AFSAR SHEIKH AND ANR. versus SOLEMAN BIBI AND ORS.

Citation: [1976] 2 S.C.R. 327 · Decided: 06-11-1975 · Supreme Court of India · Bench: Y.V. CHANDRACHUD · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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327 
AFSAR SHEIKH AND ANR. 
v .. 
SOLEMAN BIBI AND ORS. 
November 6, 1975 
[Y. V. CHANDRACHUD, R. S. SARKARIA AND A, C. GUPTA, JJ.l 
Contract Act (9 of 1872) s. 
0 16-Undue ilzfluence-Cdurt's approach in 
11< 
case whe!'e, a transaction if>' soug/u to be set aside on ground of undue influence. 
Cede of Civil Procedure (Act 5 of 1908), 0. 6. rr. -2 a11d 4-Plea of fraud 
and misrepresentation-Court spelling o'ut a plea of undue influence--Propriety . 
<::&de of Civil Procedure (Act 5 of 1908), ss. JO(), 
power under in sec(md appeal. 
IOI and I 03-High Court's 
The predecessor-in-interest of the respondents filed a suit for a declaration 
that the Hiba-bil-Ewaz executed by him was void and 
inoperative 
due 
to 
fraud aJJd misrepresentation proceeding from the appellant ( donee ), the allega-
tf&n being that the appellant represented it to be a deed of cancellation ot a 
\\ill. 
. 
The trial court and the first appellate court dismissed the suit. 
Jn 5econd 
appeal, the High Court remanded the case to the first appellate court holding 
that the finding given by the court below that the plaintiff had executed the 
doclilment after knowing _it5 contents was not sufficient in law to throw out the 
plaintiff's case, because, in view of the allegations in the plaint that the appel-
lant was assisting him in the management of his property and that as a result 
thereof the plaintiff had developed confidence in the appellant which was abused 
by him by getting the document executed in his favour by the plaintiff, it was 
incumbent on the court to find out whether the donee was in a position 
to 
dominate the will of •the donor. After remand, the first appellate court again 
.dismissed the suit. In a further second appeal. the High Court allowed the 
appeal on the ground that the written statement of the appellant contained 
a 
clear admission of intimate relationship between the parties indicative of the 
JJOssibi!ity of dominating the will of the plaintiff by the appellant. and conse~ 
lquently, the onus had shifted on the appellant to show that the plaintiff had 
access to independent advice, and since the appellant did not produce any 
such e\·idence, the plaintiff should have been taken to have proved that the 
document was vitiated by. the undue influence of the appellant. 
Allowing the appeal to this Court. 
HELD : The finding of the first appellate court to the effect that the plaintiff 
had failed to prove that the appellant Was in a position to dominate his wilt 
was not wrong or unreasonable. 
In any case, it did not suffer 
from 
any 
illegality. omission, error or defect such as is referred to in s.100-( I) C.P.C. 
ft is a finding of fact and the High, Court. in second appeal, had no jurisdiction 
to intezfere with it even if it appeared to be erroneous to the High Court, the 
error not being of the kind indicated in the sub-section. 
(338 C-D] 
( 1) The High Court in second appeal has tried to make out a new case 
for the plaintiff. of undue influence which was neither pleaded adequately in 
the plaint nor put in issue nor raised in the trial court or the first appellate 
court on ·the first occasion. [332 D-El 
A 
B 
c 
)) 
E 
F 
G 
(a) The pleas of undue influence, fraud and misrepresentation arc in Jaw 
H 
distinct categories and are somewhat inconsistent with one another. 
In view 
of 0 6, r.4 read with 0 6, r.2, C.P.C. thev are requ•recl to lfi? separately pleaded 
with soecilicity. particularity and precision. 
(332 H-333 Al 
22-L1276/SCI /75 
328 
SUPREME COURT REPORTS 
[1976] 2 S.C.R. 
A 
(b) The specific case set up in the plaint was that the document 
was 
B 
c 
D 
E 
H 
vitiated by fraud and misrepresentation practised by the appellant (332 El 
( c) A general allegation in the plaint that the plaintiff was a simple old 
man of 90 years who had reposed great confidence in the appellant 
was 
totally insufficient to amount to an averment of undue influence oi which the 
High Court could take notice. Apart from this general and nebulous allegation 
no particulars of undue influence were pleaded. Even the mere relationship 
between the plaintiff and the appellant (appellant was the grandson of the 
sister of the mother of the plaintiff) was not disclosed. It was not particularised 
how the appellant was in a position to dominate the will of the plaintiff, in 
what manner he exercised that influence, and how it was 'undue' influence. 
(332 E-G; 333 A-Cl 
( d) All that has b

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