Decided on April 07,1970

Kumati Bala Roy And Another Appellant
Nirmal Chandra Roy And Others Respondents


M.M. Dutt, J. - (1.) This appeal is at the instance of the Plaintiffs and it arises out of a suit for setting aside a kobala dated September 7, 1959 executed by the mother of the plaintiffs Sm. Pusheswari Debi in favour of her brother's son who was the defendant No. 1 in the suit. By the said kobala Pusheswari sold about twenty -three bighas of land for a consideration of Rs. 10,000.00 (Rupees ten thousand) to her brother's son the defendant No. 1. The plaintiffs challenged the said kobala as vitiated by fraud and undue influence of the brother and brother's son of Pusheswari. The learned Subordinate Judge after considering the evidence found that the kobala in question was not obtained by fraud or undue influence and that the document was executed by Pusheswari for the consideration mentioned therein. The lower appellate court on appeal by the plaintiffs affirmed the findings of the learned Subordinate Judge and dismissed the appeal.
(2.) Mr. Joy Gopal Ghosh, learned Advocate appearing for the plaintiffs, strenuously urged before us that the lower appellate court did not properly consider the contention made on behalf of plaintiffs, namely, that the document was obtained by the defendants by practising undue influence on Pusheswari Debi. Mr. Ghosh argued that the brother of Pusheswari was in a position to dominate the will of his sister Pusheswari and that the document was executed as a result of the said position of the brother of Pusheswari. Further it was argued by Mr. Ghosh that Pusheewari did not get any independent advice which was essential before the kobala could be held to be a valid transaction.
(3.) So far as the question of independent advice is concerned the courts below concurrently found that the document was read over and explained to Pusheswari by the scribe who was examined in the case, that Pusheswari understood the nature and contents of the documents, that consideration for the kobala did pass and that there was no fraud or misrepresentation. In view of the said findings of the courts below the question that Pusheswari Debi did not get independent advice does not arise at all. It is now well settled that in order that a transaction may be held to be induced by undue influence three conditions must be satisfied, namely, that the relation subsisting between the parties were such that one was in a position to dominate the will of the other, that the transaction secured an unfair advantage to the party in a position to dominate the will of the other and that this unfair advantage resulted from the use of that position. It may be that the brother of Pusheswari was in a position to dominate the will of Pusheswari but the question is whether an unfair advantage was obtained by the brother of Pusheswari by the use of the said position. As aforesaid the property was sold at a consideration of Rs. 10,000.00 (Rupees ten thousand). It is not contended before us that the consideration was not adequate. What was disputed before the courts below was that no consideration for the kobala passed but the concurrent findings of the courts below is that the consideration did pass. The reason for the sale of the property by Pusheswari Debi in favour of the defendant No. 1 as found by the courts below is that Pusheswari sold some vested lands to certain refugees, that those sales being invalid Pusheswari was under an obligation to return the consideration money to the refugees and that Pusheswari required money for refund of the consideration money to the refugees. It has been found by the lower appellate court that as a matter of fact over Rs. 4,000.00 (Rupees four thousand) was repaid by Pusheswari to the refugees. Therefore, the allegation that no consideration passed for the document cannot be accepted. In view of the aforesaid findings, it cannot be said that the brother of Pusheswari obtained an unfair advantage over her by virtue of his position. If the question of unfair advantage is ruled out then the question of undue influence does not arise.;

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