Tulsiram Khirchand Parwar v. Chunnilal Panchamsao Parwar And Others

1. One Gopalsao who owned the house now in dispute, died leaving a widow Bayabai and the plaintiff Tulsiram who is the son of a predeceased daughter. Bayabai died on 23rd March 1929 and so, according to plaintiff, he succeeded. He used to let out the house to tenants and they used to pay him rent, but in August 1931 they refused to pay him any more rent and said that the defendant Panchamsao was the owner and that they would pay the rent to him. The plaintiff therefore sues for a declaration and in the alternative, in the event of it being found that he was out of possession, for possession. The defendant Panchamsao claims through Bayabai. It is admitted by both sides that Bayabai executed a sale deed in favour of the defendant on 25th February 1929. The defendant's case is that Bayabai was a Digambari Jain and that among them a widow obtains an absolute estate and not merely the limited estate which she obtains under the ordinary Hindu law. This, he said, was the law applicable to all Digambari Jains, and in the alternative he pleaded that “the Jains of this part have been following that custom”. The plaintiff's case as regards the custom is that the widow of a Digambari Jain is in the same position as any other Hindu widow and gets only a life-estate. As regards the sale deed he made the following plea:

It is denied that the deceased Bayabai sold the house to the defendant for Rupees 3000 on 25th February 1929. She was a very old and feeble woman and lived with the defendant till her death. She was under the influence of the defendant and the sale deed dated 25th February 1929 has been fraudulently obtained from her without any consideration. The defendant does not get any title by the sale deed.

2. On these pleadings a composite issue was framed in these terms:

Whether Bayabai sold the house in suit to the defendant on 25th February 1929 for a consideration of Rs. 3000? Was it a genuine transaction or was it a fraudulent transaction and was it effected under circumstances of undue influence?

3. There can be little doubt that the pleadings and the issue are both irregular, to put it at its mildest. Their Lordships of Page: 392the Privy Council have condemned this sort of pleading in the strongest terms in 39 Bom 441 (1915) 2 AIR PC 7 , 29 IC 639 , 39 Bom 441 , 42 IA 135 (PC) at p. 467 and since the slovenly manner in which cases of this kind are pleaded and conducted in this province has in no way changed for the better since those observations were made, we venture to reproduce their Lordships' remarks at length:

Under the oontraot law of India, as well as by ordinary principles, coercion, undue influence, fraud and misrepresentation are all separate and separable categories in law. It is true that they may overlap or may be combined. But in the present case it is impossible to discover what ground or grounds are really taken up. There is a well-known rule of pleading expressed in the frequently quoted language of Lord Sel borne, see (1880) 5 AC 685 (1880) 5 AC 685 , 50 LJ QB 49 , 43 LT 258 , 29 WR 81 at p. 697) that ‘With regard to fraud, if there be any principle which is perfectly well settled, it is that general allegations, however strong may in the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice.’

The law of India is in no way different from this, and it has been decided over and over again, e.g in 15 Cal 533 : 15 IA 119. (1888) 15 Cal 533 , 15 IA 119 , 5 Sar 168 (PC) It is, in their Lordships' opinion, much to be regretted that the rule is not more strictly observed, and their Lordships are of opinion that in the present case much confusion and contention have been caused, together with much expenses to the parties in consequence of its neglect. No definite issue upon any one of the well-known categories of attack was settled for trial, the only issue on the subject being — whether plaintiff 4 is a validly adopted son of Baba Maharaj. From time to time, in the course of this case, it is clear that specific pleadings in Indian procedure have been abandoned altogether. In short, several of the careful prescriptions of the law and of the Legislature, all of which were intended to bring litigation within definite compass and to make articulate and clear the points of difference between the parties, have been lost sight of.

4. We find ourselves in a similar difficulty in this case. It is difficult to understand exactly what the ground of attack was, but the fault, we observe, does not lie wholly on one side. It was open to the defendant to attack these pleas on the ground of vagueness and to ask for further and better particulars of the averments made. Since he did not do so and has himself led evidence on this confused issue, we can only conclude that the parties knew what they were really fighting about and did not find themselves as embarrassed as we find ourselves here. Therefore in the language of their Lordships in the case just cited, we are “unwilling, confused though the charges be, to dismiss this part of the case on such ground.” Whatever else these pleadings may have meant, the parties at any rate appear to have understood them as containing an averment of undue influence and, as we have shown, that is one of the points brought out in issue 3 even though it has been coupled there, as it was in the pleadings, with allegations of fraud. The only particulars given in the pleadings are that Bayabai “was a very old and feeble woman and lived with the defendant till her death” and that there was no consideration. The first Court found in the plaintiff's favour, but the lower Appellate Court held that undue influence has not been proved. It is not denied that questions of undue; influence are ordinarily one of fact, but it was urged that in this case the burden was wrongly placed and we were referred to Section 16 of the Contract Act and to AIR 1933 Rang 90, (1933) 20 AIR Rang 90 , 144 IC 673 AIR 1930 Cal 590 (1930) 17 AIR Cal 590 , 129 IC 622 , 34 CWN 445 and AIR 1925 Nag 211. (1925) 12 AIR Nag 211 , 83 IC 239 It was argued that under S. 16(2)(b) it must be assumed that the defendant was in a position to dominate Bayabai's will because of her age and that since there was no consideration, the bargain is, on the face of it, unconscionable, and that therefore the burden lies on the plaintiff and not on the defendant as the lower Appellate Court holds. S. 16 has been analysed by their Lordships of the Privy Council in 3 Pat 279. (1924) 11 AIR PC 60 , 82 IC 817 , 3 Pat 279 , 51 IA 101 (PC) As they point out the first thing which has to be established (and the burden is on the person asserting it), that the relation subsisting between the parties was such that one of them was in a position to dominate the will of the other. It is only when that has been established that the second question arises, namely whether he used that position in order to obtain an unfair advantage over the other. One of the ways in which the first point can be established is by showing that the mental capacity of the person whose will is said to have been dominated was temporarily or permanently Page: 393affected by reason of age, illness, or mental or bodily distress. But the burden is still on the party asserting undue influence. In the present case the lower Appellate Court holds that burden has not been discharged. It is to be observed that even the pleadings do not allege that Bayabai's mental capacity had been affected by reason of her age. The allegations stop short of that and merely state that she was an old and feeble woman. But that is not enough, for mere physical infirmity does not necessarily carry with it mental incapacity. The only evidence on the point is contained in a few short sentences of one witness, the plaintiff himself, and this is all he says:

She was nearly 100 years old and had got paralysis for two or three years before her death. I had come to see her about a month before her death and at that time I had found her in Panchamsao's house. At that time I had asked her if she had done any transaction with respect to the property and she said that she had all the property with her. I asked her if she wanted any money and she said that she did not want any…. I stopped in Katangi at that time for about 3 days. She died about 8 weeks after I went back.

5. The defendant's evidence as D.W 1 on which the learned counsel for the plaintiff-appellant has also relied, is to this effect:

Bayabai was my cousin being my uncle's daughter…. Before the sale she had borrowed Rs. 1000 from me in small sums for her maintenance and this was deducted by me out of the consideration of the sale. Then Bayabai told me that she wished to pay Rs. 1200 to the Jain temple and asked me to pay that amount. Accordingly I paid Rs. 1200 to Chudamansao of Gondia who is Panch of the Jain temple and this was on the day following the registration of the sale deed. The remaining Rs. 800 remained with me for meeting expenses of her illness and her obsequies. She died on 24th March 1929. I attended during her illness and performed her obsequies…… Bayabai died in my house. I had brought her, to my house a month and half before her death. She had to be bodily carried from her house. She had been ailing for about 2 years before her death. She had not got paralysis. She executed the sale deed after she had been brought by me to stay in my house: She was about 80 or 90 years of age when she died. For about three years before her death, she had been borrowing money from me…. Chudamansao was present when the negotiations of sale took place. I had called Chudamansao from Gondia in order to induce Bayabai to sell the house to me. I had come to know of her intention to sell the house and Murlidhar was also offering to purchase the house. But she had not accepted the offer. Then she proposed to make a gift to the temple and she told me that I might buy the house and pay myself the loans advanced to her and also pay the amount she had promised to the temple.

6. The defendant's second witness is Chudamansao. He says:

Panchamsao had paid Rs. 1200 before the Sub-Registrar and that was the amount which I had received. Bayabai said that she had borrowed Rs. 1000 from Panchamsao and that he should, keep Rs. 800 more with him for performing her obsequies. Bayabai had been seen by me about-two months before her death. At that time she was ailing. She was very old, may be 90 years of age. She had not lost her eyesight.

7. D.W 7 Jairamsingh is the country physician who is said to have attended Bayabai, He says:

I knew Bayabai. She was under my treatment for 3 years before her death and she died about 3½ years ago. She was in her proper senses till about a month before her death and then her powers began to fail. She was not attacked with paralysis at any time.

8. That is all the evidence that there is on the point. There is not a word in it to suggest mental incapacity. We do not say that there is nothing in it to suggest that the defendant was not in a position to dominate the old lady's will, but for the moment we, are considering S. 16(2)(b) on which the learned counsel for the plaintiff-appellant relies. What we find is that the special presumption which arises once mental in capacity is established, cannot be applied here, and once that is accepted, it follows that the burden of proving that the defendant was in a position to dominate Bayabai's will, remains with the plaintiff and that therefore the learned Judge of the lower Appellate Court has committed no error of law in placing it upon him. The next question then is to consider whether the plaintiff, the burden being on him, has established that the defendant was in a position to dominate Bayabai's will apart from the special assistance afforded by S. 16(2)(b). This is of course a question of fact and though the first Court found in the plaintiff's favour, the lower Appellate Court has found against him and we find it difficult to see how we can interfere. There is material, on which the learned trial Judge's conclusions can be based, but the matter is not so overwhelmingly obvious as to justify interference with the judgment of the lower Appellate Court in second appeal, especially as the plaintiff has chosen to leave his allegations in such a vague and unsatisfactory state. Also there is evidence the other way. The fact that Chudamansao had to be brought in to persuade Bayabai to sell the property to the defendant rather than to another, suggests that the defendant was not in the dominating position which the plaintiff would have us believer. We are consequently powerless to interfere. The next question is about consideration. This again is a question of fact and though Page: 394the evidence is weak it is impossible to hold that) there is none. So here again we are not in a position to interfere. A number of rulings were cited, such as 43 All 525 (1922) 9 AIR PC 14 , 61 IC 559 , 48 All 525 , 48 IA 381 (PC) and 34 All 455 (1912) 34 All 455 , 16 IC 197 , 15 OC 271 , 39 IA 156 (PC) which deal with pardanashin women and it was argued that the same principles which were applied there, should be applied here. But this opens up an entirely new field which again was not pleaded. The underlying idea in that type of cases is that the Court must be fully satisfied that the lady in question really understood the nature of the deed she was executing with all its implications. There is nothing to suggest that Bayabai did not understand the nature of the transaction: in fact the very plea of undue influence implies that she did, and, as the lower Appellate Court holds on the evidence that she did, the matter is not open to question here. That brings us to the question of custom. What the defendant pleaded was that among Digambari Jains a widow obtains an absolute estate in her husband's property. The oral evidence in the case is consistent with such a custom, but standing by itself it is not enough to establish it. The matter has however been considered in a number of decided cases and the custom upheld. The value as evidence of judicial decisions recognizing custom has repeatedly been recognized, and in fact the Allahabad High Court says it is the most satisfactory evidence that a party can produce. See, 10 All 585 (1888) 10 All 585 , 1888 AWN 242 and also 27 Cal 379 (1900) 27 Cal 379 and 27 NLR 75 (1930) 17 AIR Nag 225 , 124 IC 609 , 27 NLR 75 at p. 92. Of course, such decisions do not operate as res judicata unless they bind the parties otherwise, and the evidence created by them is capable of rebuttal, but their relevancy as evidence is undoubted. In fact their Lordships of the Privy Council state in 41 Mad 778 (1918) 5 AIR PC 81 , 47 IC 354 , 41 Mad 778 , 45 IA 148 (PC) at p. 785 that a point may be reached when a custom which has repeatedly been recognized can be regarded as part of the law:

When a custom or usage whether in regard to a tenure or a contract or a family right is repeatedly brought to the notice of the Courts of a country, the Courts may hold that custom or usage to be introduced into the law without the necessity of proof in each individual case.

9. The custom in question here was elaborately investigated in 27 NLR 75 (1930) 17 AIR Nag 225 , 124 IC 609 , 27 NLR 75 and all the case law on the point up to that date was carefully analysed as well as a large body of evidence. It is true, that was a case of Swetambari Jains, but the learned Judicial Commissioners came to the conclusion that the custom set up by the defendants before them had been clearly established. That custom was that the widow takes an absolute estate among Jains in general and not merely in some particular sub-sects. The evidence produced in that case was impressive. The leaders of the Digambari and the Swetambari sects respectively were both called. Both were graduates in law who had made a special study of the customs prevailing in their respective communities, and one of them was a practising solicitor in Bombay. The learned Judicial Commissioners considered them to be “absolutely disinterested.” They both stated that this custom applied among all the various sub-sects of Jains. 78 IC 461, (1926) 12 AIR Nag 174 , 78 IC 461 where the custom was also upheld, was a case of Parwar Jains which both sides have admitted before us is the same as the Digambari sect. There is therefore ample material on which the findings of the Courts below can be based and on this point both the Courts are agreed. In fact the outstanding feature of this case is that there is no evidence in rebuttal of this custom. We are therefore constrained to hold that the custom pleaded has been proved. The appeal fails and is dismissed with costs.

B.D/R.K

10. Appeal dismissed.