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

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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

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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 sub­

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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

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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.

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(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

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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

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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.  

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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

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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

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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):

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"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:

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“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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