ပဋိညာဉ်အက်ဥပဒေပုဒ်မ ၁၉ နှင့် ၁၉-က ပါအခွင့်အရေးအကြောင်း။

 ဆရာကြီးဦးမြသင်ကြားပို့ချချက်များ

ပဋိညာဉ်အက်ဥပဒေပုဒ်မ ၁၉ နှင့် ၁၉-က ပါအခွင့်အရေးအကြောင်း။

————————————————————————————————

ပဋိညာဉ်အက်ဥပဒေပုဒ်မ ၁၉-က ကို ၁၈၉၉ ခုနှစ်ဥပဒေအမှတ် ၆ အရထည့်သွင်းသည်။

ထိုသို့ဖြည့်စွက်ရခြင်းနှင့်စပ်လျဉ်း၍ဥပဒေစိစစ်ရေးကော်မတီကအောက်ပါအတိုင်းအကြောင်းပြသည်-

[ ပုဒ်မ ၁၉ ပါအရေးအသားနှင့်ပိုမိုညီညွတ်စေရန်အလို့ငှါဥပဒေကြမ်းအပိုဒ် ၃ တွင်အဆိုပြုထားသည့်အတိုင်း ၁၈၇၂ ခုနှစ်အက်ဥပဒေပုဒ်မ ၁၉-က အသစ်၏အရေးအသားကိုပြန်လည်ပြင်ဆင်ခဲ့သည်။

မလျော်ဩဇာသုံး၍ရရှိသောပဋိညာဉ်သည်လိမ်လည်လှည့်ဖြား၍ရရှိသောပဋိညာဉ်နှင့်အခြေခံချင်းမတူ။

လိမ်လည်လှည့်ဖြားသည့်ကိစ္စတွင်လိမ်လည်လှည့်ဖြားကြောင်းသိလျက်ပဋိညာဉ်အရအမြတ်ထုတ်ခဲ့သောသူသည်ပဋိညာဉ်ကိုအတည်ပြုရန်ရွေးချယ်ခဲ့သည်ဟုကောက်ယူသည်။

သို့ရာတွင်ပဋိညာဉ်ကိုမလျော်ဩဇာသုံး၍ချုပ်ဆိုသည့်ကိစ္စတွင်မူမလျော်ဩဇာသုံးခြင်းခံရခြင်းကြောင့်အရေးယူဆောင်ရွက်ခဲ့ရသောသူသည်ပဋိညာဉ်အရအကျိုးကျေးဇူးတစုံတရာရရှိပြီးဖြစ်စေကာမူထိုသူအားသက်သာခွင့်ပေးနိုင်ရန်တရားရုံးတွင်အခွင့်အာဏာရှိရန်လိုအပ်သည်။

တဖက်တွင်ထိုသို့အကျိုးကျေးဇူးရရှိပြီးဖြစ်သည့်ကိစ္စ၌သက်သာခွင့်တောင်းသောအမှုသည်အပေါ်တရားမျှတသည့်စည်းကမ်းချက်များသတ်မှတ်နိုင်ရန်တရားရုံးတွင်အခွင့်အာဏာအပြည့်အဝရှိသင့်သည်။ ]

—————-

လိမ်လည်လှည့်ဖြားကြောင်းသက်သေထူရန်လိုအပ်ခြင်း။

တရားမမှုတွင်ဖြစ်စေ၊ရာဇဝတ်မှုတွင်ဖြစ်စေစွပ်စွဲသောလိမ်လည်လှည့်ဖြားခြင်းကိုပြစ်မှုကြောင်းအရစွဲဆိုသောအခြားစွပ်စွဲမှုမှာကဲ့သို့ပင်ယုတ္တိရှိသောသံသယကင်းရှင်းသည်အထိအခိုင်အမာပြရမည်။

လိမ်လည်လှည့်ဖြားကြောင်းကောက်ယူချက်ကိုသင်္ကာမကင်းမှုသို့မဟုတ်ရော်ရမ်းမှန်းဆချက်အပေါ်အခြေခံ၍မရနိုင်။

1946 RLR 213 ( P C )

————————

အကျိုးဆက်ခံသူကတရားစွဲဆိုခွင့်။

လိမ်လည်လှည့်ဖြား၍ဖြစ်စေ၊မလျော်ဩဇာသုံး၍ဖြစ်စေစာချုပ်ချုပ်ဆိုလျှင်တရားဝင်ကိုယ်စားလှယ်သည်စာချုပ်ကိုပယ်ဖျက်ပေးရန်တရားစွဲဆိုနိုင်သည်။

AIR 1927 Bombay 384

—————————

စာချုပ်ချုပ်ဆိုသူသေဆုံးသည့်နေ့ကပုဒ်မ ၁၉ နှင့် ၁၉-က ပါအခွင့်အရေးကိုဆိတ်ဆိတ်နေခြင်းဖြင့်သဘောတူခြင်း[ လက်ပိုက်ကြည့်နေခြင်း ][ acquiescence ]ဖြင့်ဖြစ်စေ၊အခြားနည်းဖြင့်ဖြစ်စေဆုံးရှုံးခဲ့ခြင်းမရှိလျှင်၊၎င်း၏တရားဝင်ကိုယ်စားလှယ်သာသုံးနိုင်သည်။

တရားပြိုင်ဖက်မှပုဒ်မ ၁၉-က အရတင်ပြထုချေနိုင်သည်။

AIR 1934 Calcutta 762

——————

သေဆုံးသည့်နေ့ရက်တွင်ပဋိညာဉ်ချုပ်ဆိုသူတဦးသည်ပဋိညာဉ်အက်ဥပဒေပုဒ်မ ၁၉ နှင့် ၁၉-က တွင်ဖော်ပြထားသောနည်းတနည်းနည်းဖြင့်ပဋိညာဉ်အားဖျက်သိမ်းခွင့်ကိုဆိတ်ဆိတ်နေကာသဘောတူခြင်းဖြင့်ဖြစ်စေ၊အခြားနည်းဖြင့်ဖြစ်စေဆုံးရှုံးသည်မဟုတ်လျှင်၎င်း၏တရားဝင်ကိုယ်စားလှယ်ကထိုအခွင့်အရေးကိုသုံးခွင့်ရှိသည်။

AIR 1936 Allahabad 672

———————

 

Rash Behari Naskar And Ors. vs Haripada Naskar And Ors. 

on 24 November, 1933

Equivalent citations: AIR1934CAL762, 152IND. CAS.561, AIR 1934 CALCUTTA

762

JUDGMENT

Jack, J. 

အမှုတွင် Calcutta တရားလွှတ်တော်တရားသူကြီး Jack ကအောက်ပါအတိုင်းသုံးသပ်ဆုံးဖြတ်သည်-

[ 1. This appeal has arisen out of a suit for confirmation of possession on declaration of title by plaintiffs who sued on a kabala executed in their favour by Harananda, defendant 4, on 30th October 1929. 

Plaintiffs allege that defendants 1 to 3 who are the sons of Harananda offered resistance to his taking possession of this land included in the kabala which is their bastu land. 

The suit was instituted on 14th November 1929. 

On 22nd November 1929 the defendants filed a petition for time to file objection to a temporary injunction granted at the time of the filing of the suit and they asked for time to file a written statement on 16th December 1929. 

Defendant 4 Harananda died on 30th December 1929. 

His heirs were substituted on 2nd January 1930 and a written statement was filed by defendants 2 and 3 on 18th January 1930. 

The defendants in contesting pleaded that their father was of unsound mind at the time of the alleged kabala, that it was executed under undue influence, and through fraud, that it was bad for want of consideration and that therefore the plaintiffs were not entitled to the lands in suit. 

The trial Court found that Harananda was of sound mind, that there was no evidence of undue influence or fraud and that the necessary money had been paid. 

The trial Court accordingly decreed the suit. 

The lower appellate Court on the other hand held that there was in fact undue influence, that there was no consideration and that therefore the kabala must be said to have been vitiated. 

That Court accordingly dismissed the suit.

2. The chief points urged in this appeal are (1) that the Court of appeal below should have held that it was not open to defendants 1 to 3 who are strangers to the transaction to take the defence of undue influence, (2) that the Court should have held that the transaction was not void but voidable at the option of the executant and as he did not seek to avoid it, but on the other hand by his omission to defend the suit ratified it, it was not competent to his heirs to raise the plea of undue influence; and (3) that in fact the plea of undue influence was not taken, that the Court, of appeal below Wrongly construed para. 8 of the written statement and that as the plea of undue influence was not properly raised the plaintiffs had no opportunity to contest the same. 

It is quite clear from para. 8 of the written statement that the question of undue influence was in fact raised and as this was actually the subject matter of an issue, namely issue 3, there can be no doubt that the plaintiffs had an opportunity of meeting this defence. 

As regards the contention that the contract was (voidable and not void the cheif point raised was that as Harananda did not appear in the suit the fact of undue influence was not sufficient to avoid the contract. 

Under Section 19(a), Contract Act, when consent to an agreement is caused by undue influence, the agreement is a contract voidable at option of the party whose consent was so caused. 

The finding of the trial Court was that the plaintiffs were no parties to undue influence, but in the appellate Court below the learned Judge found that the plaintiffs Bhupendra Naskar and Pyari acted in collusion with each other to produce kabalas and other documents from Harananda and thus deprive him of his property. 

They did so partly owing to a long standing dispute between Hararianda's Bastu and Bhupendra's Bastu. 

That being so there can be no doubt that on this finding the plaintiffs took part in the undue influence which was brought to bear upon Harananda.

3. As regards the fact that Harananda did not appear in the suit it may be (noted that the contract made under undue influence naturally could not be cancelled until the undue influence was removed. 

According to the finding of the lower appellate Court in this case Harananda was living up to the end of his life in the house of Pyari who was exercising undue influence upon him. 

He had therefore no opportunity to cancel the contract after the removal of the undue influence. 

The only time when it could be done was after his death and by his representatives defendants 2 and 3. 

It is therefore open to them to raise this defence of undue influence within three years after the contract and they were quite in time in raising their defence in 1929. 

As regards consideration the Court of appeal below found that no consideration passed. 

Although this would not in itself affect the title of the vendees it went to show that the sale-deed was the result of undue influence. 

This appeal therefore fails and must be dismissed with costs. ]

အခြားတရားသူကြီး Mallik ကတရားသူကြီး Jack ၏ဆုံးဖြတ်ချက်ကိုသဘောတူသည်။

————————-

 Mt. Manbhari vs Pt. Sri Ram 

on 12 May, 1936

Equivalent citations: AIR1936ALL672, 165IND. CAS.240, AIR 1936

ALLAHABAD 672

JUDGMENT

Harries, J.

အမှုတွင် Allahabad တရားလွှတ်တော်တရားသူကြီး Harries က၎င်း၏အမြင်ကိုစီရင်ချက်စာမျက်နှာ ၁ အပိုဒ် ၃ တွင်အောက်ပါအတိုင်းမြွက်ဆိုသည်-

[ 3. In my view the decree of the learned Subordinate Judge cannot be sustained. 

He has found as a fact that Sri Ram's vendor Bauli Chand had only just attained his majority when he executed the sale deed in question. 

He has further found that Bauli Chand regarded Sri Ram as his 'guru' and that this young man was accustomed to smoke hemp with his so called 'guru.' 

There were further findings that the property was worth at a very moderate estimate not less than Rs. 1,380 yet the sale deed was executed for an ostensible consideration of Rs. 400. 

Again the learned Judge having considered the evidence adduced by the plaintiff to prove the passing of the consideration came to the conclusion that payment of Rs. 70 only had been established. 

In short the facts found are these: that the vendor was a very young man who was addicted to smoking hemp. 

This young man sold property worth at least Rs. 1380 to Sri Ram whom he regarded as his “guru”. 

All that he was promised for the property was Rs. 400 and at most he never received more than Rs. 70, The only evidence that Rs. 70 was paid is the fact that it is stated that such a sum was paid before the Sub-Registrar, but such is not very satisfactory evidence because money paid before the Sub-Registrar can very easily be repaid the moment the parties left that officer. ]

စီရင်ချက်စာမျက်နှာ ၂ နှင့် ၃ အပိုဒ် ၄၊၅၊၆၊၇ တို့တွင်ပဋိညာဉ်အက်ဥပဒေပုဒ်မ ၁၉-က ပါပြဌာန်းချက်ကိုရည်ညွှန်းပြီးအောက်ပါအတိုင်းသုံးသပ်ဆုံးဖြတ်သည်-

[ 4. Upon these facts the learned Subordinate Judge says that there was no evidence at all of fraud or undue influence, but in the same breath says that very likely Sri Ram took advantage of the immature youth of the vendor. 

In my judgment the relationship of the parties in this case was precisely what is contemplated in Section 16, Contract Act. 

Sri Ram was in a position to dominate the will of Bauli Chand and to use his position to obtain an unfair advantage over the latter. 

As the learned Judge has found Sri Ram was in the position of a 'guru' to this immature young man and further this immature young man was addicted to hemp smoking which is well-known to have disastrous consequences upon the smoker. 

The admitted facts here show quite clearly that Sri Ram was in a position to dominate the will of Bauli Chand and as a contract was entered into between them which was obviously on the face of it unconscionable, it was for Sri Ram to prove that such a contract was not induced by undue influence. 

Sri Ram did nothing to displace the presumption of undue influence which arises in this case and to my mind the evidence so far from displacing such presumption actually proves undue influence. 

There is an actual finding that Bauli Chand transferred the whole of his property to Sri Ram, his so called guru, and that coupled with the other circumstances which I have mentioned satisfy me that this was not a bona fide transaction and that it was open to Bauli Chand to move to have it set aside on the ground of undue influence.

5. Bauli Chand however disappeared sometime after this contract and his where abouts have been unknown for over seven years. 

Consequently the burden of proving that he is now alive rests upon the persons who so allege. 

Sri Ram in this case seems to have conceded that Bauli Chand is dead because he sued his wife presumably as Bauli Chand's heir and entitled to his property for at least hex-life. 

In any event as Bauli Chand has not been heard of by those who would naturally have heard of him for over seven years the Court can presume his death unless there is evidence to the contrary.

In my view the present appellant, as representing her husband, can raise the question of undue influence and claim that the contract should not be enforced against the representatives of Bauli Chand. 

Counsel for the respondents finds himself in a difficult position because though there is no finding of undue influence by the learned Subordinate Judge there is a series of findings of fact which amount actually to a finding of undue influence. 

Counsel however has contended that undue influence cannot be pleaded by way of defence and as there is no claim by the defendant to set aside the contract, undue influence, even if established, is no defence to the present claim. 

In my view, however, it is well established that a defendant may raise undue influence by way of defence and it is not necessary for him to take steps to set aside the agreement. 

This is clearly laid down in the case in Rangnath Sakharam v. Govind Narsivu (1904) 28 Bom 639. Further the same principle is laid down in Lakshmi Doss v. Roop Laul (1907) 30 Mad 169 at p. 178. 

I, therefore, hold that undue influence may be set up by way of defence to an action by the other party on the contract alleged to have been induced by such undue influence. 

A second contention was advanced on behalf of the respondents, viz., that it was not open to a representative of a party to the contract to raise the question of undue influence. 

It was pointed out that in Section 19-A no reference is made to the representatives of the parties to the contract. The section reads:

When consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the party whose consent was so caused. Any such contract may be set aside either absolutely or, if the party who was entitled to avoid it has received any benefit thereunder, upon such terms and conditions as the Court may deem just.

6. To hold that Section 19-A, Contract Act is confined solely to the parties to the contract might lead to some extraordinary results. 

Persons on their deathbeds are frequently induced to enter into contracts by means of undue influence, yet if the respondents' contention was sound such contracts could but rarely be set aside. 

However, the matter is concluded by authority if any authority is needed, because it was decided in Shravan Goba v. Kashiram Deviji 1927 51 Bom 133 that the option of avoiding a contract procured in any of the ways mentioned in Section 19 and Section 19-A is exercisable by the party's representatives unless at the date of his death he has lost such rights by acquiescence or otherwise. 

There is no suggestion in this case that Bauli Chand had lost the rights by acquiescence or otherwise and the true facts tend strongly to show that Bauli Chand was never in a position after this contract to exercise his will at all. 

In my view the present appellant could resist this claim as a representative of the vendor by pleading undue influence. 

The result, therefore, is that I am satisfied that this contract was induced by undue-influence if not by something worse and therefore that it was voidable at the option of Bauli Chand and now voidable at the option of his widow. 

Further, she can by way of defence to this claim plead that the contract was not binding upon her husband and that it gave Sri Ram no right whatsoever. 

It, however, has been contended by learned Counsel for the respondents that as the vendor Bauli Chand received a benefit viz., Rs. 70 under the contract his widow should at least be made to repay that sum. 

I am far from satisfied that Bauli Chand received any benefit whatsoever under this or any other contract which he executed in favour of Sri Earn.

7. The evidence called to establish the passing of Rs. 400 as the consideration of this sale was disbelieved in its entirety by the learned Subordinate Judge and he held that only Rs. 70 had bean paid and that mainly upon the endorsement of the Sub-registrar. 

Where a vendee calls perjured evidence with a view to proving the passing of the major part of the consideration it is quite impossible to ask the Court to believe that at least the evidence with regard to a very minor part of the consideration is true. 

Further having regard to the fact that Sri Ram now has the whole of Bauli Chand's property I do not think it can possibly be held that Bauli Chand or his widow, the present appellant, had received any benefit whatsoever from this particular transaction. 

Having regard to the peculiar facts of the case I do not think it right that I should frame an issue and ask the lower Court to decide whether or not Bauli Chand or his widow obtained any benefit under this contract.

The facts are plain and speak for themselves and I hold that they received no such benefit in fact. 

To my mind this is a clear case where an ignorant young man whose mind was clouded and affected by hemp smoking has been deprived of his property by a person who had complete control over him.

That being so, this appeal must be allowed and the decree of the lower appellate Court set aside and the plaintiff's claim dismissed in its entirety. 

The present appellant must have her costs in this Court and in the Courts below. 

Leave to appeal under the Letters Patent is refused. ]

—————-