Undue influence - burden of proof lies on the person who made such allegations =
The plaintiffs alleged that the original defendants obtained the sale deed dated 02.03.1970 from
their father Vaijai, since deceased, in favour of defendant no.1, fraudulently, by deceit and undue influence because of old age and infirmity of the deceased and who was living with the defendants. The suit was dismissed. The appellate court allowed the appeal holding that the defendants had failed to discharge their burden of being in a position to dominate the will of the deceased by undue influence. The High Court reversed the order of the first appellate
court and restored the dismissal of the suit. = Apex court held that
The primary question for our consideration is the physical condition of the deceased and his capacity to execute the sale deed.
The second question for our consideration is if the original defendants nos.1 and 2 exercised undue influence over the deceased in having the sale deed executed in favour of defendant no.1 because of the physical infirmity of the deceased on account of his old age. =
The pleadings in the plaint are completely bereft of any details or circumstances with regard to the nature, manner or kind of undue influence exercised by the original defendants over the deceased. A mere bald statement has been made attributed to the infirmity of the deceased. We have already held that the deceased was not completely physically and mentally incapacitated. There can be no doubt that the original defendants were in a fiduciary relationship with the deceased. Their conduct in looking after the deceased and his wife in old age may have influenced the thinking of the deceased. But that per se cannot lead to the only irresistible
conclusion that the original defendants were therefore in a position to dominate the will of the deceased or that the sale deed executed was unconscionable. The onus would shift upon the original defendants under Section 16 of the Contract Act read with Section 111 of the Evidence Act, as held in Anil Rishi vs. Gurbaksh Singh (supra), only after the plaintiff would have established a prima facie case. The wife of the deceased was living with him and had accompanied him to the office of the subregistrar.
The plaintiff has not pleaded or led any evidence that the wife of the deceased was also completely dominated by the original defendants. In every cast, creed, religion and civilized society, looking after the elders of the family is considered a sacred and pious duty. Nonetheless, today it has become a matter of serious concern. The Parliament taking note of the same enacted the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. We are of the considered opinion, in the changing times and social mores, that to straightway infer undue influence merely because a sibling was looking after the family elder, is an extreme proposition which cannot be countenanced in absence of sufficient and adequate evidence. Any other interpretation by inferring a reverse burden of proof straightway, on those who were taking care of the elders, as having exercised undue influence can lead to very undesirable consequences. It may not necessarily lead to neglect, but can certainly create doubts and apprehensions leading to lack of full and proper care under the fear of allegations with regard to exercise of undue influence. Law and life run together. If certain members of the family are looking after the elderly and others by choice or by compulsion of vocation are unable to do so, there is bound to be more affinity between the elder members of the family with those who are looking after them day to day.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 2896 OF 2009
RAJA RAM ...APPELLANT(S)
VERSUS
JAI PRAKASH SINGH AND OTHERS ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The appellant is aggrieved by the order allowing the second
appeal preferred by the defendants. The High Court set aside the
order of the First Appellate Court which had allowed the appeal of
the appellant and set aside the order dismissing the appellants suit.
2. The plaintiff and defendant no.2 are brothers. Defendant no.1
was the wife of defendant no.2. Respondents nos.1 to 3 are sons of
deceased defendant no.1. Original plaintiff no.2, another brother,
has chosen not to pursue the appeal. The plaintiffs alleged that the
original defendants obtained the sale deed dated 02.03.1970 from
1
their father Vaijai, since deceased, in favour of defendant no.1,
fraudulently, by deceit and undue influence because of old age and
infirmity of the deceased and who was living with the defendants.
The suit was dismissed. The appellate court allowed the appeal
holding that the defendants had failed to discharge their burden of
being in a position to dominate the will of the deceased by undue
influence. The High Court reversed the order of the first appellate
court and restored the dismissal of the suit.
3. Learned counsel for the appellant submitted that the deceased
was old, infirm, bedridden and sick for approximately the last 8 to
10 years. His mental faculties were also impaired. He was therefore
entirely dependent on the original defendants who were therefore in
a position to exercise undue influence over him. The deceased
expired on 21.04.1971 within ten months of the execution of the
sale deed. The witnesses to the sale deed were related to defendant
no.2. It had not been established that full consideration had been
paid. Defendant no.1 had no source of income to pay the purchase
price. The wife of the deceased has not been examined as witness.
The defendants did not lead the evidence of the SubRegistrar who
2
had registered the sale deed. The deceased had not sold any land to
third persons in the year 1968 as contended by the defendants.
4. Learned counsel for the respondent/defendants submitted
that under Section 101 of the Evidence Act, 1872 the initial onus
lay on the plaintiffs by establishing a prima facie case for undue
influence and only then the onus would shift to them. The
necessary pleadings in respect of the same were completely lacking.
The First Appellate Court wrongly shifted the burden upon the
respondents. The deceased may have been old and infirm, but he
was not deprived of his mental faculties so as not to know the
nature of documents executed by him. He was alive approximately
for ten months after the execution of the deed, but never questioned
the same. The deceased had executed another sale deed two years
earlier in 1968, Exhibit 10 in favour of third persons which has not
been questioned by the appellant. It establishes that the deceased
was not in a condition where undue influence could be exercised
over him. There can be no presumptions merely on account of his
old age. DW1 was a witness to the sale deed and was present at
the time of registration. The deceased admitted before the sub3
registrar having received a sum of Rs.2,000/ earlier and
Rs.4,000/ was paid at the time of registration. The SubRegistrar
has not recorded any adverse inferences about the condition or
capacity of the deceased at the time of registration. A registered
instrument will carry a presumption about its correctness unless
rebutted.
5. Reliance in support of the submissions was placed on Anil
Rishi vs. Gurbaksh Singh, (2006) 5 SCC 558, Jamila Begum (D)
thr. L.Rs. vs. Shami Mohd. (D) thr. L.Rs. and ors., (2019) 2 SCC
727, Bishundeo Narain and Ors. vs. Seogeni Rai and
Jagernath, 1951 SCR 548, Subhas Chandra Das Mushib vs.
Ganga Prosad Das Mushib and Ors., 1967 (1) SCR 331 and
Krishna Mohan Kul alias Nani Charan Kul and anr. vs.
Patima Maity and ors., (2004) 9 SCC 468.
6. We have considered the submissions on behalf of the parties.
The primary question for our consideration is the physical condition
of the deceased and his capacity to execute the sale deed. The
4
second question for our consideration is if the original defendants
nos.1 and 2 exercised undue influence over the deceased in having
the sale deed executed in favour of defendant no.1 because of the
physical infirmity of the deceased on account of his old age.
7. Section 14 of the Indian Contract Act, 1872 defines ‘free
consent’ as follows:
“14. ‘Free consent’ defined – Consent is said to be free
when it is not caused by –
(1) xxxxx
(2) Undue influence, as defined in section 16,…”
Section 16 defines ‘undue influence’ as follows:
“16. ‘Undue influence’ defined—
(1) 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.
(2) In particular and without prejudice to the
generality of the foregoing principle, a person is
deemed to be in a position to dominate the will of
another—
(a) where he holds a real or apparent authority over
the other, or where he stands in a fiduciary
relation to the other; 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.
5
(3) Where a person who is in a position to dominate
the will of another, enters into a contract with him,
and the transaction appears, on the face of it or on
the evidence adduced, to be unconscionable, the
burden of proving that such contract was not
induced by undue influence shall be upon the
person in a position to dominate the will of the
other.
Nothing in the subsection shall affect the
provisions of section 111 of the Indian Evidence
Act, 1872 (1 of 1872).”
8. Section 111 of the Indian Evidence Act, 1872, explains good
faith in transactions as follows:
“111. Proof of good faith in transactions where one
party is in relation of active confidence.—Where
there is a question as to the good faith of a
transaction between parties, one of whom stands
to the other in a position of active confidence, the
burden of proving the good faith of the transaction
is on the party who is in a position of active
confidence.”
9. The deceased undisputedly was over 80 years and above in
age. The plaintiff pleaded that by reason of age and sickness, the
deceased was unable to move and walk, with deteriorated eye sight
due to cataract. The mental capacity of the deceased was impaired.
The Advanced Law Lexicon by P.Ramanatha Aiyar, third edition
reprint,2009 defines impairment in relation to a human being as
6
total or partial loss of a body function, total or partial loss of a part
of the body, malfunction of a part of the body and malfunction or
disfigurement of a part of the body. Except for a bald statement in
the plaint that the deceased was mentally impaired there is no
evidence whatsoever of his mental status. There can be no
presumption with regard to the same only because of old age to
equate it with complete loss of mental faculties by senility or
dementia. Ageing is a process which affects individuals differently at
distinguishable ages. The sale deed executed by the deceased in
favour of one Babu Ram and Munshi Lal two years earlier in 1968
has not been assailed by the appellant on the ground that the
deceased was devoid of the power of reasoning, because of mental
impairment. There is no evidence of any such rapid deterioration in
the condition of the deceased in these two years.
10. The deceased on account of his advanced age may have been
old and infirm with a deteriorating eye sight, and unable to move
freely. There is no credible evidence that he was bed ridden.
Hardness of hearing by old age cannot be equated with deafness.
The plaintiff, despite being the son of the deceased, except for bald
7
statement in the plaint, has not led any evidence in support of his
averments. It is an undisputed fact that the deceased appeared
before the subregistrar for registration. It demolishes the entire
case of the plaintiff that the deceased was bed ridden. He had put
his thumb impression in presence of the subregistrar after the sale
deed had been read over and explained to him. The deceased had
acknowledged receipt of the entire consideration in presence of the
subregistrar only after which the deed was executed and
registered. The wife of the deceased had accompanied him to the
office of the subregistrar. The sale deed being a registered
instrument, there shall be a presumption in favour of the
defendants. The onus for rebuttal lay on the plaintiff which he failed
to discharge. Notwithstanding the finding of enmity between PW2
and PW3 with original defendant no.2, the First Appellate Court
erred in relying upon these two witnesses by holding that they were
independent witnesses and convincing. DW1, though related was
a witness to the sale deed. His evidence in support of the events
before the subregistrar therefore has to be accepted. The plaintiff
could have led evidence in rebuttal of the subregistrar but he did
not do so.
8
11. That leads us to the question of undue influence. The
pleadings in the plaint are completely bereft of any details or
circumstances with regard to the nature, manner or kind of undue
influence exercised by the original defendants over the deceased. A
mere bald statement has been made attributed to the infirmity of
the deceased. We have already held that the deceased was not
completely physically and mentally incapacitated. There can be no
doubt that the original defendants were in a fiduciary relationship
with the deceased. Their conduct in looking after the deceased and
his wife in old age may have influenced the thinking of the
deceased. But that per se cannot lead to the only irresistible
conclusion that the original defendants were therefore in a position
to dominate the will of the deceased or that the sale deed executed
was unconscionable. The onus would shift upon the original
defendants under Section 16 of the Contract Act read with Section
111 of the Evidence Act, as held in Anil Rishi vs. Gurbaksh Singh
(supra), only after the plaintiff would have established a prima facie
case. The wife of the deceased was living with him and had
9
accompanied him to the office of the subregistrar. The plaintiff has
not pleaded or led any evidence that the wife of the deceased was
also completely dominated by the original defendants. In every cast,
creed, religion and civilized society, looking after the elders of the
family is considered a sacred and pious duty. Nonetheless, today it
has become a matter of serious concern. The Parliament taking
note of the same enacted the Maintenance and Welfare of Parents
and Senior Citizens Act, 2007. We are of the considered opinion, in
the changing times and social mores, that to straightway infer
undue influence merely because a sibling was looking after the
family elder, is an extreme proposition which cannot be
countenanced in absence of sufficient and adequate evidence. Any
other interpretation by inferring a reverse burden of proof
straightway, on those who were taking care of the elders, as having
exercised undue influence can lead to very undesirable
consequences. It may not necessarily lead to neglect, but can
certainly create doubts and apprehensions leading to lack of full
and proper care under the fear of allegations with regard to exercise
of undue influence. Law and life run together. If certain members
of the family are looking after the elderly and others by choice or by
10
compulsion of vocation are unable to do so, there is bound to be
more affinity between the elder members of the family with those
who are looking after them day to day.
12. In Bishundeo Narain (supra) it was observed as follows:
“We turn next to the questions of undue
influence and coercion. Now it is to be observed
that these have not been separately pleaded. It is
true they may overlap in part in some cases but
they are separate and separable categories in law
and must be separately pleaded.
It is also to be observed that no proper
particulars have been furnished. Now if there is
one rule which is better established than any
other, it is that in cases of fraud, undue influence
and coercion, the parties pleading it must set forth
full particulars and the case can only be decided
on the particulars as laid. There can be no
departure from them in evidence. General
allegations are insufficient even to amount to an
averment of fraud of which any court ought to take
notice however strong the language in which they
are couched may be, and the same applies to
undue influence and coercion.”
13. In Subhas Chandra (supra), distinguishing between influence
and undue influence, it was observed as follows:
“It must also be noted that merely because the
parties were nearly related to each other no
presumption of undue influence can arise. As was
11
pointed out by the Judicial Committee of the Privy
Council in Poosathurai v. Kappanna Chettiar and
others 47 I.A. p. 1 :
"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".”
14. In Subhas Chandra (supra), it was further observed that
there was no presumption of imposition merely because a donor
was old and weak. Mere close relation also was insufficient to
presume undue influence, observing as follows:
“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 [1964] 1 SCR 270 above referred to. In that
case it was observed (at p. 295):
12
"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."
15. Krishna Mohan (supra) is distinguishable on its own fact.
The executant was undisputably over 100 years of age. The witnesses proved that he was paralytic and virtually bedridden.
None of the witnesses could substantiate that the executant had
put his thumb impression.
16. The first appellate court, completely erred in appreciation of
the facts and evidence in the case. There can be no application of
the law sans the facts of a case. The primary ingredients of the law
need to be first established by proper pleading supported by
relevant evidence. Cases cannot be decided on assumptions or
presumptions. We do not think that the present calls for exercise of
any discretionary jurisdiction under Article 136 of the Constitution
as a fourth court of appeal. In Pritam Singh (supra) it was
observed:
13
“9. …Generally speaking, this Court will not grant
special leave, unless it is shown that exceptional
and special circumstances exist, that substantial
and grave injustice has been done and that the
case in question presents features of sufficient
gravity to warrant a review of the decision appealed
against. Since the present case does not in our
opinion fulfil any of these conditions, we cannot
interfere with the decision of the High Court, and
the appeal must be dismissed.”
17. On a consideration of the entirety of the matter we find no
reason to interfere with the concurrent findings arrived at by two
courts. The appeal is dismissed. There shall be no order as to
costs.
…………...................J.
[NAVIN SINHA]
…………...................J.
[INDIRA BANERJEE]
NEW DELHI
SEPTEMBER 11, 2019.
14
The plaintiffs alleged that the original defendants obtained the sale deed dated 02.03.1970 from
their father Vaijai, since deceased, in favour of defendant no.1, fraudulently, by deceit and undue influence because of old age and infirmity of the deceased and who was living with the defendants. The suit was dismissed. The appellate court allowed the appeal holding that the defendants had failed to discharge their burden of being in a position to dominate the will of the deceased by undue influence. The High Court reversed the order of the first appellate
court and restored the dismissal of the suit. = Apex court held that
The primary question for our consideration is the physical condition of the deceased and his capacity to execute the sale deed.
The second question for our consideration is if the original defendants nos.1 and 2 exercised undue influence over the deceased in having the sale deed executed in favour of defendant no.1 because of the physical infirmity of the deceased on account of his old age. =
The pleadings in the plaint are completely bereft of any details or circumstances with regard to the nature, manner or kind of undue influence exercised by the original defendants over the deceased. A mere bald statement has been made attributed to the infirmity of the deceased. We have already held that the deceased was not completely physically and mentally incapacitated. There can be no doubt that the original defendants were in a fiduciary relationship with the deceased. Their conduct in looking after the deceased and his wife in old age may have influenced the thinking of the deceased. But that per se cannot lead to the only irresistible
conclusion that the original defendants were therefore in a position to dominate the will of the deceased or that the sale deed executed was unconscionable. The onus would shift upon the original defendants under Section 16 of the Contract Act read with Section 111 of the Evidence Act, as held in Anil Rishi vs. Gurbaksh Singh (supra), only after the plaintiff would have established a prima facie case. The wife of the deceased was living with him and had accompanied him to the office of the subregistrar.
The plaintiff has not pleaded or led any evidence that the wife of the deceased was also completely dominated by the original defendants. In every cast, creed, religion and civilized society, looking after the elders of the family is considered a sacred and pious duty. Nonetheless, today it has become a matter of serious concern. The Parliament taking note of the same enacted the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. We are of the considered opinion, in the changing times and social mores, that to straightway infer undue influence merely because a sibling was looking after the family elder, is an extreme proposition which cannot be countenanced in absence of sufficient and adequate evidence. Any other interpretation by inferring a reverse burden of proof straightway, on those who were taking care of the elders, as having exercised undue influence can lead to very undesirable consequences. It may not necessarily lead to neglect, but can certainly create doubts and apprehensions leading to lack of full and proper care under the fear of allegations with regard to exercise of undue influence. Law and life run together. If certain members of the family are looking after the elderly and others by choice or by compulsion of vocation are unable to do so, there is bound to be more affinity between the elder members of the family with those who are looking after them day to day.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 2896 OF 2009
RAJA RAM ...APPELLANT(S)
VERSUS
JAI PRAKASH SINGH AND OTHERS ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The appellant is aggrieved by the order allowing the second
appeal preferred by the defendants. The High Court set aside the
order of the First Appellate Court which had allowed the appeal of
the appellant and set aside the order dismissing the appellants suit.
2. The plaintiff and defendant no.2 are brothers. Defendant no.1
was the wife of defendant no.2. Respondents nos.1 to 3 are sons of
deceased defendant no.1. Original plaintiff no.2, another brother,
has chosen not to pursue the appeal. The plaintiffs alleged that the
original defendants obtained the sale deed dated 02.03.1970 from
1
their father Vaijai, since deceased, in favour of defendant no.1,
fraudulently, by deceit and undue influence because of old age and
infirmity of the deceased and who was living with the defendants.
The suit was dismissed. The appellate court allowed the appeal
holding that the defendants had failed to discharge their burden of
being in a position to dominate the will of the deceased by undue
influence. The High Court reversed the order of the first appellate
court and restored the dismissal of the suit.
3. Learned counsel for the appellant submitted that the deceased
was old, infirm, bedridden and sick for approximately the last 8 to
10 years. His mental faculties were also impaired. He was therefore
entirely dependent on the original defendants who were therefore in
a position to exercise undue influence over him. The deceased
expired on 21.04.1971 within ten months of the execution of the
sale deed. The witnesses to the sale deed were related to defendant
no.2. It had not been established that full consideration had been
paid. Defendant no.1 had no source of income to pay the purchase
price. The wife of the deceased has not been examined as witness.
The defendants did not lead the evidence of the SubRegistrar who
2
had registered the sale deed. The deceased had not sold any land to
third persons in the year 1968 as contended by the defendants.
4. Learned counsel for the respondent/defendants submitted
that under Section 101 of the Evidence Act, 1872 the initial onus
lay on the plaintiffs by establishing a prima facie case for undue
influence and only then the onus would shift to them. The
necessary pleadings in respect of the same were completely lacking.
The First Appellate Court wrongly shifted the burden upon the
respondents. The deceased may have been old and infirm, but he
was not deprived of his mental faculties so as not to know the
nature of documents executed by him. He was alive approximately
for ten months after the execution of the deed, but never questioned
the same. The deceased had executed another sale deed two years
earlier in 1968, Exhibit 10 in favour of third persons which has not
been questioned by the appellant. It establishes that the deceased
was not in a condition where undue influence could be exercised
over him. There can be no presumptions merely on account of his
old age. DW1 was a witness to the sale deed and was present at
the time of registration. The deceased admitted before the sub3
registrar having received a sum of Rs.2,000/ earlier and
Rs.4,000/ was paid at the time of registration. The SubRegistrar
has not recorded any adverse inferences about the condition or
capacity of the deceased at the time of registration. A registered
instrument will carry a presumption about its correctness unless
rebutted.
5. Reliance in support of the submissions was placed on Anil
Rishi vs. Gurbaksh Singh, (2006) 5 SCC 558, Jamila Begum (D)
thr. L.Rs. vs. Shami Mohd. (D) thr. L.Rs. and ors., (2019) 2 SCC
727, Bishundeo Narain and Ors. vs. Seogeni Rai and
Jagernath, 1951 SCR 548, Subhas Chandra Das Mushib vs.
Ganga Prosad Das Mushib and Ors., 1967 (1) SCR 331 and
Krishna Mohan Kul alias Nani Charan Kul and anr. vs.
Patima Maity and ors., (2004) 9 SCC 468.
6. We have considered the submissions on behalf of the parties.
The primary question for our consideration is the physical condition
of the deceased and his capacity to execute the sale deed. The
4
second question for our consideration is if the original defendants
nos.1 and 2 exercised undue influence over the deceased in having
the sale deed executed in favour of defendant no.1 because of the
physical infirmity of the deceased on account of his old age.
7. Section 14 of the Indian Contract Act, 1872 defines ‘free
consent’ as follows:
“14. ‘Free consent’ defined – Consent is said to be free
when it is not caused by –
(1) xxxxx
(2) Undue influence, as defined in section 16,…”
Section 16 defines ‘undue influence’ as follows:
“16. ‘Undue influence’ defined—
(1) 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.
(2) In particular and without prejudice to the
generality of the foregoing principle, a person is
deemed to be in a position to dominate the will of
another—
(a) where he holds a real or apparent authority over
the other, or where he stands in a fiduciary
relation to the other; 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.
5
(3) Where a person who is in a position to dominate
the will of another, enters into a contract with him,
and the transaction appears, on the face of it or on
the evidence adduced, to be unconscionable, the
burden of proving that such contract was not
induced by undue influence shall be upon the
person in a position to dominate the will of the
other.
Nothing in the subsection shall affect the
provisions of section 111 of the Indian Evidence
Act, 1872 (1 of 1872).”
8. Section 111 of the Indian Evidence Act, 1872, explains good
faith in transactions as follows:
“111. Proof of good faith in transactions where one
party is in relation of active confidence.—Where
there is a question as to the good faith of a
transaction between parties, one of whom stands
to the other in a position of active confidence, the
burden of proving the good faith of the transaction
is on the party who is in a position of active
confidence.”
9. The deceased undisputedly was over 80 years and above in
age. The plaintiff pleaded that by reason of age and sickness, the
deceased was unable to move and walk, with deteriorated eye sight
due to cataract. The mental capacity of the deceased was impaired.
The Advanced Law Lexicon by P.Ramanatha Aiyar, third edition
reprint,2009 defines impairment in relation to a human being as
6
total or partial loss of a body function, total or partial loss of a part
of the body, malfunction of a part of the body and malfunction or
disfigurement of a part of the body. Except for a bald statement in
the plaint that the deceased was mentally impaired there is no
evidence whatsoever of his mental status. There can be no
presumption with regard to the same only because of old age to
equate it with complete loss of mental faculties by senility or
dementia. Ageing is a process which affects individuals differently at
distinguishable ages. The sale deed executed by the deceased in
favour of one Babu Ram and Munshi Lal two years earlier in 1968
has not been assailed by the appellant on the ground that the
deceased was devoid of the power of reasoning, because of mental
impairment. There is no evidence of any such rapid deterioration in
the condition of the deceased in these two years.
10. The deceased on account of his advanced age may have been
old and infirm with a deteriorating eye sight, and unable to move
freely. There is no credible evidence that he was bed ridden.
Hardness of hearing by old age cannot be equated with deafness.
The plaintiff, despite being the son of the deceased, except for bald
7
statement in the plaint, has not led any evidence in support of his
averments. It is an undisputed fact that the deceased appeared
before the subregistrar for registration. It demolishes the entire
case of the plaintiff that the deceased was bed ridden. He had put
his thumb impression in presence of the subregistrar after the sale
deed had been read over and explained to him. The deceased had
acknowledged receipt of the entire consideration in presence of the
subregistrar only after which the deed was executed and
registered. The wife of the deceased had accompanied him to the
office of the subregistrar. The sale deed being a registered
instrument, there shall be a presumption in favour of the
defendants. The onus for rebuttal lay on the plaintiff which he failed
to discharge. Notwithstanding the finding of enmity between PW2
and PW3 with original defendant no.2, the First Appellate Court
erred in relying upon these two witnesses by holding that they were
independent witnesses and convincing. DW1, though related was
a witness to the sale deed. His evidence in support of the events
before the subregistrar therefore has to be accepted. The plaintiff
could have led evidence in rebuttal of the subregistrar but he did
not do so.
8
11. That leads us to the question of undue influence. The
pleadings in the plaint are completely bereft of any details or
circumstances with regard to the nature, manner or kind of undue
influence exercised by the original defendants over the deceased. A
mere bald statement has been made attributed to the infirmity of
the deceased. We have already held that the deceased was not
completely physically and mentally incapacitated. There can be no
doubt that the original defendants were in a fiduciary relationship
with the deceased. Their conduct in looking after the deceased and
his wife in old age may have influenced the thinking of the
deceased. But that per se cannot lead to the only irresistible
conclusion that the original defendants were therefore in a position
to dominate the will of the deceased or that the sale deed executed
was unconscionable. The onus would shift upon the original
defendants under Section 16 of the Contract Act read with Section
111 of the Evidence Act, as held in Anil Rishi vs. Gurbaksh Singh
(supra), only after the plaintiff would have established a prima facie
case. The wife of the deceased was living with him and had
9
accompanied him to the office of the subregistrar. The plaintiff has
not pleaded or led any evidence that the wife of the deceased was
also completely dominated by the original defendants. In every cast,
creed, religion and civilized society, looking after the elders of the
family is considered a sacred and pious duty. Nonetheless, today it
has become a matter of serious concern. The Parliament taking
note of the same enacted the Maintenance and Welfare of Parents
and Senior Citizens Act, 2007. We are of the considered opinion, in
the changing times and social mores, that to straightway infer
undue influence merely because a sibling was looking after the
family elder, is an extreme proposition which cannot be
countenanced in absence of sufficient and adequate evidence. Any
other interpretation by inferring a reverse burden of proof
straightway, on those who were taking care of the elders, as having
exercised undue influence can lead to very undesirable
consequences. It may not necessarily lead to neglect, but can
certainly create doubts and apprehensions leading to lack of full
and proper care under the fear of allegations with regard to exercise
of undue influence. Law and life run together. If certain members
of the family are looking after the elderly and others by choice or by
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compulsion of vocation are unable to do so, there is bound to be
more affinity between the elder members of the family with those
who are looking after them day to day.
12. In Bishundeo Narain (supra) it was observed as follows:
“We turn next to the questions of undue
influence and coercion. Now it is to be observed
that these have not been separately pleaded. It is
true they may overlap in part in some cases but
they are separate and separable categories in law
and must be separately pleaded.
It is also to be observed that no proper
particulars have been furnished. Now if there is
one rule which is better established than any
other, it is that in cases of fraud, undue influence
and coercion, the parties pleading it must set forth
full particulars and the case can only be decided
on the particulars as laid. There can be no
departure from them in evidence. General
allegations are insufficient even to amount to an
averment of fraud of which any court ought to take
notice however strong the language in which they
are couched may be, and the same applies to
undue influence and coercion.”
13. In Subhas Chandra (supra), distinguishing between influence
and undue influence, it was observed as follows:
“It must also be noted that merely because the
parties were nearly related to each other no
presumption of undue influence can arise. As was
11
pointed out by the Judicial Committee of the Privy
Council in Poosathurai v. Kappanna Chettiar and
others 47 I.A. p. 1 :
"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".”
14. In Subhas Chandra (supra), it was further observed that
there was no presumption of imposition merely because a donor
was old and weak. Mere close relation also was insufficient to
presume undue influence, observing as follows:
“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 [1964] 1 SCR 270 above referred to. In that
case it was observed (at p. 295):
12
"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."
15. Krishna Mohan (supra) is distinguishable on its own fact.
The executant was undisputably over 100 years of age. The witnesses proved that he was paralytic and virtually bedridden.
None of the witnesses could substantiate that the executant had
put his thumb impression.
16. The first appellate court, completely erred in appreciation of
the facts and evidence in the case. There can be no application of
the law sans the facts of a case. The primary ingredients of the law
need to be first established by proper pleading supported by
relevant evidence. Cases cannot be decided on assumptions or
presumptions. We do not think that the present calls for exercise of
any discretionary jurisdiction under Article 136 of the Constitution
as a fourth court of appeal. In Pritam Singh (supra) it was
observed:
13
“9. …Generally speaking, this Court will not grant
special leave, unless it is shown that exceptional
and special circumstances exist, that substantial
and grave injustice has been done and that the
case in question presents features of sufficient
gravity to warrant a review of the decision appealed
against. Since the present case does not in our
opinion fulfil any of these conditions, we cannot
interfere with the decision of the High Court, and
the appeal must be dismissed.”
17. On a consideration of the entirety of the matter we find no
reason to interfere with the concurrent findings arrived at by two
courts. The appeal is dismissed. There shall be no order as to
costs.
…………...................J.
[NAVIN SINHA]
…………...................J.
[INDIRA BANERJEE]
NEW DELHI
SEPTEMBER 11, 2019.
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