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Regular Second Appeal No. 124 of 1955, decided on 24th February 1958, from the decree of the Court of Muhammad Ali, Senior Civil Judge, Rawalpindi, dated the 12th January 1955.

S. 100‑Finding of lower appellate Court is vitiated if Court makes erroneous approach to case.

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A, standing in position of active confidence towards B‑Sale by B in favour of A‑B alleging that sale is void on account of undue influence and fraud --Burden is on A to prove good faith of transaction in question.

Muhammad Iqbal Hussain for Appellant.

Nawab Ahmad for Respondent.

Dates of hearing: 21st and 24th February 1958.

This appeal arises out of a suit by the appellant, Mst. Nuro, for a declaration that the sale‑deed executed by her on the 10th of December, 1949 (Exh. D. 6) in respect of her residential house in village Jand Gujar in favour of the, respondent, Gulzar, is void on account of undue influence and fraud. The learned trial Court decreed the suit, but the learned Senior Civil Judge, Rawalpindi, on appeal, set aside the decree of the trial Court and dismissed the suit with costs.

The finding of the Court of first appeal is vitiated by the erroneous approach which it made to the case. The facts and circumstances of the case as appearing from the record, and not contested by the respondent in this appeal, are: The plaintiff- appellant is a childless widow. She is illiterate and was at the time of the suit between 60 and 65 years old. Financially she is very well off and has been contributing lavishly to various charities. She was at the time of the sale in question employed in the hospital at Gujarkhan, a few miles from her home village, as a midwife. The respondent's father, who was a brother of the appellant, died when the respondent was a child of about five years. The appellant brought him up and performed his marriage. According to the respondent himself, he was living in the very house which he alleges to have purchased from the appellant for about four or five years before the sale in question. This statement of the respondent can only mean that whenever he came to his village (he is employed in the army) he stayed in the house of his aunt, the appellant. The appellant was ill from a few days before the execution of the sale deed in question. The respondent went to Gujarkhan and took her home in a tonga. The sale‑deed was executed, as already stated, on the 10th of December. The illness of the appellant became worse in the next few days and she was subsequently admitted in the hospital at Gujarkhan on the 15th of December 1949 as an indoor patient.

The above facts leave no room for doubt that the respondent stood in a position of active confidence towards the appellant within the meaning of section 111 of the Evidence Act and that the burden lay squarely on him to prove the good faith of the transaction in question. It was conceded by his counsel at the Bar that no evidence has been produced in this case to show that the appellant had ever thought of selling her house before the 10th of December. There is no evidence on the record to show how her intention to enter into the transaction in question was produced; or that the respondent did not take advantage of the love and confidence of the appellant. On the other hand, the undeniable facts are that there was no plausible reason at least none has been suggested as to why the appellant should have sold the house; that the alleged consideration money of Rs. 1,500 was not Paid before the Registrar and that no receipt was taken by the respondent‑ from the appellant acknowledging the receipt of any part of the consideration.

In the sale deed it is alleged that the consideration money was spent on the treatment of the appellant during her illness. The statement is obviously false because, in the first instance, such a large amount could not have been spent on her treatment and, secondly because she received practically all her treatment free in the hospital at Gujarkhan. In his statement before the Court, however, the respondent alleged that he had paid Rs. 1,500 to the appellant ten days before the execution of the deed and not that the money was spent on the appellant's treatment. There is no witness to prove this payment. At that time she was living in the quarters of the hospital at Gujarkhan. The fact that the respondent received the sum of Rs. 1,500 from his Company on the 10th of November 1949, even if true, cannot, by itself, be evidence of its payment to the appellant. If the money was really intended to be paid to the appellant without obtaining receipt and long before the execution of the alleged sale‑deed, it would have been paid to her at once and not twenty days afterwards. Again, if the respondent had withdrawn the money for the purchase of the house on the 10th of November, the transaction must have been settled before then. But there is no evidence whatever to show that the transaction was settled, or that there was any talk about it, at any time before the sale deed was actually executed on the 10th of December.

For the foregoing reasons the finding of the trial. Court that the respondent obtained the sale‑deed in question by means of undue influence and fraud must be upheld. This appeal is, therefore, allowed with costs in all the Courts. The judgment and decree of the lower appellate Court are hereby set aside and those of the trial Court restored.

K. M. A. Appeal accepted.

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