S. Nagamuthu, J.@mdashThe defendant is the appellant. The respondent filed O.S. No. 12 of 1992 on the file of the learned Subordinate Judge, Krishnagiri for specific performance on the basis of an alleged sale agreement said to have been executed by the defendant in favour of the respondent on 20.05.1988. The trial Court decreed the suit by decree and judgment dated 18.11.1997. Challenging the same, the appellant filed A.S. No. 3 of 1998 which came to be disposed of by the learned I Additional District Judge, Krishnagiri by decree and judgment dated 30.11.1999. The First Appellate Court dismissed the appeal and confirmed the decree and judgment of the trial Court. Challenging the same, the appellant has come forward with this second appeal. For the sake of convenience, in the judgment, the defendant shall be referred to as the defendant and the respondent as plaintiff.
2. The case of the respondent/plaintiff is as follows: -
The suit property belongs to the defendant. On 20.05.1988, the defendant executed a sale agreement in favour of the plaintiff thereby agreeing to sell the suit property to him for a sale consideration of Rs.85,000/-. A sum of Rs.70,000/- was paid as advance at the time of the agreement and it was agreed that the balance of sale consideration of Rs. 15,000/- should be paid on or before 25.07.1991 by the plaintiff and on such payment, the defendant should execute necessary sale deed in favour of the plaintiff. Thereafter, on 10.03.1991, the defendant received a further sum of Rs. 10,000/- from him towards the sale consideration and in acknowledgment of the same, the defendant made an endorsement on the backside of the sale agreement itself in the presence of witnesses. Again on 11.07.1991, the defendant received yet another amount of Rs.4,000/- from the respondent towards sale consideration and made an endorsement on the backside of the sale agreement acknowledging the same. Thus, the balance of sale consideration to be paid was only Rs.1,000/-. He approached the defendant and requested her to receive the balance of sale consideration of Rs. 1,000/-which remained due and wanted her to execute the sale deed. Further, the plaintiff issued a legal notice on 03.07.1991 calling upon the defendant to execute sale deed. Another legal notice was also issued on 12.09.1991 by the plaintiff calling upon the defendant to execute necessary sale deed. But, the defendant did not choose to perform her part of contract or atleast to send a reply to the said legal notices issued by the respondent. It is further stated that the plaintiff was all along ready to perform his part of contract since the defendant was not ready to perform her part of contract, the plaintiff had to file the present suit for specific performance of contract.
3. In the written statement, the defendant has pleaded as follows:-
The defendant never agreed to sell the suit property to the plaintiff for a sum of Rs.85,000/-. She would further submit that the document dated 20.05.1988, on which basis, the suit has been laid is not a true and valid document. The said document is not enforceable under law, as there was no concluded contract between the defendant and the plaintiff. She has not received any amount towards sale consideration. She has also denied the receipt of the legal notices. She has put forward that her husband Mr.Radhakrishnan, Mr.Chennakesavalu Naidu, the respondent herein, one Mr.Dhanapal and one Mr.Kuppusamy are close relatives. The husband of the defendant borrowed a sum of Rs. 15,000/-from the said Dhanapal in the year 1985. The defendant''s husband paid interest for the said amount for one year and thereafter, he could not either pay interest or principal amount. Therefore, Mr.Dhanapal and the plaintiff forced the defendant to execute a document as security for loan outstanding. Though, the defendant pleaded that she would discharge the debt, she could not do so due to financial constrains in the family. Finally, the plaintiff and one Mr.Ravi came to her house and coerced her to execute a document dated 20.05.1988 as a mortgage deed for three years. Under the guise of getting a mortgage deed executed, she was taken to the Sub Registrar''s Office, where a document was prepared in which, her signature was obtained. She would further submit that the contents of the document were never disclosed to her. It is the said document which is now pressed into service as a sale agreement. She would submit that there was no agreement at all between her and the plaintiff to sell the suit property. She has further taken a legal plea that even assuming that the sale agreement is true, the suit is liable to be dismissed as the same is barred by limitation.
4. Based on the above pleadings, the trial Court framed the following issues:-
"(i) Whether the plaintiff is entitled for a decree for specific performance.
(ii) Whether the document dated 20.05.1988 is a true sale agreement.
(iii) Whether the said document was obtained by force on coercion by the respondent from the defendant.
(iv) Whether the sale agreement was executed out of free Will and to what relief the respondent/ plaintiff is entitled for."
5. During the trial of the case, on the side of the plaintiff, as many as three witnesses were examined as P.Ws1 to 3. P.W.I is the plaintiff. P.W.2 is the scribe of the alleged sale agreement. P.W.3 is the witness who speaks about the subsequent alleged payment made by the plaintiff. As many as 15 documents were exhibited as Exs.A.1 to A. 15. On the side of the defendant, she was examined as D.W.1 and as many as 11 documents were exhibited as Exs.B.1 to B. 11, on her side. Having considered the oral and documentary evidence adduced, the trial Court has held that the sale agreement claimed by the plaintiff is valid and so, the plaintiff is entitled for a decree for specific performance. Accordingly, the trial Court decreed the suit as prayed for. Aggrieved by the same, the defendant has preferred an appeal in A.S. No. 3 of 1998 on the file of the learned I Additional District Judge, Krishnagiri.
6. The First Appellate Court on considering the materials, concurred with the findings of the trial Court and dismissed the appeal. Challenging the same, the defendant has come forward with the present second appeal.
7. While admitting the Second Appeal, this Court has framed the following substantial questions of law:-
"(i) Whether the Courts below are right in shifting the onus on the defendant especially when she has pleaded that Ex.A.1 is an unconscionable transaction obtained by unfair advantage, coercion and misrepresentation in the absence of proof by the plaintiff that it is supported by consideration.
(ii) Whether the plaintiff has established his readiness and willingness to perform his part of the bargain under Ex.A.1?
(iii) Whether the Courts below are right in decreeing the suit over looking the probative value of Exs.B.4 and B.5 and the conduct of the parties?
8. I have heard the learned counsel on either side and perused the records carefully.
9. Factually, there is no dispute by the defendant that Ex.A.1 was executed by her. She has only contended that the said document was obtained by ''undue influence''. Both the Courts below, on appreciating the evidence adduced by the defendant have held that the defendant has failed to prove that Ex.A.1 came to be executed by ''undue influence'' on the part of the plaintiff. To put it otherwise, according to the Courts below, the defendant has failed to discharge his burden to prove that Ex.A.1 came to be executed due to ''undue influence'' exerted by the plaintiff. In paragraph No.21 of the judgment, the First Appellate Court has held: "the defendant has not discharged her burden to state that on the date of execution of the deed, she was liable to pay only Rs.70,000/- and what she has executed is only a mortgage deed and not an agreement of sale". According to the learned counsel for the defendant/appellant, the Courts below have enormously held that the burden to prove existence of ''undue influence'' is on the defendant.
10. Section 16 of the Indian Contract Act, 1872 defines "undue influence" as follows:-
"16."Undue influence" defined.-(1) 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.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another-
(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or per-manentiy affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.
Nothing in this sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872(1 of 1872)."
11. In order to apply Section 16(3) of the Indian Contract Act, as extracted above, in the instant case, the following facts should be proved at first.
(a) The respondent was in a position to dominate the will of the defendant.
(b) It should be made to appear on the face of it or from the evidence adduced that the transaction covered under Ex.A.1 is unconscionable.
11.1. If these two facts are proved by the defendant, then the burden would necessarily lie on the respondent to prove that the contract was not induced by undue influence.
12. In the case on hand, there is overwhelming evidence to show that the defendant and her husband were in the habit of securing loans from the plaintiff and one Dhanapal. In his evidence, the plaintiff has deposed that the said Dhanapal is closely related to him inasmuch as the brother of Dhanapal has married the daughter of the plaintiff.
13. There was a finance corporation doing money lending business under the name and style "Sakthi Vinayaka Corporation" at Vaniyampadi. According to the admission made by the plaintiff in his evidence, he was a partner of the said concern for some time. He has further admitted that the defendant and her husband borrowed a sum of Rs. 10,000/-from the said concern and for sanction of the said loan, the plaintiff made recommendation. Subsequently, from the same finance corporation, the defendant borrowed another sum of Rs.5,000/-. This is proved by the contents of the letter Ex.B.2 written by the plaintiff. Thus, according to the admission made by the plaintiff, the total amount borrowed by the defendant and her husband was Rs. 15,000/-. He has further admitted that interest for two years i.e., between 1986 to 1988 was calculated at Rs.15,000/- and the same was added to the principal thus making the total due at Rs.30,000/-. Then, for the said sum of Rs.30,000/- an unregistered sale deed was obtained from the defendant. Subsequently, adding another sum of Rs.15,000/- towards interest, another sale agreement was obtained from the defendant in respect of the suit property for Rs.45,000/-. Once again adding yet another Rs. 15,000/- as interest, for a total sum of Rs.60,000/- another sale agreement was executed.
14. All the above three sale agreements, according to the plaintiff, were admittedly executed by the defendant in respect of the present suit property. The plaintiff has further deposed that he did not chose to ask for specific performance on the basis of any one of the above three sale agreements. Finally, as per the further admission made by him in his evidence, Ex.A.1 came to be executed in lieu of all the above three sale agreements. Thus, according to the positive admission made by the respondent, Ex.A.1 was not executed as per any agreement reached between the parties. It was executed only in the place of the earlier sale agreements. The earlier sale agreements were not intended to be sale agreements in real sense. From Ex.B.4, it could be seen that the plaintiff wanted the defendant to discharge the loan amount and to take back the documents. This would go to show that the parties would not have intended to have Ex.B.1 as a genuine sale agreement. There is every reason to calculate that Ex.B.1 should have been executed only as a security as it is stated by the defendant.
15. As extracted above, the plaintiff had admitted during his cross examination that initially, the loan amount secured by the husband of the defendant was only Rs. 15,000/-. The very fact that the defendant was made to execute a sale agreement for Rs.30,000/- then again, for a sum of Rs.45,000/- then again, for a sum of Rs.60,000/- would go to show that the plaintiff was in a dominating position and got documents executed by the defendant styling the same as sale agreements as security. The defendant had executed such documents though she did not borrow any money from the plaintiff. She had executed three sale agreements as directed by the plaintiff on previous occasions. The sale agreement which is in dispute in the suit was also executed only in the same manner. All these circumstances would clearly go to establish that the plaintiff was in a position to dominate the will of the defendant and using the same, he has obtained Ex.A.1. Thus, the defendant has satisfied the requirements of Section 16(3) of the Indian Contract Act.
16. Since the defendant has so proved that the plaintiff was in a position to dominate and since, from the evidence adduced by both parties, it is so clear that the transaction is unconscionable, the burden certainly lies on the plaintiff to prove that the document did not come to be executed due to any ''undue influence''.
17. But, the Courts below have wrongly held that the burden is upon the defendant to prove that there was no ''undue influence''. As enshrined in Section 16(3) of the Act, the burden heavily lies on the plaintiff to prove absence of undue influence.
18. Let me now analyse as to whether the plaintiff has discharged the said burden properly:
A perusal of the oral evidence of plaintiff would go to show that absolutely there is no evidence to prove absence of ''undue influence''. To the contrary, from the admissions made in the course of his examination, it could be inferred that there was ''undue influence'' on his part. Apart from the oral evidence of the defendant there are enormous circumstances to infer the presence of ''undue influence''. As I have already stated, the original loan amount was only Rs. 15,000/-; the first sale agreement was executed for Rs.30,000/- by calculating Rs. 15,000/- as interest. Again another sum of Rs. 15,000/- was added towards interest and the second sale agreement was executed for Rs.45,000/-. Third one was executed for Rs.60,000/- once again adding Rs.15,000/- towards interest. Thus, a sum of Rs.45,000/- has been calculated towards interest alone for a sum of Rs.15,000/-. According to the sale agreement Ex.A.1, the defendant is alleged to have agreed to sell the suit property for a sum of Rs.85,000/-. Ex.A.1 states that already a sum of Rs.70,000/- has been paid on the date of execution of the document. The respondent in his evidence has stated that on the date of execution of Ex.A.1, namely 20.05.1988 he paid a sum of Rs.70,000/- towards advance i.e., towards part satisfaction of the sale consideration. Obviously, this is false for the simple reason that during cross examination, he has admitted that the sale agreement Ex.A.1 was executed in the place of the third sale agreement executed for Rs.60,000/-. If it is true that the third sale agreement for Rs.60,000/- was cancelled, then, on the date of execution of Ex.A.1, the respondent would have paid only Rs.10,000/-. As stated above, he has deposed that he paid Rs.70,000/- at the time of execution of Ex.A.1. This shows that the respondent has come forward with a false case. This itself would be enough to conclude that Ex.A.1 has been obtained only by ''undue influence''. As I have already stated, the respondent has failed to discharge his burden to prove the absence of ''undue influence''. But, there are enormous circumstances to hold positively the existence of ''undue influence''.
19. Thus, Ex.A.1 does not reflect any genuine transaction. The said contract is voidable at the option of the defendant.
20. u/s 19(A) of the Indian Contract Act, any such contract obtained by ''undue influence'' may be set aside either absolutely or, if the party who is entitled to avoid it has received any benefit thereunder, upon such terms and conditions as to the Court may seem just. But, in this case, the respondent has not pleaded for refund of any amount due under Ex.A.1. In the absence of any such plea, it would not be proper for this Court to impose a term directing the defendant to refund any amount to the respondent under the agreement. According to the respondent, a sum of Rs.84,000/- has been received under Ex.A.1 by the defendant. As I have already concluded, it is not believable that any amount was paid as advance. In respect of Rs.60,000/- said to have been due from the defendant towards the loan amount as deposed by the respondent in cross examination, there is no account produced by the respondent for the same. His evidence reflects that the interest calculated for Rs.15,000/- is highly usurious and opposed to public policy. Therefore, it cannot be held that the defendant is liable to return any amount to the respondent. In respect of payment of another 14,000/- after the execution of the sale agreement since, the respondent has not made any alternative plea for return of the said amount, no relief could be granted to the respondent.
21. For all the above reasons, the substantial questions of law framed in this second appeal are answered in favour of the defendant. The Courts below have wrongly appreciated the evidence and have come to the conclusion that the respondent is entitled for decree for specific performance. The respondent has not come forward with clean hands at all and so, he is not entitled for any relief. As held above, the transaction under Ex.A.1 is not genuine and the same was never intended to be a sale agreement and so, there is no legal obligation on the part of the defendant to enforce the same. Thus, the decree and judgment of the Courts below are liable to be set aside and the suit is liable to be dismissed. In the result, the decree and judgment of the Courts below are set aside. The suit in O.S. No. 12 of 1992, stands dismissed. The Second Appeal stands allowed. However, there is no order as to costs.
