TARUN KUMAR GUPTA,J. - (1.) THIS second appeal is directed against the judgment and decree dated 30 th November, 1992 passed by learned Assistant District Judge, Second Court at Contai, in Title Appeal No.75 of 1992 affirming the judgment and decree dated 6 th of June, 1991 passed by learned Munsif, First Additional Court at Contai in Title Suit No.166 of 1989. Sarbeswar Pradhan, since deceased, being the predecessor-in-interest of both appellants / plaintiffs and respondents / defendants, filed said suit for declaration and injunction. The original plaintiff alleged that on the ground of loss of his daughter Sabita Pradhan he was grieved and that in the name of consoling him defendant No.1 Bibi Rani Jana, another daughter, took him to her place of residence at Bargar in Orissa. At the instance of defendant No.1 the original plaintiff became addicted to liquor. During the time of his intoxication defendant No.1 managed to obtain two deeds, one deed of gift and another sale deed executed by the original plaintiff in favour of Bibi Rani Jana. The original plaintiff without knowing the contents of those documents executed the same at the instance of defendant No.1 Bibi Rani Jana and her brother Anil, another defendant. Both those documents were vitiated by fraud, misrepresentation and undue influence. Though Bibi Rani Jana agreed to execute a deed of release relating to those properties covered by those deeds but ultimately she did not execute said deed of release. Those deeds were not acted upon. Accordingly, said suit was filed with a prayer for declaration that the deed of gift bearing No.3150 executed on 24 th of April, 1985 and deed of sale bearing No.3151 executed on 27 th May, 1985 and both being registered on 27 th of May, 1985 were void being vitiated by fraud, misrepresentation and undue influence with prayer for permanent injunction and other consequential reliefs.
(2.) DEFENDANT respondent No.1 Bibi Rani Jana contested said suit by filing written statement. She denied the material allegations of the plaint. She contended inter alia that her father Sarbeswar Pradhan, who was a contractor by profession, was in debts and defendant No.1 helped him financially to repay the loans and Sarbeswar Pradhan intended to gift away the property covered by the deed of gift. Sarbeswar Pradhan also raised his house on the suit land covered by the deed of sale with the financial assistance of defendant No.1. Sarbeswar executed the deed of gift as well as the kobala knowing their contents and that witnesses were also present at the time of execution of the documents. The suit was liable to be dismissed. Learned Trial Court framed several issues including an issue as to whether the deeds were vitiated by fraud, undue influence and misrepresentation. Both the parties adduced evidence, both oral and documentary. After contested hearing learned Trial Court dismissed the suit observing that the allegations of fraud, undue influence and misrepresentation were not proved. Original plaintiff Sarbeswar died and his other heirs (other than defendants) were substituted in his place. The present appellants as plaintiffs preferred an appeal which was also dismissed after contested hearing by the impugned judgment and decree. This second appeal was heard on the following substantial questions of law. 1. Whether learned courts below substantially erred in law by holding that Sarbeswar Pradhan was not induced by Bibi Rani Jana in executing the impugned kobala and deed of gift in intoxicated condition and thereby not in a position to know the contents of the documents by applying wrong legal test. 2. Whether learned courts below substantially erred in law by holding that the impugned deeds were not vitiated by fraud, misrepresentation and undue influence by applying wrong legal test.
(3.) MR . Das, learned counsel for the appellants, submits that it came out from the evidence of witnesses of both sides that Sarbeswar Pradhan was addicted to drinking. He further submits that there is no denial that after death of Sarbeswar 's daughter Sabita he was taken to the house of another daughter Bibi Rani Jana, defendant No.1. He further submits that as Sarbeswar Pradhan used to take liquor during the most period of the day, he was not in a position to execute the impugned deeds knowing its contents and that taking advantage of his condition the respondent defendant No.1 Bibi Rani Jana in collusion with other defendants managed to obtain impugned deeds in her favour. His next contention is that there was no ground for executing those deeds by Sarbeswar depriving his other sons and daughters. According to him, the value of the suit property described in the kobala was also shockingly low to show that the alleged transaction was not a bona fide one. He next submits that those two deeds were never acted upon as Sarbeswar continued to reside in the suit house till his death and present appellant plaintiffs are also residing there. According to Mr. Das, learned courts below failed to take note that respondent defendant No.1 Bibi Rani Jana was in a position to control and dictate her grieved father Sarbeswar and managed to obtain those two documents while he was in intoxicated state and was not in a position to learn its contents. His further submission is that learned Courts below failed to take note of the evidence of the witnesses on this score causing miscarriage of justice by coming to a palpable wrong finding.;