentary evidence regarding creation of license in favour

of the respondent/defendant no.1; the appellant/plaintiff had

also not produced any document to show that the

respondent/defendant no.1 was working as a domestic help in

the house of the appellant/plaintiff; there was not an iota of

evidence on record to show that the appellant/plaintiff had

allowed the respondent/defendant no.1 to occupy the property

as a licensee; accordingly issue No.1 was decided against the

appellant/plaintiff;

(B). that the documents viz. Agreement to Sell, Power of Attorney,

Receipt etc. with respect to the property were executed on 23rd

May, 1999 (supposedly incorrect for 23rd May, 1997); till

filing of the suit in or about October, 2002 there was no

whisper on behalf of the appellant/plaintiff about the aforesaid

documents having been executed under the influence of liquor;

       (C).      Shri S.N. Dixit, Advocate who had got the said documents

                 registered     and     who     was     examined      by       the

respondents/defendants had categorically stated that the

appellant/plaintiff had put his signatures on the aforesaid

documents and also received payment of Rs.30,000/- from the

respondent/defendant no.1 in his presence;

(D). the witness from the Sub-Registrar‟s office had proved

registration of the said documents;

(E). that the appellant/plaintiff had not agitated to any authorities

that his signatures on documents were obtained under undue

influence;

(F). that it was thus abundantly clear that the Agreement to Sell,

Receipt, Power of Attorney, Will etc. were not obtained by the

respondent/defendant no.1 under the influence of liquor; rather

the same were executed by the appellant/plaintiff out of his

own sweet will; accordingly issue No.2 was decided against the

appellant/plaintiff;

(G). issues No.3 & 4 were decided against the respondent/defendant

no.1 and in favour of the appellant/plaintiff;

(H). issue No.5 was not agitated by the parties;

       (I).      that the respondent / defendant no.2 in his evidence had stated

                 that   after   purchase    of   the   property   in   1997     the

respondents/defendants had raised construction thereon from

time to time out of their own funds; the respondents/defendants

had examined one Shri Rajesh Jain who had deposed that the

respondent/defendant no.1 had taken the loan from him in this

regard; and,

(J). that the mere fact that the said Shri Rajesh Jain had advanced

money for the purpose of construction did not substantiate that

the respondents/defendants carried out actual construction on

the suit property; for this purpose the respondents/defendants

were required to lead evidence of the person concerned from

whom they purchased the building material and the person

who actually carried out construction on the suit property and

in the absence of these it could not be ascertained that the

respondents/defendants raised construction after purchase;

accordingly the issue No.6 was decided against the

respondents/defendants for want of evidence.

In view of the finding that the appellant/defendant had failed to

establish having inducted the respondent/defendant no.1 as a licensee, the

suit was dismissed.

8. The appeal was admitted for hearing. The respondents/defendants on

18th July, 2006 gave a statement that they did not propose to transfer the title

or possession of the suit property or encumber the same during the

pendency of the appeal and will not do so without obtaining the prior

permission of the Court. Vide order dated 2nd July, 2009 the

appellant/plaintiff was permitted to amend the plaint by incorporating

therein the valuation of the suit for the relief of cancellation of documents.

Arguments were heard in the appeal and judgment reserved. Vide judgment

dated 16th March,2011 it was held that there was also a dispute between the

parties as to the nature of possession of the respondent/defendant no.1 of the

property before the alleged transaction of sale; that the nature and character

of such possession is relevant since in the event of it being held that there

was no sale, the question would arise whether the appellant/plaintiff was

still entitled to get a decree for possession and the answer to that question

would depend upon whether the respondent/defendant no.1 was a tenant or a

licensee. Accordingly exercising powers under Order XLI Rule 25 of the

CPC, the following additional issue was framed:-

"1A. Whether defendant no.1 was inducted in the suit property by the plaintiff as a tenant before 23rd May, 1997? OPD"

and the matter remanded back to the Trial Court for giving its finding

on the said additional issue after giving opportunity to the parties to adduce

evidence on the said issue.

9. The respondents/defendants again examined the respondent/defendant

no.2 and one Shri Rajesh Jain and the appellant/plaintiff besides examining

himself examined one Shri Joginder Singh.

10. The learned Addl. District Judge (Central) 12, vide judgment dated

27th February, 2012 (in CS 214/2011 Unique ID No.02401C0449522011)

has decided the aforesaid additional issue against the

respondents/defendants, finding/observing/holding:-

(I). that the respondents/defendants in the reply dated 8th October,

2002 to the Legal Notice dated 25th September, 2002 got issued

by the appellant/plaintiff had claimed possession of the

property as owners since 23rd May,1997 and had not uttered

even a single word about the possession prior to that and if so

on what terms and in what capacity;

(II). that the plea in the written statement that prior thereto the

respondents/defendants were tenants in the suit property is bald

and without any particulars as to the rate of rent etc.

(III). that from the stage of reply to legal notice, to the written

statement and then to the evidence, there was a constant step by

step improvement in their case on the part of the

respondents/defendants;

(IV). that the respondents/defendants had been successful in proving

their possession of the suit property since prior to 23rd May,

1997 in as much as the driving license of the

respondent/defendant no.2 w.e.f. 24th February, 1995 was from

the address of the suit property;

(V). that the appellant/plaintiff also had not seriously disputed the

possession of the respondents/defendants in the property prior

to 23rd May, 1997;

(VI). that the respondent/defendant no.1 who was claimed to be the

tenant and paying the rent had not appeared in the witness box;

(VII). no explanation also was given for non-appearance of the

respondent/defendant no.1 as a witness and adverse inference

was drawn therefrom;

(VIII). that though the respondent/defendant no.2 had pleaded that the

appellant/plaintiff used to enter receipt of rent in his diary but

the respondents/defendants did not give any notice to the

appellant/plaintiff to bring the same to the Court; and,

(IX). that on the preponderance of probabilities, the

respondents/defendants had failed to discharge the onus of the

additional issue.

11. After receipt of the finding aforesaid on the additional issue, the

appeal was again posted for hearing. The counsels have been heard.

12. The counsel for the appellant/plaintiff has argued; (i) that the

respondents/defendants had failed to establish that they had raised the

construction as existing on the property; (ii) that the respondents/defendants

have failed to establish payment of the purchase consideration of

Rs.30,000/- to the appellant/plaintiff; (iii) that the respondent/defendant no.1

obtained the signatures of the appellant/plaintiff on the documents of sale of

the property when the appellant/plaintiff was under the influence of liquor

and exercising undue influence on the appellant/plaintiff; and, (iv) that the

appellant/plaintiff was not even aware of the respondents/defendants having

so taken his signatures on the documents and became aware of the same only

on receipt of reply to the Legal Notice from the respondents/defendants; (v)

adverse inference has to drawn from non-appearance of

respondent/defendant No.1 who alone was in the know of facts, as a witness;

(vi) reliance is placed on Krishna Mohan Kul Vs. Pratima Maity AIR 2003

SC 4351 without citing any particular passage of the judgment which may

be applicable to the present controversy.

13. Per contra, the counsel for the respondents/defendants has argued that

(i) though the appellant/plaintiff had in the plaint set-up a case of having

raised construction in the year 1996-97 but gave up the same in his evidence

and claimed the construction to have been raised in the year 1994-95; (ii)

that no suggestion was given in the cross examination of Shri S.N.Dixit,

Advocate who had attested the documents of sale, to the effect that the

appellant/plaintiff at the time of execution was under the influence of liquor;

(iii) on the contrary a suggestion was given to the said Shri S.N. Dixit,

Advocate that he had not drafted the documents; the documents were drafted

by a Deed Writer and he had signed only as a attesting witness; (iv) that the

said suggestion itself to Shri S.N. Dixit showed that the appellant/plaintiff at

the time of execution of the documents was in his senses; (v) that the non-

examination of the respondent/defendant no.1 as a witness is irrelevant in as

much as it was for the appellant/plaintiff to prove execution of the

documents under the influence of liquor; (vi) that even the electricity

connection in the property is in the name of the respondent/defendant no.1-

that if the appellant/plaintiff was the owner and the respondent/defendant

no.1 only a licensee, it is inconceivable that the electricity connection would

have been in the name of the respondent/defendant no.1; (vii) that the

appellant/plaintiff has failed to prove/establish that he had raised

construction of the property; (viii) that the appellant/plaintiff is a driver with

the DTC; and, (ix) that the appellant/plaintiff in the cross examination had

admitted the possession of the respondents/defendants of the property since

the year 1994.

14. The counsel for the appellant/plaintiff in rejoinder has argued (i) that

for the sake of decency the appellant/plaintiff did not in the plaint plead that

he was having extra matrimonial affair/relationship with the

respondent/defendant no.1 but had volunteered the same during his cross

examination; (ii) that the respondent/defendant no.1 was the one who was

offering liquor to the appellant/plaintiff everyday; (iii) that the

respondent/defendant no.2 in his evidence has also admitted the said fact;

(iv) that the respondent/defendant no.1 got the documents executed from the

appellant/plaintiff taking undue advantage of her intimacy with the

appellant/plaintiff; and, (v) that it was only the respondent/defendant no.1

who could have been cross examined in this respect and her non-appearance

as a witness ought to be taken as adversely against the

respondents/defendants.

15. The counsel for the respondents/defendants interjects stating that no

case of any such intimacy was pleaded and thus no adverse inference from

non-appearance of the respondent/defendant no.1 to rebut the same can be

drawn.

16. I have considered the rival contentions.

17. The question to be answered from the evidence on record is, whether

the appellant/plaintiff has succeeded in proving that the documents agreeing

to sell the property to the respondent/defendant no.1 and putting the

respondent/defendant no.1 into possession thereof were executed by him

under the influence of liquor so as to be not bound therewith. I may further

add that even mere proving the execution of documents under the influence

of liquor will not entitle the appellant/plaintiff to a decree relieving him from

the otherwise binding nature of the said documents unless the

appellant/plaintiff is able to establish that the said documents constituting an

agreement in law between the appellant/plaintiff and the

respondent/defendant no.1 are void or voidable under the provisions of the

Indian Contract Act, 1872.

18. Section 19 of the Indian Contract Act, 1872 provides that where

consent to an agreement is caused by coercion, fraud or misrepresentation,

the same is voidable at the option of the party whose consent was so caused.

Section 10 thereof provides that free consent of the parties competent to

contract, lawful consideration and a lawful object are the essential

ingredients of a legally enforceable contract. Section 11 provides that every

person who is of the age of majority and who is of sound mind is competent

to contract. Section 12 provides that a person is said to be of sound mind if

at the time when he makes a contract he is capable of understanding it and

forming a rational judgment as to its effect upon his interest. Free consent is

defined in Section 14 as not caused by coercion, undue influence, fraud and

misrepresentation or mistake. Section 16(2) provides that a person may be

deemed to be in a position to dominate the will of another when he makes a

contract with a person whose mental capacity is temporarily affected by

reason of age illness or mental or bodily distress.

19. The appellant/plaintiff thus, in order to prove that the documents

signed by him under the influence of liquor are not binding on him, has to

prove that owing to consumption of liquor he was incapable of

understanding what he was doing and/or was incapable of forming a rational

judgment as to the effect of the said documents upon his interest or that

owing to the consumption of liquor his mental capacity was under distress.

20. The appellant/plaintiff has neither in the plaint, nor in the evidence

given any such particulars.

21. On the contrary, the plaint and the evidence proceed on the premise

that merely by consumption of liquor, the appellant/plaintiff was incapable

of understanding what he was doing or forming a rational judgment or that

he was under distress.

22. No such presumption can follow. I am in this regard reminded of the

answer given in the year 1952 by ARMON M. SWEAT, JR., a member of

the Texas House of Representatives, when asked about his position on

whiskey. He said:-

"If you mean whiskey, the devil's brew, the poison scourge,

the bloody monster that defiles innocence, dethrones reason, destroys the home, creates misery and poverty, yea, literally takes the bread from the mouths of little children; if you mean that evil drink that topples Christian men and women from the pinnacles of righteous and gracious living into the bottomless pit of degradation, shame, despair, helplessness, and hopelessness, then, my friend, I am opposed to it with every fibre of my being.

However, if by whiskey you mean the oil of conversation, the philosophic wine, the elixir of life, the ale that is consumed when good fellows get together, that puts a song in their hearts and the warm glow of contentment in their eyes; if you mean Christmas cheer, the stimulating sip that puts a little spring in the step of an elderly gentleman on a frosty morning; if you mean that drink that enables man to magnify his joy, and to forget life's great tragedies and heartbreaks and sorrow; if you mean that drink the sale of which pours into Texas treasuries untold millions of dollars each year, that provides tender care for our little crippled children, our blind, our deaf, our dumb, our pitifully aged and infirm, to build the finest highways, hospitals, universities, and community colleges in this nation, then my friend, I am absolutely, unequivocally in favour of it."

23. It is thus not as if merely because a man has consumed liquor, that it

can be said that he is incapable of understanding his actions or forming a

rational judgment or that his body is under distress.

24. For the appellant/plaintiff to succeed in having the documents

admittedly signed by him declared void, the appellant/plaintiff has to prove

that the consumption of liquor at the time of signing of the documents was

to such an extent as to make him incapable of understanding his actions,

forming a rational judgment or being under distress.

25. For this Court to declare the documents admittedly executed by the

appellant/plaintiff of sale of his property to the respondent/defendant no.1 to

be void, a finding will have to be returned that the intoxication with liquor

of the appellant/plaintiff at the time of executing the agreement was such for

the appellant/plaintiff to be said to be of unsound mind or under mental

distress of the kind to affect his mental capacity. Not only so, the suit having

been filed after nearly five years of the date of execution of the agreement

and the limitation under Article 59 of the Schedule to the Limitation Act,

1963 to seek such a declaration being three years from the date when the

facts entitling the appellant/plaintiff to have the instrument cancelled or set-

aside became known to him, the appellant/plaintiff will also have to

establish that the said unsoundness of mind owing to intoxication and

depletion of mental capacity continued right from the year 1997 till 2002

when the appellant/plaintiff got issued the notice preceding the suit. No such

pleadings or evidence are found. The case in the plaint, as aforesaid, only is

of the appellant/plaintiff being under the influence of and having weakness

for and/or being habituated to "liquor almost every evening". Significantly,

it is not the case that the appellant/plaintiff from the year 1997 till the year

2002 was perpetually drunk to an extent to affect his mental capacity. When

the appellant/plaintiff pleads consumption of liquor "almost every evening"

the appellant/plaintiff is to be understood to be in his senses at least at some

point of time in the day and to be not under the influence of liquor 24 hours.

26. For the appellant/plaintiff to prove being under the influence of liquor

24 hours, the appellant/plaintiff ought to have given evidence of his other

affairs which also were affected for the said reason. There is neither any

pleading nor evidence to the said effect. On the contrary, during the hearing,

it was informed that the appellant/plaintiff was/is a DTC driver. As a driver

of a public transport vehicle, he cannot be expected to be in a continuous

state of intoxication as is now being argued.

27. The appellant/plaintiff in his examination-in-chief also has not

deposed any such thing and has merely stated that the documents have been

procured by the respondents/defendants from him under the influence of

liquor. The documents as aforesaid are registered and which registration,

judicial notice can be taken of the fact, happens only in the morning hours

till the afternoon and not in the evenings. The plea as aforesaid is of the

appellant/plaintiff consuming liquor almost every evening. The

appellant/plaintiff thus cannot be expected to be drunk at the time when he

at least went for registration of the documents.

28. The counsel for the respondents/defendants is correct also in

contending that the suggestion by the appellant/plaintiff in the cross

examination of DW1 Shri S.N. Dixit, Advocate to the effect that the

documents were prepared by a Deed Writer at Kashmiri Gate and not by

him and he was merely witness thereto shows the awareness of the

appellant/plaintiff of where the documents were prepared and who

witnessed the same. Had the appellant/plaintiff been in a drunken state even

at that time, the question of his knowing who prepared the documents and

who witnessed the same would not have arisen. It is not the case of the

appellant/plaintiff that anyone else present at that time had informed him so.

In the same vein is the other suggestion in the cross examination that the

respondent/defendant no.1 had not gone to Kashmiri Gate on that date.

29. Once the appellant/plaintiff is found to have failed in establishing his

mental incapacity at the time of execution of the documents, the entire

edifice on which the appellant/plaintiff has built his case falls.

30. The counsel for the appellant/plaintiff has also sought to argue that

the respondent/defendant no.1 got the documents executed from the

appellant/plaintiff owing to then being in relationship with the

appellant/plaintiff and the appellant/plaintiff having executed the documents

owing to the undue influence of the said relationship and not for any

monetary consideration.

31. Not only is that not the case with which the appellant/plaintiff

approached the Court but even if such a case were to be believed, I am

unable to find the influence of an extra matrimonial relationship to be undue

influence within the meaning of Section 16 of the Contract Act. A lover or a

concubine cannot in the absence of anything more be said to be having a

real or apparent authority or to be standing in a fiduciary capacity qua the

person pleading undue influence. For a case of undue influence to be made

out, the relationship has to be shown to be such that one of the parties is in a

position to dominate the will of the other and uses that position to obtain an

unfair advantage over the other. Even if the appellant/plaintiff is to be

deemed to be in relationship with the respondent/defendant no.1 for over

five years, I fail to see as to how the said relationship can be said to be

placing the respondent/defendant no.1 in a position to dominate the will of

the appellant/plaintiff.

32. Significantly no family member of the appellant/plaintiff who only

could have deposed about the true state of affairs at the relevant time has

been examined. On the contrary a false case of the respondent/defendant

no.1 working as a domestic help and which fact also could have been best

proved only by the wife of the appellant/plaintiff, has been made out.

33. There is another very interesting aspect of the matter. Not only did the

appellant/plaintiff execute the Agreement to Sell and other documents in

favour of the respondent/defendant no.1 but also handed over the original

title documents relating to the property to the respondent/defendant no.1.

Rather it is the appellant/plaintiff who in his cross examination when asked

to produce the original documents deposed that he could not do so as the

same were handed over to the respondents/defendants and identified the said

documents. He in his cross examination has also deposed that the

documents were drafted by Shri S.N. Dixit, Advocate, again showing that

the appellant/plaintiff was fully in the know of what was happening and

how the documents were prepared. The original documents could not be on

the person of the appellant/plaintiff to have been taken away by the

respondents/defendants. The appellant/plaintiff must have taken the same

out from his residence or other place wheresoever they may have been kept,

to be handed over in pursuance to the transaction of sale. All this also shows

that the appellant/plaintiff was fully in his senses while transacting with the

respondent/defendant no.1.

34. Before delving into the issue of whether the agreement can be set

aside for being induced by undue influence, it is incumbent upon the Courts

to scrutinise the pleadings to find out whether such a case has been made

out in the pleadings and sufficient particulars thereof have been given, as

mandated by Order 6 Rule 4. The Supreme Court in Subhas Chandra Das

Mushib Vs. Ganga Prasad Das Mushib AIR 1967 SC 878, following its

earlier dicta in Ladli Prasad Jaiswal Vs. Karnal Distillery Co. Ltd. AIR

1963 SC 1279, laid down that with regard to undue influence "a vague or

general plea can never serve the purpose; the party pleading must therefore

be required to plead the precise nature of the influence exercised, the

manner of use of the influence, and the unfair advantage obtained by the

other". In the present case, a scrutiny of the plaint reveals no case of „undue

influence‟ having been put forward, much less one with full particulars as

required by law. The appellant/plaintiff in the plaint has chosen to describe

respondent/defendant no. 1 as domestic help employed in the house of the

appellant/plaintiff and being under financial distress. No other relationship

between the two giving rise to a presumption of undue influence or

domination of will of one by the other is suggested or even hinted at.

Although, the appellant/plaintiff has subsequently tried to improve his case

in evidence by disclosing that the documents were got signed under the

influence of respondent/defendant no. 1 with whom he had developed

intimacy and had illicit relations, the same is also hopelessly bereft of

details or particulars and is at best a vague and general plea which would

not pass muster in light of Order 6 Rule 4 and the clear and authoritative

dicta of the Supreme Court discussed above.

35. As far as the plea of drunkenness is concerned, the same is also

afflicted by the malady of lack of particulars and details. The plaint states

that the plaintiff has only one weakness - that of drinking in the evenings -

and that the same „seems‟ to have been exploited to procure his

signatures/thumb impressions on the documents sought to be cancelled. In

evidence, it is deposed that the appellant/plaintiff used to take liquor very

frequently and during the years 1996-2000 he used to take liquor even

during day-hours. It is stated that it was during the aforesaid period that

signatures had been fraudulently procured while he was under the influence

of alcohol. It can thus be seen that the pleas taken and evidence adduced are

highly vague, hazy and general and no particulars or details have been put

forward for the Court to infer contractual incapacity. The pleas and evidence

of the appellant/plaintiff seem to suggest that he was in a self-induced

stupor for nearly four years and has no recollection of his acts during that

time; the same is not only preposterous but also impossible and implausible.

As pointed out, there is no evidence adduced of other activities of the

appellant/plaintiff (such as work/profession) having suffered on account of

this alleged four year oblivion. The appellant/plaintiff cannot be permitted

to disturb the sanctity that law attaches to duly executed documents,

particularly registered ones, by taking such an unsubstantiated and absurd

plea.

36. Moreover, even in law, mere drunkenness is not sufficient to dislodge

a contract which is otherwise binding. Section 12 of the Contract Act which

defines as to when a person can be said to possess a sound mind for entering

into a contract, seems to suggest, especially under illustration (b) thereto,

that intoxication can render a person incapable of making a contract;

however, the drunkenness envisaged thereunder is of a severe variety - as

can be gauged from the expression „so drunk‟ used in the aforesaid

illustration - it must have the effect of crippling a person‟s ability to form a

rational judgment. Moreover, such inebriation should be shown to affect the

cognitive capacity of the person at the precise time when the contract is

executed as the Section recognises that a person who is usually of unsound

mind may make a contract when he is of a sound mind, as is also well

brought out by illustration (a) appended to the Section. As is felicitously

explained by the statement of Armon M. Sweat Jr. supra intoxication has

several gradations - which may be beneficial or detrimental - and law

permits only such drunkenness which is severe and capable of destroying

the mental faculty of a man to set aside a contract. Further, at the cost of

repetition, it must be emphasised that such inebriation has to be proved to

exist at the time the contract is entered into, in order to successfully bail the

maker out of a contractual obligation. The pleas and evidence of the

appellant/plaintiff neither indicate the severity of drunkenness nor suggest

that he was so affected by it at the precise time when he entered into the

agreement with the defendant no.1.

37. The view taken by me finds resonance in the judgment of the High

Court of Karnataka in S. Basavaraj Vs. V.N. Adilakashmamma

MANU/KA/0324/1998 wherein the Court seized of the same question - as

to whether a plea of a contract having been executed under the influence of

alcohol or the defence that the party was addicted to the consumption of

alcohol is a sufficient ground to have the contract set aside under Section 12

of the Contract Act - held that though under normal circumstances if it is

established that the executant was not only given to the consumption of

alcohol but what one may categorize as a long term addict, a Court would

take judicial notice of the fact that such a person would for the greater part

sink to a very weak mental condition, but stated however that one cannot

generalize with regard to such situations because there may be lucid breaks

when the party is perfectly and completely sober and it is for this reason that

even in the case of such a person that the law requires that there must be

strict factual proof of the fact that the infirmity was present at the point of

time when the contract was being executed. The Court relying upon the

minority judgment of the High Court of Australia in Bromley Vs. Ryan

(1956) 99 CLR 362 further pointed out that unlike other forms of mental

illnesses depriving a party of exercise of a sound mind, alcohol addiction is

virtually a self-induced condition and therefore such defense should be very

sparingly upheld and that too in extremely rare cases. It observed that there

is a well-settled principle of jurisprudence which postulates that a party

cannot take advantage of its own wrong and in this view of the law, if a

person puts himself into a position of alcoholic addiction, executes contracts

after accepting money from third parties and creates rights, the law would

be extremely slow in allowing such a party to escape the consequences of

the contract unless it is demonstrated to the hilt that the executant virtually

did not know what he was doing when the contract took place. Thus, for

this reason as well, the general and vague plea that the appellant/plaintiff

was a habitual drinker for four years cannot suffice (see also judgment of

UK Court of Appeal Irvani Vs. Irvani [2000] C.L.C 477). A general

discussion on the aspect of contractual capacity of a party can also be found

in Sona Bala Bora Vs. Jyotirindra Bhatacharjee (2005) 4 SCC 501 where

the Supreme Court has held that a person of unsound mind need not

necessarily be a lunatic and it is sufficient if the person is incapable of

judging the consequences of his acts. It pointed out that in civil matters the

issues have to be decided on balance of probabilities and need not be

established only by medical evidence and may be established by proving

such conduct as was not only not in keeping with the person concerned‟s

character but such that it could be not explained on any reasonable basis. It

lastly reiterated that the burden of proof lies on the person pleading

unsoundness of mind but in the facts of the case found the onus to have been

sufficiently discharged. Here, no other conduct of the appellant/plaintiff to

show that he was in such a state of drunkenness is pleaded or proved and the

conduct of transfer of property to respondent/defendant No.1, even if for

consideration below market price is not such as no reasonable person would

do, specially when intimacy with respondent/defendant No.1 is also argued.

In law i.e. Section 25 of the Contract Act, mere inadequacy of consideration

is not a ground for declaring a contract void.

38. As regards undue influence, the Courts have scarcely been inclined to

readily raise a presumption of undue influence even in cases of husband and

wife-where the partners share both physical as well as emotional intimacy

(see Tungabai Bhratar Purushottam Shamji Kumbhojkav Vs. Yeshvant

Dinkar Jog AIR 1945 PC 8 and Jean Mackenzie Vs. Royal Bank of

Canada AIR 1934 PC 210). The Supreme Court too in Subhas Chandra

Das Mushib (supra) held that merely because the parties are nearly related

to each other, no presumption of undue influence can arise. It quoted with

approval the following passage by the Judicial Committee of the Privy

Council in Poosathurai v. Kappanna Chettiar AIR 1920 PC 65 and which

deserves to be reproduced in verbatim:

"It is a mistake (of which there are a good many traces in these proceedings) to treat undue influence as having been established by a proof of the relations of the parties having been such that the one naturally relied upon the other for

advice, and the other was in a position to dominate the will of the first in giving it. Up to that point "influence" alone has been made out. Such influence may be used wisely, judiciously and helpfully. But whether by the law of India or the law of England, more than mere influence must be proved so as to render influence, in the language of the law, "undue". (emphasis supplied)

39. I also find the Division Benches of the High Courts of Andhra

Pradesh and Bombay in Shivdas Loknathsing Vs. Gayabai Shankar

Surwase MANU/MH/0966/1992 and Sathi Sattemma Vs. Sathi Subbi

Reddy AIR 1963 AP 72 to have not allowed a general plea of undue

influence in the case of illicit relationships with a paramour or mistress to

set aside a contract which was otherwise duly executed in law.

40. Whichever way one looks at, I am unable to find any merit in the

appeal which is dismissed; however in the facts no costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J SEPTEMBER 27, 2013 bs/pp..