RAJA RAMversusJAI PRAKASH SINGH AND OTHERS

112                      [2019]REPORTS
               SUPREME COURT    12 S.C.R. 112              [2019] 12 S.C.R.


A                                 RAJA RAM
                                        v.
                    JAI PRAKASH SINGH AND OTHERS
                         (Civil Appeal No. 2896 of 2009)
B                            SEPTEMBER 11, 2019
              [NAVIN SINHA AND INDIRA BANERJEE, JJ.]
             Contract Act, 1872: s. 16 – Undue influence – Inference of –
      Execution of sale deed by father in favour of his son-respondent –
      Allegation by appellant-son that respondent no. 1 exercised undue
C
      influence over the father in having the sale deed executed in favour
      of respondent because of physical infirmity of the father on account
      of his old age and that the father was living with the respondents –
      Held: To infer undue influence merely because a sibling was looking
      after the family elder, is an extreme proposition which cannot be
D     countenanced in absence of sufficient and adequate evidence –
      On facts, pleadings in the plaint are completely bereft of any details
      or circumstances with regard to undue influence exercised by
      respondents over the deceased – Mere bald statement is attributed
      to the infirmity of the deceased father – Deceased was not completely
      physically and mentally incapacitated – Respondents were in a
E
      fiduciary relationship with the deceased – Their conduct in looking
      after the parents in old age may have influenced their thinking –
      But that per se cannot lead to the conclusion that the original
      respondents were thus, in a position to dominate the will of the
      deceased or that the sale deed executed was unconscionable – Onus
F     would shift upon the original respondents u/s. 16 r/w s. 111 of the
      Evidence Act, only after plaintiff would have established a prima
      facie case – Sale deed being a registered instrument, there shall be
      a presumption in favour of the respondents – Onus for rebuttal lay
      on the appellant which he failed to discharge – First appellate court
      erred in appreciating the facts and evidence in the case – Cases
G
      cannot be decided on assumptions or presumptions – Thus, the order
      of the High Court setting aside the order of the first appellate court
      which had set aside the order dismissing the appellant’s suit does
      not call for interference – Evidence Act, 1872 – s. 111.

H
                                       112
      RAJA RAM v. JAI PRAKASH SINGH AND OTHERS                           113


      Dismissing the appeal, the Court                                   A
      HELD: 1.1 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 impairment in relation to a human         B
being is defined 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                 C
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 two people, two years
earlier in 1968 has not been assailed by the appellant on the            D
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. [Para 9][119-A-D]
      Advanced Law Lexicon by P. Ramanatha Aiyar, Third                  E
      Edn Reprint, 2009 – referred to.
       1.2 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.          F
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 sub-registrar 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 sub–registrar         G
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 sub-registrar only after which the deed was
executed and registered. The wife of the deceased had
                                                                         H
114            SUPREME COURT REPORTS                     [2019] 12 S.C.R.


A     accompanied him to the office of the sub-registrar. 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. [Para 10][119-E-G]
            1.3 The pleadings in the plaint are completely bereft of any
B     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. 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
C     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
D     unconscionable. The onus would shift upon the original defendants
      under Section 16 of the Contract Act read with Section 111 of the
      Evidence Act, only after plaintiff would have established a prima
      facie case. [Para 11][120-B-D]
            1.4 In every cast, creed, religion and civilized society,
E     looking after the elders of the family is considered a sacred and
      pious duty. 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. 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
F
      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
G     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
H
      RAJA RAM v. JAI PRAKASH SINGH AND OTHERS                        115


of vocation are unable to do so, there is bound to be more affinity   A
between the elder members of the family with those who are
looking after them day to day. [Para 11][120-E-H; 121-A]
       1.5 The first appellate court erred in appreciation of the
facts and evidence in the case. There can be no application of the
law sans the facts of a case. The primary ingredients of the law      B
need to be first established by proper pleading supported by
relevant evidence. Cases cannot be decided on assumptions or
presumptions. The instant case does not call for exercise of any
discretionary jurisdiction under Article 136 of the Constitution.
[Para 16][122-E]                                                      C
      Krishna Mohan Kul alias Nani Charan Kul and anr. v.
      Patima Maity and Ors. (2004) 9 SCC 468 : [2003] 3
      Suppl. SCR 496 – distinguished.
      Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558 : [2006]         D
      1 Suppl. SCR 659; Jamila Begum (D) thr. L.Rs. v. Shami
      Mohd. (D) thr. L.Rs. and Ors. (2019) 2 SCC 727;
      Bishundeo Narain and Ors. v. Seogeni Rai and
      Jagernath [1951] SCR 548; Subhas Chandra Das
      Mushib v. Ganga Prosad Das Mushib and Ors. [1967]
      1 SCR 331; Krishna Mohan Kul alias Nani Charan                  E
      Kul and Anr. v. Patima Maity and Ors. (2004) 9 SCC
      468 : [2003] 3 Suppl. SCR 496 – referred to.

                      Case Law Reference
[2006] 1 Suppl. SCR 659       referred to             Para 5          F

(2019) 2 SCC 727              referred to             Para 5

[1951] SCR 548                referred to             Para 5
[1967] 1 SCR 331              referred to             Para 5          G
[2003] 3 Suppl. SCR 496       distinguished           Para 15

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2896
of 2009
                                                                      H
116             SUPREME COURT REPORTS                          [2019] 12 S.C.R.


A           From the Judgment and Order dated 15.12.2008 of the High
      Court of Judicature at Allahabad, U.P. in Second Appeal No. 2095 of
      1975.
            Ms. Garima Prashad, Advs. for the Appellants.
           Anubhav Kumar, Ankit Agarwal, Abhishek Swarup (For M/s.
B     Manoj Swarup and Co.), Advs. for the Respondents.
            The Judgment of the Court was delivered by
            NAVIN SINHA, J.
             1. The appellant is aggrieved by the order allowing the second
C     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
D     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
E     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
F     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
G     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 Sub-Registrar 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.
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      RAJA RAM v. JAI PRAKASH SINGH AND OTHERS                               117
                    [NAVIN SINHA, J.]

       4. Learned counsel for the respondent/defendants submitted that       A
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
                                                                             B
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       C
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.
DW-1 was a witness to the sale deed and was present at the time of
registration. The deceased admitted before the sub-registrar having
received a sum of Rs.2,000/- earlier and Rs.4,000/- was paid at the time
                                                                             D
of registration. The Sub-Registrar 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.            E
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             F
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     G
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:                                                         H
118            SUPREME COURT REPORTS                        [2019] 12 S.C.R.


A           “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,…”
B           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
C           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,
D
               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.
E           (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.
F           Nothing in the sub-section 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:

G           “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.”
H
      RAJA RAM v. JAI PRAKASH SINGH AND OTHERS                                 119
                    [NAVIN SINHA, J.]

      9. The deceased undisputedly was over 80 years and above in              A
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
                                                                               B
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.   C
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
                                                                               D
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       E
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 sub-registrar 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 sub-registrar       F
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
sub-registrar only after which the deed was executed and registered.
The wife of the deceased had accompanied him to the office of the sub-
registrar. The sale deed being a registered instrument, there shall be a
presumption in favour of the defendants. The onus for rebuttal lay on          G
the plaintiff which he failed to discharge. Notwithstanding the finding of
enmity between PW-2 and PW-3 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. DW-1, though
related was a witness to the sale deed. His evidence in support of the         H
120             SUPREME COURT REPORTS                           [2019] 12 S.C.R.


A     events before the sub-registrar therefore has to be accepted. The plaintiff
      could have led evidence in rebuttal of the sub-registrar but he did not do
      so.
              11. That leads us to the question of undue influence. The pleadings
      in the plaint are completely bereft of any details or circumstances with
B     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
C     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
D     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 sub-registrar. The plaintiff has not pleaded or led any evidence that
      the wife of the deceased was also completely dominated by the original
E     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
F     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
G     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
H     of vocation are unable to do so, there is bound to be more affinity between
       RAJA RAM v. JAI PRAKASH SINGH AND OTHERS                                  121
                     [NAVIN SINHA, J.]

the elder members of the family with those who are looking after them            A
day to day.
       12. In Bishundeo Narain (supra) it was observed as follows:
       “We turn next to the questions of undue influence and coercion.
Now it is to be observed that these have not been separately pleaded. It
is true they may overlap in part in some cases but they are separate and         B
separable categories in law and must be separately pleaded.
        It is also to be observed that no proper particulars have been
furnished. Now if there is one rule which is better established than any
other, it is that in cases of fraud, undue influence and coercion, the parties
pleading it must set forth full particulars and the case can only be decided     C
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.”                                        D
      13. In Subhas Chandra (supra), distinguishing between influence
and undue influence, it was observed as follows:
       “It must also be noted that merely because the parties were nearly
       related to each other no presumption of undue influence can arise.
       As was pointed out by the Judicial Committee of the Privy Council         E
       in Poosathurai v. Kappanna Chettiar and others 47 I.A. p. 1 :-
          “It is a mistake (of which there are a good many traces in
          these proceedings) to treat undue influence as having been
          established by a proof of the relations of the parties having
          been such that the one naturally relied upon the other for advice,     F
          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,
                                                                                 G
          in the language of the law, “undue”.”
       14. In Subhas Chandra (supra), it was further observed that
there was no presumption of imposition merely because a donor was old
and weak. Mere close relation also was insufficient to presume undue
influence, observing as follows:
                                                                                 H
122                SUPREME COURT REPORTS                        [2019] 12 S.C.R.


A             “Before, however, a court is called upon to examine whether undue
              influence was exercised or not, it must scrutinise the pleadings to
              find out that such a case has been made out and that full particulars
              of undue influence have been given as in the case of fraud. See
              Order 6, Rule 4 of the Code of Civil Procedure. This aspect of
              the pleading was also given great stress in the case of Ladli Prasad
B
              Jaiswal [1964] 1 SCR 270 above referred to. In that case it was
              observed (at p. 295):
                   “A vague or general plea can never serve this purpose; the
                   party pleading must therefore be required to plead the precise
                   nature of the influence exercised, the manner of use of the
C                  influence, and the unfair advantage obtained by the other.”
            15. Krishna Mohan (supra) is distinguishable on its own fact.
      The executant was undisputably over 100 years of age. The witnesses
      proved that he was paralytic and virtually bedridden. None of the
      witnesses could substantiate that the executant had put his thumb
D     impression.
             16. The first appellate court, completely erred in appreciation of
      the facts and evidence in the case. There can be no application of the
      law sans the facts of a case. The primary ingredients of the law need to
      be first established by proper pleading supported by relevant evidence.
E     Cases cannot be decided on assumptions or presumptions. We do not
      think that the present calls for exercise of any discretionary jurisdiction
      under Article 136 of the Constitution as a fourth court of appeal. In
      Pritam Singh vs. The State AIR 1950 SC 169 it was observed:
              “9. …Generally speaking, this Court will not grant special leave,
F             unless it is shown that exceptional and special circumstances exist,
              that substantial and grave injustice has been done and that the
              case in question presents features of sufficient gravity to warrant
              a review of the decision appealed against. Since the present case
              does not in our opinion fulfil any of these conditions, we cannot
G             interfere with the decision of the High Court, and the appeal must
              be dismissed.”
            17. On a consideration of the entirety of the matter we find no
      reason to interfere with the concurrent findings arrived at by two courts.
      The appeal is dismissed. There shall be no order as to costs.
H
      Nidhi Jain                                                   Appeal dismissed.