SUBHAS CHANDRA DAS MUSHIB versus GANGA PROSAD DAS MUSHIB AND ORS.

Citation: [1967] 1 S.C.R. 331 · Decided: 14-09-1966 · Supreme Court of India · Bench: K.N. WANCHOO, J.M. SHELAT, G.K. MITTER · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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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 . proof-
necessil)I of plea being clearly raised In pleadings. 
The suit in the present case was for declaring that a deed of settle-
ment 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 fraudu-
leot, collusive and invalid and for cancellation of the said documenL The 
trial court dismissed the suit. However in appeal the High Court pro-
ceeded 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 pre-
sumption that the donee had influence over the donor and should bave-
asked 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 do-
teriorated 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 perma-
neELtly 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 un-
warranted 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 un-
satisfied in the present case. [336 C-D] 
(iii) On the evidence in the case the trial coun was right in its con-
clusion 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 be-
cause 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 proper-
ties to his only grandson a few years before his death show that the tran-
saction was unconscionable. 
[335 E; 341 CJ 
Raghunath Prasad v. Sar

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