Rangnekar, J. -
(1.) THE appellant brought a suit for an injunction restraining defendant No.1 from interfering in any way with his possession and enjoyment of certain lands which, he alleged, were leased to him by a registered lease dated July 8, 1922, for a period of twenty-five years at a certain rental, and in the alternative for possession of the lands. THE question in the suit related to the validity of this lease, the defendant contending that it was obtained from him by undue influence and misrepresentation. Although the plaintiff originally alleged that he was in possession, it is clear on the record that he admitted later on that at the date of the suit and for some time previous to it the defendant had been in possession of the lands in question.
(2.) BOTH the Courts found that the lease was obtained by undue influence and misrepresentation. Hence this appeal.
It is contended on behalf of the appellant that the finding of the lower Courts on this issue cannot be accepted, and it is further contended that the question whether the document was obtained by undue influence and misrepresentation is a mixed question of fact and law. Apart from any authority, I think the question as to whether an instrument was obtained from a person by undue influence and misrepresentation is and must be a question of fact. I am strengthened in this opinion by a recent pronouncement of their Lordships of the Privy Council in Satgur Prasad v. Har Narain Das (1932) 34 Bom. L. R. 771, P. C. , and in my opinion, therefore, if this was the only question in the appeal, the appeal must fail.
Mr. Desai, however, on behalf of the appellant, has raised a question of law. He says, first, that the defendant is precluded from challenging the validity of the lease as he had not taken any proceedings to have it set aside. Secondly, he argues that he is precluded from doing so as, if he had sued to have the lease set aside, the suit would have been barred by the law of limitation ; and, lastly, he argues that it is not open to a defendant in the mofussil to raise a defence of the nature of a counterclaim. In support of the last contention he relies on two decisions of the Privy Council in Currimbhoy & Co. v. Creet (1932) 35 Bom. L. R. 223, P. C. and Mian Pir Bux v. Mahomed Tahar (1934) 36 Bom. L. R. 1195, P. C. . I am unable to find anything in these decisions to support such an astounding proposition as Mr. Desai has put forward. All that was decided in both these cases was that where a defendant seeks to support his possession of property on the ground of the doctrine of part performance or on the ground that he had entered into an agreement to buy the property, and therefore was entitled to specific performance of it, he cannot be allowed to do it if at the date of the suit a suit for specific performance of such an agreement had become barred. That clearly is not the position here. The defendant does not want to support his title to the property as admittedly he is the owner of it. All that he says is that he cannot be driven out of possession of the property and that he has a better title than the plaintiff to it as the claim made by the plaintiff is under an instrument which is voidable and which was obtained from him by undue influence and misrepresentation. To accept this contention would, in my opinion, lead to disastrous consequences. Supposing a suit is filed on a promissory note and the defendant says that the note was obtained from him by undue influence or fraud or misrepresentation, if the contention is accepted, the defendant would not be allowed to raise the defence but must submit to a decree, or at least ask for a stay of the suit and file an independent suit for such a declaration and for consequential relief, and this, in my opinion, would be absurd.
(3.) AS regards the first contention that the defendant was precluded from avoiding the document, as he had not taken proceedings to have it set aside, it is clear from the record that no such contention was ever raised in either Court. There is no issue with regard to it. The contention seems to me to be of the nature of an estoppel, and the determination of it must depend upon evidence. Mr. Desai points out that the plaintiff had alleged in the plaint that the defendant should be referred to an independent suit or should have filed an independent suit, and later in 1929 he put in an application. He stated therein that if defendant No.1 does not admit the rent-note, he must file a separate suit for getting it set aside and to recover possession, I am unable to construe these two statements as raising the question of estoppel. Apart from that, it is clear that the plaintiff asked that only one issue should be raised and never suggested another issue on this ground. The issue which he suggested was whether the plaintiff is not entitled to be restored to possession. Mr. Desai further supports his argument by reference to the finding of the trial Court on issues Nos. 3 and 4, but it appears from what the learned Judge says that it was in the course of the arguments that the plaintiff argued that exhibit 72 is a valid document till it is set aside, and hence the defendants are bound to hand over possession. These issues have nothing to do with the question now raised. Issue No.3 raises the question whether the plaintiff is entitled to the injunction sought, and issue No.4, whether he is entitled to possession sought. I cannot, therefore, allow Mr. Desai to raise the question in second appeal.
The second contention, however, appears to me to be a question of law, and I, therefore, allowed Mr. Desai to argue it, and he has done it fully and has referred to various cases in support of it. He relied upon Jugaldas v. Ambashankar (1888) I. L. R. 12 Bom. 501. This case, undoubtedly, appears on the face of the judgment to support Mr. Desai's contention, but on a careful consideration of the facts in that case, the case is clearly distinguishable, and has been so distinguished by no less an authority than Sir Lawrence Jenkins in Rangnath Sakhararn v. Govind Narsinv (1904) I. L. R. 28 Bom. 639 : S. C. 6 Bom. L. R. 592, In the latter case the plaintiff sued to recover from the defendant the amount due for interest on a mortgage-bond dated April 15, 1893, by sale of the mortgaged property. The suit was brought in 1900. The defendant contended that he did not execute the bond with free consent and that it was obtained from him under pressure of criminal proceedings. It was held by the Court that the defendant was entitled to resist the claim made against him by pleading fraud, and that he was entitled to urge that plea though he had not brought a suit to set aside that transaction. It was further held that under the circumstances he was not precluded from urging that plea by lapse of time. In dealing with Jugaldas v. Ambashankar, Sir Lawrence Jenkins observed as follows (p. 642) : In support of the plea of limitation reliance is placed on the decision of Sir Charles Sargent in Jugaldas v. Ambashankar, but when the facts are examined, it is apparent that the argument now advanced is not supported by the actual decision in the case. There the plaintiffs sued to recover from the defendant Rs. 960 as arrears of rent. The defendant sought to set up as an answer to the claim that the defendant's original landlord had been defrauded by the plaintiffs and that the conveyance by the original landlord to the plaintiffs in that suit was vitiated by fraud. " Now fraud does not make a transaction void, but only voidable at the instance of the person defrauded. The fraud (assuming for the sake of argument that there was fraud in the strict sense of the term) in that case, entitling the defrauded party to avoid, was exercised not upon the defendant, but upon one not a party to that suit who had not avoided the transaction. Under these circumstances it is obvious that it was not open to the defendant in that suit to plead that the transaction was void as against him. It is quite true that Sir Charles Sargent alludes to the fact that the person alleged to have been defrauded had not taken effective steps to impeach the sale, and the relevancy of the allusion is that not having done so, it was not open to the defendant to say that the transaction was void. When the facts of the case are once understood it will be seen that it lays down nothing which is contrary to the doctrine that prevails in the other Courts in India.;