PETITIONER: SUBHAS CHANDRA DAS MUSHIB Vs. RESPONDENT: GANGA PROSAD DAS MUSHIB AND ORS. DATE OF JUDGMENT: 14/09/1966 BENCH: MITTER, G.K. BENCH: MITTER, G.K. WANCHOO, K.N. SHELAT, J.M. CITATION: 1967 AIR 878 1967 SCR (1) 331 CITATOR INFO : RF 1976 SC 163 (22) ACT: Indian Contract Act, s. 16-Undue influence-Burden of proof- necessity of plea being clearly raised in pleadings. HEADNOTE: The suit in the present case was for declaring that a dead of settlement executed by the plaintiff's father and the plaintiff's sister in favour of the plantiff's brothers son in respect of certain properties was fraudulent, collusive and invalid and for cancellation of the said document. The trial court dismissed the suit. However in appeal the High Court proceeded on the basis that in the circumstances of the case and in view of the relationship of the parties the trial court should have made a presumption that the donee had influence over the donor and should have asked for proof from the respondents before the High Court that the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which would justify the court in holding that the gift was the result of a free exercise of the donor's will. The High Court went on to presume from the great age of the donor that his intelligence or understanding must have de- teriorated with advancing years and consequently it was for the court to presume that he was under the influence of the younger son at the date of the gift. In appeal before this Court it was contended on behalf of the defendant-appellant that the judgment of the High Court had proceeded on an entirely erroneous basis and that there was no sufficient pleading of undue influence nor was there any evidence adduced at the trial to make out a case of undue influence. HELD: The whole approach of the High Court was wrong and its decision could not be upheld. (i) The law as to undue influence is the same in the case of gifts inter vivos as in the case of a contract and the court trying a case of undue influence must consider in view of s. 16(1) of the Indian Contract Act two things to start with, namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor and (2) has the donee used that position to obtain an unfair advantage over the donor ? Sub- s. (2) of section 16 illustrates as to when a person is to be considered to be in a position to dominate the will of another. These are inter alia (-a) where the donee folds a real or apparent authority over the donor or (b) when he makes to contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress. Sub. 1. (3) of the section throws the burden of proving that a contract was not induced by undue influence on the person benefiting by it when two actors are found against him namely that he is in a position to dominate he will of another and the transaction appears on the fact of it or on the vidence adduced to be unconscionable. (334 D-H] Thums under s. 16 the unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of the parties. But the High Court neither determined the relationship of the parties as required in s. 16(1), nor did it find that the transaction was unconscionable. Therefore the presumptions made by it were unwarranted by law. [335 D; 339 C] M15Sup. C.I./66-8 332 (ii) Before a court is called upon to examine whether undue influence was exercised or not it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. These conditions remained unsatisfied in the present case. [336 C-D] (iii) On the evidence in the case the trial court was right in its conclusion that the donor was fully aware of the fact that he had transferred the property to defendant No. 1. It had not been established that he was of unsound mind. [338 E-F] (iv) There could be no presumption of undue influence merely because the donor and the donee were nearly related to each other. Nor could the fact that a grandfather made a gift of a portion of his properties to his only grandson a few years before his death show that the transaction was unconscionable. [335 E; 341 C] Raghunath Prasad v. Sarju Prasad and Ors. 51 I.A. 101 Poosathurai v. Kannappa Chettiar and Ors. 47 I.A. 1, Ladli Prasad Jaiswal v. Karnal Distillery Co. Ltd. & Ors. [1964] 1 S.C.R. 270 and Ismail Mussajeo Mookerdum v. Hafiz Boo, 33 I.A. 86, referred to. JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 617 of 1964.
Appeal by special leave from the judgment and decree dated
July 22, August 12, 1960 of the Calcutta High Court in
Appeal from Original Decree No. 193 of 1954.
Niren De, Addl. Solicitor-General, and Sukwnar Ghose, for
the appellants.
P. K. Chatterjee, for respondent No. 1.
The Judgment of the Court was delivered by
Mitter, J. This is an appeal from a judgment and decree of
the High Court of Calcutta on a certificate granted by it
reversing a decision of the Subordinate Judge of Bankura
dismissing the plaintiff’s suit for declaring that a deed of
settlement (Nirupan Patra) executed by the plaintiff’s
father and the plaintiff’s sister in favour of the
plaintiff’s brother’s son registered on July 22, 1944 in
respect of properties situate in village Lokepur was
fraudulent, ,collusive and invalid and for cancellation of
the said document. The Judges of the High Court proceeded
on the basis that in the circumstances of the case and in
view of the relationship of the parties the trial court
should have made a presumption that the donee had influence
over the donor and should have asked for proof from the
respondents before the High Court that the gift was the
spontaneous act of the donor acting under circumstances
which enabled him to exercise an independent will and which
would justify the court in holding that the gift was the
result of a free exercise of the donor’s will. The High
Court went on to presume from the great age of the donor
that his intelligence or understanding must have
deteriorated with advancing years and
333
consequently it was for the court to presume that he was
under the influence of his younger son at the date of the
gift It was contended before us by the learned Additional
Solicitor-General appearing for the appellant that the
judgment of the High Court had proceeded on an entirely
erroneous basis and that there was no sufficient pleading of
undue influence nor was there any evidence adduced at the
trial to make out a case of undue influence and in the vital
issue raised before the learned Subordinate Judge the
expression “undue influence” was not even used.
The main facts which have come out in the evidence are as
follows. The plaintiff’s father, Prasanna Kumar, owned
certain lands in two villages, namely, Parbatipur and
Lokepur, holding an eight annas share in each. The exact
valuation of the properties is not known, but it would not
be wrong to assume that the Lokepur properties, the subject-
matter of the suit, were the more valuable ones. Prasanna
Kumar died in January or February, 1948 when he was about 90
years of age. He had two sons, namely’ Ganga Prosad, the
plaintiff, and Balaram, the second defendant in the suit,
besides a daughter Swarnalata, and an only grandson Subhas
Chandra, who was the first defendant in the suit. Ganga
Prosad had no son. He had served in the Medical School at
Bankura from 1932 to 1934. Thereafter he worked as a
contractor for one year. From November 1944 to 1948 he
served in Searsole Raj Estate. The family consisted of
Prasanna and his wife, their two sons and their wives,
besides the grand-son Subhas Chandra and Prasanna’s daughter
Swarnalata who became a widow in her childhood and was
residing with her parents. It appears that Balaram always
lived with his father and was never employed elsewhere.
According to the plaintiff’s own evidence he was looking
after the property of his father so long as he was at
Bankura. The Lokepur properties were put to auction in
execution of a decree for arrears of rent and were purchased
by Prasanna benami in the name of Swarnalata. The deed of
gift shows that the transaction was entered into out of
natural love and affection of the donor for the donee and
for the respect and reverence which the grand-son bore to
the grand-father. There is no direct evidence as to whether
the plaintiff was present in Bankura at the time when this
deed was computed and registered. It is the plaintiff’s
case that he was not. The suit was filed in 1952, more than
eight years after the date of the transaction and more than
four years after the death of Prasanna. There is a
considerable body of evidence that in between 1944 and 1948
a number of settlements of different plots of land in
village Lokepur had been effected by Balaram acting as the
natural guardian of his son Subhas Chandra and in all of
them the Nirupan Patra had been recited and in each case
Prasanna had signed as an attesting witness. These
settlements were made jointly with the other co-sharers of
Prasanna. In 1947 the Muni-
334
cipal Commissioners of Bankura filed a suit against Prasanna
for recovery of arrears of taxes. Prasanna filed his
written statement in that suit stating that he had no
interest in the property. After Prasanna’s death the
Municipal Commissioners did not serve the plaintiff with a
writ of summons in the suit but obtained a decree only
against Balaram ex parte. The plaintiff attended the
funeral ceremony of his father in 1948, but he alleges that
the never came to know of any of the settlements of land in
Lokepur after 1944. He admitted never having paid any rent
to the superior landlords and stated that he came to know
about the deed of settlement some two years before the
institution of the suit from his cousins none of whom were
called as witnesses.
We may now proceed to consider what are the essential in-
gredients of undue influence and how a plaintiff who seeks
relief on this ground should proceed to prove his case and
when the defendant is called upon to show that the contract
or gift was not induced by undue influence. The instant
case is one of gift but it is well settled that the law as
to undue influence is the same in the case of a gift inter-
vivos as in the case of a contract.
Under s. 16 (1) of the Indian Contract Act a contract is
said to be induced by undue influence where the relations
subsisting between the parties are such that one of the
parties is in a position to dominate the will of the other
and uses that position to obtain an unfair advantage over
the other. This shows that the court trying a case of undue
influence must consider two things to start with, namely,
(1) are the relations between the donor and the donee such
that the donee is in a position to dominate the will of the
donor and (2) has the donee used that position to obtain an
unfair advantage over the donor’?
Sub-section (2) of the section is illustrative as to when a
person is to considered to be in a position to dominate the
will of another. These are inter alia (a) where the donee
holds a real or apparent authority over the donor or where
he stands in a fiduciary relation to the donor or (b) where
he makes a contract with a person whose mental capacity is
temporarily or permanently affected by reason of age,
illness, or mental or bodily distress.
Sub-section (3) of the section throws the burden of proving
that a contract was not induced by undue influence on the
person benefiting by it when two factors are found against
him, namely that he is in a position to dominate the will of
another and the transaction appears on the face of it or on
the evidence adduced to be unconscionable.
335
The three stages for consideration of a case of undue
influence were expounded in the case of Ragunath Prasad v.
Sarju Prasad and others(1) in the following words :-
“In the first place the relations between the
parties to each other must be such that one is
in a position to dominate the will of the
other. Once that position is substantiated
the second stage has been reached-namely, the
issue whether the contract has been induced by
undue influence. Upon the determination of
this issue a third point emerges, which is
that of the onus probandi. If the
transaction appears to be unconscionable, then
the burden of proving that the contract was
not induced by undue influence is to lie
upon the person who was in ,I position to
dominate the will of the other.
Error is almost sure to arise if the order of
these propositions be changed. The
unconscionableness of the bargain is not the
first thing to be considered. The first thing
to be considered is the relations of these
parties. Were they such as to put one in a
position to dominate the will of the other?”
It must also be noted that merely because the
parties were nearly related to each other no
presumption of undue influene can arise. As
was pointed out by the Judicial Committee of
the Privy Council in Poosathurai v. Kappanna
Cheittiar and others(2) .–
“It is a mistake (of which there are a good
many traces in these proceedings) to treat
undue influence as having been established by
a proof of the relations of the parties having
been such that the one naturally relied upon
the other for advice, and the other was in a
position to dominate the will of the first in
giving it. Up to that point “influence” alone
has been made out. Such influence may be used
wisely, judiciously and helpfully. But
whether by the law of India or the law of
England, more than mere influence must be
proved so as to render influence, in the
language of the law, “undue”.
The law in India as to undue influence as embodied in s. 16
of the Contract Act is based on the English Common Law as
noted in the judgments of this Court in Ladli Prasad Jaiswal
v. Karnal Distillery Co. Ltd. and ors(3). According to
Halsbury’s Laws of England, Third Edition, Vol. 17, p. 673,
Art. 1298, “where there is no relationship shown to exist
from which undue influence is presumed, that influence must
be proved”. Article 1299, p. 674 of the same volume shows
that “there is no presumption of imposi-
(1) 51 l.A. 101.
(2) 47 I.A. p. 1. at p. 3.
(3) [1964] 1 S.C.R. 270 at 300.
336
tion or fraud merely because a donor is old or of weak
character”The nature of relations from the existence of
which undue influence is presumed is considered at pages 678
to 681 of the same volume. The learned author notes at p.
679 that “there is no presumption of undue influence in the
case of a gift to a son, grandson, or sonin-law, although
made during the donor’s illness and a few days before his
death”. Generally speaking the relation of solicitor and
client, trustee and cestui que trust, spiritual adviser and
devotee, medical attendant and patient, parent and child are
those in which such a presumption arises. Section 16(2) of
the Contract Act shows that such a situation can arise
wherever the donee stands in a fiduciary relationship to the
donor or holds a real or apparent authority over him.
Before, however, a court is called upon to examine whether
undue influence was exercised or not, it must scrutinise the
pleadings to find out that such a case has been made out and
that full particulars of undue influence have been given as
in the case of fraud. See Order 6, Rule 4 of the Code of
Civil Procedure. This aspect of the pleading was also given
great stress in the case of Ladli Prasad Jaiswal(1) above
referred to. In that case it was observed (at p. 295):
“A vague or general plea can never serve this
purpose; the party pleading must therefore be
required to plead the precise nature of the
influence exercised, the manner of use of the
influence, and the unfair advantage obtained
by the other.”
In the fight of the above, it appears to us
that there was no sufficient pleading of undue
influence at all in the plaint. The relevant
portion of paragraph 4 of the plaint is as
follows :-
“The plaintiff’s father along with defendant
No. 3 (the sister) on the advice of defendant
No. 2 (the brother Balaram) without the
knowledge of the plaintiff got a collusive
Nirupan Patra executed regarding the said
property on the 6th Sraban 1351 B.S.
corresponding to 22nd July, 1944 in the name
of the defendant No. I son of defendant No. 2
and had it registered-and the plaintiff
recently on 13th June, 1952 last, has come to
know of the same through reports from the
people …. Moreover, the plaintiff’s father
being 90 years old at the time of execution of
the said Nirupan Patra and being subject to
senile decay in consequence thereof, he was
devoid of the power of discrimination between
good and evil. Hence he not having sound
disposing mind had no power to execute the
said deed of Nirupan Patra in favour of
(1) [1964] 1 S.C.R. 270 at 300.
337
the defendant No. 1 being in possession of his
senses and he did not execute the same in good
faith voluntarily and out of his free will.
The plaintiff recently on 13th June 1952 last
came to learn that defendant No. 2 taking
advantage of the absence of the plaintiff and
exercising undue influence upon him and having
won over the defendant No. 3 also by holding
out temptation and by misleading and
exercising undue influence upon her got the
said fraudulent deed of Nirupan Patra executed
in favour of the defendant No. 1, his son
living in joint mess with him.”
It will at once be noted from the above that the two
portions of the extracts from paragraph 4 are in conflict
with each other. According to the first portion the
plaintiff ‘s father Prasanna colluded with his sister on the
advice of his brother to execute the deed of gift. The word
“collusion” means a secret agreement for illegal purposes or
a conspiracy. The use of the word “collusion” suggests that
Prasanna knew what he was about and that he did it secretly
or fraudulently with the object of depriving the plaintiff.
According to the second portion of the extract, Prasanna,
because of his old age, was subject to senile decay and
could not discriminate between good and evil. This hardly
fits in with the case of collusion which implies that a man
does something evil designedly. There is no suggestion in
this paragraph of the plaint that Prasanna was under the
domination of Balaram and that Balaram exercised his power
over Prasanna to get the document executed and registered by
Prasanna. It will be remembered that nominally the property
stood in the name of the sister who was also a party to the
document and according to the extract quoted above Balaram
had exercised undue influence over her also.
The above allegations were generally denied in the written
statements of the 1st and the 2nd defendants. It was
asserted in paragraph 12 of the written statement of the
first defendant that “Prasanna Kumar Mushib was a man
endowed with particular wisdom and knowledge of worldly
affairs and was a man of independent spirit and had a
fertile brain. It was not possible for anyone to exercise
any influence upon him….. Up to the time of his death he
himself was active and strong and had a sound brain
also …. Of his own accord in good faith and considering
the surrounding circumstances and defendant No. I being a
bright jewel of the family and out of profound affection for
him, he voluntarily, in good faith and being urged by his
affection towards this defendant has made a gift of the
properties in suit to this defendant by way of family
settlement.”
The only issue out of seven which were framed by the learned
Subordinate Judge at the trial of the suit which has any
bearing on this point is issue No. 5. This reads
3 3 8
.lm15
“Is the deed of gift by the grandfather to defendant No. I
valid and true : If so, is the suit maintainable without
setting aside the deed of gift?”
It will be noted at once that even the expression “undue in-
fluence” was not used in the issue. There was no issue as
to whether the grandfather was a person of unsound mind and
whether he was under the domination of the second defendant.
At the trial several witnesses were examined by the
plaintiff for the purpose of showing that Prasanna was a
person of unsound mind at the time when he executed the deed
of gift. We have been taken through the evidence on this
point and we fully agree with the judgment of the learned
Subordinate Judge who was ” unable to hold that Prasanna
was a man of unsound mind when he executed Ex. G or that he
was not aware of the fact of transfer”. The plaintiff’s
only statement in examination in chief was that his father
was not of sound mind for 10 or 12 years from before his
death. Is it to be believed that he did not know about the
Nirupan patra until four years after the death of his
father? This -statement of his can hardly be true because
the Nirupan Patra -does not stand by itself, but was given
effect to in several deeds of settlement which came out in
evidence at the trial. There was evidence before the
Subordinate Judge to show that Prasanna had filed a written
statement in money suit No. 217 of 1948 filed by the
Municipal Commissioners of Bankura, that he was not in
possession of the holding. The learned Subordinate Judge,
in our opinion, Tightly came to the conclusion that the
document of settlement ,executed after the deed of gift and
Prasanna’s written statement in the suit by the Municipal
Commissioners showed that Prasanna was fully aware of the
fact that he had transferred the property to defendant No.
1.
Unfortunately, however, the learned Judges of the High Court
,accepted the contention put forward on behalf of the
plaintiffappellant that the onus was upon the contesting
defendants to prove that the deed in question was
intelligently executed by Prasanna with full knowledge of
its contents. The learned Judges referred to the
circumstances, (a) the deed of gift was a complete departure
from the course of normal inheritance, (b) Prasanna was a
very old man at the time of the alleged deed of gift and (c)
the plaintiff was away from the family house at or about
this time and concluded ,therefrom that “these being the
circumstances under which the deed was executed, the court
below should have made a presumption that the donee had
influence over the donor and the court below should have
asked for proof from the respondents that the gift was the
spontaneous act of the donor acting under circumstances
which enabled him to exercise an independent will and which
would
339
justify the court in holding that the gift was the result of
a free exercise of the donor’s will. They further went on
to add :-
“This aged man was becoming older from day to
day and we may take it for granted that his
intelligence or understanding did not improve
with age but it must have deteriorated with
the advancing years. If, therefore, the Court
can presume, as it should presume, that he was
under the influence of his younger son at the
date of the gift then the Court will also
presume that this influence must have
continued till the death of Prasanna.”
It will be noted that the High Court did not come to a
finding that Balaram was in a position to dominate the will
of his father (Subhas his son being only about 14 years of
age at the date of the deed of gift). Nor did the High
Court find that the transaction was an unconscionable one.
The learned Judges made presumptions which mere neither
warranted by law nor supported by facts. Indeed, it appears
to us that the learned Judges reached the third stage
referred to in the case of Raghu Nath Prasad v. Sarju Prasad
(1) completely overlooking the first two stages.
A case very similar to the instant one came up for
consideration before the Judicial Committee of the Privy
Council in Ismail Mussaiee Mookerdum v. Hafiz Boo (2).
There one Khaja Boo, a Mahomedan woman, who died at the age
of 90 years entered into the impugned transactions when she
was nearly 80. At that time she had an only son, the
plaintiff in the suit, and the defendant respondent, her
daughter. It came out in evidence that she was on terms of
bitter hostility with her son and much litigation had taken
place between them. The daughter was a married woman whose
husband resided in Rangoon, but she herself was living with
her mother at Brander. The result of the impugned
transactions was that the daughter Hafiz Boo became
possessed of nearly the whole of her mother’s Rangoon
properties or their proceeds. The son alleged in the plaint
that at the time of the occurrence the mother was suffering
from dementia and was not in a fit state of mind to execute
contracts or to manage her affairs and was until July 1888
(she having died in the year 1900) residing with the
daughter and was completely under her domination and
control. Before the learned Trial Judge a large mass of
evidence was given directed to the question of Khaja Boo’s
mental capacity in 1889. The learned Judge found that the
plaintiff had failed to show that his mother was of unsound
mind in 1889. The Court of Appeal came to the same
conclusion. The learned Trial Judge, however, came to the
conclusion that Khaja Boo at the period in question was
entirely under the control and domination of her daughter
and that the latter had unscrupul-
(1) 51 I.A. 101.
(2) 33 I.A. 88.
340
ously used her power over her mother in order to get her
mother’s property into her own hands and that the whole
proceedings ought to be avoided on the ground of undue
influence. This finding was, however, reversed in appeal.
The Judicial Committee took the view that the question of
undue influence was never properly before the court at all.
No such case was set up in the pleadings. The nearest
approach to it was in the passage of the plaint already
cited in which it was said that Khaja Boo was entirely under
the domination and control of her daughter, but that is only
said incidentally in connection with the allegation of
mental incapacity which allegation formed the real case of
the plaintiff. And accordingly when the issues were settled
there was a clear issue as to Khaja Boo being of unsound
mind in 1889, but none with regard to undue influence.
The Board therefore concluded that the question of undue
influence was discussed and considered not upon evidence
given with reference to that question, but upon evidence
called for a totally different purpose.
It will be noted that in this case no issue was raised of
Prasanna having been of unsound mind at the date of the deed
of gift and, as already noted, no issue was raised on undue
influence at all. It is true that some evidence was adduced
on the point as to whether Prasanna was of sound mind in the
year 1944, but that was wholly negatived by the learned
Subordinate Judge and his finding was not upset in appeal
except by way of presumption which does not arise in law.
It is pertinent also to note the observation of the Judicial
Committee in the above case at p. 94 —
“The mere relation of daughter to mother, of
course, in itself suggests nothing in the way
of special influence or control. The evidence
seems to their Lordships quite insufficient to
establish any general case of domination on
the part of the daughter, and subjection of
the mother, such as to lead to a presumption
against any transaction between the two. With
regard to the actual transactions in question,
there is no evidence whatever of undue
influence brought to bear upon them.”
The same remarks may justly be made of the pleading and the
evidence adduced in this case.
There was practically no evidence about the domination of
Balaram over Prasanna at the time of the execution of the
deed of gift or even thereafter. Prasanna, according to the
evidence, seems to have been a person who was taking an
active interest in the management of the property even
shortly before his death.
341
The circumstances obtaining in the family in the year 1944
do not show that the impugned transaction was of such a
nature as to shock ones conscience. The plaintiff had no
son. For a good many years before 1944 he had been making a
living elsewhere. According to his own admission in cross-
examination, he owned a jungle in his own right (the area
being given by the defendant as 80 bighas) and was therefore
possessed of separate property in which his brother or
nephew had no interest. There were other joint properties
in the village of Parbatipur which were not the subject-
matter of the deed of gift. It may be that they were not as
valuable as the Lokepur properties. The circumstance that a
grand -father made a gift of a portion of his properties to
his only grandson a few years before his death is not on the
face of it an unconscionable transaction. Moreover, we
cannot lose sight of the fact that if Balaram was exercising
undue influence over his father he did not go to the length
of having the deed of gift in his own name. In this he was
certainly acting very unwisely because it was not out of the
range of possibility that Subhas after attaining majority
might have nothing to do with his father.
Once we come to the conclusion that the presumptions made by
the learned Judges of the High Court were not warranted by
law and that they did not take a view of the evidence
adduced at the trial different from that of the Subordinate
Judge on the facts of this case we must hold that the whole
approach of the learned Judges of the High Court was wrong
and as such their decision cannot be upheld.
The learned Additional Solicitor-General also wanted to
argue that the suit was defective, because the plaintiff was
out of possession and had not asked for a decree for
possession in his plaint as he was bound to do if he was
asking for a declaration of title to the property. It is to
be noted that we did not think it necessary to go into this
question and did not allow him to place the evidence on this
point before us as we were of the view that the case of
undue influence had not been sufficiently alleged either on
the pleadings or substantiated on the evidence adduced.
The result is that the appeal is allowed, the judgment and
decree of the High Court set aside and that of the trial
court restored. The respondents must pay to the appellant
costs throughout.
G. C.
Appeal allowed,
342