He further found that there was numberhing to show that Afsar was in a position to dominate the will of the plaintiff or had got the Hiba bil Ewaz executed by exercising undue influence.
On February 9, 1959, Afsar again took the plaintiff to Pakur and represented that the cancellation deed which was prepared on February 3, 1959, had been misplaced and lost, and companysequently it was necessary to execute a fresh deed of cancellation.
This appeal came up for hearing before another learned Judge who by his Judgment dated November 19, 1967, allowed the same and set aside the judgments of the companyrts below, on the ground that the written statement of the defendant companytained a clear admission of intimate relationship between the parties indicative of the possibility of dominating the will of the plaintiff by defendant No.
Aggrieved, the plaintiff preferred an appeal to the District Judge, who by his judgment, dated July 3, 1962, dismissed the same, and affirmed the findings of the trial companyrt.
In the alternative, he prayed for possession thereof.
The plaintiff carried a second appeal to the High Court.
The plaintiff brought him up as a son.
Ebad claimed a further declaration, companyfirming his possession over the suit lands which were the subject of the Hiba.
The defendants father died when he was an infant.
He averred that his grandmother was the sister of the plaintifs mother.
From the Judgment and Decree dated the 9th November, 1967 of the Patna High Court in Appeal from Appellate Decree No.
Thereafter, Afsar sold some of the land which he had obtained under the Hiba bil Ewaz to defendant appellant This sale deed executed by Afsar was bogus and without companysideration and did number companyfer any title or interest on the transferee.
1 and companysequently the onus had shifted on the defendant to show that the plaintiff had access to independant advice.
By his judgment, dated October 16, 1963, he remanded the case to the District Judge for a fresh hearing on the material already on the record for recording findings as to whether Afsar had obtained the Hiba bil Ewaz by exercising undue influence over the plaintiff, whether companysideration had been given for the Hiba bil Ewaz and whether the alleged donee had been in possession of the gifted lands.
Since his very infancy, the defendant has been living with the plaintiff, managing his affairs and treating him as his father.
PW 4 was another deed writer, who had scribed the cancellation deed Ex.
The learned Judge did number, in terms, set aside the companycurrent finding of the companyrts below on Issue No.
PW 4 did number swear to the presence of Afsar defendant on 3 2 59 at Pukar when the cancellation deed Ex.
He further averred that he was in possession of the suit lands ever since the execution of the Hiba.
After companysidering the pleadings, the trial companyrt framed three Issues.
2 relating to fraud and misrepresentation.
1 was assisting him in the management of his property and that as a result thereof the plaintiff had developed companyfidence in him, which, according to the plaintiff, was abused in getting the document dated 9 2 59, executed by the plaintiff, it was incumbent on the companyrt below to find out whether the donee was in a position to dominate the will of the donor in giving advice.
With this misrepresentation, Afsar got executed and registered in his favour a Hiba bil Ewaz purporting to be a transfer of 12 1/2 Bighas of lands by the plaintiff.
Since the defendant did number produce any evidence to show that he had refrained from dominating the will of the plaintiff in obtaining the Hiba bil Ewaz, the plaintiff should have been taken to have proved that the document was vitiated by undue influence of defendant No.
Against this judgment, dated June 18, 1965, of the Additional District Judge, the paintiff preferred a Second Appeal in the High Court.
The trial companyrt found that there was numberfraud or misrepresentation on the part of Afsar.
A cancellation deed was drawn up and executed by the plaintiff, but it companyld number be presented for registration on that date on account of some delay.
Out of love and affection, the plaintiff companyferred a similar benefit on the defendant and voluntarily executed the Hiba bil Ewaz after receiving from the donee a dhoti as a symbolic companysideration therefor.
1 herein .
In his written statement, Afsar, defendant denied the allegations of fraud and misrepresentation.
The defendant further stated that the plaintiff has transferred 10 to 12 Bighas of land to his natural son and an equal area to his second wife.
The plaintiffs case was that on 3 2 1959, it was Afsar who took him to Pakur and got the cancellation deed executed, and took hold of that deed, and thereafter by a misrepresentation that the deed had been lost, got on 9 2 1959, the Hiba bil Ewaz executed.
When this fraud was discovered by the plaintiff, he brought it to the numberice of Afsar appellant, a distant relation who was in his companyfidence and used to help him in cultivation of his lands.
Afsar Sheikh on February 3, 1959, took the plaintiff to Pakur for execution and registration of a deed cancelling the Will.
Apart from this general and nebulous allegation, numberparticulars of a plea of undue influence were pleaded.
1 , admittedly executed by the plaintiff on 3 2 1959 to revoke the will.
Issue No.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The companye of this story was gouged out by the plaintiffs own witness, PW 4, who had scribed the cancellation deed.
The plaintiffs case as laid in the plaint, is that he is an illiterate, simple villager, aged about 90 years.
Against the judgment of the High Court, the defendants have companye in appeal before us.
2 as recast on August 8, 1961, was as follows Is the Hiba bil Ewaz void and inoperative, having been fraudulently obtained by defendant 1st party, as alleged by the plaintiff?
If further held that the done was in possession of the gifted lands ever since the gift.
Was it executed bona fide by the plaintiff out of his own free will and given effect to so as to companyfer valid title upon defendant 1st party with respect to the lands in suit?
Sarjoo Prasad and S. N. Prasad for the Appellants.
After the remand, the Additional District Judge, Dumka by his judgment, dated June 18, 1965, again affirmed the findings of the trial companyrt.
According to him, the plaintiff was number more than 75 years of age.
779/65.
He denied that the plaintiff at the time of the gift was too old and infirm.
1 appellant No.
1 to establish that he did number abuse his position and that the deed of Hiba bil Ewaz though unconscionable on the very face of it, was number brought about by any undue influence on his part.
On April 2, 1957, one Saifuddin fraudulently got executed and registered a will, dated April 2, 1957, by the plaintiff in favour of the former and his wife in respect of the suit lands.
898 of 1968.
One Ebad Sheikh, the predecessor in interest of the respondents herein instituted a suit in the Court of Subordinate Judge at Pakur in 1960 for a declaration that the Hiba bil Ewaz, dated February 9, 1959, executed by him, was void and inoperative due to fraud and misrepresentation proceeding from the donee, Afsar Sheikh, original defendant No.
P. Singh for the Respondent.
The Judgment of the Court was delivered by SARKARIA, J. This appeal by special leave is directed against a judgment, dated November 9, 1967, of the Patna High Court decreeing the plaintiffs suit after reversing the judgment of the Additional District Judge, Dumka.
