Law Web: Whether Undue Influence' Can Be Inferred if Family Member Was Taking Care Of Elderly Person?

That leads us to the question of undue influence. The

pleadings in the plaint are completely bereft of any details or

circumstances with regard to the nature, manner or kind of undue

influence exercised by the original defendants over the deceased. A

mere bald statement has been made attributed to the infirmity of

the deceased. We have already held that the deceased was not

completely physically and mentally incapacitated. There can be no

doubt that the original defendants were in a fiduciary relationship

with the deceased. Their conduct in looking after the deceased and

his wife in old age may have influenced the thinking of the

deceased. But that per se cannot lead to the only irresistible

conclusion that the original defendants were therefore in a position

to dominate the will of the deceased or that the sale deed executed

was unconscionable. The onus would shift upon the original

defendants under Section 16 of the Contract Act read with Section

111 of the Evidence Act, as held in Anil Rishi vs. Gurbaksh Singh

(supra), only after the plaintiff would have established a prima facie

case. The wife of the deceased was living with him and had

accompanied him to the office of the subregistrar.

The plaintiff has

not pleaded or led any evidence that the wife of the deceased was

also completely dominated by the original defendants. In every cast,

creed, religion and civilized society, looking after the elders of the

family is considered a sacred and pious duty. Nonetheless, today it

has become a matter of serious concern. The Parliament taking

note of the same enacted the Maintenance and Welfare of Parents

and Senior Citizens Act, 2007. We are of the considered opinion, in

the changing times and social mores, that to straightway infer

undue influence merely because a sibling was looking after the

family elder, is an extreme proposition which cannot be

countenanced in absence of sufficient and adequate evidence. Any

other interpretation by inferring a reverse burden of proof

straightway, on those who were taking care of the elders, as having

exercised undue influence can lead to very undesirable

consequences. It may not necessarily lead to neglect, but can

certainly create doubts and apprehensions leading to lack of full

and proper care under the fear of allegations with regard to exercise

of undue influence. Law and life run together. If certain members

of the family are looking after the elderly and others by choice or by

compulsion of vocation are unable to do so, there is bound to be

more affinity between the elder members of the family with those

who are looking after them day to day.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 2896 OF 2009

RAJA RAM Vs JAI PRAKASH SINGH

NAVIN SINHA, J.

Dated:SEPTEMBER 11, 2019.

The appellant is aggrieved by the order allowing the second

appeal preferred by the defendants. The High Court set aside the

order of the First Appellate Court which had allowed the appeal of

the appellant and set aside the order dismissing the appellants suit.

2. The plaintiff and defendant no.2 are brothers. Defendant no.1

was the wife of defendant no.2. Respondents nos.1 to 3 are sons of

deceased defendant no.1. Original plaintiff no.2, another brother,

has chosen not to pursue the appeal. The plaintiffs alleged that the

original defendants obtained the sale deed dated 02.03.1970 from

their father Vaijai, since deceased, in favour of defendant no.1,

fraudulently, by deceit and undue influence because of old age and

infirmity of the deceased and who was living with the defendants.

The suit was dismissed. The appellate court allowed the appeal

holding that the defendants had failed to discharge their burden of

being in a position to dominate the will of the deceased by undue

influence. The High Court reversed the order of the first appellate

court and restored the dismissal of the suit.

3. Learned counsel for the appellant submitted that the deceased

was old, infirm, bedridden and sick for approximately the last 8 to

10 years. His mental faculties were also impaired. He was therefore

entirely dependent on the original defendants who were therefore in

a position to exercise undue influence over him. The deceased

expired on 21.04.1971 within ten months of the execution of the

sale deed. The witnesses to the sale deed were related to defendant

no.2. It had not been established that full consideration had been

paid. Defendant no.1 had no source of income to pay the purchase

price. The wife of the deceased has not been examined as witness.

The defendants did not lead the evidence of the SubRegistrar

who

had registered the sale deed. The deceased had not sold any land to

third persons in the year 1968 as contended by the defendants.

4. Learned counsel for the respondent/defendants submitted

that under Section 101 of the Evidence Act, 1872 the initial onus

lay on the plaintiffs by establishing a prima facie case for undue

influence and only then the onus would shift to them. The

necessary pleadings in respect of the same were completely lacking.

The First Appellate Court wrongly shifted the burden upon the

respondents. The deceased may have been old and infirm, but he

was not deprived of his mental faculties so as not to know the

nature of documents executed by him. He was alive approximately

for ten months after the execution of the deed, but never questioned

the same. The deceased had executed another sale deed two years

earlier in 1968, Exhibit 10 in favour of third persons which has not

been questioned by the appellant. It establishes that the deceased

was not in a condition where undue influence could be exercised

over him. There can be no presumptions merely on account of his

old age. DW1

was a witness to the sale deed and was present at

the time of registration. The deceased admitted before the sub3

registrar having received a sum of Rs.2,000/earlier

and

Rs.4,000/was

paid at the time of registration. The SubRegistrar

has not recorded any adverse inferences about the condition or

capacity of the deceased at the time of registration. A registered

instrument will carry a presumption about its correctness unless

rebutted.

5. Reliance in support of the submissions was placed on Anil

Rishi vs. Gurbaksh Singh, (2006) 5 SCC 558, Jamila Begum (D)

thr. L.Rs. vs. Shami Mohd. (D) thr. L.Rs. and ors., (2019) 2 SCC

727, Bishundeo Narain and Ors. vs. Seogeni Rai and

Jagernath, 1951 SCR 548, Subhas Chandra Das Mushib vs.

Ganga Prosad Das Mushib and Ors., 1967 (1) SCR 331 and

Krishna Mohan Kul alias Nani Charan Kul and anr. vs.

Patima Maity and ors., (2004) 9 SCC 468.

6. We have considered the submissions on behalf of the parties.

The primary question for our consideration is the physical condition

of the deceased and his capacity to execute the sale deed. The

second question for our consideration is if the original defendants

nos.1 and 2 exercised undue influence over the deceased in having

the sale deed executed in favour of defendant no.1 because of the

physical infirmity of the deceased on account of his old age.

7. Section 14 of the Indian Contract Act, 1872 defines ‘free

consent’ as follows:

“14. ‘Free consent’ defined – Consent is said to be free

when it is not caused by –

(1) xxxxx

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

Section 16 defines ‘undue influence’ as follows:

“16. ‘Undue influence’ defined—

(1) A contract is said to be induced by ‘undue

influence’ where the relations subsisting between

the parties are such that one of the parties is in a

position to dominate the will of the other and uses

that position to obtain an unfair advantage over

the other.

(2) In particular and without prejudice to the

generality of the foregoing principle, a person is

deemed to be in a position to dominate the will of

another—

(a) where he holds a real or apparent authority over

the other, or where he stands in a fiduciary

relation to the other; or

(b) where he makes a contract with a person whose

mental capacity is temporarily or permanently

affected by reason of age, illness, or mental or

bodily distress.

(3) Where a person who is in a position to dominate

the will of another, enters into a contract with him,

and the transaction appears, on the face of it or on

the evidence adduced, to be unconscionable, the

burden of proving that such contract was not

induced by undue influence shall be upon the

person in a position to dominate the will of the

other.

Nothing in the subsection

shall affect the

provisions of section 111 of the Indian Evidence

Act, 1872 (1 of 1872).”

8. Section 111 of the Indian Evidence Act, 1872, explains good

faith in transactions as follows:

“111. Proof of good faith in transactions where one

party is in relation of active confidence.—Where

there is a question as to the good faith of a

transaction between parties, one of whom stands

to the other in a position of active confidence, the

burden of proving the good faith of the transaction

is on the party who is in a position of active

confidence.”

9. The deceased undisputedly was over 80 years and above in

age. The plaintiff pleaded that by reason of age and sickness, the

deceased was unable to move and walk, with deteriorated eye sight

due to cataract. The mental capacity of the deceased was impaired.

The Advanced Law Lexicon by P.Ramanatha Aiyar, third edition

reprint,2009 defines impairment in relation to a human being as

total or partial loss of a body function, total or partial loss of a part

of the body, malfunction of a part of the body and malfunction or

disfigurement of a part of the body. Except for a bald statement in

the plaint that the deceased was mentally impaired there is no

evidence whatsoever of his mental status. There can be no

presumption with regard to the same only because of old age to

equate it with complete loss of mental faculties by senility or

dementia. Ageing is a process which affects individuals differently at

distinguishable ages. The sale deed executed by the deceased in

favour of one Babu Ram and Munshi Lal two years earlier in 1968

has not been assailed by the appellant on the ground that the

deceased was devoid of the power of reasoning, because of mental

impairment. There is no evidence of any such rapid deterioration in

the condition of the deceased in these two years.

10. The deceased on account of his advanced age may have been

old and infirm with a deteriorating eye sight, and unable to move

freely. There is no credible evidence that he was bed ridden.

Hardness of hearing by old age cannot be equated with deafness.

The plaintiff, despite being the son of the deceased, except for bald

statement in the plaint, has not led any evidence in support of his

averments. It is an undisputed fact that the deceased appeared

before the subregistrar

for registration. It demolishes the entire

case of the plaintiff that the deceased was bed ridden. He had put

his thumb impression in presence of the subregistrar

after the sale

deed had been read over and explained to him. The deceased had

acknowledged receipt of the entire consideration in presence of the

subregistrar

only after which the deed was executed and

registered. The wife of the deceased had accompanied him to the

office of the subregistrar.

The sale deed being a registered

instrument, there shall be a presumption in favour of the

defendants. The onus for rebuttal lay on the plaintiff which he failed

to discharge. Notwithstanding the finding of enmity between PW2

and PW3

with original defendant no.2, the First Appellate Court

erred in relying upon these two witnesses by holding that they were

independent witnesses and convincing. DW1,

though related was

a witness to the sale deed. His evidence in support of the events

before the subregistrar

therefore has to be accepted. The plaintiff

could have led evidence in rebuttal of the subregistrar

but he did

not do so.

11. That leads us to the question of undue influence. The