Case Summary
| Citation | Kartari v. Kewal KrishanAIR 1972 HP 117 |
| Keywords | sec 126 TPA, dominate the will of other, sec 16 ICA, undue influence |
| Facts | The property was owned by a 70 year old widow, W who was ailing. She had a daughter to whom she was very attached. This daughter was looking after her mother as well as managing her properties. When the daughter was away, the distant male collaterals of W approached her and on the pretext of showing her to a doctor, took the old lady to a place away from her place of residence and got her signature on the gift deed already prepared by them. The deed was attested and registered the same day and the lady was brought back to her house after that. On returning the daughter heard from people about the gift deed and when she inquired from her mother, all that the lady could tell was that she was taken to some place and was made to sign some papers. The daughter and the mother then went to the place where the deed was registered and lodged a complaint at the police station to the effect that the deed was obtained by the collaterals by fraud and undue influence. The lady died shortly thereafter and the collaterals took possession of the property. The daughter filed a suit on the ground that the gift deed was obtained by the collaterals through fraud, and undue influence and was therefore void. |
| Issues | Are the relation between the parties such that the donee is in position to dominate the Will of donor? Has unfair advantage has been taken? |
| Contentions | |
| Law Points | ➢ The court explained the meaning of undue influence and observed, that the beneficiaries here had taken a leading part in the execution of the gift deed, and this by itself is sufficient to prove that they dominated the will of the donor and exercised undue influence in obtaining an unfair advantage in as much as they deprived the natural heir, namely the daughter, of the entire properties. ➢ The court also observed that the beneficiaries under the deed failed in proving that, the lady understood what was written in the deed, or that it was read over and explained to her. ➢ This was mandatory to prove as the language of the deed was one that she was not familiar with. The physical act of signing the deed did not coincide with the mental act of an intention to sign it. ➢ The court held that the gift deed was not valid as it was not executed with the free consent of the donor. Her consent was tainted with undue influence and fraud. |
| Judgement | Court held that from above evidence, inference can be drawn that defendant were in position to dominate the will of the lady and that they exercised their influence and obtained an unfair advantage for themselves. Plaintiff is entitled to get possession of the property. Hence, the appeal is dismissed. |
| Ratio Decidendi & Case Authority |
Full Case Details
D.B. LAL, J. – This second appeal has been directed against the judgment dated 24th June, 1968 of
the District Judge, Kangra, whereby reversing the decision of the Sub-Judge First Class Una, he has
dismissed the suit of the plaintiff which was for recovery of possession over landed property which
was gifted by the plaintiff’s ancestor to the defendants. Shrimati Kartari appeared in Court with the
allegations, that her mother Shrimati Basanti was the exclusive owner of 20 Kanals and 16 Marlas of
land situate in ‘Mauza’ Badhara (P.S. Una) of which the Khasra numbers were given in the plaint. It
was alleged that Shrimati Basanti was an old, feeble, helpless and illiterate woman. She was
‘pardanashin’ and was not in a sound state of mind as she used to remain sick. In fact, the plaintiff
used to look after her and usually resided with her as she was her only daughter and had become
widow within four years of her marriage. The plaintiff has no issues of her own. According to
plaintiff, her mother was attached to her and she was looking after her properties. Sometimes in
March or April, 1961, the plaintiff went to reside at her husband’s house and the defendants Kewal
Krishan and Mula Ram who were collaterals in the fourth degree, of the husband of Shrimati Basanti,
taking advantage of her absence and of the helpless condition of Smt. Basanti brought to bear undue
influence upon her and brought her to Una under the pretext of getting her treated by some doctor.
There on 4th April, 1961 they managed to obtain a gift-deed from her which they got registered on
that very day. In this manner Shrimati Basanti was divested of her entire landed property and the
defendants claimed ownership on the basis of the gift-deed. When the plaintiff came back to her
village, she came to know from people that some transaction of gift was obtained by the defendants
from her mother. Accordingly she made enquiries from her mother who did not remember anything
but simply asserted that she was made to sign some transfer deed in favour of the defendants.
Thereafter, at the instance of Shrimati Basanti, the two ladies went to Una on 24th April, 1961 and got
scribed a complaint to the Superintendent of Police, Hosiarpur, to the effect that under undue
influence and fraud, some transfer deed was obtained from Shrimati Basanti by the defendants and
that the same would not be binding upon them. Three or four days thereafter, Shrimati Basanti died.
The defendants had come in possession over the disputed land and did not vacate possession.
Therefore, the plaintiff was compelled to file the suit for recovery of possession after cancellation of
the gift-deed.
2. The defendants contested the suit on the allegations, that Shrimati Basanti was neither old nor
feeble nor incapable of understanding. Rather she fully understood the documents which she executed
in favour of the defendants. According to defendants, she did not want her properties to descend upon
the heirs of the plaintiff who was daughter and rather wanted the properties to go to the heir of her
deceased husband. That was a reason, according to defendants, why a gift-deed was executed by her
in favour of the defendants. It was denied that any undue influence was exercised upon the lady and
that any fraud was practised upon her.
3. The learned Sub-Judge found in favour of the plaintiff and after cancelling the gift-deed,
decreed the suit for possession. The defendants came in appeal before the learned District Judge and
he disagreed with the decision of the learned sub-Judge and dismissed the suit. The plaintiff has now
come up in this second appeal.
4. There is a specific allegation in the plaint that undue influence was exercised and in the
absence of the plaintiff, the defendants, had taken the lady who was ailing, to Una under the pretext
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that she was to be given a treatment by some doctor. She was, thus, brought under the influence of
the defendants and the gift-deed was obtained. The Court trying a case of undue influence must
consider two things to start with, namely:
(i) 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
(ii) Has the donee used that position to obtain an unfair advantage over the donor?
Upon the determination of these 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 is to lie upon the person who was in a position to dominate the will of the
other. [See, AIR 1967 SC 878, Subhash Chandra v. Ganga Prasad]. It was thus to be ascertained if
the defendants were in a position to dominate the will of Shrimati Basanti and have they used their
position to obtain an unfair advantage over her. Certain circumstances were established by evidence
and these circumstances need be reiterated. As to the age of the lady, according to plaint case, she was
90 years old. In the gift-deed itself the age is mentioned as 60 years. Madho Ram (PW. 3), however,
stated that her age was 75 years Shero (D.W. 8), assessed her age to be 70 years, while Kewal Krishan
defendant (DW-4) stated that her age was 60 or 65 years. It is, therefore, abundantly clear that the age
of the lady was near about 70 years which was sufficiently an advanced age, specially when she was
ailing. According to Shero (D.W. 3) the defendants had brought her for treatment by some doctor. The
plaintiff herself, of course, stated that she was not in a sound state of mind and that she was in a
position to tell facts about the transaction only, when she could collect her wits. It was, therefore,
established that Shrimati Basanti was an aged lady who was ailing at the time of the execution of the
gift-deed. Apparently she must have been attached to the plaintiff who was her only daughter. The
gift-deed was obtained while the daughter was absent and had gone to her husband’s place. In fact, the
defendants avoided the presence of the plaintiff at all relevant time of the execution and registration of
the deed. The defendants were, no doubt, collaterals and being male-members of the family of her
husband, came to her and brought her to Una for treatment. In this manner they were in a position to
dominate the will of the lady, at any rate during that short period of time when the plaintiff remained
absent. In the plaint, however, it was stated that the defendants were not even on visiting terms with
the lady. This assertion was obviously made as a counterblast to the defendant’s assertion in the giftdeed itself that were serving the lady since long and the gift was obtained in lieu of that service. There
is no evidence worth the name to prove that any service was rendered by the defendants to the lady. It
is obvious that she must have been attached to her only daughter and, as stated by her, it was she who
was to serve her up till her death. The beneficiary Kewal Krishan defendant played a prominent part
in execution and registration of the deed. He had taken witnesses from the village and according to
Shero (D.W. 3), he was also one of the witnesses taken from the village, but only Jakha (D.W. 2)
stood as witness and one more witness was taken from Una. For some reason, Shero (D.W. 3) was
given up. However, he was produced in the Court and it is he who admitted that the lady was taken by
the defendants for treatment to Una. However, he was not in a position to tell as to whether any
treatment was given to her at all. It appears therefore, that the lady was taken to Una under the pretext
of giving her a treatment. That is the reason why the witness is not in a position to give out any detail
regarding such treatment. It is, therefore, evident that Kewal Krishan defendant engaged his scribe for
writing the deed. He presented the lady for registration of the document. In this connection, reference
can be made to Vellaswamy Servai v. L. Sivaraman Servai [AIR 1930 PC 24] which was a case of
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will. But the ratio of the case is equally applicable to the circumstances of this case. Their
Lordships made the following observation:
“Where the propounder of a will is the principal beneficiary under it and has taken a
leading part in giving instructions for the execution of the will and procuring its registration
and execution, the circumstances are such as would excite the suspicion of any probate Court
and require it to examine the evidence in support of the will with great vigilance and scrutiny.
The propounder is not entitled to probate unless the evidence removes such suspicion and
dearly proves that the testator approved of the will.”
The defendant being the principal beneficiary thus took a leading part in execution and
registration and this by itself is sufficient to prove that he dominated the will of the lady and exercised
his influence in obtaining an unfair advantage inasmuch as he deprived the natural heir namely the
plaintiff of the entire properties. The natural affection of the mother should have been for the daughter
who was a widow and not under affluent circumstances. Admittedly she has no issues and according
to her statement, she does not possess any landed property at her husband’s place. Amar Nath,
Sarpanch, (P.W. 2) stated that the plaintiff has no male-member to look after her at her father-in-law’s
place. She has no landed property, except half portion of a house of which compensation has been
paid to her. Kewal Krishan (D.W.4) the defendant himself admitted that the plaintiff does not have
any relation of hers at her father-in-law’s place. The defendants asserted that the donor did not want to
change the line of descent from her husband and that is why, she gifted the disputed property to them.
If that was the reason for making the gift, why it was not mentioned in the deed itself? There it was
stated that the defendants were doing service for her and the gift was being executed in lieu of that
service. Above all, the lady herself came to Una subsequently and questioned the deed of gift. She got
a complaint written by Sant Ram scribe (P.W. 1) on 25th of April, 1961. This witness produced his
register which contained the thumb impression of the lady. The substance of the complaint was
written in the register which was, obviously, kept in the regular course of business. A copy of the
register (Ex. P.W. 1/1) has been filed. The original complaint was not summoned from the office of
the Superintendent of Police. There was some controversy as to the admissibility of this register entry.
There can be no denying that the register entry is by itself a primary evidence of a document. In fact,
two documents were brought into existence, one was the complaint sent to the Superintendent of
Police and the other was the register entry made by the scribe. The plaintiff produced the register
entry and could not produce the complaint itself. The register entry was thus primary evidence of the
document and could be taken into evidence. At any rate, this document proved that Shrimati Basanti
had her own objection for the document which she was made to execute on 4th April, 1961 at the
instance of the defendants. She did not know the details of that document, which is manifest from the
register entry (Ex.P.W. 1/1) which specifies that all the four brothers including the two defendants had
taken the transfer in their favour. In fact, the gift was executed in favour of only two brothers, namely,
the defendants. This circumstance also proves that the lady was not aware of the details of the
transaction of which she was made a party. According to Kewal Krishan (D.W. 4), she was an
illiterate lady.
5. The learned District Judge pointed out that the defendants’ witnesses were not put questions by
the plaintiff as to which document other than the gift was intended to be executed. In fact, no such
questions could be put to the witnesses because the plaintiff never relied upon any other document.
Rather her case was that a gift under undue influence was executed. The learned District Judge further
pointed out that the scribe was not cross-examined by the plaintiff upon the question as to whether the
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document was read out and explained to the lady. He has further stated that Jakha Ram (D.W. 2)
stated that the lady had come by foot upto Una, and from this, it could be inferred that she was hale
and hearty. These suggestions made by the learned District Judge do not carry us any further. Jakha
Ram was the own person of the defendant and was brought from the village to stand as witness for the
deed. As such, he was out to support the defendant. As against him, Shero (D.W. 3) very much stated
that she was ailing at that time and was brought by Kewal Krishan for treatment. The scribe (D.W. 1)
rather stated that whatever the lady said was got written in the deed, which is obviously incorrect
because the language utilised for scribing the deed could not have been stated by her. The witness
could ‘have very well stated that he had heard the lady and understood her. Thereafter, he wrote down
the substance of her talk and scribed the deed, but this he has not stated. The learned District Judge,
then relied upon the endorsement of the Sub-Registrar. It is obviously correct that such endorsements
are made out, in a routine fashion and whatever presumption is attached to such endorsements, it can
be rebutted by proper evidence. The learned District Judge then stated that the particulars of fraud
were not given out in the plaint. It may be correct to say that a case of fraud was not established, but
nonetheless the case of undue influence was proved and that is sufficient to set aside the document.
6. As a result to all that I have stated above, inferences can be drawn to the effect that the
defendants were in a position to dominate the will of the lady and that they exercised their influence
and obtained an unfair advantage for themselves. The transaction of gift was itself unconscionable
inasmuch as the mother deprived her dependent daughter of her entire share in the properties. Besides
this, the donor herself never kept any land for her maintenance. Had she remained alive for some
substantial period, she would have been entirely dependent for livelihood upon the defendants. She
would not have agreed to such a transaction. The burden of proof thus lay upon the defendants to
establish that undue influence was not exercised and this they failed to establish. The learned District
Judge placed a wrong burden of proof upon the plaintiff which is clear from the reasoning that he has
adopted in the judgment. It is, therefore, abundantly clear that the disputed gift-deed was obtained by
undue influence and need be set aside.
7. Rules regarding transactions by ‘pardanashin’ women are equally applicable to illiterate and
ignorant women though not ‘pardanashin’. This is so held in Chinta Dasya v. Bhalku Das, AIR 1930
Cal 591. There is no reason, say their Lordships, why a rule which is applicable to pardanashin ladies
on the ground of their ignorance and illiteracy should be restricted to that class only and should not
apply to the case of a poor woman who is equally ignorant and illiterate and is not pardanashin,
simply because she does not belong to that class. If that view of the matter were adopted the effect
clearly would be to confer an unfair advantage upon rich women as compared with poor women. The
object of the rule of law is to protect the weak and helpless and it would not be restricted to a
particular class of the community. In Mt. Farid-un-nisa v. Mukhtar Ahmad [AIR 1925 PC 204] the
following observation has been made which can be profitably understood in the case:-
“The law of India contains well-known principles for the protection of persons, who
transfer their property to their own disadvantage, when they have not the usual means of fully
understanding the nature and effect of what they are doing. In this it has only given the
special development, which Indian social usages make necessary, to the general rules of
English law, which protect persons, whose disabilities make them dependant upon or subject
them to the influence of others, even though nothing in the nature of deception or coercion
may have occurred. This is part of the law relating to personal capacity to make binding
transfers or settlements of property of any kind.
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The real point is that the disposition made must be substantially understood and must
really be the mental act, as its execution is the physical act, of the person who makes it.
The parties to prove the state of the settlor’s mind are the parties who set up and rely on
the deed. They must satisfy the Court that the deed has been explained to and understood by
the party thus under disability, either before execution, or after it under circumstances which
establish adoption of it with full knowledge and comprehension.
Further, the whole doctrine involves the view that mere execution by such a person,
although unaccompanied by duress, protest or obvious signs of misunderstanding or want of
comprehension, is in itself no real proof of a true understanding mind in the executing.
Evidence to establish such comprehension is most obviously found in proof that the deed was
read over to the settler and, where necessary, explained. If it is in a language which she does
not understand, it must, of course, be translated, and it is to be remembered that the clearness
of the meaning of the deed will suffer in the process. The extent and character of the
explanation required must depend on the circumstances of each case.”
In the instant case, it was the duty of the defendants to prove that the lady substantially
understood the document and her physical act of signing such document coincided with the mental act
of approval of its contents. This the defendants have failed to establish and hence the plaintiff must
succeed.
9. In this view of the matter, it was amply proved that the gift-deed was executed under undue
influence and hence the agreement did not convey a free and full consent of Shrimati Basanti. A valid
contract never came into existence. Shrimati Basanti herself objected to the deed and lodged a
complaint to Police in respect of it. The defendants could not derive any title under the gift-deed. The
plaintiff being the natural heir of the deceased, is entitled to get possession from the defendants and
the gift-deed is liable to be set aside.
10. The appeal is, therefore, allowed and the judgment and the decree of the learned District
Judge are set aside and the plaintiff’s suit for possession is decreed, with costs all throughout.
