P L D 1973 Lahore 47 (PLP)

It is one thing to say that the transaction is invalid on account of the undue influence practised by appellant No.1 on the res pondent, and it is quite another to say that the respondent had not received the consideration. It was open to the learned Judge to have decreed the suit on the question of undue influence if he could validly do so, but only because he thought that the respondent was under the undue influence, he could not disturb the finding of the Courts below on the issue of consideration, when he could not point out any infirmity in that finding on account of any error of law or procedure. The Courts below had, in arriving at the finding about the consideration, relied on the evidence produced by the appellants. It is beyond the scope of an appeal under section 100 of the Code of Civil Procedure to examine the evidence on facts so arrived at by the two lower Courts on the ground of insufficiency or reliability of the witnesses. It will amount to appraisal of evidence, and it is now well established that the finding on a question of fact howsoever erroneous it may be cannot be interfered with in second appeal. In Abdul Majid v. Khalil Ahmad (P L D 1955 F C 38) it was held by their Lordships that:‑ "a fallacy in appraising the evidence as to a fact, unless it amounts to a material mistaken assumption, is merely an error in coming to a finding as to that fact, and such error has never been held to be an error of law justifying interference in second appeal." It was further held:‑‑ "that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross and inexcusable the error may seem to be unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits." In Karamat Ali v. Muhammad Younus (P L D 1963 S C 191) it was observed by Hamoodur Rehman, J. (as he then was and now his Lordship the Chief Justice): "There was no illegality, therefore, committed by the trial Court in admitting a certified copy only of the notice. The weight to be attached to such evidence was, however, a different matter. In the absence of the original it is true that the existence of the interpolation could not have been established with any degree of certainty but the High Court in second appeal had no jurisdiction to go into the question relating to the weight to be attached to a particular item of evidence." In Mst. Durga Choudhrani v. Jawahir Singh Choudhry (17 I A 122), the Judicial Committee of the Privy Council held that an erroneous finding of fact is a different thing from an error or defect in the procedure and that there is no jurisdiction to entertain a second appeal on the ground of such an erroneous finding, however gross or inexcusable the error may seem to be. Their Lordships observed that when there is no error or defect in the procedure, the finding of the first Appellate Court, upon a question of fact, is final, if that Court had before it, evidence proper for its consideration, in support of the finding. The same view was taken in Feroze Din v. Hashmat Ali (P L D 1963 Lah. 283). In Mst. Bhirawan v. Ahmad Bakhsh (P L D 1955 Lah. 187) it was held by Kaikaus, J. :‑ "The District Judge is the sole Judge of facts and the conclusion from facts arrived at by him cannot be impeached unless the conclusions be not possible in law." In Nadir Shah v. Lal Shah (P L D 1954 Lah. 447) it was held that there was no warrant for the contention "that a conclusion or inference to be drawn from the evidence is always s a matter of law, the correctness of which can be called m question in second appeal. This argument is often advanced from the Bar but there is no warrant for it. An inference as to a fact, drawn from the evidence, direct or circumstantial, remains an inference of fact which cannot be questioned in second appeal." In this view of the matter the High Court had no jurisdiction to set aside the concurrent finding of the Courts below on the question of jurisdiction.

4. The next question to be examined is whether the learned Judge was justified to decree the suit on the ground of undue Influence. The plaintiff‑respondent's claim throughout was that he had not entered into any sale transaction with the appellants and they got the mutation sanctioned without his knowledge by practising fraud on the revenue authorities. The finding of the learned Judge that the sale was made by the plaintiff under the undue influence is manifestly at variance with the plaintiff's own case. The plaintiff‑respondent had indeed, pleaded In the written plaint that the mutation was sanctioned due to the fraud and undue influence of appellant No.1, but, in the context, the plea was not that he had entered into the sale transaction and it was bad because he had acted under undue influence of appellant No.1. Of course, he could not plead that he did not enter into the sale transaction, and at the same time say that he entered into the transaction, but it was bad on the ground of undue Influence cast upon him by appellant No.

1. In Inayat Ullah v. Kanshi Ram (A I R 1937 Lah. 437) it was observed It is one thing to assert that a transaction is bogus and a totally different thing to urge that it was brought about by undue influence. As indicated above, the contention first raised by the appellant was that it was a case of undue influence. Later, it was urged that the original transaction was a bogus affair. This by itself would indicate that the plaintiffs themselves were not sure as to what line to take. In Syed Muhammad v. Fateh Muhammad (22 I A 4) It was held that undue influence and incapacity are totally different things. These observations were followed by a Division Bench of Calcutta High Court in Ram Sundar v. Kali Narain (A I R 1927 Cal. 889). In Binduhashini Dasi v. Girldhari Lal Roy ((1909) 3 I C 330) it was held by the Judges of the Calcutta High Court that it was not open to a pardanashin lady to plead that she never executed a certain document and in the alternative, that if she executed it, she did so under circumstances which did not make it binding upon her as a pardanashin lady. One of the issues for determination of the Court in Mohammad Bakhsh Khan v. Hosseini Bibi (15 I A 81) was as to whether the hibbanama on behalf of the lady was genuine and valid and executed with her knowledge and consent, or whether it was manufactured without her knowledge and consent, or whether it was executed under undue influence. In the opinion of their Lordships of the Privy Council "the latter part of that issue ought not to have been admitted", because "it was absolutely inconsistent with the case made by plaintiff". Thus, where a plaintiff sues alleging that a deed purporting to be executed by him is a forgery, the Court ought not to admit the inconsistent issue whether it was executed under undue influence. It is well settled principle that a person who is not a stranger to the transaction and has personal knowledge of the true facts of the case, is forbidden from pleading Inconsistent facts. A stranger to the transaction may, however, raise inconsistent pleas on the same facts, but here the respondent indubitably was not a stranger. He, therefore, could not raise inconsistent pleas which were destructive of each other.

5. The respondent produced 9 witnesses in support of his case. All of them stated that the respondent was not present at the time the impugned mutation was sanctioned. The case which he wanted to establish before the trial Court was that the sale transaction was a bogus one. He did not lead any evidence nor did he himself depose that he had sold the property under undue influence of appellant No.

1. The mere fact that he mentioned undue influence in his plaint without further pleading that he had entered into the transaction, could be of no avail to him. He consistently and categorically took the stand that he had not sold the land. The plaintiff‑respondent was, therefore, not Inconsistent in the position which he had taken during the trial of the suit; his stand being that there was no transaction at all. It was only the learned Judge in Chamber who completely deviated from the case which the plaintiff‑respondent wanted to establish before the trial Court or the District Judge. This, of course, he could not do because by so doing he gave effect to a plea which the plaintiff had not raised in that manner, and the same was inconsistent and destructive of his consistent stand and plea that he was never a party to the alleged transaction of sale with the appellants.

6. The learned Judge has held that the transaction was bad on the ground of undue influence. Even if we assume that the respondent could raise the plea of undue influence, although it was inconsistent with the plea which he has consistently taken that he had not sold the property and was not present at the time, yet the finding cannot be sustained. The learned Judge in dealing with the plea observed:‑ "The learned District Judge has simply ignored the plea of undue influence on the analysis that the plea of fraud and misrepresentation on which the appellant had led no evidence is inconsistent with the plea of undue influence." The observation is not borne out by the judgment of the learned District Judge. The learned Judge in Chambers was also in error to observe that "the plea of undue influence, in the estimate of the learned Judges, runs counter to the plea of fraud and misrepresentation inasmuch as if Mumtaz succeeded in that, there was no need of proof of fraud or misrepresentation. On this reasoning the learned District Judge as also the trial Judge had considered it unnecessary to go into the question of undue influence." It is apparent from the judgment of the learned District Judge that the question which was raised before him was that appellant No.1 had got mutation sanctioned due to fraud practised by him on the Revenue Authority who sanctioned the mutation. He, therefore, dealt with that question and by referring to the evidence of the parties held that the mutation was sanctioned at the instance of the respondent himself and was for consideration. He did not advert to the question of undue influence, because in the context of the position adopted by the respondent, it did not arise. The question of undue influence presumably was not raised before him. The learned Judge in Chambers was in manifest error to make the above observations and he has, it is obvious, misread the judgment.

7. The learned Judge in Chambers while reversing the judgments of the Courts subordinate, relied on the circum stances that the respondent had "lost parents when he was in his teens"; and that he lived with Mumtaz appellant "who brought him up, looked after his land and managed all his affairs". It is on these facts that the learned Judge observed:‑ The conclusion on the evidence, therefore, is irresistible that the plaintiff had established the basic facts on which he claimed the transaction to be the result of the undue influence exercised by his sister's husband Mumtaz respondent. The fact also remains that the sale was in favour of Mumtaz respondent's three minor sons, who were not in a position to pay. This fact is also established on the record that Mumtaz owned no land when the appellant came to live with him and at the time of the sale he owned only nine acres of land It was in these circumstances and based on the aforesaid facts that the learned Judge in Chambers held that the plea of undue influence stood established. His judgment is, however, con spicuous by an absence of reference to any statement on the part of the respondent, or any of his witnesses, that he had made the sale transaction which he would not have done but for the fact that he was dominated by Mumtaz appellant. The question, therefore, arises whether on the statement of facts so disclosed that the respondent was the brother of Mumtaz appellant's wife, that he had been living with him after the death of his father, and that the appellant had managed the respondent's property, it could validly be held that the transaction was vitiated by undue influence. These facts may establish good relations between the respondent and appellant No. 1, but the existence of such relationship does not, by itself, create a bar for them to enter into any contractual obligations. They could enter into a contract and the contract could be enforced against each other like any other contract, but it was open to a persons who in the circumstances, might be under the influence of the other to avoid the contract through Courts by establishing that but for the undue influence which was practised upon him, he would not have entered into the transaction. In order that a contract may be bad on this ground, it is further to be established that the contract was unfair and unconscionable. In Baudains and others v. Richardson and another (v) it was laid down by their Lordships of the Privy Council "that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary also to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power that the will, such as it is, has been produced." The same question was considered by the Judicial Committee in Bur Singh and others v. Uttam Singh and others (38 I A 13) and it was observed:‑ So far as the charge of undue influence is concerned, all that is shown on the part of those attacking the will is that there was motive and opportunity for the exercise of such influence by the defendants, and that some of them in fact benefited by the will to the exclusion of other relatives of equal or nearer degree. Circumstances of that character may sometimes suggest suspicion, and would certainly lead the Court in the present case to scrutinize with special care the evidence of those who propound the will; but in order to set it aside there must be clear evidence that the undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property. The question was also examined by the Supreme Court of Pakistan in Chiragh Bibi v. Rashida Begum (P L D 1958 S C (Pak.) 209) and it was held that mere influence and persuasion to make a will is not undue influence and that in respect of the charge of undue influence, there must be char evidence that it was in fact exercised, and that mere motive or opportunity for such exercise is not sufficient.

8. It has been held in the present case that the mutation was sanctioned at the instance of the respondent. The learned Single Judge has not disturbed this finding of fact. So far as the undue influence is concerned, the respondent only attempted to prove some of the facts which can at best establish that the appellant Mumtaz was in a position to exercise undue influence, but he has not produced any basic evidence; in fact he has not even in his own statement deposed that he sold the property or that he consented to the mutation being sanctioned which he would not have done had the undue influence not been exercised by appellant No.1. There is nothing on the record to show that the appellant worked the respondent up to a state in which the respondent bad told the Revenue authorities sanctioning the mutation that he had sold the property. Undue influence is defined in section 16 of the Contract Act and in order that a person may succeed on this ground, it must be established (a) that the relations subsisting between the parties should be such that one of them is in a position to dominate the will of the other; (b) that the dominant party obtains an unfair advantage over the other; and (c) that the dominant party uses his dominant position to obtain that unfair advantage. The existence of a contract is a pre‑requisite before a plea of undue influence is taken, because undue influence is an influence brought to bear upon a person entering into an agreement or consenting to a disposal of property. If a person consistently maintains that there was no contract, the question of undue influence having been practised upon him does not arise at all. In Mohammad Bakhsh Khan v. Hosseini Bibi it was observed that where undue influence is alleged "it is necessary to examine very closely all the circumstances of the case", and the principles for determining this question were laid, that is to say, "was the transaction a righteous, transaction that is, was it a thing which a right‑minded person might be expected to do", "was it an improvident act", and "whether the transaction originated with the seller." Thus, the first thing which has to be established in a case of undue influence is that the relations subsisting between the parties were such that one of them was in a position to dominate the will of the other. If that is proved, then it is also to be established that he in fact used that position in order to obtain an unfair advantage over the other. The respondent did not lead any evidence to prove that the transaction was an unconscionable one. He has not deposed that the consideration given for the sale was so absurdly low that no reasonable person could have sold the property. In the circumstances, the learned Judge was not justified to give the finding of undue influence having been exercised upon the respondent, because raising merely an atmosphere of suspicion is not sufficient in a case of undue influence, but there must be clear and definite evidence of the case propounded. In Naraini Singh v. Gajraj Koer (A I R 1935 Oudh 165) it was held that it is essential to take care that the decision of the Court rests not upon suspicion, but upon legal grounds established by legal testimony. In the present instance, the evidence adduced differed from the case propounded in the plaint as also before the learned Judge in Chambers, and that evidence too, in our view, is hardly sufficient to raise even a suspicion about the transaction attacked.

8. On the above view of the matter, we accept the appeal and by reversing the judgment and decree passed by the learned Judge in Chambers dismiss the suit of the plaintiff‑respondent with costs throughout. S. Q Appeal accepted.