# SUBHAS CHANDRA DAS MUSHIB v. GANGA P.ROSAD DAS MUSHIB AND ORS

- **Citation:** [1967] 1 S.C.R. 331
- **Court:** Supreme Court of India
- **Decided:** 1966-09-14
- **Bench:** K. N. Wanchoo, J.M. Shelat, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/subhas-chandra-das-mushib-v-ganga-p-rosad-das-mushib-and-ors-3829
- **Pages:** 11

## Headnote

Indian Contract
Act, s. 16-Undue influence-Burden of . proofnecessil)I of plea being clearly raised In pleadings.
The suit in the present case was for declaring that a deed of settlement executed by the plain.tiff's father and the plaintiff's sister in favour
of the plantiff's brother's son in respect of certain properties was frauduleot, collusive and invalid and for cancellation of the said documenL The
trial court dismissed the suit. However in appeal the High Court proceeded on the basis that in the circumstances of the case and in view of
the relationship of the parties the trial court should have made a presumption that the donee had influence over the donor and should baveasked for proof from the respondents before the High Court that the·
gift was the spontaneous act of the donor acting under circumsnmces
which enabled him to exercise an independoot will and which
would
justify the court in holding that the gift was the result of a, free exeroise
of the donor's will.
The High Court went on to presume from the great
age of the donor that his intelligence or understanding niust have doteriorated with advancing Ye;trS and consequently it was for the conn to
presume that he was under the influence of the younger son at the date of
the gift.
In appeal before this Court it w ... contended on behalf of the
defendant-appellant that the judgment of the High Court had proceeded
on ·an entirely erroneous basis and that there was no sufficient pleading
of undue influence nor was there any evidence adduced at the trial
to·
make out a case of undue influence.
HELD : The whole approach of the High Court was wrong and its
decision could not he upheld.
(i) The law as. to undue influence is the same· in the case of gi{ts
inter vivos as· in the case of a contract and the court trying a case of
undue influeμce must consider in view of s. 16( l) of the !ndian Contract
Act two things to start with, namely, (1) are the relations between the
donor and the donee such that the donee is in a ·position to
dominate the will of the donor and (2) has the donee used that position
to obtain an unfair advantage over the donor? Sub.s. (2) of section 16·
illustrates as to when a person is to he considered to be in a position to
dominate the will of another. These are inter alia (a) where the donee
bolds a real or app!lfWt authority aver the donor or (b) when he makm
a contract with a person whose mental capacity is temporarily or permaneELtly affected by reason of age, illness or mental or bodily distress. Sub.
s. ( 3) of the section throws the burden of proving that a contract was
not induced· by undue influence on the person benefiting by it when two·
factars are found against him namely that he is in a position to dominate
the will of another and the transaction appears on the fact of it or on the
evidence adduced to he unconscionable.
[334 J'>..H]
Thus under s. 16 the unconsciooable"""8 of the bargain is not the firat
thing to he considered. The first thing to be considered is the relatiom
of the parties.
But tiJe High Court neither determined the relatiO!ISbip
of the parties as required in s. 16( I) , nor d:d it find that the transaction
was mConscionable.
Therefore the pre.sumptions
made by it were unwarranted by law. [335 D; 339 CJ
MtSSo~. C.I./66-8
332
SUPREME COURT RBPOllTS
[1967] I S.C.ll.
(ii) Before 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 paniculars of undue
influence
have been given as in the C!'se of fraud. These co.nditions remained unsatisfied in the present case. [336 C-D]
(iii) On the evidence in the case the trial coun was right in its conclusion that the donor was fully aware of the fact that he had transferred
the propeny to defendant No. I. It had not been established that he was
of unsound mind.
[338 E-F]
(iv) There could be no presumption of undue inftuence merely because the donor and the donee wer

## Text

A
B
c
D
E
F
G
H
SUBHAS CHANDRA DAS MUSHIB
v.
GANGA P.ROSAD DAS MUSHIB AND ORS.
September 14, 1966
[K. N. WANCHOO, J.M. SHELAT AND G. K. MITTER, JJ.]
Indian Contract
Act, s. 16-Undue influence-Burden of . proofnecessil)I of plea being clearly raised In pleadings.
The suit in the present case was for declaring that a deed of settlement executed by the plain.tiff's father and the plaintiff's sister in favour
of the plantiff's brother's son in respect of certain properties was frauduleot, collusive and invalid and for cancellation of the said documenL The
trial court dismissed the suit. However in appeal the High Court proceeded on the basis that in the circumstances of the case and in view of
the relationship of the parties the trial court should have made a presumption that the donee had influence over the donor and should baveasked for proof from the respondents before the High Court that the·
gift was the spontaneous act of the donor acting under circumsnmces
which enabled him to exercise an independoot will and which
would
justify the court in holding that the gift was the result of a, free exeroise
of the donor's will.
The High Court went on to presume from the great
age of the donor that his intelligence or understanding niust have doteriorated with advancing Ye;trS and consequently it was for the conn to
presume that he was under the influence of the younger son at the date of
the gift.
In appeal before this Court it w ... contended on behalf of the
defendant-appellant that the judgment of the High Court had proceeded
on ·an entirely erroneous basis and that there was no sufficient pleading
of undue influence nor was there any evidence adduced at the trial
to·
make out a case of undue influence.
HELD : The whole approach of the High Court was wrong and its
decision could not he upheld.
(i) The law as. to undue influence is the same· in the case of gi{ts
inter vivos as· in the case of a contract and the court trying a case of
undue influeμce must consider in view of s. 16( l) of the !ndian Contract
Act two things to start with, namely, (1) are the relations between the
donor and the donee such that the donee is in a ·position to
dominate the will of the donor and (2) has the donee used that position
to obtain an unfair advantage over the donor? Sub.s. (2) of section 16·
illustrates as to when a person is to he considered to be in a position to
dominate the will of another. These are inter alia (a) where the donee
bolds a real or app!lfWt authority aver the donor or (b) when he makm
a contract with a person whose mental capacity is temporarily or permaneELtly affected by reason of age, illness or mental or bodily distress. Sub.
s. ( 3) of the section throws the burden of proving that a contract was
not induced· by undue influence on the person benefiting by it when two·
factars are found against him namely that he is in a position to dominate
the will of another and the transaction appears on the fact of it or on the
evidence adduced to he unconscionable.
[334 J'>..H]
Thus under s. 16 the unconsciooable"""8 of the bargain is not the firat
thing to he considered. The first thing to be considered is the relatiom
of the parties.
But tiJe High Court neither determined the relatiO!ISbip
of the parties as required in s. 16( I) , nor d:d it find that the transaction
was mConscionable.
Therefore the pre.sumptions
made by it were unwarranted by law. [335 D; 339 CJ
MtSSo~. C.I./66-8
332
SUPREME COURT RBPOllTS
[1967] I S.C.ll.
(ii) Before 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 paniculars of undue
influence
have been given as in the C!'se of fraud. These co.nditions remained unsatisfied in the present case. [336 C-D]
(iii) On the evidence in the case the trial coun was right in its conclusion that the donor was fully aware of the fact that he had transferred
the propeny to defendant No. I. It had not been established that he was
of unsound mind.
[338 E-F]
(iv) There could be no presumption of undue inftuence merely because the donor and the donee were nearly related to each other.
Nor
could the fact that a grandfather made a gift of a ponion of his properties to his only grandson a few years before his death show that the transaction was unconscionable.
[335 E; 341 CJ
Raghunath Prasad v. Sarju Prasad and Ors. 51 I.A. IOI Poosathurai v.
Kannappa Chettiar and Ors. 47 I.A. I, Ladli Prasad laiswal v. 'Karn.I
Distillery Co. Ltd, & Ors. [1964]
I S.C.R. 270 and Ismail Mussajeo
Mookerdum v. Hafiz Boo, 33 I.A. 86, referred to.
CML APPELLATE JURISDICTION : Civil Appeal No. 617 of
1964.
Appeal by special leave from the judgment and decree dated
July 22, August 12, 1960 of the Calcutta High Court in Appeal
from Original Decree No. 193 of 1954.
Niren De, Addi. Solicitor-General, and Sukumar Ghose, for
the appellants.
P. K. Chatterjee, for respondent No. I.
The Judgment of the Court was delivered by
Mitter, J. This is an appeal from a judgment and decree of
the High Court of Calcutta on a certificate granted by it reversing
a decision of the Subordinate Judge of Bankura dismissing the
plaintiff's s1,1it for declaring that a deed of settlement (Nirupan
Patra) executed by the plaintiff's father and the plaintiff's sister
in favour of the plaintiff's brother's son registered on July 22, 1944
in respect of properties situate in village Lokepur was fraudulent,
collusive and invalid and for cancellation of the said document.
The Judges of the High Court proceeded on the basis that in the
·circumstances of the casP and in view of the relationship of the
parties the trial court should have made a presumption that the
donce had influence over the donor and should have asked for
proof from the respondents before the High Court that the gift
was the spontaneous act of the donor acting under circumstances
which enabled him to exercise an independent will and which
would justify the court in holding that the gift was the result of a
free exercise oi the donor's will. The High Court went on to
presume from the great age of the donor that his intelligence or
understanding must have deteriorated with advancing years and
A
B
c
D
p
G
u
A
B
c
D
E
F
G
"
SUBHAS CHANDRA v. GANGA PROSAD (Mitter, I.)
333
consequently it was for the court to presume that he was under
the 'influence of his younger sqn at the date of_ the gift. It was
contended before us by the learned Additional Solicitor-General
appearing for the appellant that the judgment of the High Court
had proceeded on an entirely erroneous basis and that there was
no sufficient pleading of undue influence nor was there any evidence
adduced at the trial to make out a case of undue influence and
in the vital issue raised before the learned Subordinate Judge the
expression "undue influence" was not even used.
The main facts which have come out in the evidence are as
follows. The plaintiff's father, Prasanna Kumar, owned certain
lands in two villages, namely, Parbatipur and · Lokepur, holding
an eight annas share in each. The exact valuation of the properties is not known, but it would not be wrong· to assume that the
Lokepur properties, the subject-matter of the suit, were the more
valuable ones. Prasanna Kumar died in January or February, 1948
when he was about 90 years of age. He had two sons, namely,
Ganga Prosad, the plaintiff, and Balaram, the second defendant
in the suit, besides a daughter Swarnalata, and an only grandson
Subhas Chandra, who was the first defendant in the suit. Ganga
Prosad had no son. He had served in the Medical School at Bankura
from 1932 to 1934. Thereafter he worked as a contractor for
one year. From November 1944 to 1948 he served in Searsole
Raj Estate. The family consisted of Prasanna and his wife, their
two sons and their wives, besides the grand-son Subhas Chandra
and ·Prasanna's daughter Swarnalata who became a widow in
her -childhood and was residing with her parents. It appears that
Balaram always lived with his father and was never employed
elsewhere. According to the plaintiff's own evidence he was looking after the property of his father so long as he was at Bankura.
The Lokepur properties were put to auction in execution of a
decree for arrears of rent and were purchased by Prasanna benami
in the name of ~warnalata. The deed of gift shows that the transaction was entered into out of natural love and affection of the donor
for the donee and for the respect and reverence which the grand-son
bore to the grand-father. There is no direct evidence as to whether
the plaintiff was present in Bankura at the time when this deed was
computed and registered. It is the plaintiff's case that he was
not. The suit was filed in 1952, more than eight years after the
date of the transaction and more than four years after the death of
Prasanna.
There is a considerable body of evidence that in
between 1944 and 1948 a number of settlements of different plots of
land in village Lokepur )).ad been effected by Balaram acting as
the natural guardian of his son Subhas Chandra and in all of them
the Nirupan Patra had been recited and in each case Prasanna had
signed as an attesting witness •.. These settlements were ·made
jointly with the other co-sharers of Prasanna. In 1947 the Muni-
334
SUP!ll!ME COUR.T
llEPOllTS
(1967) I S.C.R.
cipal Commissioners of Bankura filed a suit against Prasanna for
A
recovery of arrears of taxes.
Prasanna filed his written statement in that suit stating that he had no interest in the property.
After Prasanna's death tJ:ie Municipal Commissioners did not serve
the plaintiff with a writ of summons in the suit but obtained a
decree only against Balaram ex parte. The plaintiff attended the
funeral ceremony of his father in 1948, but he alleges that he never
B
came to know of any of the settlements of land in Lokepur after
1944. He admitted never having paid any rent to the superior
landlords and stated that he came to know about the deed of settlement some two years before the institution of ihe suit from his
cousins none of whom were called as witnesses.
We may now proceed to consider what are the essential ingredients of undue influence and how a plaintiff who seeks relief
on this ground should proceed to prove his ca'e and when the
defendant is called upon to show that the contract or gift was not
induced by undue influence. The instant case is 'One of gift but
it is well settled that the law as to undue influence is the same in
the case of a gift inter 1·ivos as in the case of a contract.
Under s. 16 (I) of the Indian Contract Act 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. This shows that the court
trying a case of undue influence must consider two things to start
with, riamely, (I) are the relations between the donor and the donec
such that the donee is in a position to dominate the will of the
donor and (2) has the donee used that position to obtain an unfair
advantage over the donor'?
Sub-section (2) of the section is illustrative as to when a person
is to considered to be in a position to donlinate the will of another
These are inter alia (a) where the donee holds a real or apparent
authority over the donor or where he stands in a fiduciary relation
to the donor 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.
Sub-section (3) of the section throws the burden of proving
that a contract was not induced by undue influence on the person
benefiting by it when two factors are found against him, namely
that he is in a position to dominate the will of another and the
transaction appears on the face of it or on the evidence adduced
to he unconscionable.
c
D
E
F
G
H
A
B
c
D
E
F
G
SUBHAS CHANDRA v. GANGA PROSAD (Mitter, J.)
335
The three stages for consideration of a case of undue influence
were expounded in the case of Ragunath Prasad v. Sarju Prasad
and others(l) in the following words :-
"In the first place the relations between .the parties
to each other must be such that one is in a position to
dominate the will of the other. Once that position is
substantiated the second stage has been reached-namely,
the issue whether the contract has been induced by undue
influence. Upon the determination of this issue a third
point emerges, which is that of the onus probandi.
If
the transaction appears to be unconscionable, then the
burden of proving that the contract was not .induced
by undue influence is to lie upon the person who was. in
a position to dominate the will of the other.
Error is almost sure to arise if the order of these
propositions be changed. The unconscionableness of the
bargain is not the first thing to be considered. The first
thing to be considered is the relations of these parties.
Were they such as to put one in a position to dominate
the will of the other?"
It must also be noted that merely because the parties were
nearly related to each other no presumption of undue influene· can
arise. As was pointed out by the Judicial Committee of the Privy
Council in Poosathurai v. Kappanna Chettiar and others(2) :-
"It is a niistake (of which there are a good many
traces in these proceedings) to treat undue influence as
having been established by a proof of the relations of
the partieS having been such that the one naturally relied
upon the other for advice, and the other was in a position
to dominate the will of the first in giving it.. Up to that
point "influence" alone has been made ·out. Such influence may be used wisely, judiciously and helpfully.
But whether by the law of India or the law of England,
·more than mere influence must be proved so as to render
influence, in the language of the law; "undue".
The law ill' India as to u.ndue influence as embodied in s. 16
of the Contract Aet is based on the English Common Law as noted
in the judgments of this Court in Lad/i 'Prasad Jaiswa/ v. Karna/
Distillery Co. Ltd. and ors(3).
According to Halsbury's Laws of
England, Third Edition, Vol. 17, p. 673, Art. 1298, "where there is
no relationship shown fo exist from which undue influence is presumed," that influence must be proved". Article 1299, p. 674
of the same volume shows that "there is no presumption of imposi-
(1) :51 l.A. IOI.
(2) 47 I.A. p. I. at p. 3.
(3)
[1964] I S.C.R. 27v at 300.
336
SUPllEMB COURT
&!!PORTS
(1967) I S.C.R.
tion or fraud merely because a donor is old or of weak character'"
The nature of relations from the existence of which undue influence
is presumed is considered at pages 678 to 681 of the same volume.
The learned author notes at p. 679 that "there is no presumption
of undue influence in the case of a gift to a son, grandsor. or sonin-law, although made during the donor's illness and a few days
before his death". Generally speaking the relation of solicitor
·and client, trustee and cestui que trust, spiritual adviser and devotee,
medical attendant and patient, parent and child are those in which
such a presumption arises. Section 16(2) of the Contract Act
shows that such a situation can arise wherever the donee stands
in a fiduciary relationship to the donor or holds a real or apparent
authority over him.
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 Jaiswa/(1) above referred to. In that case it was observed
(at p. 295):
"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."
In the light of the above, it appears to us that there was no
sufficient pleading of undue influence at all in the plaint. The
relevant portion of paragraph 4 of the plaint is as follows :-
"The plaintiff's father along with defendant No. 3
(the sister) on the advice of defendant No. 2 (the brother
Balaram) without the knowledge of the plaintiff got a
collusive Nirupan Patra executed regarding the said
property on the 6th Sraban 1351 B.S. corresponding
to 22nd July, 1944 in the name of the defendant No. I
son of defendant No. 2 and had it registered-and the
plaintiff recently on 13th June, 1952 last, has come to know
of the same through reports from the people .... More·
over, the plaintiff's father being 90 years old. at the time
of execution of the said Nirupan Patra and being subject
to senile decay in consequence thereof, he was devoid
of the power of discrimination between good and evil.
Hence he not having sound disposing mind had no power
to execute the said deed of Nirupan Patra in favour of
(I} (196411 s.c.R. 270 at 300.
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
SUBHAS 'CHANDRA v. GANGA PROSAD (Mitter, l.)
337
the defendant No. 1 being in possession of his senses and
he 'did not execute the same in good faith voluntarily
and out of his free will. The plaintiff recently on 13th June
1952 last came to learn that defendant No. 2 taking advantage of the absence of the plaintiff and exerc_ising -undue
influence upon him and having won over the defendant
No. 3 also by holding out temptation and by misleading and
exercising undue influence upon her got the said fraudulent
deed of Nirupan Patra executed in favour of the defendant
No. 1, his son living in joint mess with him."
It will at once be noted from the above that the two portions
of the extracts from paragraph 4· are in conflict with each other.
According to the first portion the plaintiff's father Prasanna colluded
with his sister on the advice of his brother to execute the deed of
gift. The word "collusion" means a secret agreement for illegal
purposes or a conspiracy. The use of the word "collusion" suggests
that Prasanna knew what he was about and that he did it secretly
or fraudulently with the object of depriving the plaintiff. According to the second portion of the extract, Prasanna, because of his
old age, was subject to senile decay and could not discriminate
between good and evil. This hardly fits in with the case of collusion
which implies that a man does something evil designedly. There
is no suggestion in this paragraph of the plaint that Prasanna was
under the domination of Balaram and that Balaram exercised
his power over Prasanna to get' the document executed and registered
by Prasanna. It will be remembered that nominally the property
stood in the name of the sister who was also a party to the document and according to the extract quoted above Balaram had
exercised undue influence over her also.
The above allegations were generally denied in the written
statements of the !st and the 2nd defendants. It was asserted
in paragraph 12 of the written statement of the first defendant
that "Prasanna Kumar Mushib was a man endowed with particular wisdom and knowledge of worldly affairs and was a man of
independent spirit and had a fertile brain .. It was not possible
for anyone to exercise any influence. upon him ..... Up to the time
of his death he himself was active and strong and had a sound
brain also .... Of his own accord in good faith and considering
the surrounding circumstances and defendant No. I being a bright
jewel of the family and out of profound affection for him, he
voluntarily, in good faith and being urged by his affection towards
this def~ndant has made a gift of the properties in suit to this
defendant by way of family settlement."
The only issue out of seven which were framed by the learned
Subordinate Judge at the trial of the suit which has any bearing:
on this point is issue No. 5.
This reads :-
338
SUPREME
COURT
REPORTS
(1967] I S.C.R.
"Is the deed of gift by the grandfather to defendant
No. I valid and true : If so, is the suit maintainable without setting aside the deed of gift 0 "
It will be. noted at once that even the expression "undue influence" was not used in the issue.
There was no issue a~ to whether
the grandfather was a person of unsound mind and whether he
was under the domination of the second defendant.
At the trial several witnesses were examined by the plaintiff
for the purpose of showing that Prasanna was a person of unsound
mind at the time when· he executed the deed of gift.
We have
been taken through the evidence on this point and we fully agree
with the judgment of the learned Subordinate Judge who was
•'unable to hold that Prasanna was a man of unsound mind when
he executed Ex. G or that he was not aware of the fact of transfer".
The plaintiff's· only statement in examination in chief was that
his father . was not of sound mind for 10 or 12 years from before
his death.
ls it to be believed that he did not know about the
Nirupan Patra until four years after the death of his father'! This
~tatement of his can hardly be true because the Nirupan Patra
-does not stand by itself, but was given effect to in several deeds
-0f settlement which came out in evidence at the trial. There was
evidence before the Subordinate Judge to show that Prasanna had
filed a written statement in money suit No. 217 of 1948 filed by
the Municipal Commissioners of Bankura, that he was not in possession of the holding. The learned Subordinate Judge, in our opinion,
rightly came to the conclusion that the document of settlement
executed after the deed of gift and Prasanna's written statement
in the suit by the Municipal Commissioners showed that Prasanna
was fully aware of the fact that he had transferred the property
to defendant No. I.
Unfortunately, however, the learned Judges of the High Court
accepted the e-0ntention put forward on behalf of the plaintiff-
.appellant that the onus was upon the contesting defendants to
prove that the deed in question was intelligently executed by Prasanna
with full knowledge of its contents. The learned Judges referred
to the circumstances, (a) the deed of gift was a complete departure
from the e-0urse of normal inheritance, (b) Prasanna was a very old
man at the time of the alleged deed of gift and (c) the plaintiff
was away from the family house at or about this time and e-0ncluded
.therefrom that "these being the circumstances under which the
deed was executed, the court below should have made a presumption
that the dance had influence over the donor and the court below
should have asked for proof from the respondents that the gift
was the spontaneous act of the donor acting under circumstances
which enabled him to exercise an independent will and which would
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
SUBHAS CHANDRA v. GANGA PROSAD (Mitter, !.)
339
justify the court in holding that the gift was the result of a free
exercise of the donor's will. They further went on to add :-
"This aged man was becoming older from day to day
and we may take it for granted that his intelligence or
understanding did not improve with age but it must have
deteriorated with the advancing years. If, therefore, the
Court can presume, as it should presume, that he was under
the influence of his younger son at the date of the gift
then the Court will also presume that this influence must
have continued till the death of Prasanna."
It will be noted th:;lt the High Court did not come to a finding
that Balaram was in a position to dominate the will of his father
(Subhas his son being only about 14 years of age at the date of the
the deed of gift). Nor did the High Court find that the transaction
was an unconscionable one. The learned JUdges made presumptions which mere neither warranted by law nor supported by
facts. Indeed, .it appears to us that the learned Judges reached the
third· stage referred to in the case of Raghu Nath Prasad v. Sarju
Prasad (1) completely overlooking the first two stages.
A case very similar to the instant one came up for consideration
beforethe Judicial Committee of the Privy Council in Ismail Mussaiee
Mookerdum v. Hafiz Boo (2). There one Khaja Boo, a Mahomedan
woman, who died at the age of 90 years entered into the impugned
transactions when she was nearly 80. At that time she had an only
son, the plaintiff in the suit, and the defendant respondent, her
daughter. It came out in evidence that she was on· terms of bitter
hostility with her son and much litigation had taken place between
them. The daughter was a married woman whose husband resided
in Rangoon, but she herself was living with her mother at Rander.
The result of the impugned transactions was that the daughter
Hafiz Boo became possessed of nearly the whole of her mother's
Rangoon properties or their proceeds.
The son alleged in the
plaint that at the time of the occurrence the mother was suffering
from dementia and was not in a fit state of mind to execute contracts or to manage her affairs and was until July 1888 (she having
died in the year 1900) residing with the daughter and was completely
under her domination and control. Before the learned Trial Judge
a large mass of evidence was given directed to the question of
Khaja Boo's mental capacity in 1889. The learned Judge found
that the plaintiff had failed to show that his mother was of unsound
mind in 1889. The Court of Appeal came to the same conclusion.
The learned Trial Judge, however, came to the , conclusion that
Khaja Boo at the period in question was entirely under the control
and domination of her daughter and that the latter had unscrupul-
(l) 51I.A.101.
(2) 33 I.A. 88.
340
SUPREME COURT
REPORTS
(1967] I S.C.l't.
ously used her power over· her mother in order to get her mother's
property i~to her own hands and that the whole proceedings ought
to be av01ded on the ground of undue influence. This finding
was, however, reversed in appeal.
The Judicial Committee took the view that the question of
undue influence was never properly before the court at all. No
such case was set up in the pleadings. The nearest approach
to it was in the passage of the plaint already cited in which it was
said that Khaja Boo was entirely under the domination and control
of her daughter: but that is only said incidentally in connection
with the allegation of mental incapacity which allegation formed
the real case of the plaintiff. And accordingly when the issues
were settled there was a clear iss•1e as to Khaja Boo being of unsound inind in 1889, but none with regard to undue influence.
The Board therefore concluded that the question of undue
influence was discussed and considered not upon evidence given
with reference to that question, but upon evidence called for a
totally different purpose.
It will be noted that in this case no issue was raised of Prasanna
having been of unsound mind at the date of the deed of gift and,
as already noted, no issue was raised on undue influence at all.
It is true that some evidence was adduced on the po~nt as to whether
Prasanna was of sound mind in the year 1944, but that was wholly
negatived by the learned Subordinate· Judge and his finding was
not upset in appeal except by way of presumption which does
not arise in law.
It is pertinent also to note the obser;ation of the Judicial
Committee in the above case at p. 94 :-
"The mere relation of daughter to mother, of course,
in itself suggests nothing in the way of special influence
or control. The evidence seems to their Lordships quite
insufficient to establish any general case of domination
on the part of the daughter, and subjection of the mother,
such as to lead to a presumption against any transaction
between the two. With regard to the actual transactions
in question, there is no evidence whatever of undue influence
brought to bear upon them."
The same remarks may justly be made of the pleading and the
evidence adduced in this case.
There was practically no evidence about the domination of
Balaram over Prasanna at the time of the execution of the deed
of gift or even thereafter. Prasanna, according to the evidence,
seems to have been a person who was taking an active interest in
the management of the property even shortly before his death.
A
B
c
D
G
H
A
B
c
D
E
F
G
SUBHAS CHANDRA v. GANGA PROSAD (Mitter, /.)
341
The circumstances obtaining in the family in the year 1944 do not
show that the impugned transaction was of such a nature as to
shock ones conscience. The plaintiff had no son.
For 'a good
many years before 1944 he had been making a living elsewhere.
According to. bis own admission in cross-examination, he owned
a jungle in his own right (the area being given by the defendant
as 80 bighas) and was therefore possessed of separate property
in which his brother or nephew bad no interest. There were other
joint properties in the village of Parbatipur which were not the
subject-matter of the deed . of gift. . It may be that they were not
as valuable as the Lokepur properties. The circumstance that a
grand-father made a gift of a portion of his properties to bis only
grandson a few years before his death is not on the face of it an
unconscionable transaction. Moreover, we cannot lose sight of
the· fact that if Balaram was exercising undue influence over his
father he did not go to the length of having the deed of gift in his
own name. In this he was certainly acting very unwisely because
it was not out of the range of possibility that Subhas after attaining
majority might have nothing to do with his father.
Once we come to the conclusion that the presumptions made
by the learned Judges of the High Court were not warranted by
Jaw and that they did not take a view of the evidence adduced at
the trial different from that of the Subordinate Judge on the facts
of this case we must hold that the whole approach of the learned
Judges of the High Court was wrong and as such their decision•
cannot be upheld.
The learned Additional Solicitor-General also wanted to argue
that the suit was defective, because the plaintiff was out of posses'
sion ·and had not asked for a decree for possession in bis plaint
as he was bound· to do if he was asking for a declaration of title
to the property. It is to be noted that we did not think it necessary
to go into this question and did not allow him to place the evidence
on this point before us as we were of the view that the case of undue·
influence. had not been sufficiently alleged either on the . pleadings
or substantiated on the evidence adduced.
The result is that the appeal is allowed, the judgment and
decree of the High Court set aside and that of the trial court restored.
The respondents must pay to the appellant costs throughout.
G.C.
Appeal allowed. ·