SHIVDAN Vs. MISRIMAL

JUDGEMENT

(1.) THE is a special appeal by the defendant under sec. 18 of the Rajasthan High Court Ordinance, 1949, against the appellate judgment and decree of a learned Single Judge of this Court dated 22nd August, 1955.

(2.) THE dispute between the parties arises out of a suit for redemption and relates to a small sum of Rs. 415/- only, but the question of law involved is one of importance and therefore it would be proper to state briefly a few facts which have given rise to it.

(3.) LEARNED counsel for the appellant has urged in the end that the respondents had not pleaded that the appellant had brought undue influence on the original mortgagors or that the transaction was unfair or unconscionable, and under these circumstances this plea should not be taken into consideration. This argument is also untenable, because the respondents have filed this suit mainly with the purpose of getting themselves relieved of the burden of paying Rs. 415/- of Teekha Ankh. It is true that the plaint is not happily drafted, but it would not be fair to put too much stress on the frame of the pleading in a muffasil court and that too in the year 1947. Sec. 16 (3) of the Indian Contract Act runs as follows: - "where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other". It is not disputed in the present case that the original mortgagors and the mortgagees already stood in the position of a debtor and a creditor. A perusal of the mortgage deed on the very face of it shows that the creditors in that case were in a position to dominate the will of the debtors and that the contract was patently and manifestly oppressive, unfair and unconscionable, because no sensible man would agree to pay Rs. 415/-more while obtaining a loan of Rs. 55/-only. A very heavy burden, therefore, lay on the appellant to prove that this was a fair transaction. The mortgagee had already included the money which they had spent on improvements of the mortgaged property by that date. They had also got their full interest on the money advanced by them. All the courts below have held that the mortgagees have not spent anything further on the improvements of the mortgaged property. The mortgage-security was not of a risky nature in any manner. Under these circumstances, the appellant cannot claim the said amount of Rs. 415/-simply because it is embodied in the mortgage deed. In the absence of any evidence on the part of the appellant the trial court and the learned Single Judge were not wrong in holding that there was no consideration for this amount and that this term seems to have been obtained by the mortgagees on account of undue influence.