TMI Blog1966 (9) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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([1964] 1 S.C.R. 270). According to Halsbury's Laws of England, Third Edition, Vol. 17, p. 673, Art. 1298, where there is no relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;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 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 secre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tee 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
