Indira Banerjee JUDGMENT
Navin Sinha, J.
1. The Appellant is aggrieved by the order allowing the second appeal preferred by the Defendants. The High Court set aside the order of the First Appellate Court which had allowed the appeal of the Appellant and set aside the order dismissing the Appellants suit.
2. The Plaintiff and Defendant No. 2 are brothers. Defendant No. 1 was the wife of Defendant No. 2. Respondents Nos. 1 to 3 are sons of deceased Defendant No. 1. Original Plaintiff No. 2, another brother, has chosen not to pursue the appeal. The Plaintiffs alleged that the original Defendants obtained the sale deed dated 02.03.1970 from their father Vaijai, since deceased, in favour of Defendant No. 1, fraudulently, by deceit and undue influence because of old age and infirmity of the deceased and who was living with the Defendants. The suit was dismissed. The appellate court allowed the appeal holding that the Defendants had failed to discharge their burden of being in a position to dominate the will of the deceased by undue influence. The High Court reversed the order of the first appellate court and restored the dismissal of the suit.
3. Learned Counsel for the Appellant submitted that the deceased was old, infirm, bedridden and sick for approximately the last 8 to 10 years. His mental faculties were also impaired. He was therefore entirely dependent on the original Defendants who were therefore in a position to exercise undue influence over him. The deceased expired on 21.04.1971 within ten months of the execution of the sale deed. The witnesses to the sale deed were related to Defendant No. 2. It had not been established that full consideration had been paid. Defendant No. 1 had no source of income to pay the purchase price. The wife of the deceased has not been examined as witness. The Defendants did not lead the evidence of the Sub-Registrar who had registered the sale deed. The deceased had not sold any land to third persons in the year 1968 as contended by the Defendants.
4. Learned Counsel for the Respondent/Defendants submitted that Under Section 101 of the Evidence Act, 1872 the initial onus lay on the Plaintiffs by establishing a prima facie case for undue influence and only then the onus would shift to them. The necessary pleadings in respect of the same were completely lacking. The First Appellate Court wrongly shifted the burden upon the Respondents. The deceased may have been old and infirm, but he was not deprived of his mental faculties so as not to know the nature of documents executed by him. He was alive approximately for ten months after the execution of the deed, but never questioned the same. The deceased had executed another sale deed two years earlier in 1968, Exhibit 10 in favour of third persons which has not been questioned by the Appellant. It establishes that the deceased was not in a condition where undue influence could be exercised over him. There can be no presumptions merely on account of his old age. DW-1 was a witness to the sale deed and was present at the time of registration. The deceased admitted before the sub-registrar h........