{"id":51822,"date":"1966-09-14T00:00:00","date_gmt":"1966-09-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/subhas-chandra-das-mushib-vs-ganga-prosad-das-mushib-and-ors-on-14-september-1966"},"modified":"2018-09-11T23:58:31","modified_gmt":"2018-09-11T18:28:31","slug":"subhas-chandra-das-mushib-vs-ganga-prosad-das-mushib-and-ors-on-14-september-1966","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/subhas-chandra-das-mushib-vs-ganga-prosad-das-mushib-and-ors-on-14-september-1966","title":{"rendered":"Subhas Chandra Das Mushib vs Ganga Prosad Das Mushib And Ors on 14 September, 1966"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Subhas Chandra Das Mushib vs Ganga Prosad Das Mushib And Ors on 14 September, 1966<\/div>\n
Equivalent citations: 1967 AIR 878, \t\t 1967 SCR (1) 331<\/div>\n
Author: G Mitter<\/div>\n
Bench: Mitter, G.K.<\/div>\n
           PETITIONER:\nSUBHAS CHANDRA DAS MUSHIB\n\n\tVs.\n\nRESPONDENT:\nGANGA PROSAD DAS MUSHIB AND ORS.\n\nDATE OF JUDGMENT:\n14\/09\/1966\n\nBENCH:\nMITTER, G.K.\nBENCH:\nMITTER, G.K.\nWANCHOO, K.N.\nSHELAT, J.M.\n\nCITATION:\n 1967 AIR  878\t\t  1967 SCR  (1) 331\n CITATOR INFO :\n RF\t    1976 SC 163\t (22)\n\n\nACT:\nIndian Contract Act, s. 16-Undue influence-Burden of  proof-\nnecessity of plea being clearly raised in pleadings.\n\n\n\nHEADNOTE:\nThe  suit in the present case was for declaring that a\tdead\nof  settlement\texecuted by the plaintiff's father  and\t the\nplaintiff's sister in favour of the plantiff's brothers\t son\nin  respect of certain properties was fraudulent,  collusive\nand invalid and for cancellation of the said document.\t The\ntrial court dismissed the suit.\t However in appeal the\tHigh\nCourt  proceeded on the basis that in the  circumstances  of\nthe case and in view of the relationship of the parties\t the\ntrial  court should have made a presumption that  the  donee\nhad influence over the donor and should have asked for proof\nfrom the respondents before the High Court that the gift was\nthe spontaneous act of the donor acting under  circumstances\nwhich enabled him to exercise an independent will and  which\nwould  justify\tthe court in holding that the gift  was\t the\nresult\tof  a free exercise of the donor's will.   The\tHigh\nCourt  went  on to presume from the great age of  the  donor\nthat  his  intelligence\t or  understanding  must  have\t de-\nteriorated with advancing years and consequently it was\t for\nthe court to presume that he was under the influence of\t the\nyounger son at the date of the gift.  In appeal before\tthis\nCourt it was contended on behalf of the\t defendant-appellant\nthat  the  judgment of the High Court had  proceeded  on  an\nentirely  erroneous basis and that there was  no  sufficient\npleading  of  undue  influence nor was\tthere  any  evidence\nadduced at the trial to make out a case of undue influence.\nHELD:\t  The whole approach of the High Court was wrong and\nits decision could not be upheld.\n(i)  The  law as to undue influence is the same in the\tcase\nof  gifts inter vivos as in the case of a contract  and\t the\ncourt trying a case of undue influence must consider in view\nof  s. 16(1) of the Indian Contract Act two things to  start\nwith,  namely, (1) are the relations between the  donor\t and\nthe  donee such that the donee is in a position to  dominate\nthe  will  of  the donor and (2) has  the  donee  used\tthat\nposition to obtain an unfair advantage over the donor ? Sub-\ns.  (2) of section 16 illustrates as to when a person is  to\nbe  considered to be in a position to dominate the  will  of\nanother.  These are inter alia (-a) where the donee folds  a\nreal  or  apparent authority over the donor or (b)  when  he\nmakes  to  contract with a person whose mental\tcapacity  is\ntemporarily  or\t permanently  affected\tby  reason  of\tage,\nillness\t or mental or bodily distress.\tSub. 1. (3)  of\t the\nsection throws the burden of proving that a contract was not\ninduced\t by undue influence on the person benefiting  by  it\nwhen two actors are found against him namely that he is in a\nposition to dominate he will of another and the\t transaction\nappears\t on the fact of it or on the vidence adduced  to  be\nunconscionable. (334 D-H]\nThums  under s. 16 the unconscionableness of the bargain  is\nnot the first thing to be considered.  The first thing to be\nconsidered  is the relations of the parties.  But  the\tHigh\nCourt neither determined the relationship of the parties  as\nrequired  in s. 16(1), nor did it find that the\t transaction\nwas  unconscionable.  Therefore the presumptions made by  it\nwere unwarranted by law. [335 D; 339 C]\nM15Sup.\t C.I.\/66-8\n332\n(ii) Before a court is called upon to examine whether  undue\ninfluence  was\texercised  or not  it  must  scrutinise\t the\npleadings to find out that such a case has been made out and\nthat full particulars of undue influence have been given  as\nin the case of fraud.  These conditions remained unsatisfied\nin the present case. [336 C-D]\n(iii)\t  On  the evidence in the case the trial  court\t was\nright  in its conclusion that the donor was fully  aware  of\nthe  fact that he had transferred the property to  defendant\nNo.  1. It had not been established that he was\t of  unsound\nmind. [338 E-F]\n(iv) There could be no presumption of undue influence merely\nbecause the donor and the donee were nearly related to\teach\nother.\tNor could the fact that a grandfather made a gift of\na portion of his properties to his only grandson a few years\nbefore\t his   death   show   that   the   transaction\t was\nunconscionable. [335 E; 341 C]\nRaghunath  Prasad  v.  Sarju Prasad and\t Ors.  51  I.A.\t 101\nPoosathurai  v. Kannappa Chettiar and Ors. 47 I.A. 1,  Ladli\nPrasad Jaiswal v. Karnal Distillery Co. Ltd. & Ors.<\/a> [1964] 1\nS.C.R.\t270 and Ismail Mussajeo Mookerdum v. Hafiz  Boo,  33\nI.A. 86, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 617 of 1964.
\nAppeal\tby special leave from the judgment and decree  dated
\nJuly  22,  August  12, 1960 of the Calcutta  High  Court  in
\nAppeal from Original Decree No. 193 of 1954.
\nNiren  De, Addl.  Solicitor-General, and Sukwnar Ghose,\t for
\nthe appellants.\n<\/p>\n
P. K. Chatterjee, for respondent No. 1.\n<\/p>\n
The Judgment of the Court was delivered by
\nMitter,\t J. This is an appeal from a judgment and decree  of
\nthe  High Court of Calcutta on a certificate granted  by  it
\nreversing  a  decision of the Subordinate Judge\t of  Bankura
\ndismissing the plaintiff’s suit for declaring that a deed of
\nsettlement  (Nirupan  Patra)  executed\tby  the\t plaintiff’s
\nfather\t and  the  plaintiff’s\tsister\tin  favour  of\t the
\nplaintiff’s  brother’s\tson registered on July 22,  1944  in
\nrespect\t of  properties\t situate  in  village  Lokepur\t was
\nfraudulent,  ,collusive and invalid and for cancellation  of
\nthe  said document.  The Judges of the High Court  proceeded
\non  the basis that in the circumstances of the case  and  in
\nview  of  the relationship of the parties  the\ttrial  court
\nshould have made a presumption that the donee had  influence
\nover  the  donor and should have asked for  proof  from\t the
\nrespondents  before  the High Court that the  gift  was\t the
\nspontaneous  act  of the donor\tacting\tunder  circumstances
\nwhich enabled him to exercise an independent will and  which
\nwould  justify\tthe court in holding that the gift  was\t the
\nresult\tof  a free exercise of the donor’s will.   The\tHigh
\nCourt  went  on to presume from the great age of  the  donor
\nthat   his   intelligence   or\t understanding\t must\thave
\ndeteriorated with advancing years and
\n333<\/span>
\nconsequently  it  was for the court to presume that  he\t was
\nunder  the influence of his younger son at the date  of\t the
\ngift  It was contended before us by the\t learned  Additional
\nSolicitor-General  appearing  for  the\tappellant  that\t the
\njudgment  of  the High Court had proceeded  on\tan  entirely
\nerroneous basis and that there was no sufficient pleading of
\nundue  influence nor was there any evidence adduced  at\t the
\ntrial to make out a case of undue influence and in the vital
\nissue  raised  before  the  learned  Subordinate  Judge\t the
\nexpression “undue influence” was not even used.
\nThe  main facts which have come out in the evidence  are  as
\nfollows.   The\tplaintiff’s father,  Prasanna  Kumar,  owned
\ncertain\t lands\tin  two\t villages,  namely,  Parbatipur\t and
\nLokepur,  holding an eight annas share in each.\t  The  exact
\nvaluation  of the properties is not known, but it would\t not
\nbe wrong to assume that the Lokepur properties, the subject-
\nmatter\tof the suit, were the more valuable ones.   Prasanna
\nKumar died in January or February, 1948 when he was about 90
\nyears  of age.\tHe had two sons, namely’ Ganga\tProsad,\t the
\nplaintiff,  and Balaram, the second defendant in  the  suit,
\nbesides\t a daughter Swarnalata, and an only grandson  Subhas
\nChandra,  who  was the first defendant in the  suit.   Ganga
\nProsad\thad no son.  He had served in the Medical School  at
\nBankura\t from  1932  to 1934.  Thereafter  he  worked  as  a
\ncontractor  for\t one year.  From November 1944\tto  1948  he
\nserved\tin  Searsole Raj Estate.  The  family  consisted  of
\nPrasanna  and  his  wife, their two sons  and  their  wives,
\nbesides the grand-son Subhas Chandra and Prasanna’s daughter
\nSwarnalata  who\t became\t a widow in her\t childhood  and\t was
\nresiding  with her parents.  It appears that Balaram  always
\nlived  with  his father and was\t never\temployed  elsewhere.
\nAccording  to  the plaintiff’s own evidence he\twas  looking
\nafter  the  property  of his father so long  as\t he  was  at
\nBankura.   The\tLokepur properties were put  to\t auction  in
\nexecution of a decree for arrears of rent and were purchased
\nby  Prasanna benami in the name of Swarnalata.\tThe deed  of
\ngift  shows  that the transaction was entered  into  out  of
\nnatural\t love and affection of the donor for the  donee\t and
\nfor  the respect and reverence which the grand-son  bore  to
\nthe grand-father.  There is no direct evidence as to whether
\nthe  plaintiff was present in Bankura at the time when\tthis
\ndeed  was  computed and registered.  It is  the\t plaintiff’s
\ncase that he was not.  The suit was filed in 1952, more than
\neight years after the date of the transaction and more\tthan
\nfour  years  after  the\t death\tof  Prasanna.\tThere  is  a
\nconsiderable body of evidence that in between 1944 and\t1948
\na  number  of  settlements of different\t plots\tof  land  in
\nvillage\t Lokepur had been effected by Balaram acting as\t the
\nnatural\t guardian  of his son Subhas Chandra and in  all  of
\nthem  the  Nirupan Patra had been recited and in  each\tcase
\nPrasanna   had\tsigned\tas  an\tattesting  witness.    These
\nsettlements  were made jointly with the other co-sharers  of
\nPrasanna.  In 1947 the Muni-\n<\/p>\n
334<\/span><\/p>\n
cipal Commissioners of Bankura filed a suit against Prasanna
\nfor  recovery  of  arrears of  taxes.\tPrasanna  filed\t his
\nwritten\t statement  in\tthat suit stating  that\t he  had  no
\ninterest  in  the  property.   After  Prasanna’s  death\t the
\nMunicipal  Commissioners did not serve the plaintiff with  a
\nwrit  of  summons  in the suit but obtained  a\tdecree\tonly
\nagainst\t Balaram  ex  parte.   The  plaintiff  attended\t the
\nfuneral ceremony of his father in 1948, but he alleges\tthat
\nthe never came to know of any of the settlements of land  in
\nLokepur after 1944.  He admitted never having paid any\trent
\nto  the superior landlords and stated that he came  to\tknow
\nabout  the  deed  of settlement some two  years\t before\t the
\ninstitution  of the suit from his cousins none of whom\twere
\ncalled as witnesses.\n<\/p>\n
We  may now proceed to consider what are the  essential\t in-
\ngredients  of undue influence and how a plaintiff who  seeks
\nrelief\ton this ground should proceed to prove his case\t and
\nwhen the defendant is called upon to show that the  contract
\nor  gift  was not induced by undue influence.\tThe  instant
\ncase  is one of gift but it is well settled that the law  as
\nto undue influence is the same in the case of a gift  inter-
\nvivos as in the case of a contract.\n<\/p>\n
Under  s.  16 (1) of the Indian Contract Act a\tcontract  is
\nsaid  to be induced by undue influence where  the  relations
\nsubsisting  between  the parties are such that\tone  of\t the
\nparties\t is in a position to dominate the will of the  other
\nand  uses that position to obtain an unfair  advantage\tover
\nthe other.  This shows that the court trying a case of undue
\ninfluence  must consider two things to start  with,  namely,
\n(1)  are the relations between the donor and the donee\tsuch
\nthat the donee is in a position to dominate the will of\t the
\ndonor and (2) has the donee used that position to obtain  an
\nunfair advantage over the donor’?\n<\/p>\n
Sub-section (2) of the section is illustrative as to when  a
\nperson is to considered to be in a position to dominate\t the
\nwill  of another.  These are inter alia (a) where the  donee
\nholds  a real or apparent authority over the donor or  where
\nhe stands in a fiduciary relation to the donor or (b)  where
\nhe  makes a contract with a person whose mental capacity  is
\ntemporarily  or\t permanently  affected\tby  reason  of\tage,
\nillness, or mental or bodily distress.\n<\/p>\n
Sub-section (3) of the section throws the burden of  proving
\nthat  a contract was not induced by undue influence  on\t the
\nperson\tbenefiting by it when two factors are found  against
\nhim, namely that he is in a position to dominate the will of
\nanother and the transaction appears on the face of it or  on
\nthe evidence adduced to be unconscionable.\n<\/p>\n
 335<\/span><\/p>\n
The  three  stages  for consideration of  a  case  of  undue
\ninfluence  were expounded in the case of Ragunath Prasad  v.
\nSarju Prasad and others(1) in the following words :-\n<\/p>\n
\t      “In the first place the relations between\t the
\n\t      parties to each other must be such that one is
\n\t      in a position to\t   dominate the will of\t the
\n\t      other.   Once that position  is  substantiated
\n\t      the second stage has been reached-namely,\t the
\n\t      issue whether the contract has been induced by
\n\t      undue  influence.\t Upon the  determination  of
\n\t      this  issue  a third point emerges,  which  is
\n\t      that  of\tthe  onus  probandi.\t     If\t the
\n\t      transaction appears to be unconscionable, then
\n\t      the  burden of proving that the  contract\t was
\n\t      not induced     by  undue influence is to\t lie
\n\t      upon  the\t person who was in  ,I\tposition  to
\n\t      dominate the will of the other.\n<\/p><\/blockquote>\n
\t      Error is almost sure to arise if the order  of
\n\t      these    propositions   be    changed.\t The
\n\t      unconscionableness  of the bargain is not\t the
\n\t      first thing to be considered.  The first thing
\n\t      to  be  considered is the relations  of  these
\n\t      parties.\t Were they such as to put one  in  a
\n\t      position to dominate the will of the other?”
\n\t      It must also be noted that merely because\t the
\n\t      parties  were nearly related to each other  no
\n\t      presumption  of undue influene can arise.\t  As
\n\t      was  pointed out by the Judicial Committee  of
\n\t      the  Privy Council in Poosathurai v.  Kappanna
\n\t      Cheittiar and others(2) .–\n<\/p><\/blockquote>\n
\t      “It  is a mistake (of which there are  a\tgood
\n\t      many  traces  in these proceedings)  to  treat
\n\t      undue influence as having been established  by
\n\t      a proof of the relations of the parties having
\n\t      been  such that the one naturally relied\tupon
\n\t      the  other for advice, and the other was in  a
\n\t      position to dominate the will of the first  in
\n\t      giving it.  Up to that point “influence” alone
\n\t      has been made out.  Such influence may be used
\n\t      wisely,\tjudiciously  and   helpfully.\t But
\n\t      whether  by  the law of India or\tthe  law  of
\n\t      England,\tmore  than mere\t influence  must  be
\n\t      proved  so  as  to render\t influence,  in\t the
\n\t      language of the law, “undue”.\n<\/p><\/blockquote>\n
The law in India as to undue influence as embodied in s.  16
\nof  the Contract Act is based on the English Common  Law  as
\nnoted in the judgments of this Court in Ladli Prasad Jaiswal
\nv.  Karnal  Distillery\tCo. Ltd. and<\/a>  ors(3).  According  to
\nHalsbury’s Laws of England, Third Edition, Vol. 17, p.\t673,
\nArt.  1298, “where there is no relationship shown  to  exist
\nfrom which undue influence is presumed, that influence\tmust
\nbe  proved”.  Article 1299, p. 674 of the same volume  shows
\nthat “there is no presumption of imposi-\n<\/p>\n
(1) 51 l.A. 101.\n<\/p>\n
(2) 47 I.A. p. 1. at p. 3.\n<\/p>\n
(3)  [1964] 1 S.C.R. 270 at 300.\n<\/p>\n
336<\/span><\/p>\n
tion  or  fraud\t merely because a donor is old\tor  of\tweak
\ncharacter”The  nature  of relations from  the  existence  of
\nwhich undue influence is presumed is considered at pages 678
\nto  681 of the same volume.  The learned author notes at  p.
\n679 that “there is no presumption of undue influence in\t the
\ncase  of a gift to a son, grandson, or\tsonin-law,  although
\nmade  during the donor’s illness and a few days\t before\t his
\ndeath”.\t  Generally speaking the relation of  solicitor\t and
\nclient, trustee and cestui que trust, spiritual adviser\t and
\ndevotee, medical attendant and patient, parent and child are
\nthose in which such a presumption arises.  Section 16(2)  of
\nthe  Contract  Act  shows that such a  situation  can  arise
\nwherever the donee stands in a fiduciary relationship to the
\ndonor or holds a real or apparent authority over him.
\nBefore,\t however, a court is called upon to examine  whether
\nundue influence was exercised or not, it must scrutinise the
\npleadings to find out that such a case has been made out and
\nthat full particulars of undue influence have been given  as
\nin  the case of fraud.\tSee Order 6, Rule 4 of the  Code  of
\nCivil Procedure.  This aspect of the pleading was also given
\ngreat  stress in the case of Ladli Prasad  Jaiswal(1)  above
\nreferred to.  In that case it was observed (at p. 295):\n<\/p>\n
\t      “A vague or general plea can never serve\tthis
\n\t      purpose; the party pleading must therefore  be
\n\t      required\tto plead the precise nature  of\t the
\n\t      influence exercised, the manner of use of\t the
\n\t      influence,  and the unfair advantage  obtained
\n\t      by the other.”\n<\/p><\/blockquote>\n
\t      In  the fight of the above, it appears  to  us
\n\t      that there was no sufficient pleading of undue
\n\t      influence at all in the plaint.  The  relevant
\n\t      portion  of  paragraph 4 of the plaint  is  as
\n\t      follows :-\n<\/p><\/blockquote>\n
\t      “The  plaintiff’s father along with  defendant
\n\t      No. 3 (the sister) on the advice of  defendant
\n\t      No.  2  (the  brother  Balaram)  without\t the
\n\t      knowledge\t of  the plaintiff got\ta  collusive
\n\t      Nirupan  Patra  executed\tregarding  the\tsaid
\n\t      property\t on   the  6th\tSraban\t 1351\tB.S.
\n\t      corresponding  to 22nd July, 1944 in the\tname
\n\t      of the defendant No. I son of defendant No.  2<\/span>
\n\t      and   had\t it  registered-and  the   plaintiff
\n\t      recently on 13th June, 1952 last, has come  to
\n\t      know  of\tthe same through  reports  from\t the
\n\t      people  …. Moreover, the plaintiff’s  father
\n\t      being 90 years old at the time of execution of
\n\t      the  said Nirupan Patra and being\t subject  to
\n\t      senile  decay in consequence thereof,  he\t was
\n\t      devoid of the power of discrimination  between
\n\t      good  and\t evil.\tHence he  not  having  sound
\n\t      disposing\t mind  had no power to\texecute\t the
\n\t      said deed of Nirupan Patra in favour of
\n\t      (1)   [1964] 1 S.C.R. 270 at 300.\n<\/p><\/blockquote>\n
\t\t\t\t   337<\/span><\/p>\n
\t      the defendant No. 1 being in possession of his
\n\t      senses and he did not execute the same in good
\n\t      faith  voluntarily and out of his\t free  will.
\n\t      The plaintiff recently on 13th June 1952\tlast
\n\t      came  to\tlearn that defendant  No.  2  taking
\n\t      advantage of the absence of the plaintiff\t and
\n\t      exercising undue influence upon him and having
\n\t      won  over the defendant No. 3 also by  holding
\n\t      out   temptation\t and   by   misleading\t and
\n\t      exercising  undue influence upon her  got\t the
\n\t      said fraudulent deed of Nirupan Patra executed
\n\t      in  favour  of the defendant No.\t1,  his\t son
\n\t      living in joint mess with him.”\n<\/p><\/blockquote>\n
It  will  at  once  be noted from the  above  that  the\t two
\nportions  of the extracts from paragraph 4 are\tin  conflict
\nwith  each  other.   According\tto  the\t first\tportion\t the
\nplaintiff ‘s father Prasanna colluded with his sister on the
\nadvice of his brother to execute the deed of gift.  The word
\n“collusion” means a secret agreement for illegal purposes or
\na conspiracy.  The use of the word “collusion” suggests that
\nPrasanna knew what he was about and that he did it  secretly
\nor fraudulently with the object of depriving the  plaintiff.
\nAccording  to the second portion of the\t extract,  Prasanna,
\nbecause\t of  his old age, was subject to  senile  decay\t and
\ncould  not discriminate between good and evil.\tThis  hardly
\nfits in with the case of collusion which implies that a\t man
\ndoes  something evil designedly.  There is no suggestion  in
\nthis  paragraph\t of the plaint that Prasanna was  under\t the
\ndomination  of Balaram and that Balaram exercised his  power
\nover Prasanna to get the document executed and registered by
\nPrasanna.  It will be remembered that nominally the property
\nstood in the name of the sister who was also a party to\t the
\ndocument  and according to the extract quoted above  Balaram
\nhad exercised undue influence over her also.
\nThe  above allegations were generally denied in the  written
\nstatements  of\tthe  1st and the  2nd  defendants.   It\t was
\nasserted  in  paragraph 12 of the written statement  of\t the
\nfirst  defendant  that\t“Prasanna Kumar\t Mushib\t was  a\t man
\nendowed\t with  particular wisdom and  knowledge\t of  worldly
\naffairs\t and  was  a man of independent\t spirit\t and  had  a
\nfertile\t brain.\t It was not possible for anyone to  exercise
\nany  influence upon him….. Up to the time of his death  he
\nhimself\t was  active  and  strong  and\thad  a\tsound  brain
\nalso  …. Of his own accord in good faith  and\t considering
\nthe  surrounding circumstances and defendant No. I  being  a
\nbright jewel of the family and out of profound affection for
\nhim,  he voluntarily, in good faith and being urged  by\t his
\naffection  towards  this defendant has made a  gift  of\t the
\nproperties  in\tsuit  to this defendant\t by  way  of  family
\nsettlement.”\n<\/p>\n
The only issue out of seven which were framed by the learned
\nSubordinate  Judge  at the trial of the suit which  has\t any
\nbearing on this point is issue No. 5. This reads
\n3 3 8
\n.lm15
\n“Is  the deed of gift by the grandfather to defendant No.  I
\nvalid  and  true : If so, is the suit  maintainable  without
\nsetting aside the deed of gift?”\n<\/p>\n
It will be noted at once that even the expression “undue in-
\nfluence”  was not used in the issue.  There was no issue  as
\nto whether the grandfather was a person of unsound mind\t and
\nwhether he was under the domination of the second defendant.
\nAt  the\t trial\tseveral\t witnesses  were  examined  by\t the
\nplaintiff  for\tthe purpose of showing that Prasanna  was  a
\nperson of unsound mind at the time when he executed the deed
\nof  gift.  We have been taken through the evidence  on\tthis
\npoint  and we fully agree with the judgment of\tthe  learned
\nSubordinate  Judge who was ”  unable to hold  that  Prasanna
\nwas a man of unsound mind when he executed Ex.\tG or that he
\nwas  not  aware of the fact of transfer”.   The\t plaintiff’s
\nonly  statement in examination in chief was that his  father
\nwas  not  of sound mind for 10 or 12 years from\t before\t his
\ndeath.\tIs it to be believed that he did not know about\t the
\nNirupan\t patra\tuntil  four years after\t the  death  of\t his
\nfather?\t  This -statement of his can hardly be true  because
\nthe  Nirupan Patra -does not stand by itself, but was  given
\neffect\tto in several deeds of settlement which came out  in
\nevidence  at  the  trial.  There  was  evidence\t before\t the
\nSubordinate Judge to show that Prasanna had filed a  written
\nstatement  in  money  suit  No. 217 of\t1948  filed  by\t the
\nMunicipal  Commissioners  of  Bankura, that he\twas  not  in
\npossession  of the holding.  The learned Subordinate  Judge,
\nin  our\t opinion, Tightly came to the  conclusion  that\t the
\ndocument of settlement ,executed after the deed of gift\t and
\nPrasanna’s  written statement in the suit by  the  Municipal
\nCommissioners  showed that Prasanna was fully aware  of\t the
\nfact  that he had transferred the property to defendant\t No.\n<\/p>\n
1.
\nUnfortunately, however, the learned Judges of the High Court
\n,accepted  the\tcontention  put forward\t on  behalf  of\t the
\nplaintiffappellant  that  the onus was upon  the  contesting
\ndefendants   to\t prove\tthat  the  deed\t in   question\t was
\nintelligently  executed by Prasanna with full  knowledge  of
\nits   contents.\t   The\tlearned\t Judges\t referred   to\t the
\ncircumstances, (a) the deed of gift was a complete departure
\nfrom  the course of normal inheritance, (b) Prasanna  was  a
\nvery old man at the time of the alleged deed of gift and (c)
\nthe  plaintiff\twas away from the family house at  or  about
\nthis  time  and concluded ,therefrom that “these  being\t the
\ncircumstances  under which the deed was executed, the  court
\nbelow  should  have made a presumption that  the  donee\t had
\ninfluence  over\t the donor and the court below\tshould\thave
\nasked  for proof from the respondents that the gift was\t the
\nspontaneous  act  of the donor\tacting\tunder  circumstances
\nwhich enabled him to exercise an independent will and  which
\nwould
\n339<\/span>
\njustify the court in holding that the gift was the result of
\na  free exercise of the donor’s will.  They further went  on
\nto add :-\n<\/p>\n
\t      “This aged man was becoming older from day  to
\n\t      day  and we may take it for granted  that\t his
\n\t      intelligence or understanding did not  improve
\n\t      with  age but it must have  deteriorated\twith
\n\t      the advancing years.  If, therefore, the Court
\n\t      can presume, as it should presume, that he was
\n\t      under the influence of his younger son at\t the
\n\t      date  of\tthe gift then the  Court  will\talso
\n\t      presume\tthat   this  influence\t must\thave
\n\t      continued till the death of Prasanna.”\n<\/p><\/blockquote>\n
It  will  be  noted that the High Court did not\t come  to  a
\nfinding that Balaram was in a position to dominate the\twill
\nof  his father (Subhas his son being only about 14 years  of
\nage  at\t the date of the deed of gift).\t Nor  did  the\tHigh
\nCourt  find that the transaction was an unconscionable\tone.
\nThe  learned  Judges made presumptions\twhich  mere  neither
\nwarranted by law nor supported by facts.  Indeed, it appears
\nto  us\tthat  the learned Judges  reached  the\tthird  stage
\nreferred to in the case of Raghu Nath Prasad v. Sarju Prasad
\n(1) completely overlooking the first two stages.
\nA  case\t very  similar\tto  the\t instant  one  came  up\t for
\nconsideration  before  the Judicial Committee of  the  Privy
\nCouncil\t in  Ismail  Mussaiee Mookerdum v.  Hafiz  Boo\t(2).
\nThere one Khaja Boo, a Mahomedan woman, who died at the\t age
\nof 90 years entered into the impugned transactions when\t she
\nwas  nearly  80.   At that time she had\t an  only  son,\t the
\nplaintiff  in  the suit, and the defendant  respondent,\t her
\ndaughter.  It came out in evidence that she was on terms  of
\nbitter hostility with her son and much litigation had  taken
\nplace between them.  The daughter was a married woman  whose
\nhusband resided in Rangoon, but she herself was living\twith
\nher   mother  at  Brander.   The  result  of  the   impugned
\ntransactions   was  that  the  daughter\t Hafiz\tBoo   became
\npossessed  of  nearly  the whole  of  her  mother’s  Rangoon
\nproperties or their proceeds.  The son alleged in the plaint
\nthat at the time of the occurrence the mother was  suffering
\nfrom dementia and was not in a fit state of mind to  execute
\ncontracts  or to manage her affairs and was until July\t1888
\n(she  having  died  in\tthe year  1900)\t residing  with\t the
\ndaughter  and  was  completely\tunder  her  domination\t and
\ncontrol.   Before  the learned Trial Judge a large  mass  of
\nevidence  was given directed to the question of Khaja  Boo’s
\nmental\tcapacity in 1889.  The learned Judge found that\t the
\nplaintiff had failed to show that his mother was of  unsound
\nmind  in  1889.\t  The  Court of\t Appeal\t came  to  the\tsame
\nconclusion.   The learned Trial Judge, however, came to\t the
\nconclusion  that  Khaja Boo at the period  in  question\t was
\nentirely  under the control and domination of  her  daughter
\nand that the latter had unscrupul-\n<\/p>\n
(1) 51 I.A. 101.\n<\/p>\n
(2) 33 I.A. 88.\n<\/p>\n
340<\/span><\/p>\n
ously  used  her power over her mother in order to  get\t her
\nmother’s  property  into her own hands and  that  the  whole
\nproceedings  ought  to\tbe avoided on the  ground  of  undue
\ninfluence.  This finding was, however, reversed in appeal.
\nThe  Judicial Committee took the view that the\tquestion  of
\nundue influence was never properly before the court at\tall.
\nNo  such  case\twas set up in the  pleadings.\tThe  nearest
\napproach  to  it was in the passage of\tthe  plaint  already
\ncited in which it was said that Khaja Boo was entirely under
\nthe domination and control of her daughter, but that is only
\nsaid  incidentally  in\tconnection with\t the  allegation  of
\nmental\tincapacity which allegation formed the real case  of
\nthe plaintiff.\tAnd accordingly when the issues were settled
\nthere  was  a clear issue as to Khaja Boo being\t of  unsound
\nmind in 1889, but none with regard to undue influence.
\nThe  Board  therefore concluded that the question  of  undue
\ninfluence  was\tdiscussed and considered not  upon  evidence
\ngiven  with  reference to that question, but  upon  evidence
\ncalled for a totally different purpose.\n<\/p>\n
It  will be noted that in this case no issue was  raised  of
\nPrasanna having been of unsound mind at the date of the deed
\nof gift and, as already noted, no issue was raised on  undue
\ninfluence at all.  It is true that some evidence was adduced
\non the point as to whether Prasanna was of sound mind in the
\nyear  1944,  but that was wholly negatived  by\tthe  learned
\nSubordinate  Judge and his finding was not upset  in  appeal
\nexcept by way of presumption which does not arise in law.
\nIt is pertinent also to note the observation of the Judicial
\nCommittee in the above case at p. 94 —\n<\/p>\n
\t      “The  mere relation of daughter to mother,  of
\n\t      course, in itself suggests nothing in the\t way
\n\t      of special influence or control.\tThe evidence
\n\t      seems to their Lordships quite insufficient to
\n\t      establish\t any general case of  domination  on
\n\t      the  part of the daughter, and  subjection  of
\n\t      the  mother, such as to lead to a\t presumption
\n\t      against any transaction between the two.\tWith
\n\t      regard to the actual transactions in question,
\n\t      there   is  no  evidence\twhatever  of   undue
\n\t      influence brought to bear upon them.”\n<\/p><\/blockquote>\n
The same remarks may justly be made of the pleading and\t the
\nevidence adduced in this case.\n<\/p>\n
There  was practically no evidence about the  domination  of
\nBalaram\t over Prasanna at the time of the execution  of\t the
\ndeed of gift or even thereafter.  Prasanna, according to the
\nevidence,  seems  to have been a person who  was  taking  an
\nactive\tinterest  in  the management of\t the  property\teven
\nshortly before his death.\n<\/p>\n
\t\t\t    341<\/span><\/p>\n
The  circumstances obtaining in the family in the year\t1944
\ndo  not\t show that the impugned transaction was\t of  such  a
\nnature\tas to shock ones conscience.  The plaintiff  had  no
\nson.  For a good many years before 1944 he had been making a
\nliving elsewhere.  According to his own admission in  cross-
\nexamination,  he owned a jungle in his own right  (the\tarea
\nbeing given by the defendant as 80 bighas) and was therefore
\npossessed  of  separate\t property in which  his\t brother  or
\nnephew\thad no interest.  There were other joint  properties
\nin  the\t village of Parbatipur which were not  the  subject-
\nmatter of the deed of gift.  It may be that they were not as
\nvaluable as the Lokepur properties.  The circumstance that a
\ngrand -father made a gift of a portion of his properties  to
\nhis only grandson a few years before his death is not on the
\nface  of  it an unconscionable\ttransaction.   Moreover,  we
\ncannot lose sight of the fact that if Balaram was exercising
\nundue influence over his father he did not go to the  length
\nof having the deed of gift in his own name.  In this he\t was
\ncertainly acting very unwisely because it was not out of the
\nrange  of possibility that Subhas after\t attaining  majority
\nmight have nothing to do with his father.\n<\/p>\n
Once we come to the conclusion that the presumptions made by
\nthe  learned Judges of the High Court were not warranted  by
\nlaw  and  that\tthey did not take a  view  of  the  evidence
\nadduced at the trial different from that of the\t Subordinate
\nJudge on the facts of this case we must hold that the  whole
\napproach  of the learned Judges of the High Court was  wrong
\nand as such their decision cannot be upheld.
\nThe  learned  Additional Solicitor-General  also  wanted  to
\nargue that the suit was defective, because the plaintiff was
\nout  of\t possession  and  had not asked\t for  a\t decree\t for
\npossession  in\this plaint as he was bound to do if  he\t was
\nasking for a declaration of title to the property.  It is to
\nbe noted that we did not think it necessary to go into\tthis
\nquestion and did not allow him to place the evidence on this
\npoint  before  us as we were of the view that  the  case  of
\nundue influence had not been sufficiently alleged either  on
\nthe pleadings or substantiated on the evidence adduced.
\nThe  result is that the appeal is allowed, the judgment\t and
\ndecree\tof  the High Court set aside and that of  the  trial
\ncourt  restored.  The respondents must pay to the  appellant
\ncosts throughout.\n<\/p>\n
G. C.\n<\/p>\n
\t\t\t       Appeal allowed,
\n342<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Subhas Chandra Das Mushib vs Ganga Prosad Das Mushib And Ors on 14 September, 1966 Equivalent citations: 1967 AIR 878, 1967 SCR (1) 331 Author: G Mitter Bench: Mitter, G.K. PETITIONER: SUBHAS CHANDRA DAS MUSHIB Vs. RESPONDENT: GANGA PROSAD DAS MUSHIB AND ORS. DATE OF JUDGMENT: 14\/09\/1966 BENCH: MITTER, G.K. BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-51822","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSubhas Chandra Das Mushib vs Ganga Prosad Das Mushib And Ors on 14 September, 1966 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/subhas-chandra-das-mushib-vs-ganga-prosad-das-mushib-and-ors-on-14-september-1966\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Subhas Chandra Das Mushib vs Ganga Prosad Das Mushib And Ors on 14 September, 1966 - 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