Gomathi Amma v. C. V. Krishnan Nair — 1984 DIGILAW 190 (KER)

JUDGMENT 1. The question whether a gift deed Ext.A-4, dated 20th March 1972 executed by the 1st defendant in favour of the 2nd defendant was vitiated by undue influence was the principal question which had been agitated and which had been considered by the courts below. They concurred to hold that the gift deed was so vitiated. The plaintiffs were given a decree which entitled them to a share in the property. In modification of the finding of the trial court on that aspect, the court below fixed the share as 1/3. On that question there is no further dispute. 2. The question of law on which notice was issued by this court in the second appeal reads: "Has the plaintiffs discharged the initial burden in this case in support of the contention that the gift deed is invalid as it was brought about by undue influence?" 3. The courts below have devoted considerable time and space for the discussion of the question. It is unnecessary to detail the various established facts from which the inference that undue influence vitiated that document has been drawn. There is clear documentary evidence (Exts.A-2 and A-3 letters) which would indicate that the 1st defendant did entertain an intense desire to give a share in the plaint schedule property to her sons, the plaintiffs in the suit. That being the background, the courts below have found that the 1st defendant would not have suddenly changed the mind and executed the gift deed denying any share of the properties to the plaintiffs. Added to the above background were the circumstances attendant on the execution and registration of the document. The executant was an old lady of 70 at the time of Ext.A-4, namely 20th March 1972. It is also significant that soon thereafter she had a paralystic stroke, and had to be treated as an inpatient from 20th July 1972. She ultimately succumbed to her ailment within two months thereafter. These facts would constitute safe guides on the question whether the 1st defendant at the time of execution of the gift deed was in a position to exercise her free Will. 4. It is equally significant that the challenge to the gift deed came within three months of the execution of Ext.A-4 (vide notice Ext.A-5, dated 10th July 1972). These facts would constitute safe guides on the question whether the 1st defendant at the time of execution of the gift deed was in a position to exercise her free Will. 4. It is equally significant that the challenge to the gift deed came within three months of the execution of Ext.A-4 (vide notice Ext.A-5, dated 10th July 1972). The further circumstances relevant for the consideration of the question are the fact that the attestors to the document are none other than the husband of the 2nd defendant and the 4th defendant, and that the execution of the document was in the presence of the 2nd defendant in the house. 5. The lower appellate court did advert to the legal principles which have to be borne in mind, and which had been elaborated in the decisions of this court and of the Supreme Court, namely Lakshmi Amma v. Kunju Pillai (AIR 1954 TC 348) Afsar Shaikh and another v. Soleman Bibi and others ( AIR 1976 SC 163 ). Counsel for the appellant endeavoured mainly to rely on the principles as laid down in the latter decision. "I had occasion to consider a similar question in my judgment in S.A. No. 330 of 1981. Para.1 to 5 of that judgment referred to some of the aspects of the doctrine of undue influence. I said: " In Ladli Parshad's case, Supreme Court of India dealt at length with the doctrine of undue influence. The following passage occurring in Para.25 of the decision is apposite: "The doctrine of undue influence under the common law was evolved by the Courts in England for granting protection against transactions procured by the exercise of insidious forms of influence spiritual and temporal. The doctrine applies to acts of bounty as well as to other transactions in which one party by exercising his position of dominance obtains an unfair advantage over another. The Indian enactment is founded substantially on the rules of English common law" [vide Ladli Parshad Jaiswal v. The Karnal Distillery Co. Ltd., Karnal and others, ( AIR 1963 SC 1279 at 1290)]. 2. And the English decisions on the topic of undue influenceing the last century may perhaps be said to be ranging between Allcard v. Skinner, [(1887)36 Ch. D. 145], and Roche v. Sherrington, [(1982) 2 All ER 426]. Ltd., Karnal and others, ( AIR 1963 SC 1279 at 1290)]. 2. And the English decisions on the topic of undue influenceing the last century may perhaps be said to be ranging between Allcard v. Skinner, [(1887)36 Ch. D. 145], and Roche v. Sherrington, [(1982) 2 All ER 426]. The cases fall into two classes, described by Cotton, L. J. in Allcard v. Skinner supra in the following words: '(i) Where the court has been satisfied that the gift was the result of influence expressly used by the donee for the purpose; (ii) Where the relations between the donor and donee have at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor. In such a case the court sets aside the voluntary gift, unless it is proved that in fact the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent Will and which justifies the court in holding that the gift was the result of a free exercise of the donor's Will. The first class of cases may be considered as depending on the principle that no one shall be allowed to retain any benefit arising from his own fraud or wrongful act. In the second class of cases the court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent the relations which existed between the parties and the influence arising therefrom being abused.' 3. Slade, L. J. in the latter decision stated that the accuracy of the statement of law so made by Cotton, L. J. had not been, to his knowledge, questioned. He continued: " In a case of the second class referred to by Cotton, L. J. where the relevant relationship exists at the time of the transaction in question, the onus falls on the recipient to rebut the relevant presumption and justify the transaction by affirmatively proving that it was in fact the spontaneous act of the donor, resulting from a free exercise of his independent Will: see snell's Principles of Equity (27th edition., 1973) pp 546-548 and the cases there cited. 4. The Indian law on the topic is contained in S.16 of the Indian Contract Act. 4. The Indian law on the topic is contained in S.16 of the Indian Contract Act. Clause (b) of sub-section (2) of that section being particularly apposite in the present case, may usefully be extracted: "(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- * * * (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." Sub-section (3) makes a special provision for the burden of proof in such situations: "(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 lie upon the person in a position to dominate the will of the other. Nothing in this sub-section shall affect the provisions of S.111 of the Indian Evidence Act, 1972." The provisions of S.90, Evidence Act, particularly sub-clause (c) thereof are also relevant on this aspect. 5. The binding decisions of the Supreme Court which have discussed this topic, include: (i) Ladli Parshad's case referred to above, AIR 1963 SC 1279 . (ii) Subhas Chandra Das Mushib v. Ganga Prasad Das Mushib and others, ( AIR 1967 SC 878 ) and (iii) Afsar Shaikh and another v. Soleman Bibi and others, ( AIR 1976 SC 163 )" 6. The discussions of the lower appellate court, particularly in Para.8 to 10 of its judgment clearly indicate that the relevant principles have been correctly borne in mind and applied. In particular, it has been found that there has been no evidence that the 1st defendant executed the document knowing the contents and implications thereof. The only evidence available in the case was that of the 2nd defendant. She did not have any direct knowledge on the question. The attestors, 4th defendant and the husband of the 2nd defendant had not been examined. Their non-examination was found to be without any justification. The court found that neither the scribe nor the Sub-Registrar had been examined. The only evidence available in the case was that of the 2nd defendant. She did not have any direct knowledge on the question. The attestors, 4th defendant and the husband of the 2nd defendant had not been examined. Their non-examination was found to be without any justification. The court found that neither the scribe nor the Sub-Registrar had been examined. There was also evidence to show that even a few days after the gift deed, the 1st defendant has been complaining that she had been forced to execute a document the contents of which were unknown to her. 7. A summary of all the circumstances, which establish that the execution of the document had been vitiated by the exercise of undue influence was made in Para.12 of the judgment of the court below. The court below observed, and according to me correctly: " At any rate, these circumstances clearly shift the burden of proof on the 2nd defendant to show absence of undue influence. That burden has not been discharged." 8. On a consideration of the reasoning and conclusion of the courts below in the background of the proved facts and evidence in the case, I am satisfied that there is no scope whatever for interference in the second appeal with the concurrent judgment of the courts below. In the result, the second appeal is dismissed with costs.