DEO SINGH Vs. MTRANI DULAIYA JUDEO

JUDGEMENT

(1.) This is a defendants appeal from the decision of the Additional Subordinate Judge of Banda. The plaintiff-respondent sued to recover possession of a village alleging that a deed of gift which set out that she had given this village to her three brothers in the year 1909, had bean procured from her by fraud, in that one of her brothers, Partap Singh, who was also managing her affairs, had represented to her that the said deed was merely a lease of the land in the village to him, which was necessary in order that he might manage the estate properly. That was the main allegation in the plaint. When the plaint was drawn up it is clear that the plaintiff relied upon that and on that alone. It is true that in the reliefs claimed the plaintiff said that the dead was obtained by practising fraud, bringing undue pressure to bear on her and taking advantage of her being a pardanashin lady.

(2.) But in the body of the plaint the chief point relied upon was this allegation of fraud. The land was mutated in favour of the three brothers, who after the gift continued to live with the plaintiff until a year or two afterwards. Partap Singh and Kalian Singh are now dead and their sons have been substituted. The only one of the original donees who is alive is Deo Singh. It is impossible for the plaintiff to succeed in upsetting this deed on the ground of fraud on the facts of this case, and in fact the question of fraud was not seriously pressed by counsel who appeared for the respondent. It is obvious on reading the record that on the death of Partap Singh, if indeed there had been any question of a lease having been given for the lifetime of Partap Singh, the question would at once have arisen and the lady would have brought an action to recover her property. Instead of that, she did nothing, and it was only on the death of Kalian Singh later that the plaintiff took any action at all. The action she took was not to allege that the original gift had been represented to her as a lease, but she filed an objection to the mutation of names and in that objection she alluded to the deed as a gift, but stated, contrary to the terms of the deed itself, that the gift was only for the lifetime of the donee. Apparently at that time whoever was advising the plaintiff had forgotten the terms of Section 92, Evidence Act. The action taken at that time is quite conclusive on the question of fraud now raised and relied upon by the plaintiff.

(3.) However, the respondent has endeavoured to establish her case by relying upon the words used in the relief clause of the plaintiff that undue pressure was brought to bear upon her. There is no evidence on the record of any undue influence. But counsel relies upon the relationship of the parties to raise a presumption of undue influence. We are not inclined to think that there is anything in this case to bring the defendants within Section 16, Contract Act. But we do not need to discuss the matter, because if, for the sake of argument, we agree that there was undue influence to obtain this deed, it is perfectly obvious from the circumstances of the case that the undue influence was removed very many years before the action was brought. The brothers apparently left the plaintiff about 1910 or 1911. The action was only brought in the year 1925. Art. 91, Lim. Act, provides that in order to cancel or set aside a document, the action must be brought within three years when the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him.