1969 PLP 531 (SCMR)

B. Z. KAIKAUS, J.‑This is a defendant's appeal by special leave in a. suit to set aside a gift deed. The plaintiff‑respondent is the elder brother of the defendant‑appellant. According to the case of the respondent, as disclosed in the plaint and in the statement before issues which supplemented that plaint, in January 1953, the respondent who was old and infirm, and had been blind for about ten years, was deserted by his only son Ghulam Haidar on account of the influence of one Nazir Muhammad who professed to be Imam Mehdi. The relations of the respondent with the appellant had not previously been happy for the appellant had got the respondent convicted in a criminal case, but the appellant with a view to taking advantage of the situation approached the respondent and asked him to go to his house saying that he would bring back his son. The respondent who was in a helpless condition agreed but when he did go to the appellant's house the appellant instead of bringing the son back told him that his son wanted to murder him. A few days later the appellant asked the respondent to give him his land for cultivation and promised that he would give up the land when his son returned. The respondent agreed to give his land for cultivation only but the appellant fraudulently got executed by him on the 17th of January 1:953, a deed which the respondent subsequently came to know was a gift deed. The respondent was entirely at the mercy of the appellant at that time and was capable neither of understanding the nature and effect of the deed on which he put his thumb mark nor of resisting the will of the appellant. The deed was challenged in the plaint on grounds of fraud and undue influence. The prayer was for possession of the land which was the subject‑matter of the suit. The appellant in his written statement denied that the gift deed was the result of fraud or undue influence. The appellant claimed that the gift had been made on account of the services rendered by him to the respondent. He admitted that the respondent was being protected and looked after by him at the time the deed was executed. The following issues were framed :‑ (1) Was the plaintiff under the influence of the defendant at the time o the writing and completion of the deed of gift and did the defendant obtain it through his undue influence? (2) Was not the subject‑matter of the deed of gift read to the plaintiff or explained to him and had he in fact only purported to give the land on lease? (3) Was the deed of gift obtained by fraud or undue coercion? (4) Relief. The trial Court found on all issues against the respondent and dismissed the suit. On appeal, the learned District Judge found that the gift was the result of undue influence and, accepting the appeal, he decreed the suit. In second appeal to the High Court the first ground urged was that the deed was not the result of undue influence, but this ground the learned Judges of the High Court refused to entertain as it was concluded by a finding of fact not liable to be challenged in second appeal. The second ground urged before the High Court was that the suit was barred by Article 91 of the Limitation Act. According to Article 91, limitation for a suit to set aside a deed in a case not otherwise provided for is three years from the date when the plaintiff comes to know of the circumstances entitling him to sue for cancellation of the deed. On behalf of the appellant it was contended before the High Court that the respondent knew of the nature of the deed at the time when he executed it and the suit which was brought on the 4th of April. 1956, was time‑barred. The learned Judges pointed out that according to the plaint the plaintiff had come to know of the true nature of the deed subsequent to its execution and as the question of limitation could not be decided without a fresh inquiry into facts, the plea which had not been raised in the lower Courts was not allowed to be raised. The High Court dismissed the appeal without notice to the respondent. The same two grounds were urged before the High Court has been urged before us. We will take up first the one relating to limitation on which greater stress has been laid during argument. In view of section 3 of the Limitation Act, which makes it obligatory on the Court to dismiss a proceeding on the ground of limitation although the plea has not been raised by a party, it is open to a defendant to take the plea of limitation even in are appellate Court for the first time provided that the matter can be decided on the basis of facts which are admitted or are patent on the record, and a new investigation into facts is not necessary, and provided also that the plea, if raised in the trial Court could not have been made by a plea of the fact. In view of his limited right to take this plea learned counsel for the appellant contended, in the first place, that even on the allegations in the plaint the suit was time‑barred. According to him, the respondent had excepted in the plaint his knowledge of the fact that he had executed a gift deed, at the time the deed was executed. An examination of the plaint showed, however, that this contention was unfounded. The case of the plaintiff in the plaint was that the appellant had got a deed of gift executed fraudulently and it was only subsequent to the execution that he came to know of the nature of the deed, although the time at which he came to know of its nature was not specifically mentioned. In the statement before issues, which too is a part of pleading, it had been stated that the respondent had agreed to give land for cultivation only. But even if we ignore the statement before issues there is no force in the contention that on the plaint the suit was liable to be dismissed as time‑barred. The next contention of learned counsel for the appellant was that there is a finding by the District Judge as to the respondent being aware of the contents of the deed at the time when it was executed, and that as the question as to whether the respondent was aware of the contents of the deed which he had executed had been put in issue the finding of the District Judge could be availed of for deciding limitation. This contention too we found to be unjustified on a reference to the judgment of the District Judge. There is no express finding in the judgment that the respondent was aware of the contents of the deed, and learned counsel is unable to point to any words in the judgment which would necessarily imply such a finding. On the other hand, there are words in the judgment which would lead to an opposite conclusion. The learned Judge, when he commenced the discussion, stated the question which he was to decide thus :‑ "The only point, which falls for determination in this case is, whether the document (deed of gift) represents the real intention of the party executing it or whether it was brought into existence under undue influence exercised over the plaintiff by the defendant." It is this question which ultimately was answered by the District Judge in favour of the respondent and the way the question is framed would show that the learned Judge did not accept the document as representing the real intention of the respondent. There is another reason why the plea of limitation should not be entertained at this stage. Had this plea been taken in the trial Court it would have been open to the respondent to contend that possession had not passed under the gift on the date of the deed and that limitation could not commence till possession was transferred because the gift which was governed by Muhammadan Law would not be complete as long as possession remained undelivered and there would be no cause of action for filing a suit. With respect to the finding of undue influence, the contention put forward is that such a finding is not wholly one of fact and even a Court of Second Appeal can consider whether the District Judge has really appreciated what is meant by the exercise of undue influence. It is correct that the question whether on proved facts undue influence can be held to be established may in a particular case be one of law. But learned counsel said nothing to show that such a question arises in the present case. The learned District Judge found that on account of the physical and mental condition of the respondent and the attendant circumstances the appellant was in a position to dominate the will of the respondent and he did exercise his influence in order to secure a deed of gift. This finding is not in any way liable to attack on a legal ground. As a matter of fact, in respect of the proof of undue influence the appellant has been treated better than he was entitled to for, as observed by the learned Judges of the High Court, the onus of proving that the deed was not the result of the exercise of undue influence was, under the circumstances, on the appellant. Their Lordships of the Privy Council have laid down in a number of judgments that once the existence of authority or influence by the person who has taken advantage is established, it is for such person to prove that the act of gift was the result of the) free exercise of the will of the donor. In Soharah v. Chabak Binte (AIR 1927 P C 148) their Lordships of the Privy Council said :‑ "The relief given by a Court of Equity is a secondary consequence of the principle that a person, standing in a relationship in which authority or influence may be supposed to exist, cannot Bold a mere gilt without making it clear that the intention to make it was not the result of his influence. The relationship itself does not necessarily preclude the making of the gift ; but the burden lies on the donee to show that there was no such influence as to the source of the gift. But he can discharge the burden incumbent on him by showing that the relationship notwithstanding, the donor knew completely what he was doing, and acted of his own complete free will." Again, in Inche Noriah v. Shaik Allie (AIR 1929 P C 3), their Lordships quoted with approval a passage from Allcard v. Skinner ((1888) 36 Ch. D 145) wherein the reason for the rule as to the placing of onus in such a case on the donee was thus stated :‑ " .In the second class of cases the Court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent the relations which existed between the parties and the influence arising therefrom being abused." There are similar observations in Parikh Atmaram Maneklal v. Bai Hira (AIR 1948 P C 111). In the present case, not only has the appellant failed to establish that the act of gift was the result of the free exercise of the will by the donor but the circumstances are sufficient for leading to a positive inference that the deed was the result of undue influence. This appeal is dismissed with costs. Appeal dismissed.