SIDDHARTHA VARMA,J. - (1.) This is a plaintiff's second appeal. A suit was filed by the plaintiff stating that the defendant no.4, who was his son-in-law had got executed two sale deeds dated 8.7.1977 and 12.8.1977 by fraud, misrepresentation and by exercising undue influence. The sale deeds were to be cancelled owing to the fact that the plaintiff had no intention to sell his property to the defendant no.4 and to the defendant nos. 1, 2 and 3 who were the brothers of defendant no.4 and as there was no application of mind by the plaintiff, it could be said that there was no due execution of the sale deed. Further, the ground for cancellation of sale deed as was given out in para 12 of the plaint was that the defendant no.4, being the son-in-law of the plaintiff enjoyed his confidence to an extent that he began to dominate his will which inveigled him to put his signature on the sale deed. The other grounds which were taken in the suit for the cancellation of the sale deed were that it was without consideration and without any permission of the consolidation authorities. The Trial Court decreed the suit and found that the respondent no.4 being a son-in-law of the plaintiff dominated the will of the plaintiff and got the sale deed executed. The First Appellate Court however, allowed the appeal and dismissed the suit. Aggrieved by the decision of the First Appellate Court, the legal heirs and representatives of the plaintiff have filed the instant second appeal which was admitted on the following substantial questions of law: "(i) Whether according to Section 114 of the Indian Evidence Act the defendants-respondents being in and having enjoyed the active confidence of the plaintiff was in burden to proof that the impugned sale deeds had been executed in good faith which was not discharged by the defendant respondents Ist set and this important aspect of case was not considered by the Lower Appellate Court? (ii) Whether the Lower Appellate Court committed error in law in not drawing adverse inference under Section 114 of the Indian Evidence Act against defendants-respondents Ist set who withheld the material witnesses and inasmuch as they failed to produce any independent witness to prove the execution, genuineness and correctness of the impugned sale deeds? (iii) Whether the defendants-respondents failed to discharge the burden of proof as contemplated under Sections 101, 102 and 111 of Indian Evidence Act? (iv) Whether the Lower Appellate Court committed error of law in allowing the appeal and dismissing suit of plaintiffs-respondents without setting aside the categorical findings recorded by Trial Court?"
(2.) The appellants submitted that the plaintiffs suit for cancellation of the sale deeds dated 8.7.1977 and 12.8.1977, on the grounds as had been mentioned in paragraph-12 of the plaint, had to be decreed. The First Appellate Court without reversing the findings of fact as had been arrived at by the Trial Court had allowed the First Appeal and had wrongly found that there existed no fiduciary relationship between the plaintiff and the respondent/defendant no.4 and that the plaintiff had duly executed the sale after getting a proper consideration. The learned counsel submitted that in fact the respondent no.4 being a son-in-law of the plaintiffs stayed with him and cajoled him into putting his signatures on the deed without him understanding as to what document he was actually putting his signatures on. As, owing to the fiduciary relationship the faculty of the plaintiff to decipher between right and wrong had got numbed, he had to be put at par with a Pardanshin Lady and the burden to prove due execution by the plaintiff lay on the defendant no.4. The appellants, however, also submitted that there was no requirement to sell the property in question and no sale consideration passed to the plaintiff and, therefore, the sale deeds deserved to be cancelled.
(3.) In reply, learned counsel for the defendant respondents has submitted that the Trial Court dealt with the issue regarding the fiduciary relationship of the defendant no.4 and the plaintiff and the consequent misuse of his position to exercise undue influence over the plaintiff in a very perfunctory manner. In fact, there was evidence on record that the defendant no.4 was not in a dominating position at all and that he never misused his relationship with the plaintiff to defraud him and that further he never accompanied him to any of the various offices, where it has been alleged that the plaintiff used to go along with the defendant no.4. Thus, the respondents have submitted that the substantial questions of law as have been framed by this Court do not in fact, raise any question of law and that the second appeal is concluded by findings of fact.;