Specific Relief Act, 1963
S. 26 - Provision under, as to rectification of an instrument - Applicability of - Person who can seek rectification - Held,
S. 26 is attracted in limited cases - It is applicable only where it is pleaded and proved that through fraud or mutual
mistake of the parties, the real intention of the parties is not expressed in instrument - Such rectification is permissible
only by parties to instrument and none else.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 2178-2179 OF 2004
Joseph John Peter Sandy
…Appellant
Versus
Veronica Thomas Rajkumar & Anr.
…Respondents
Citation; AIR 2013 SC2028
1. These appeals have been preferred against the impugned
judgment and decree dated 16.7.2003 passed by the High Court of
Madras in A.S. No. 1104 of 1987 and Transferred A.S. No. 1120 of 2001,
wherein it has set aside the judgment and decree of the trial court
which had decreed the suit of the appellant and dismissed the suit of
the respondent No.1.
2. The facts and circumstances giving rise to these appeals are:
A. The contesting parties are the son and the daughter of late B.P.
Sandy. Though late B.P. Sandy had several children, considering his
old age, he decided to transfer/settle his two houses bearing nos.22
and 23, Peria Palli Street, Raja Annamalai Puram, Chennai-28 in
favour of his youngest son and daughter (the contesting parties
herein) respectively. Therefore, the father of the parties executed
two registered settlement deeds on 27.8.1981 bearing nos. 1690/81 and
1691/81 at the office of Sub-Registrar, Mylapore, Chennai,
transferring House No. 23 in the name of his daughter (Respondent No.
1) and House No. 22 in the name of his son (Appellant).
B. It is alleged by the appellant that the father of the parties
had only at a later point of time realised that the House No. 23 which
was given to the daughter, ought to have been given to him and House
No. 22 to the daughter. Thus, the parties to give effect to the real
intention of their father decided to exchange the properties given to
them, and in furtherance thereof, executed a Agreement Deed to
exchange the same on 1.6.1982. The said document was witnessed by
Sheila Doss and Mrs. Mary Doss, who were neighbours and teachers and
colleagues of the daughter – respondent no.1. Since, the said
agreement dated 1.6.1982 (Ex.A-3) had not been given effect to by the
respondent no.1, the appellant filed O.S.No. 6331 of 1983 on 12.9.1983
in the court of City Civil Judge, Chennai, for issuance of direction
to the defendant/respondent no.1, to execute a Deed of Rectification
and further to restrain her from interference with the appellant’s
possession of the suit property. During the pendency of this suit,
Shri B.P. Sandy and the appellant executed a Rectification Deed (Ex.A-
6) on 8.10.1983 by which property in Door No.23 was given to the
appellant. The said deed was signed by two witnesses Susan Muthu and
A. Bernard. The respondent no.1/defendant filed suit O.S. No. 415 of
1984 before the same court for declaration that the agreement dated
1.6.1982 (Ex.A-3), an unregistered document, was null and void, being
a forged document, and that she has under undue influence put her
signature on the blank non-judicial stamp papers.
C. The trial court decided both the suits together vide judgment
and decree dated 21.8.1986 by way of which the appellant’s suit was
decreed and that of respondent no.1 was dismissed.
D. Aggrieved, the respondent no.1 filed an appeal before the
learned District Judge, however, it was subsequently transferred to
the High Court and the High Court has allowed both the appeals filed
by respondent no.1.
It may also be pertinent to mention here that during the
pendency of the appeals, the appellant got the Trial Court decree
executed through the court and subsequently sold the property no.23 to
the respondent no.2.
Hence, these appeals.
3. Shri R. Balasubramanian, learned senior counsel appearing for
the appellant, has submitted that the High Court has committed an
error in interpreting the statutory provisions of law and it was not
necessary, that the agreement between the parties, tantamount to an
agreement to sell, may be a registered document as required under
Section 17 of the Registration Act or by any provision of the Transfer
of Property Act and, therefore, the High Court erred in holding the
Ex.A-3 was inadmissible and inoperative in law. Once the document
(Ex.A-3) had been admitted in the evidence without any objection being
raised, its contents were bound to be admitted and relied upon. In
fact, the said document had been executed by the parties in order to
give effect to the real intention of their father. Therefore, the
question of undue influence could not have been inferred. The
judgment of the trial court ought not to have been reversed by the
appellate court. The parties having jointly taken a loan, an
agreement was reached between the parties that in consideration for
the appellant paying the entire loan taken for the marriage and
maintenance of the respondent no.1, she would transfer the property
stood in her name. Thus, the appeals deserve to be allowed.
4. Shri Shyam D. Nandan, learned counsel appearing on behalf of
the respondent No.1, has submitted that the High Court has rightly
reversed the judgments and decree of the trial court interpreting and
applying the statutory provisions in correct perspective. It was a
clear cut case of undue influence. The Rectification Deed (Ex.A-6)
executed by the father and appellant ought not to have been given
effect to.
In the instant case, as the respondent no. 1 was not a party to
the document Ex.A-6, she was not bound by it. Also, the appellant
could not have file the suit for rectification of settlement deed–
Ex.A-1, as there was no mistake in the understanding or execution by
the parties. The father of the parties was neither impleaded, nor
examined before the trial court, though he was still alive at the time
of institution of the suit. Even the appellant failed to examine the
witnesses to the document Ex.A-3. He examined only Shri A. Bernard,
the witness of document (Ex.A-6), who had no bearing to the instant
case. Thus, the appeals lack merit and are liable to be dismissed.
5. We have considered the rival submissions made by the learned
counsel for the parties and perused the records. Before entering into
merits of the case, it is desirable to examine the legal issues.
LEGAL ISSUES :
I. Section 26 of Specific Relief Act, 1963:
Section 26 of the Special Relief Act 1963 (hereinafter referred
to as ‘Act’) provides for rectification of instruments, where through
fraud or a mutual mistake of the parties, an instrument in writing
does not express the real intention, then the parties may apply for
rectification. However, clause 4 thereof, provides that such a relief
cannot be granted by the court, unless it is specifically claimed.
6. In Subhadra & Ors. v. Thankam, AIR 2010 SC 3031, this Court
while deciding upon whether the agreement suffers from any ambiguity
and whether rectification is needed, held that when the description of
the entire property has been given and in the face of the matters
being beyond ambiguity, the question of rectification in terms of
Section 26 of the Act would, thus, not arise. The provisions of
Section 26 of the Act would be attracted in limited cases. The
provisions of this Section do not have a general application. These
provisions can be attracted in the cases only where the ingredients
stated in the Section are satisfied. The relief of rectification can
be claimed where it is through fraud or a mutual mistake of the
parties that real intention of the parties is not expressed in
relation to an instrument.
A similar view has been reiterated by this Court in State of
Karnataka & Anr. v. K. K. Mohandas & etc, AIR 2007 SC 2917.
7. Thus, in view of the above, it can be held that Section 26 of
the Act has a limited application, and is applicable only where it is
pleaded and proved that through fraud or mutual mistake of the
parties, the real intention of the parties is not expressed in
relation to an instrument. Such rectification is permissible only by
the parties to the instrument and by none else.
II. Undue influence - Section 16 of Contract Act, 1872:
Section 16 of the Contract Act provides that 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.
8. In Bishundeo Narain & Anr. v. Seogeni Rai & Jagernath, AIR
1951 SC 280, while dealing with the issue, this Court held:
“….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.”
9. The Privy Council in Poosathurai v. Kannappa Chettiar, AIR 1920
PC 65, reasoned that it is a mistake 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'.
10. In Ladli Prashad Jaiswal v. The Karnal Distillery Co. Ltd.,
Karnal & Ors, AIR 1963 SC 1279, this Court held:
“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. The first sub-section of S.16 lays down the
principle in general terms. By sub-section (2) a presumption
arises that a person shall be deemed to be in a position to
dominate the will of another if the conditions set out
therein are fulfilled. Sub-section (3) lays down the
conditions for raising a rebuttable presumption that a
transaction is procured by the exercise of undue influence.
The reason for the rule in the third sub-section is that a
person who has obtained an advantage over another by
dominating his will may also remain in a position to
suppress the requisite evidence in support of the plea of
undue influence.”
11. In Subhash Chandra Das Mushib v. Ganga Prasad Das Mushib & Ors.,
AIR 1967 SC 878, this Court held that the Court trying the case of
undue influence must consider 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?
Upon the determination of these two issues 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 lies upon the person who is in a position
to dominate the Will of the other. It was further said that merely
because the parties were nearly related to each other or merely
because the donor was old or of weak character, no presumption of
undue influence can arise. Generally speaking the relations 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.
12. In Afsar Shaikh & Anr v. Soleman Bibi & Ors, AIR 1976 SC 163,
this Court held:
“The law as to undue influence in the case of a gift inter
vivos is the same as in the case of a contract. Sub-section
(3) of Section 16 contains a rule of evidence. According to
this rule, if a person seeking to avoid a transaction on the
ground of undue influence proves-
(a) that the party who had obtained the benefit was, at the
material time, in a position to dominate the will of the
other conferring the benefit, and
(b) that the transaction is unconscionable,
the burden shifts on the party benefiting by the transaction
to show that it was not induced by undue influence. If
either of these two conditions is not established the burden
will not shift. As shall be discussed presently, in the
instant case the first condition had not been established;
and consequently, the burden never shifted on the defendant.
The Privy Council in Raghunath Prasad v. Sarju Prasad, (AIR
1924 PC 60) expounded three stages for consideration of a
case of undue influence. It was pointed out that the first
thing to be considered is, whether the plaintiff or the
party seeking relief on the ground of undue influence has
proved that the relations between the parties to each other
are such that one is in a position to dominate the will of
the other. Upto this point, 'influence' alone has been made
out. Once that position is substantiated, the second stage
has been reached - namely, the issue whether the transaction
has been induced by undue influence. That is to say, it is
not sufficient for the person seeking the relief to show
that the relations of the parties have 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. Upon a determination of the issue at the second
stage, a third point emerges, which is of the onus probandi.
If the transaction appears to be unconscionable, then the
burden of proving that it 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
relation of the parties. Were they such as to put one in a
position to dominate the will of the other"
(Emphasis
added)
13. If there are facts on the record to justify the inference of
undue influence, the omission to make an allegation of undue influence
specifically, is not fatal to the plaintiff being entitled to relief
on that ground; all that the Court has to see is that there is no
surprise to the defendant. In Hari Singh v. Kanhaiya Lal, AIR 1999 SC
3325, it was held that mere lack of details in the pleadings cannot be
a ground to reject a case for the reason that it can be supplemented
through evidence by the parties.
III. ADMISSIBILITY OF A DOCUMENT:
14. In State of Bihar & Ors. v. Radha Krishna Singh & Ors., AIR 1983
SC 684, this Court held as under:
“Admissibility of a document is one thing and its probative
value quite another - these two aspects cannot be combined.
A document may be admissible and yet may not carry any
conviction and weight of its probative value may be nil....
Where a report is given by a responsible officer, which is
based on evidence of witnesses and documents and has "a
statutory flavour in that it is given not merely by an
administrative officer but under the authority of a Statute,
its probative value would indeed be very high so as to be
entitled to great weight.
The probative value of documents which, however ancient they
may be, do not disclose sources of their information or have
not achieved sufficient notoriety is precious little.”
15. Reiterating the above proposition in Madan Mohan Singh & Ors v.
Rajni Kant & Anr, AIR 2010 SC 2933, this Court held that a document
may be admissible, but as to whether the entry contained therein has
any probative value may still be required to be examined in the facts
and circumstances of a particular case. (See Also : H.Siddiqui (dead)
by Lrs. v. A.Ramalingam AIR 2011 SC 1492; Laxmibai (dead) thr. Lrs. &
Anr v. Bhagwantbuva (dead) thr Lrs. & Ors, JT 2013(2) SC 362 )
IV. ONUS OF PROOF:
16. In Thiruvengada Pillai v. Navaneethammal & Anr, AIR 2008 SC
1541, this Court held that when the execution of an unregistered
document put forth by the plaintiff was denied by the defendants, the
ruling that it was for the defendants to establish that the document
was forged or concocted is not a sound proposition. The first
appellate Court proceeded on the basis that it is for the party who
asserts something to prove that thing; and as the defendants alleged
that the agreement was forged, it was for them to prove it. But the
first appellate Court lost sight of the fact that the party who
propounds the document will have to prove it. It was the plaintiff who
had come to Court alleging that the first defendant had executed an
agreement of sale in his favour. The defendant having denied it, the
burden was on the plaintiff to prove that the defendant had executed
the agreement and not on the defendant to prove the negative.
17. In K. Laxmanan v. Thekkayil Padmini & Ors., AIR 2009 SC 951,
this Court held that when there are suspicious circumstances regarding
the execution of the Will, the onus is also on the propounder to
explain them to the satisfaction of the Court and only when such
responsibility is discharged, the Court would accept the Will as
genuine. Even where there are no such pleas, but circumstances give
rise to doubt, it is on the propounder to satisfy the conscience of
the Court. Suspicious circumstances arise due to several reasons such
as with regard to genuineness of the signature of the testator, the
conditions of the testator's mind, the dispositions made in the Will
being unnatural, improbable or unfair or there might be other
indications in the Will to show that the testator's mind was not free.
In such a case, the Court would naturally expect that all legitimate
suspicion should be completely removed before the document is accepted
as the last Will of the testator.
18. In Krishna Mohan Kul @ Nani Charan Kul & Anr. v. Pratima Maity
& Ors. AIR 2003 SC 4351, it was held that when fraud, mis-
representation or undue influence is alleged by a party in a suit,
normally, the burden is on him to prove such fraud, undue influence or
misrepresentation. But, when a person is in a fiduciary relationship
with another and the latter is in a position of active confidence the
burden of proving the absence of fraud, misrepresentation or undue
influence is upon the person in the dominating position, he has to
prove that there was fair play in the transaction and that the
apparent is the real, in other words that the transaction is genuine
and bona fide. In such a case the burden of proving the good faith of
the transaction is thrown upon the dominant party, that is to say, the
party who is in a position of active confidence.
19. The instant case is required to be exercised in the light of the
aforesaid settled proposition of law.
20. There is no dispute that by the settlement deed dated 27.8.1981,
late Shri B.P. Sandy had given House No. 23 admeasuring 2413 Sq. Ft.
to the daughter – respondent no.1 and House No. 22 admeasuring 730 Sq.
Ft. to the son – appellant. None of the attesting witnesses to these
documents had been examined by either of the parties, to ascertain
whether late B.P. Sandy, father of the parties, had expressed any
intention in respect of the properties before them. Ex.A-6 dated
28.10.1983 a unregistered document is subsequent to Exs.A1 & A2, by
which the father had expressed his will that House No. 23 should be
given to the son – appellant. The appellant has examined one of the
attesting witnesses Shri A. Bernard but the High Court came to the
right conclusion that as the respondent no.1 was not a party to the
document, it has no effect, whatsoever in law, on the case. Thus, in
such a fact-situation, it remains to be seen as what is the effect of
document dated 1.6.1982 Ex.A-3, the Memorandum of Agreement, and as to
whether it had been obtained by the appellant by undue influence. In
the document, it is stated that mistakes, in the settlement deed made
by their father, having been discovered only in the last week of May
1982, the parties, have decided to rectify the error and for that
purpose, they would execute and register necessary documents to
rectify the mistake. The intention behind such rectification being, to
make the appellant entitled to House No.23 and respondent No.1 to
House No. 22.
21. Before the trial court, only the parties and Shri A. Bernard,
the attesting witness to the Deed (Ex.A-6), were examined. The
appellant also did not examine his father who was alive till
26.12.1983. The appellant could have taken resort to the provisions
under Order XVIII Rule 16 of the Code of Civil Procedure, 1908, to
examine this witness immediately. The examination of Shri A. Bernard,
(PW-2) as to the genuineness of Ex.A-6 was a futile exercise, as the
said document could not have any bearing on the decision of the case.
22. The trial court had reasoned that, even though the appellant did
not examine the attesting witness of Ex.A-3, the defendant could have
done it and prove the allegations she had made against her brother –
appellant, and thus in the process had wrongly shifted the burden of
proof. The Court, further held that it was the appellant who had
wanted to get Ex.A-3 executed, thus, onus to prove was on him, had he
discharged the same, only then it could be shifted to the respondent
no.1/defendant.
23. The court further held that as the respondent was an educated
woman and was serving as a teacher, her allegation of undue influence
to sign on blank non-judicial stamp papers, cannot be relied upon and,
thereby concluded that Ex.A-3 was a document executed by her
voluntarily and by free will and, hence, it was binding on her and it
was not permissible for her to say that it was a forged document.
The learned trial court had also taken note of a letter dated
19.7.1983 (Ex.B-3) written by the father of the parties to respondent
no.1 in which it was stated that he had given her House No. 23.
However, the said letter was simply brushed aside by the court without
giving any reason whatsoever.
24. The High Court while dealing with the above issues, came to the
conclusion that Ex.A-6 was totally incongruous to the natural human
conduct and if the settlor i.e. the father of the parties, had so
intended to rectify the mistake, he could have very well registered
the rectification deed. The court further held that once the Trial
Court came to the conclusion that Ex.A-6 was not worth of acceptance,
it was not permissible for it to grant an equitable relief of
rectification of deed. After relying upon a large number of judgments
of this Court, the High Court further came to the conclusion that it
was a case of undue influence and as on the date of executing the
alleged document Ex.A-3, the respondent no.1 was unmarried and was
dependent on her father and brother for settling her marriage and for
sustenance, as her marriage was solemnised only on 1.6.1983. The
respondent no.1 having contended that the plaintiff was in a position
to dominate her will, thus, the document Ex.A-3 was termed as an
unconscionable. It was a case, wherein, after obtaining the
signatures of the respondent no. 1 on some papers, the document had
been scribed. With respect to the document, the High Court held that
the said document Ex.A-3 being a typed document, ought to have
contained the name of the person who had scribed it. It further
reasoned that the language used therein suggests that it was drafted
by an expert in the field and thus, the whole document is clouded with
suspicion and unexplained circumstances.
25. The High Court further held that Ex.A-3 being an unregistered
document, could not have been relied upon and it had wrongly been
admitted. In our opinion, such a view may not be legally correct.
However, reversal of the said finding would not tilt the balance in
favour of the appellant.
26. In view of the law referred to hereinabove, it is crystal clear
that even though the document may be admissible, still its contents
have to be proved and in the instant case, as the appellant did not
examine either the attesting witnesses of the document, nor proved its
contents, no fault can be found with the judgment impugned before us.
Section 26 of the Act, provides for rectification of a document if
the parties feel that they have committed any mistake. Also, it was
only, the father of the parties who could have sought rectification of
the deed. Mere rectification by parties herein does not take the case
within the ambit of Section 26 of the Act. Taking note of the
statutory provisions of Section 16 of the Contract Act and the
parameters laid down by this Court for application of doctrine on
undue influence, the High Court has reached a correct conclusion.
27. In view of the above, we reached the following inescapable
conclusions:
i) Neither of the party has examined the attesting witness to
document Ex.A-3. As such a witness could have explained the conduct
of the parties and deposed as to who had prepared the document Ex.A-3.
ii) It is evident from the language of the deed (Ex.A-3) that it has
been prepared either by a lawyer or a deed writer.
iii) The said document (Ex.A-3) does not bear either the signature, or the
address of the scribe. The appellant has also not examined the scribe,
nor has he disclosed who such person was. This would have revealed the
correct position with respect to whether the respondent no.1 had
signed blank papers, or whether she had come to him for the execution
of the document with the attesting witnesses and appellant.
Additionally, the scribe could have explained who had bought the non
judicial stamp paper for the document Ex. A-3.
iv) The consideration for executing document (Ex.A-3) seems to be the
redemption of the property mortgaged jointly by both the parties, to
one Advocate Krishnaswamy, with whom the deeds of title Ex.A1 and
Ex.A2 had been kept as security. The said mortgagee has not been
examined by the appellant to show as to whether the respondent No.1
was also a party to the mortgage and who had placed the title deed of
her property with him.
v) In his examination-in-chief, the appellant had made a false statement
that he was not made aware of the settlement deed Ex.A-1 till 26th
June of 1982, as it was given to him by his mother on that date before
her death. Such a statement stands completely falsified, as the
document Ex.A-1 reveals, that he had been put in possession by his
father, with the permission of respondent No.1 , as the property in
Door No.23 had been given to her and it was made clear that the
respondent No .1 had absolute right of enjoyment to the said property.
vi) Document Ex. B3 dated 29th July 1983 is subsequent to document Ex.A-6,
wherein settlor Mr. Sandy had written to respondent No.1 that he had
given Door No.23 to her. Thus, the settlor never intended otherwise.
vii) The document Ex.A3 shows that the mistake was discovered in the last
week of May 1982. So it was agreed to rectify the error, therefore the
parties undertook the same as a rectification under Section 26 of the
Act. In the written statement filed by the appellant, in the suit
filed by the respondent No.1 , Paragraph no. 7 & 9 refers to the
mistake and also, the rectification. Thus, the document Ex.A-3 cannot
be read as an “agreement to exchange.” It can be read only as a
rectification deed, which could have been done only by the settlor and
not by the contesting parties.
viii) Considering the respective area of the properties bearing nos.22 and
23, the contract can definitely be held “unconscionable”.
28. In view of the above, we are of the considered opinion that
appeals are devoid of any merit. The same are accordingly dismissed.
No costs.
CIVIL APPEAL NOs. 2184-2185 OF 2004
These appeals are squarely covered by the aforesaid
decision in the main matters i.e. C.A No. 2178-2179 of 2004. The same
are, accordingly, dismissed.
…….…………………………………….J.
(Dr. B.S. Chauhan)
….……………………………………….J.
(Fakkir Mohamed Ibrahim Kalifulla)
New Delhi;
March 12, 2013
Print Page
S. 26 - Provision under, as to rectification of an instrument - Applicability of - Person who can seek rectification - Held,
S. 26 is attracted in limited cases - It is applicable only where it is pleaded and proved that through fraud or mutual
mistake of the parties, the real intention of the parties is not expressed in instrument - Such rectification is permissible
only by parties to instrument and none else.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 2178-2179 OF 2004
Joseph John Peter Sandy
…Appellant
Versus
Veronica Thomas Rajkumar & Anr.
…Respondents
Citation; AIR 2013 SC2028
1. These appeals have been preferred against the impugned
judgment and decree dated 16.7.2003 passed by the High Court of
Madras in A.S. No. 1104 of 1987 and Transferred A.S. No. 1120 of 2001,
wherein it has set aside the judgment and decree of the trial court
which had decreed the suit of the appellant and dismissed the suit of
the respondent No.1.
2. The facts and circumstances giving rise to these appeals are:
A. The contesting parties are the son and the daughter of late B.P.
Sandy. Though late B.P. Sandy had several children, considering his
old age, he decided to transfer/settle his two houses bearing nos.22
and 23, Peria Palli Street, Raja Annamalai Puram, Chennai-28 in
favour of his youngest son and daughter (the contesting parties
herein) respectively. Therefore, the father of the parties executed
two registered settlement deeds on 27.8.1981 bearing nos. 1690/81 and
1691/81 at the office of Sub-Registrar, Mylapore, Chennai,
transferring House No. 23 in the name of his daughter (Respondent No.
1) and House No. 22 in the name of his son (Appellant).
B. It is alleged by the appellant that the father of the parties
had only at a later point of time realised that the House No. 23 which
was given to the daughter, ought to have been given to him and House
No. 22 to the daughter. Thus, the parties to give effect to the real
intention of their father decided to exchange the properties given to
them, and in furtherance thereof, executed a Agreement Deed to
exchange the same on 1.6.1982. The said document was witnessed by
Sheila Doss and Mrs. Mary Doss, who were neighbours and teachers and
colleagues of the daughter – respondent no.1. Since, the said
agreement dated 1.6.1982 (Ex.A-3) had not been given effect to by the
respondent no.1, the appellant filed O.S.No. 6331 of 1983 on 12.9.1983
in the court of City Civil Judge, Chennai, for issuance of direction
to the defendant/respondent no.1, to execute a Deed of Rectification
and further to restrain her from interference with the appellant’s
possession of the suit property. During the pendency of this suit,
Shri B.P. Sandy and the appellant executed a Rectification Deed (Ex.A-
6) on 8.10.1983 by which property in Door No.23 was given to the
appellant. The said deed was signed by two witnesses Susan Muthu and
A. Bernard. The respondent no.1/defendant filed suit O.S. No. 415 of
1984 before the same court for declaration that the agreement dated
1.6.1982 (Ex.A-3), an unregistered document, was null and void, being
a forged document, and that she has under undue influence put her
signature on the blank non-judicial stamp papers.
C. The trial court decided both the suits together vide judgment
and decree dated 21.8.1986 by way of which the appellant’s suit was
decreed and that of respondent no.1 was dismissed.
D. Aggrieved, the respondent no.1 filed an appeal before the
learned District Judge, however, it was subsequently transferred to
the High Court and the High Court has allowed both the appeals filed
by respondent no.1.
It may also be pertinent to mention here that during the
pendency of the appeals, the appellant got the Trial Court decree
executed through the court and subsequently sold the property no.23 to
the respondent no.2.
Hence, these appeals.
3. Shri R. Balasubramanian, learned senior counsel appearing for
the appellant, has submitted that the High Court has committed an
error in interpreting the statutory provisions of law and it was not
necessary, that the agreement between the parties, tantamount to an
agreement to sell, may be a registered document as required under
Section 17 of the Registration Act or by any provision of the Transfer
of Property Act and, therefore, the High Court erred in holding the
Ex.A-3 was inadmissible and inoperative in law. Once the document
(Ex.A-3) had been admitted in the evidence without any objection being
raised, its contents were bound to be admitted and relied upon. In
fact, the said document had been executed by the parties in order to
give effect to the real intention of their father. Therefore, the
question of undue influence could not have been inferred. The
judgment of the trial court ought not to have been reversed by the
appellate court. The parties having jointly taken a loan, an
agreement was reached between the parties that in consideration for
the appellant paying the entire loan taken for the marriage and
maintenance of the respondent no.1, she would transfer the property
stood in her name. Thus, the appeals deserve to be allowed.
4. Shri Shyam D. Nandan, learned counsel appearing on behalf of
the respondent No.1, has submitted that the High Court has rightly
reversed the judgments and decree of the trial court interpreting and
applying the statutory provisions in correct perspective. It was a
clear cut case of undue influence. The Rectification Deed (Ex.A-6)
executed by the father and appellant ought not to have been given
effect to.
In the instant case, as the respondent no. 1 was not a party to
the document Ex.A-6, she was not bound by it. Also, the appellant
could not have file the suit for rectification of settlement deed–
Ex.A-1, as there was no mistake in the understanding or execution by
the parties. The father of the parties was neither impleaded, nor
examined before the trial court, though he was still alive at the time
of institution of the suit. Even the appellant failed to examine the
witnesses to the document Ex.A-3. He examined only Shri A. Bernard,
the witness of document (Ex.A-6), who had no bearing to the instant
case. Thus, the appeals lack merit and are liable to be dismissed.
5. We have considered the rival submissions made by the learned
counsel for the parties and perused the records. Before entering into
merits of the case, it is desirable to examine the legal issues.
LEGAL ISSUES :
I. Section 26 of Specific Relief Act, 1963:
Section 26 of the Special Relief Act 1963 (hereinafter referred
to as ‘Act’) provides for rectification of instruments, where through
fraud or a mutual mistake of the parties, an instrument in writing
does not express the real intention, then the parties may apply for
rectification. However, clause 4 thereof, provides that such a relief
cannot be granted by the court, unless it is specifically claimed.
6. In Subhadra & Ors. v. Thankam, AIR 2010 SC 3031, this Court
while deciding upon whether the agreement suffers from any ambiguity
and whether rectification is needed, held that when the description of
the entire property has been given and in the face of the matters
being beyond ambiguity, the question of rectification in terms of
Section 26 of the Act would, thus, not arise. The provisions of
Section 26 of the Act would be attracted in limited cases. The
provisions of this Section do not have a general application. These
provisions can be attracted in the cases only where the ingredients
stated in the Section are satisfied. The relief of rectification can
be claimed where it is through fraud or a mutual mistake of the
parties that real intention of the parties is not expressed in
relation to an instrument.
A similar view has been reiterated by this Court in State of
Karnataka & Anr. v. K. K. Mohandas & etc, AIR 2007 SC 2917.
7. Thus, in view of the above, it can be held that Section 26 of
the Act has a limited application, and is applicable only where it is
pleaded and proved that through fraud or mutual mistake of the
parties, the real intention of the parties is not expressed in
relation to an instrument. Such rectification is permissible only by
the parties to the instrument and by none else.
II. Undue influence - Section 16 of Contract Act, 1872:
Section 16 of the Contract Act provides that 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.
8. In Bishundeo Narain & Anr. v. Seogeni Rai & Jagernath, AIR
1951 SC 280, while dealing with the issue, this Court held:
“….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.”
9. The Privy Council in Poosathurai v. Kannappa Chettiar, AIR 1920
PC 65, reasoned that it is a mistake 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'.
10. In Ladli Prashad Jaiswal v. The Karnal Distillery Co. Ltd.,
Karnal & Ors, AIR 1963 SC 1279, this Court held:
“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. The first sub-section of S.16 lays down the
principle in general terms. By sub-section (2) a presumption
arises that a person shall be deemed to be in a position to
dominate the will of another if the conditions set out
therein are fulfilled. Sub-section (3) lays down the
conditions for raising a rebuttable presumption that a
transaction is procured by the exercise of undue influence.
The reason for the rule in the third sub-section is that a
person who has obtained an advantage over another by
dominating his will may also remain in a position to
suppress the requisite evidence in support of the plea of
undue influence.”
11. In Subhash Chandra Das Mushib v. Ganga Prasad Das Mushib & Ors.,
AIR 1967 SC 878, this Court held that the Court trying the case of
undue influence must consider 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?
Upon the determination of these two issues 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 lies upon the person who is in a position
to dominate the Will of the other. It was further said that merely
because the parties were nearly related to each other or merely
because the donor was old or of weak character, no presumption of
undue influence can arise. Generally speaking the relations 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.
12. In Afsar Shaikh & Anr v. Soleman Bibi & Ors, AIR 1976 SC 163,
this Court held:
“The law as to undue influence in the case of a gift inter
vivos is the same as in the case of a contract. Sub-section
(3) of Section 16 contains a rule of evidence. According to
this rule, if a person seeking to avoid a transaction on the
ground of undue influence proves-
(a) that the party who had obtained the benefit was, at the
material time, in a position to dominate the will of the
other conferring the benefit, and
(b) that the transaction is unconscionable,
the burden shifts on the party benefiting by the transaction
to show that it was not induced by undue influence. If
either of these two conditions is not established the burden
will not shift. As shall be discussed presently, in the
instant case the first condition had not been established;
and consequently, the burden never shifted on the defendant.
The Privy Council in Raghunath Prasad v. Sarju Prasad, (AIR
1924 PC 60) expounded three stages for consideration of a
case of undue influence. It was pointed out that the first
thing to be considered is, whether the plaintiff or the
party seeking relief on the ground of undue influence has
proved that the relations between the parties to each other
are such that one is in a position to dominate the will of
the other. Upto this point, 'influence' alone has been made
out. Once that position is substantiated, the second stage
has been reached - namely, the issue whether the transaction
has been induced by undue influence. That is to say, it is
not sufficient for the person seeking the relief to show
that the relations of the parties have 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. Upon a determination of the issue at the second
stage, a third point emerges, which is of the onus probandi.
If the transaction appears to be unconscionable, then the
burden of proving that it 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
relation of the parties. Were they such as to put one in a
position to dominate the will of the other"
(Emphasis
added)
13. If there are facts on the record to justify the inference of
undue influence, the omission to make an allegation of undue influence
specifically, is not fatal to the plaintiff being entitled to relief
on that ground; all that the Court has to see is that there is no
surprise to the defendant. In Hari Singh v. Kanhaiya Lal, AIR 1999 SC
3325, it was held that mere lack of details in the pleadings cannot be
a ground to reject a case for the reason that it can be supplemented
through evidence by the parties.
III. ADMISSIBILITY OF A DOCUMENT:
14. In State of Bihar & Ors. v. Radha Krishna Singh & Ors., AIR 1983
SC 684, this Court held as under:
“Admissibility of a document is one thing and its probative
value quite another - these two aspects cannot be combined.
A document may be admissible and yet may not carry any
conviction and weight of its probative value may be nil....
Where a report is given by a responsible officer, which is
based on evidence of witnesses and documents and has "a
statutory flavour in that it is given not merely by an
administrative officer but under the authority of a Statute,
its probative value would indeed be very high so as to be
entitled to great weight.
The probative value of documents which, however ancient they
may be, do not disclose sources of their information or have
not achieved sufficient notoriety is precious little.”
15. Reiterating the above proposition in Madan Mohan Singh & Ors v.
Rajni Kant & Anr, AIR 2010 SC 2933, this Court held that a document
may be admissible, but as to whether the entry contained therein has
any probative value may still be required to be examined in the facts
and circumstances of a particular case. (See Also : H.Siddiqui (dead)
by Lrs. v. A.Ramalingam AIR 2011 SC 1492; Laxmibai (dead) thr. Lrs. &
Anr v. Bhagwantbuva (dead) thr Lrs. & Ors, JT 2013(2) SC 362 )
IV. ONUS OF PROOF:
16. In Thiruvengada Pillai v. Navaneethammal & Anr, AIR 2008 SC
1541, this Court held that when the execution of an unregistered
document put forth by the plaintiff was denied by the defendants, the
ruling that it was for the defendants to establish that the document
was forged or concocted is not a sound proposition. The first
appellate Court proceeded on the basis that it is for the party who
asserts something to prove that thing; and as the defendants alleged
that the agreement was forged, it was for them to prove it. But the
first appellate Court lost sight of the fact that the party who
propounds the document will have to prove it. It was the plaintiff who
had come to Court alleging that the first defendant had executed an
agreement of sale in his favour. The defendant having denied it, the
burden was on the plaintiff to prove that the defendant had executed
the agreement and not on the defendant to prove the negative.
17. In K. Laxmanan v. Thekkayil Padmini & Ors., AIR 2009 SC 951,
this Court held that when there are suspicious circumstances regarding
the execution of the Will, the onus is also on the propounder to
explain them to the satisfaction of the Court and only when such
responsibility is discharged, the Court would accept the Will as
genuine. Even where there are no such pleas, but circumstances give
rise to doubt, it is on the propounder to satisfy the conscience of
the Court. Suspicious circumstances arise due to several reasons such
as with regard to genuineness of the signature of the testator, the
conditions of the testator's mind, the dispositions made in the Will
being unnatural, improbable or unfair or there might be other
indications in the Will to show that the testator's mind was not free.
In such a case, the Court would naturally expect that all legitimate
suspicion should be completely removed before the document is accepted
as the last Will of the testator.
18. In Krishna Mohan Kul @ Nani Charan Kul & Anr. v. Pratima Maity
& Ors. AIR 2003 SC 4351, it was held that when fraud, mis-
representation or undue influence is alleged by a party in a suit,
normally, the burden is on him to prove such fraud, undue influence or
misrepresentation. But, when a person is in a fiduciary relationship
with another and the latter is in a position of active confidence the
burden of proving the absence of fraud, misrepresentation or undue
influence is upon the person in the dominating position, he has to
prove that there was fair play in the transaction and that the
apparent is the real, in other words that the transaction is genuine
and bona fide. In such a case the burden of proving the good faith of
the transaction is thrown upon the dominant party, that is to say, the
party who is in a position of active confidence.
19. The instant case is required to be exercised in the light of the
aforesaid settled proposition of law.
20. There is no dispute that by the settlement deed dated 27.8.1981,
late Shri B.P. Sandy had given House No. 23 admeasuring 2413 Sq. Ft.
to the daughter – respondent no.1 and House No. 22 admeasuring 730 Sq.
Ft. to the son – appellant. None of the attesting witnesses to these
documents had been examined by either of the parties, to ascertain
whether late B.P. Sandy, father of the parties, had expressed any
intention in respect of the properties before them. Ex.A-6 dated
28.10.1983 a unregistered document is subsequent to Exs.A1 & A2, by
which the father had expressed his will that House No. 23 should be
given to the son – appellant. The appellant has examined one of the
attesting witnesses Shri A. Bernard but the High Court came to the
right conclusion that as the respondent no.1 was not a party to the
document, it has no effect, whatsoever in law, on the case. Thus, in
such a fact-situation, it remains to be seen as what is the effect of
document dated 1.6.1982 Ex.A-3, the Memorandum of Agreement, and as to
whether it had been obtained by the appellant by undue influence. In
the document, it is stated that mistakes, in the settlement deed made
by their father, having been discovered only in the last week of May
1982, the parties, have decided to rectify the error and for that
purpose, they would execute and register necessary documents to
rectify the mistake. The intention behind such rectification being, to
make the appellant entitled to House No.23 and respondent No.1 to
House No. 22.
21. Before the trial court, only the parties and Shri A. Bernard,
the attesting witness to the Deed (Ex.A-6), were examined. The
appellant also did not examine his father who was alive till
26.12.1983. The appellant could have taken resort to the provisions
under Order XVIII Rule 16 of the Code of Civil Procedure, 1908, to
examine this witness immediately. The examination of Shri A. Bernard,
(PW-2) as to the genuineness of Ex.A-6 was a futile exercise, as the
said document could not have any bearing on the decision of the case.
22. The trial court had reasoned that, even though the appellant did
not examine the attesting witness of Ex.A-3, the defendant could have
done it and prove the allegations she had made against her brother –
appellant, and thus in the process had wrongly shifted the burden of
proof. The Court, further held that it was the appellant who had
wanted to get Ex.A-3 executed, thus, onus to prove was on him, had he
discharged the same, only then it could be shifted to the respondent
no.1/defendant.
23. The court further held that as the respondent was an educated
woman and was serving as a teacher, her allegation of undue influence
to sign on blank non-judicial stamp papers, cannot be relied upon and,
thereby concluded that Ex.A-3 was a document executed by her
voluntarily and by free will and, hence, it was binding on her and it
was not permissible for her to say that it was a forged document.
The learned trial court had also taken note of a letter dated
19.7.1983 (Ex.B-3) written by the father of the parties to respondent
no.1 in which it was stated that he had given her House No. 23.
However, the said letter was simply brushed aside by the court without
giving any reason whatsoever.
24. The High Court while dealing with the above issues, came to the
conclusion that Ex.A-6 was totally incongruous to the natural human
conduct and if the settlor i.e. the father of the parties, had so
intended to rectify the mistake, he could have very well registered
the rectification deed. The court further held that once the Trial
Court came to the conclusion that Ex.A-6 was not worth of acceptance,
it was not permissible for it to grant an equitable relief of
rectification of deed. After relying upon a large number of judgments
of this Court, the High Court further came to the conclusion that it
was a case of undue influence and as on the date of executing the
alleged document Ex.A-3, the respondent no.1 was unmarried and was
dependent on her father and brother for settling her marriage and for
sustenance, as her marriage was solemnised only on 1.6.1983. The
respondent no.1 having contended that the plaintiff was in a position
to dominate her will, thus, the document Ex.A-3 was termed as an
unconscionable. It was a case, wherein, after obtaining the
signatures of the respondent no. 1 on some papers, the document had
been scribed. With respect to the document, the High Court held that
the said document Ex.A-3 being a typed document, ought to have
contained the name of the person who had scribed it. It further
reasoned that the language used therein suggests that it was drafted
by an expert in the field and thus, the whole document is clouded with
suspicion and unexplained circumstances.
25. The High Court further held that Ex.A-3 being an unregistered
document, could not have been relied upon and it had wrongly been
admitted. In our opinion, such a view may not be legally correct.
However, reversal of the said finding would not tilt the balance in
favour of the appellant.
26. In view of the law referred to hereinabove, it is crystal clear
that even though the document may be admissible, still its contents
have to be proved and in the instant case, as the appellant did not
examine either the attesting witnesses of the document, nor proved its
contents, no fault can be found with the judgment impugned before us.
Section 26 of the Act, provides for rectification of a document if
the parties feel that they have committed any mistake. Also, it was
only, the father of the parties who could have sought rectification of
the deed. Mere rectification by parties herein does not take the case
within the ambit of Section 26 of the Act. Taking note of the
statutory provisions of Section 16 of the Contract Act and the
parameters laid down by this Court for application of doctrine on
undue influence, the High Court has reached a correct conclusion.
27. In view of the above, we reached the following inescapable
conclusions:
i) Neither of the party has examined the attesting witness to
document Ex.A-3. As such a witness could have explained the conduct
of the parties and deposed as to who had prepared the document Ex.A-3.
ii) It is evident from the language of the deed (Ex.A-3) that it has
been prepared either by a lawyer or a deed writer.
iii) The said document (Ex.A-3) does not bear either the signature, or the
address of the scribe. The appellant has also not examined the scribe,
nor has he disclosed who such person was. This would have revealed the
correct position with respect to whether the respondent no.1 had
signed blank papers, or whether she had come to him for the execution
of the document with the attesting witnesses and appellant.
Additionally, the scribe could have explained who had bought the non
judicial stamp paper for the document Ex. A-3.
iv) The consideration for executing document (Ex.A-3) seems to be the
redemption of the property mortgaged jointly by both the parties, to
one Advocate Krishnaswamy, with whom the deeds of title Ex.A1 and
Ex.A2 had been kept as security. The said mortgagee has not been
examined by the appellant to show as to whether the respondent No.1
was also a party to the mortgage and who had placed the title deed of
her property with him.
v) In his examination-in-chief, the appellant had made a false statement
that he was not made aware of the settlement deed Ex.A-1 till 26th
June of 1982, as it was given to him by his mother on that date before
her death. Such a statement stands completely falsified, as the
document Ex.A-1 reveals, that he had been put in possession by his
father, with the permission of respondent No.1 , as the property in
Door No.23 had been given to her and it was made clear that the
respondent No .1 had absolute right of enjoyment to the said property.
vi) Document Ex. B3 dated 29th July 1983 is subsequent to document Ex.A-6,
wherein settlor Mr. Sandy had written to respondent No.1 that he had
given Door No.23 to her. Thus, the settlor never intended otherwise.
vii) The document Ex.A3 shows that the mistake was discovered in the last
week of May 1982. So it was agreed to rectify the error, therefore the
parties undertook the same as a rectification under Section 26 of the
Act. In the written statement filed by the appellant, in the suit
filed by the respondent No.1 , Paragraph no. 7 & 9 refers to the
mistake and also, the rectification. Thus, the document Ex.A-3 cannot
be read as an “agreement to exchange.” It can be read only as a
rectification deed, which could have been done only by the settlor and
not by the contesting parties.
viii) Considering the respective area of the properties bearing nos.22 and
23, the contract can definitely be held “unconscionable”.
28. In view of the above, we are of the considered opinion that
appeals are devoid of any merit. The same are accordingly dismissed.
No costs.
CIVIL APPEAL NOs. 2184-2185 OF 2004
These appeals are squarely covered by the aforesaid
decision in the main matters i.e. C.A No. 2178-2179 of 2004. The same
are, accordingly, dismissed.
…….…………………………………….J.
(Dr. B.S. Chauhan)
….……………………………………….J.
(Fakkir Mohamed Ibrahim Kalifulla)
New Delhi;
March 12, 2013
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