# Satya Narain v. Shiv Shankar & Ors

- **Citation:** (2019) 3 ILRA 702
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2017-05-26
- **Case number:** Second Appeal No. 240 of 2017
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satya-narain-v-shiv-shankar-ors-44304
- **Pages:** 6

## Headnote

A. Contract Law-Indian Contract Act,
1872
-
Section
16
-
Property
-
Cancellation of Sale deed - Fraud - undue
influence due to fiduciary relationship -
Old age

Held:- Plaintiff was first required to establish
the fiduciary relationship between himself and
the defendants before the onus to establish
that such undue influence had not been
exercised, could arise. - The plaintiff had to
establish that defendants were his relatives
and that the plaintiff was mentally unsound,
illiterate and was unable to bear the undue
influence applied by the defendants. Mere old
age is not a ground to allege that one is
mentally unstable and vulnerable to undue
influence. Only when these allegations are
established would the burden shift upon the
defendants. (Para 9, 13)

The plaintiff could not prove fraud, undue
influence or even existence of a fiduciary
relationship. In the absence of these factors,
3 All. Satya Narain Vs. Shiv Shankar & Ors.
703
the validity of a registered document cannot
be challenged. (Para 14)

Second Appeal dismissed (E-5)

List of Cases Cited:-

## Text

702 INDIAN LAW REPORTS ALLAHABAD SERIES
16.11.1992 showing unwillingness to get
sale deed executed becomes improbable. It is
also noteworthy that when defendantappellant, who is alleged to have contested
elections of M.L.A. and M.P., as mentioned
in internal page 11 of the judgment of Trial
Court and was Chairman of Municipal
Board, Nagar Palika, Ujhani, the story of
obtaining loan of Rs.13,000/- by him from
plaintiff and payment of interest @ Rs.400/-
also becomes highly improbable. The lower
Appellate Court has rightly held that plaintiff
successfully proved the impugned agreement
for sale and that he has always been ready
and willing to perform his part of contract.

10. Learned lower Appellate Court has
rightly held that when a registered agreement
for sale has been executed between the
parties, the same may be considered to have
ceased to exist by execution of mere receipt
and can only be cancelled by executing
registered deed of cancellation. As far as
report of expert is concerned under law the
reports submitted by two experts are only an
opinion having no binding effect under
provisions of Section 45 of Indian Evidence
Act.

11. In view of discussions made
above, I find that the learned counsel for
appellant has failed to show any illegality,
incorrectness
or
perversity
in
the
impugned judgment and decree passed by
learned Appellate Court. The appeal does
not involve any substantial question of
law and is being devoid of merits is liable
to be dismissed.

12. The appeal is accordingly
dismissed with costs throughout. The
impugned judgment and decree are affirmed.

13. Interim order, if any, stands
vacated.

14. Let the lower court record be
sent back to Court below along with a
copy of this judgment for necessary
action, if any.
----------
(2019)11ILR A702

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.05.2017

BEFORE
THE HON'BLE RAKESH SRIVASTAVA, J.

Second Appeal No. 240 of 2017

Satya Narain ...Appellant
Versus
Shiv Shankar & Ors. ...Respondents

Counsel for the Appellant:
Mohammad
Aslam
Khan,
Sri
Ujjwal
Tripathi

Counsel for the Respondent:
-------------------------------

A. Contract Law-Indian Contract Act,
1872
-
Section
16
-
Property
-
Cancellation of Sale deed - Fraud - undue
influence due to fiduciary relationship -
Old age

Held:- Plaintiff was first required to establish
the fiduciary relationship between himself and
the defendants before the onus to establish
that such undue influence had not been
exercised, could arise. - The plaintiff had to
establish that defendants were his relatives
and that the plaintiff was mentally unsound,
illiterate and was unable to bear the undue
influence applied by the defendants. Mere old
age is not a ground to allege that one is
mentally unstable and vulnerable to undue
influence. Only when these allegations are
established would the burden shift upon the
defendants. (Para 9, 13)

The plaintiff could not prove fraud, undue
influence or even existence of a fiduciary
relationship. In the absence of these factors,
3 All. Satya Narain Vs. Shiv Shankar & Ors.
703
the validity of a registered document cannot
be challenged. (Para 14)

Second Appeal dismissed (E-5)

List of Cases Cited:-

1. (Mst) Sabirunnisan Vs Hakimuddin (1997) 8
RD 658.

2. Smt. Suresh Wati Vs St. of U.P. & ors.
(2005) 23 LCD 1662.
3. Subhas Chandra Das Mushib Vs Ganga
Prasad Das Mushib & ors. AIR 1967 SC 878.
4. Iqbal Ahmad Vs Smt. Naiul 2004 (3) AWC
1974

(Delivered by Hon'ble Rakesh Srivastava, J.)

1. This second appeal under section
100 of the Code of Civil Procedure, 1908
is directed against the judgment and
decree dated 15.02.2017 passed by the
Additional District Judge, Court No.3,
Faizabad in Civil Appeal No.212 of 2012
upholding the judgment and decree dated
13.12.2012 passed by Judge, Small
Causes/Civil Judge (Senior Division),
Faizabad in Civil Suit No.18 of 1981
(Parmeshwar Deen v. Hausila Prasad and
another) whereby the suit preferred by the
appellant was dismissed.

2. Briefly stated the facts are that
Parameshwar Deen filed a Civil Suit
No.15 of 1981 against Hausla Prasad and
Mata Badal for cancellation of a sale deed
dated
27.07.1979
executed
by
Parmeshwar Deen in favour of the
defendants. During the pendency of the
suit, the plaintiff, Parameshwar Deen died
and in his place Satyanarayana was
substituted as plaintiff. Similarly, during
the pendency of the suit, Hausla Prasad
died and he was substituted by his son
Shiv Shankar. Mata Badal, another
defendant also died during the pendency
of the suit and he was substituted by
Mahavir, Ram Abhilakh, Ganga, Jamuna
and Smt Krishna.

3. The suit was filed on the ground
that Hausla Prasad and Mata Badal were
the plaintiff's nephews; that the plaintiff
was an old, illiterate and rustic person
aged about 84 years; that he had no wife
or children; that the defendants Hausla
Prasad and Mata Badal started visiting his
place and assisting him in agriculture as a
result of which a fiduciary relationship
was established between them; that the
defendants persuaded the plaintiff to
execute a Will so that the plaintiff would
remain the owner of the property during
his lifetime and by operation of the Will,
the property would transfer to the
defendants after the death of Parmeshwar
Deen; that the defendants took the
plaintiff to the office of the Sub-Registrar,
Bikapur on 27.7.1979 on the pretext of
executing a Will deed, however, the
defendants fraudulently got a sale deed
executed in their favour in respect of plot
no.814 and half part of plot no.472; that
when the plaintiff came to know about the
execution of the sale deed, he asked the
defendants to get the same cancelled, but
on their refusal, the Civil Suit No.15 of
1981 was filed on 1.12.1980.

4. The case of the defence is that the
defendants and the plaintiffs are not
related to each other in any manner; that
both had maternal place in the same
village; defendants were goldsmiths by
profession and sold utensils; that the
plaintiff took a loan of Rs.4000 from
them and as he was unable to pay, he
expressed his desire to execute a sale
deed of the property in dispute for a sum
of Rs.8000; that the plaintiff went to the
704 INDIAN LAW REPORTS ALLAHABAD SERIES
office of the Sub Registrar and executed a
sale deed in a fully conscious state and
after receiving a sum of Rs.4000 in
addition to the sum of Rs.4000 taken by
him on loan Parmeshwar Deen executed
the sale deed in favour of the defendants;
that after the execution of the sale deed
mutation also took place.

5. On the basis of the pleadings the
trial Court framed five issues. First being
as to whether the sale deed dated
27.7.1979 was liable to be cancelled.
Satyanarayan examined himself as PW1
and Ram Kumar Singh as PW2. On
behalf of the defendants one Shiv Shanker
was examined as DW1, Ganga Prasad as
DW2 and Ram Kumar as DW3. The
plaintiff filed a copy of the sale deed,
extracts of khatauni, details of Kutumb
register.
The
defendants
also
find
documentary evidence.

6. The trial Court found that the
plaintiff had failed to establish his case
and the sale deed was not liable to be
cancelled. With these findings the trial
Court dismissed the suit. On 13.12.2012
an appeal was filed before the District
Judge which was also dismissed by the
Additional District Judge on 15.2.2017.

7. Heard Sri Mohd Arif Khan,
Senior Advocate assisted by Sri Ujjwal
Tripathi, the learned counsel for the
appellant at some length.

8. The submission of the learned
counsel for the appellant is that when the
document is challenged on the ground of
fraud, and undue influence due to
fiduciary relationship then the burden to
prove the validity of the transaction shifts
upon the defendants, who relies upon the
document. His submission is that in this
case the defendants have failed to
establish that document was executed by
Parameshwar Deen out of his free will
and since the document has been obtained
by playing fraud and undue influence, the
suit ought to have been decreed. The
contention of the learned counsel for the
appellant is that it is established from
record that both the defendants reside in
the same village. Evidence has been led to
the effect that
they used
to call
Parmeshwar Deen as mama i.e. maternal
uncle. The plaintiff's age as 84 years has
not been disputed. He was illiterate and as
such he was to be treated as a pardaah
nasheen lady and consequently the burden
was upon the defendants to establish that
the sale deed was executed without any
undue influence which they failed to
discharge. In support of his contention, he
has placed reliance upon the cases
reported
in
(Mst)
Sabirunnisan
v.
Hakimuddin, (1997) 8 RD 658, and Smt.
Suresh Wati v. State of U.P. and others,
(2005) 23 LCD 1662.

9. I have gone through the
judgments very carefully and find that the
lower Court has discussed the evidence in
great detail. The plaintiff had to establish
that defendants were his relatives i.e
nephew (bhanjas) and that the plaintiff
was mentally unsound, illiterate and was
unable to bear the undue influence
applied by the defendants. There is
nothing on record to establish that the
defendants were in any manner related to
the plaintiff Parameshwar Deen. No
evidence has been led regarding his
mental and physical ailments or the
capacity to take a sound decision. Mere
old age is not a ground to allege that one
is mentally unstable and vulnerable to
undue
influence.
Only
when
these
allegations are established does the
3 All. Satya Narain Vs. Shiv Shankar & Ors.
705
burden
shift
upon
the
defendants.
Defendants have examined Ram Kumar
(DW3), the marginal witness of the sale
deed. He has proved the purchase of
stamps, execution of the deed and the
payment of consideration. The Lekhpal of
the village was also a witness in the
mutation matter and can be treated as an
independent witness. No marginal witness
has been produced by the plaintiff.
Parmeshwar Deen, the original plaintiff
died without entering the witness box.
Whatever Satyanarayan has said is with
reference to what he was told by
Parameshwar Deen. Satyanaryan had no
personal knowledge about the relationship
or the allegation that the sale deed was
executed in place of a Will. The case of
the plaintiff's rests solely upon the oral
evidence which has been discussed by the
trial Court at length. It has been pleaded
that subsequent to the execution of the
sale deed, a Will was executed by
Parameshwar
Deen
in
favour
of
Satyanarayana in the year 1980. The trial
Court has rightly concluded that if the
plaintiff was fully conscious and capable
of executing a Will deed in the year 1980,
he cannot be said to have been suffering
mental incapacity or other ailments in
1979, while executing the sale deed
especially when there is no evidence to
the contrary.

10. In Subhas Chandra Das Mushib
v. Ganga Prasad Das Mushib and others,
AIR 1967 SC 878 the Apex Court quoted
with approval the observation of Privy
Counsel in Raghunath Prasad v. Sarju
Prasad,
AIR
1924
PC
60,
which
expounded three stages for consideration
of a case of undue influence as under: -

"4. Under s.16 (1) of the Indian
Contract Act a contract is said to be
induced by undue influence where the
relations subsisting between the parties
are 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. This shows that
the court trying a case of undue influence
must consider two things to start with,
namely, (1) are the relations between the
donor and the donee such that the donee
is in a position to dominate the will of the
donor and (2) has the donee used that
position to obtain an unfair advantage
over the donor'?

*

*

*

7.
The
three
stages
for
consideration of a case of undue influence
were expounded in the case of Raghunath
Prasad v. Sarju Prasad in the following
words :-

"In the first place the relations
between the parties to each other must be
such that one is in a position to dominate
the will of the other. Once that position is
substantiated the second stage has been
reached-namely, the issue whether the
contract has been induced by undue
influence. Upon the determination of this
issue a third point emerges, which is that
of the onus probandi. If the transaction
appears to be unconscionable, then the
burden of proving that the contract was
not induced by undue influence is to lie
upon the person who was in ,I position to
dominate the will of the other.

Error is almost sure to arise if
the order of these propositions be
changed. The unconscionableness of the
bargain is not the first thing to be
considered.
The
first
thing
to
be
considered is the relations of these
parties. Were they such as to put one in a
position to dominate the will of the
other?"
706 INDIAN LAW REPORTS ALLAHABAD SERIES

11. In Subhas Chandra Das Mushib
(supra) it was also held that merely
because the parties were nearly related to
each other no presumption of undue
influence can arise.

12. Reference may also be made to a
judgment in the case of Iqbal Ahmad v.
Smt. Naiul, 2004 (3) AWC 1974 wherein
this Court has held as under: -

"11. This legal position, in my
opinion does not apply to the facts of the
case before us. It is significant to note that
the plaintiff No.1 was not a retarded brain
or unsound mind person since his
childhood or birth. The plaintiffs alleged
that the plaintiff No.1 had attained the age
of 80 years and since last 3-4 years on
account of old age, illness etc., he had lost
reasoning power and that he was not in a
position to assess whether some act was
to his benefit or to his disadvantage.
Defendant No.1 disputed this fact. It was,
therefore, for the plaintiff to have proved
that the plaintiff No.1 was suffering from
any deficiency. Since no evidence was led
at all in this regard, it could not be said
that he was suffering from any such
deficiency or was dependent on some
third person. Further defendant was the
sister's son of the plaintiff No.1. Although
in the plaint, it has been mentioned that
the plaintiff No.1 was greatly relying on
his sister, sister's husband and the
defendant etc. but nothing was stated to
show that he was dependent on defendant
or the above relations. In para 4 of the
plaint, it has been mentioned that plaintiff
No.1 used to consult these relations in his
matter. The fact of consultation itself
indicates that the plaintiff No.1 was not of
unsound mind as is being pretended by
the plaintiffs. Nothing in the plaint shows
that the defendant was in relationship of
active confidence with regard to the
plaintiff No.1. There was no evidence on
record to show that there was any
fiduciary relationship between them. That
being the position, the legal presumption
would be in favour of the defendant of the
sale deed being duly executed by the
plaintiff No.1 in favour of the defendant.

12. In the case of Ishwar Dass
Jain (dead) v. Sohan Lal (Dead), 2000 (1)
AWC 2.1 (SC) (NOC) : (2000) 1 SCC
434, the Apex Court has held that there is
a
presumption
of
correctness
of
endorsement made in the deed (mortgage
deed) by Sub-Registrar under Section 58
of the Registration Act. This presumption
no doubt is rebuttable but in the instant
case, no evidence has been led to rebut
the presumption.

13.
In
the
case
of
A.
Raghavamma
and
another
v.
A.
Chenchamma and another, AIR 1964 SC
136 (V. 51 C 10), it has been held that
there is an essential distinction between
the burden of proof and onus of proof :
burden of proof lies upon the person, who
has to prove a fact and it never shifts, but
the onus of proof shifts. Such a shifting of
onus is a continuous process in the
evaluation of evidence.

14. In the case before us, the
initial burden of proof was on the plaintiff
but no attempt was made to lead evidence
to show that the plaintiff No.1 was in any
manner handicapped and advantage of
this was taken by defendant to play fraud
by misrepresentation etc. Had the plaintiff
led any evidence, onus could have shifted
to the defendant if the evidence led by the
plaintiff was reliable."

(emphasis supplied)

13. Thus, it is clear that the plaintiff
was first required to establish the
3 All. Radha Krishna Ji Esthapit Mandir Vs. Ganesh Prasad Mishra & Anr.
707
fiduciary relationship between himself
and the defendants before the onus of
establishing that such undue influence
had not been exercised. The Courts below
have recorded a concurrent finding of
facts that such a relationship did not exist
between the parties, and the same cannot
be interfered with by this Court as such
findings cannot be said to be either
perverse or based upon no evidence. In
this light, the appellant's contention that
the defendants were required to prove that
the plaintiff executed the sale deed with a
free will is liable to be rejected.

14. The Appellate Court has also
discussed the case law cited by the appellant
and has discussed the evidence led by the
plaintiff and the defendant's. Both the Courts
below have after due consideration found
that the plaintiff has failed to prove his case.
The plaintiff could not prove fraud, undue
influence or even fiduciary relationship. In
the absence of these factors the validity of a
registered document cannot be challenged.
Since the document has been upheld by the
Courts below, obviously there is no need to
examine other questions like possession etc.
It is relevant to state that while one plot has
been sold in its entirety, the other plot has
been sold to the extent of its half share. In the
circumstances, there is absolutely no clouds
of suspicion surrounding the transaction and
as such this Court does not find any reason to
disagree with the conclusions drawn by the
Courts below.

15. The second appeal is concluded
by findings of fact which are concurrent.
No substantial question of law is born out
from
the
judgments
calling
for
interference under section 100 CPC.

16. The second appeal is dismissed.
----------
(2019)11ILR A707

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.11.2019

BEFORE
THE HON'BLE VIRENDRA KUMAR-II, J.

Second Appeal No. 256 of 2001

Radha Krishna Ji Esthapit Mandir
 ...Appellant
Versus
Ganesh Prasad Mishra & Anr.
 ...Respondents

Counsel for the Appellant:
Sri S.K. Tiwari, Sri Aakash Prasad, Sri
Amitav Singh, Sri Arun Saxena, Sri S.P.
Shukla

Counsel for the Respondents:
--------------------

A.
Civil
Law-U.P.
Urban
Buildings
(Regulation of Letting Rent and Eviction)
Act, 1972 - Section 1- Applicability - Not
applicable if disputed shop/property is
situated in village.

Held: - Disputed shop is situated in Village
Kamlapur, and it does not fall within urban
limits of city Sitapur or other municipalities or
area specifically notified - Kamlapur, Maholi
and Peer Nagar all are villages and part of
Gram Panchayat. Therefore, the U.P. Urban
Buildings (Regulation of Letting Rent and
Eviction) Act 1972 is not applicable to the
disputed
property/shop.
Since
disputed
shop/property is not situated in urban area of
the city Sitapur or any municipality or notified
area, the Act No. 13 of 1972 is not applicable
to the disputed property of this Suit No. 17 of
1994. (Para 40)

B. Civil Law-Transfer of Property Act,
1882 - Section 106(3) - Notice falling
short of period specified in section
106(1) - Not Invalid - where a suit or