RAJA RAM versus JAI PRAKASH SINGH AND OTHERS on 11 September 2019

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SUPREME COURT REPORTS

[2019] 12 S.C.R.

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RAJA RAM

v.

JAI PRAKASH SINGH AND OTHERS

(Civil Appeal No. 2896 of 2009)

BSEPTEMBER 11, 2019

[NAVIN SINHA AND INDIRA BANERJEE, JJ.]

Contract Act, 1872: s. 16 – Undue influence – Inference of –Execution of sale deed by father in favour of his son-respondent –Allegation by appellant-son that respondent no. 1 exercised undueCinfluence over the father in having the sale deed executed in favourof respondent because of physical infirmity of the father on accountof his old age and that the father was living with the respondents –Held:To infer undue influence merely because a sibling was lookingafter the family elder, is an extreme proposition which cannot beDcountenanced in absence of sufficient and adequate evidence –On facts, pleadings in the plaint are completelybereftof any detailsor circumstances with regard to undue influence exercised byrespondents over the deceased – Mere bald statement is attributedto the infirmity of the deceased father – Deceased was not completelyphysically and mentally incapacitated – Respondents were in aEfiduciary relationship with the deceased – Their conduct in lookingafter the parents in old age may have influenced their thinking –But that per se cannot lead to the conclusion that the originalrespondents were thus, in a position to dominate the will of thedeceased or that the sale deed executed was unconscionable – OnusFwould shift upon the original respondents u/s. 16 r/w s. 111 of theEvidence Act, only after plaintiff would have established a primafacie case – Sale deed being a registered instrument, there shall bea presumption in favour of the respondents – Onus for rebuttal layon the appellant which he failed to discharge – First appellate courterred in appreciating the facts and evidence in the case – CasesGcannot be decided on assumptions or presumptions – Thus, the orderof the High Court setting aside the order of the first appellate courtwhich had set aside the order dismissing the appellant’s suit doesnot call for interference – Evidence Act, 1872 – s. 111.

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Dismissing the appeal, the Court

HELD: 1.1 The deceased undisputedly was over 80 yearsand above in age. The plaintiff pleaded that by reason of age andsickness, the deceased was unable to move and walk, withdeteriorated eye sight due to cataract. The mental capacity ofthe deceased was impaired. The impairment in relation to a humanbeing is defined as total or partial loss of a body function, total orpartial loss of a part of the body, malfunction of a part of the bodyand malfunction or disfigurement of a part of the body. Except fora bald statement in the plaint that the deceased was mentallyimpaired there is no evidence whatsoever of his mental status.There can be no presumption with regard to the same onlybecause of old age to equate it with complete loss of mentalfaculties by senility or dementia. Ageing is a process which affectsindividuals differently at distinguishable ages. The sale deedexecuted by the deceased in favour of two people, two yearsearlier in 1968 has not been assailed by the appellant on theground that the deceased was devoid of the power of reasoning,because of mental impairment. There is no evidence of any suchrapid deterioration in the condition of the deceased in these twoyears. [Para 9][119-A-D]

Advanced Law Lexicon by P. Ramanatha Aiyar, ThirdEdn Reprint, 2009 – referred to.

1.2 The deceased on account of his advanced age may havebeen old and infirm with a deteriorating eye sight, and unable tomove 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 forbald statement in the plaint, has not led any evidence in supportof his averments. It is an undisputed fact that the deceasedappeared before the sub-registrar for registration. It demolishesthe entire case of the plaintiff that the deceased was bed ridden.He had put his thumb impression in presence of the sub–registrarafter the sale deed had been read over and explained to him. Thedeceased had acknowledged receipt of the entire considerationin presence of the sub-registrar only after which the deed wasexecuted and registered. The wife of the deceased had A

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Aaccompanied him to the office of the sub-registrar. The sale deedbeing a registered instrument, there shall be a presumption infavour of the defendants. The onus for rebuttal lay on the plaintiffwhich he failed to discharge. [Para 10][119-E-G]

1.3 The pleadings in the plaint are completely bereft of anyBdetails or circumstances with regard to the nature, manner orkind of undue influence exercised by the original defendants overthe deceased. A mere bald statement has been made attributedto the infirmity of the deceased. The deceased was not completelyphysically and mentally incapacitated. There can be no doubt thatthe original defendants were in a fiduciary relationship with theCdeceased. Their conduct in looking after the deceased and hiswife in old age may have influenced the thinking of the deceased.But that per se cannot lead to the only irresistible conclusion thatthe original defendants were therefore, in a position to dominatethe will of the deceased or that the sale deed executed was Dunconscionable. The onus would shift upon the original defendantsunder Section 16 of the Contract Act read with Section 111 of theEvidence Act, only after plaintiff would have established a primafacie case. [Para 11][120-B-D]

1.4 In every cast, creed, religion and civilized society,Elooking after the elders of the family is considered a sacred andpious duty. Today it has become a matter of serious concern. TheParliament taking note of the same enacted the Maintenance andWelfare of Parents and Senior Citizens Act, 2007. In the changingtimes and social mores, that to straightway infer undue influencemerely because a sibling was looking after the family elder, is anFextreme proposition which cannot be countenanced in absenceof sufficient and adequate evidence. Any other interpretation byinferring a reverse burden of proof straightway, on those whowere taking care of the elders, as having exercised undueinfluence can lead to very undesirable consequences. It may notGnecessarily lead to neglect, but can certainly create doubts andapprehensions leading to lack of full and proper care under thefear of allegations with regard to exercise of undue influence.Law and life run together. If certain members of the family arelooking after the elderly and others by choice or by compulsion H

of vocation are unable to do so, there is bound to be more affinitybetween the elder members of the family with those who arelooking after them day to day. [Para 11][120-E-H; 121-A]

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1.5 The first appellate court erred in appreciation of thefacts and evidence in the case. There can be no application of thelaw sans the facts of a case. The primary ingredients of the lawneed to be first established by proper pleading supported byrelevant evidence. Cases cannot be decided on assumptions orpresumptions. The instant case does not call for exercise of anydiscretionary jurisdiction under Article 136 of the Constitution.[Para 16][122-E]

Krishna Mohan Kul alias Nani Charan Kul and anr. v.Patima Maity and Ors.(2004) 9 SCC 468 : [2003] 3Suppl. SCR 496 – distinguished.

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Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558 : [2006]1 Suppl. SCR 659;Jamila Begum (D) thr. L.Rs. v. ShamiMohd. (D) thr. L.Rs. and Ors.(2019) 2 SCC 727;Bishundeo Narain and Ors. v. Seogeni Rai andJagernath[1951] SCR 548;Subhas Chandra DasMushib v. Ganga Prosad Das Mushib and Ors.[1967]1 SCR 331;Krishna Mohan Kul alias Nani CharanKul and Anr. v. Patima Maity and Ors.(2004) 9 SCC468 : [2003] 3 Suppl. SCR 496 – referred to.

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Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2896of 2009

AFrom the Judgment and Order dated 15.12.2008 of the HighCourt of Judicature at Allahabad, U.P. in Second Appeal No. 2095 of1975.

Ms. Garima Prashad, Advs. for the Appellants.

Anubhav Kumar, Ankit Agarwal, Abhishek Swarup (For M/s.BManoj Swarup and Co.), Advs. for the Respondents.

The Judgment of the Court was delivered by NAVIN SINHA, J.

1. The appellantisaggrieved by the order allowing the secondCappeal preferred by the defendants. The High Court set aside the orderof the First Appellate Court which had allowed the appeal of the appellantand set aside the order dismissing the appellants suit.

2. The plaintiff and defendant no.2 are brothers. Defendant no.1was the wife of defendant no.2. Respondents nos.1 to 3 are sons ofDdeceased defendant no.1. Original plaintiff no.2, another brother, haschosen not to pursue the appeal. The plaintiffs alleged that the originaldefendants obtained the sale deed dated 02.03.1970 from their fatherVaijai, since deceased, in favour of defendant no.1, fraudulently, by deceitand undue influence because of old age and infirmity of the deceasedand who was living with the defendants. The suit was dismissed. TheEappellate court allowed the appeal holding that the defendants had failedto discharge their burden of being in a position to dominate the will of thedeceased by undue influence. The High Court reversed the order of thefirst appellate court and restored the dismissal of the suit.

3. Learned counsel for the appellant submitted that the deceasedFwas old, infirm, bedridden and sick for approximately the last 8 to 10years. His mental faculties were also impaired. He was therefore entirelydependent on the original defendants who were therefore in a position toexercise undue influence over him. The deceased expired on 21.04.1971within ten months of the execution of the sale deed. The witnesses tothe sale deed were related to defendant no.2. It had not been establishedGthat full consideration had been paid. Defendant no.1 had no source ofincome to pay the purchase price. The wife of the deceased has notbeen examined as witness. The defendants did not lead the evidence ofthe Sub-Registrar who had registered the sale deed. The deceased hadnot sold any land to third persons in the year 1968 as contended by thedefendants.H

4. Learned counsel for the respondent/defendants submitted thatunder Section 101 of the Evidence Act, 1872 the initial onus lay on theplaintiffs by establishing a prima facie case for undue influence and onlythen the onus would shift to them. The necessary pleadings in respect ofthe same were completely lacking. The First Appellate Court wronglyshifted the burden upon the respondents. The deceased may have beenold and infirm, but he was not deprived of his mental faculties so as notto know the nature of documents executed by him. He was aliveapproximately for ten months after the execution of the deed, but neverquestioned the same. The deceased had executed another sale deedtwo years earlier in 1968, Exhibit 10 in favour of third persons which hasnot been questioned by the appellant. It establishes that the deceasedwas not in a condition where undue influence could be exercised overhim. There can be no presumptions merely on account of his old age.DW-1 was a witness to the sale deed and was present at the time ofregistration. The deceased admitted before the sub-registrar havingreceived a sum of Rs.2,000/- earlier and Rs.4,000/- was paid at the timeof registration. The Sub-Registrar has not recorded any adverseinferences about the condition or capacity of the deceased at the time ofregistration. A registered instrument will carry a presumption about itscorrectness unless rebutted.

5. Reliance in support of the submissions was placed on AnilRishi 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, 1951SCR 548, Subhas Chandra Das Mushib vs. Ganga Prosad DasMushib and Ors., 1967 (1) SCR 331 and Krishna Mohan Kul aliasNani Charan Kul and anr. vs. Patima Maity and ors., (2004) 9 SCC468.

6. We have considered the submissions on behalf of the parties.The primary question for our consideration is the physical condition ofthe deceased and his capacity to execute the sale deed. The secondquestion for our consideration is if the original defendants nos.1 and 2exercised undue influence over the deceased in having the sale deedexecuted in favour of defendant no.1 because of the physical infirmityof the deceased on account of his old age.

7. Section 14 of the Indian Contract Act, 1872 defines ‘freeconsent’ as follows:

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A“14. ‘Free consent’ defined – Consent is said to be free when it isnot caused by –

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(2) Undue influence, as defined in section 16,…”

Section 16 defines ‘undue influence’ as follows:

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“16. ‘Undue influence’ defined—

(1) A contract is said to be induced by ‘undue influence’ wherethe relations subsisting between the parties are such that one ofthe parties is in a position to dominate the will of the other andCuses that position to obtain an unfair advantage over the other.

(2) In particular and without prejudice to the generality of theforegoing principle, a person is deemed to be in a position todominate the will of another—

(a) where he holds a real or apparent authority over the other,Dor where he stands in a fiduciary relation to the other; or (b) where he makes a contract with a person whose mentalcapacity is temporarily or permanently affected by reason ofage, illness, or mental or bodily distress.

(3) Where a person who is in a position to dominate the will ofanother, enters into a contract with him, and the transactionappears, on the face of it or on the evidence adduced, to beunconscionable, the burden of proving that such contract was notinduced by undue influence shall be upon the person in a positionto dominate the will of the other.

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Nothing in the sub-section shall affect the provisions of section111 of the Indian Evidence Act, 1872 (1 of 1872).”

8. Section 111 of the Indian Evidence Act, 1872, explains goodfaith in transactions as follows:

“111. Proof of good faith in transactions where one party is inrelation of active confidence.—Where there is a question as tothe good faith of a transaction between parties, one of whomstands to the other in a position of active confidence, the burdenof proving the good faith of the transaction is on the party who isin a position of active confidence.”

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9. The deceased undisputedly was over 80 years and above inage. The plaintiff pleaded that by reason of age and sickness, the deceasedwas unable to move and walk, with deteriorated eye sight due to cataract.The mental capacity of the deceased was impaired. The Advanced LawLexicon by P.Ramanatha Aiyar, third edition reprint,2009 definesimpairment in relation to a human being as total or partial loss of a bodyfunction, total or partial loss of a part of the body, malfunction of a partof the body and malfunction or disfigurement of a part of the body.Except for a bald statement in the plaint that the deceased was mentallyimpaired there is no evidence whatsoever of his mental status. Therecan be no presumption with regard to the same only because of old ageto equate it with complete loss of mental faculties by senility or dementia.Ageing is a process which affects individuals differently at distinguishableages. The sale deed executed by the deceased in favour of one BabuRam and Munshi Lal two years earlier in 1968 has not been assailed bythe appellant on the ground that the deceased was devoid of the powerof reasoning, because of mental impairment. There is no evidence ofany such rapid deterioration in the condition of the deceased in thesetwo years.

10. The deceased on account of his advanced age may have beenold and infirm with a deteriorating eye sight, and unable to move freely.There is no credible evidence that he was bed ridden. Hardness of hearingby old age cannot be equated with deafness. The plaintiff, despite beingthe son of the deceased, except for bald statement in the plaint, has notled any evidence in support of his averments. It is an undisputed factthat the deceased appeared before the sub-registrar for registration. Itdemolishes the entire case of the plaintiff that the deceased was bedridden. He had put his thumb impression in presence of the sub-registrarafter the sale deed had been read over and explained to him. The deceasedhad acknowledged receipt of the entire consideration in presence of thesub-registrar only after which the deed was executed and registered.The wife of the deceased had accompanied him to the office of the sub-registrar. The sale deed being a registered instrument, there shall be apresumption in favour of the defendants. The onus for rebuttal lay onthe plaintiff which he failed to discharge. Notwithstanding the finding ofenmity between PW-2 and PW-3 with original defendant no.2, the FirstAppellate Court erred in relying upon these two witnesses by holdingthat they were independent witnesses and convincing. DW-1, thoughrelated was a witness to the sale deed. His evidence in support of the AB

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Aevents before the sub-registrar therefore has to be accepted. The plaintiffcould have led evidence in rebuttal of the sub-registrar but he did not doso.

11. That leads us to the question of undue influence. The pleadingsin the plaint are completelybereftof any details or circumstances withBregard to the nature, manner or kind of undue influence exercised by theoriginal defendants over the deceased. A mere bald statement has beenmade attributed to the infirmity of the deceased. We have already heldthat the deceased was not completely physically and mentallyincapacitated. There can be no doubt that the original defendants werein a fiduciary relationship with the deceased. Their conduct in lookingCafter the deceased and his wife in old age may have influenced thethinking of the deceased. But that per se cannot lead to the only irresistibleconclusion that the original defendants were therefore in a position todominate the will of the deceased or that the sale deed executed wasunconscionable. The onus would shift upon the original defendants underDSection 16 of the Contract Act read with Section 111 of the EvidenceAct, as held in Anil Rishi vs. Gurbaksh Singh (supra), only after theplaintiff would have established a prima facie case. The wife of thedeceased was living with him and had accompanied him to the office ofthe sub-registrar. The plaintiff has not pleaded or led any evidence that the wife of the deceased was also completely dominated by the originalEdefendants. In every cast, creed, religion and civilized society, lookingafter the elders of the family is considered a sacred and pious duty.Nonetheless, today it has become a matter of serious concern. TheParliament taking note of the same enacted the Maintenance and Welfareof Parents and Senior Citizens Act, 2007. We are of the consideredFopinion, in the changing times and social mores, that to straightway inferundue influence merely because a sibling was looking after the familyelder, is an extreme proposition which cannot be countenanced in absenceof sufficient and adequate evidence. Any other interpretation by inferringa reverse burden of proof straightway, on those who were taking careof the elders, as having exercised undue influence can lead to veryGundesirableconsequences. It may not necessarily lead to neglect, butcan certainly create doubts and apprehensions leading to lack of full andproper care under the fear of allegations with regard to exercise ofundue influence. Law and life run together. If certain members of thefamily are looking after the elderly and others by choice or by compulsionHof vocation areunable to do so, there is bound to be more affinity between the elder members of the family with those who are looking after themday 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. Itis true they may overlap in part in some cases but they are separate andseparable categories in law and must be separately pleaded.

It is also to be observed that no proper particulars have beenfurnished. Now if there is one rule which is better established than anyother, it is that in cases of fraud, undue influence and coercion, the partiespleading it must set forth full particulars and the case can only be decidedon the particulars as laid. There can be no departure from them inevidence. General allegations are insufficient even to amount to anaverment of fraud of which any court ought to take notice howeverstrong the language in which they are couched may be, and the sameapplies to undue influence and coercion.”

13. In Subhas Chandra (supra), distinguishing between influenceand undue influence, it was observed as follows:

“It must also be noted that merely because the parties were nearlyrelated to each other no presumption of undue influence can arise.As was pointed out by the Judicial Committee of the Privy Councilin Poosathurai v. Kappanna Chettiar and others 47 I.A. p. 1 :-

“It is a mistake (of which there are a good many traces inthese proceedings) to treat undue influence as having beenestablished by a proof of the relations of the parties havingbeen such that the one naturally relied upon the other for advice,and the other was in a position to dominate the will of the firstin giving it. Up to that point “influence” alone has been madeout. Such influence may be used wisely, judiciously and helpfully.But whether by the law of India or the law of England, morethan 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 thatthere was no presumption of imposition merely because a donor was oldand weak. Mere close relation also was insufficient to presume undueinfluence, observing as follows:

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A“Before, however, a court is called upon to examine whether undueinfluence was exercised or not, it must scrutinise the pleadings tofind out that such a case has been made out and that full particularsof undue influence have been given as in the case of fraud. SeeOrder 6, Rule 4 of the Code of Civil Procedure. This aspect ofthe pleading was also given great stress in the case of Ladli PrasadBJaiswal [1964] 1 SCR 270 above referred to. In that case it wasobserved (at p. 295):

“A vague or general plea can never serve this purpose; theparty pleading must therefore be required to plead the precisenature of the influence exercised, the manner of use of the Cinfluence, 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 witnessesproved that he was paralytic and virtually bedridden. None of thewitnesses could substantiate that the executant had put his thumbDimpression.

16. The first appellate court, completely erred in appreciation ofthe facts and evidence in the case. There can be no application of thelaw sans the facts of a case. The primary ingredients of the law need tobe first established by proper pleading supported by relevant evidence.ECases cannot be decided on assumptions or presumptions. We do notthink that the present calls for exercise of any discretionary jurisdictionunder Article 136 of the Constitution as a fourth court of appeal. InPritam Singh vs. The State AIR 1950 SC 169 it was observed:

“9. …Generally speaking, this Court will not grant special leave,Funless it is shown that exceptional and special circumstances exist,that substantial and grave injustice has been done and that thecase in question presents features of sufficient gravity to warranta review of the decision appealed against. Since the present casedoes not in our opinion fulfil any of these conditions, we cannotGinterfere with the decision of the High Court, and the appeal mustbe dismissed.”

17. On a consideration of the entirety of the matter we find noreason to interfere with the concurrent findings arrived at by two courts.The appeal is dismissed. There shall be no order as to costs.

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