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Petitioner: SM. BIDHU MUKHI DASSYA VS Respondent: SM. SARLA SUNDRI DASSYA
P L D 1956 Dacca 153
P L D 1956 Dacca 153
Before Amin Ahmed and Badiuzzaman, JJ
Sm. BIDHU MUKHI DASSYA‑Plaintiff‑Appellant
versus
Sm. SARLA SUNDRI DASSYA and another‑Respondents
Appeal from Original Decree No. 22 of 1945, decided on 19th March 1953, against the decree of Mr. V. Hossain Molla, Subordinate judge, 5th Court, District Dacca, dated the 12th May 1944 in Title Suit No. 3 of 1944.
(a) Contract Act (IX of 1872)----
----S. 16‑'`Undue influence" "Dominate" ‑‑‑Meaning of ‑Onus of proof.
The present suit was filed for declaration that the deed of gift executed by husband in favour of his wife was illegal, inoperative and void on the ground that it had been obtained by undue influence and coercion.
Held, the first thing to be considered in the relationship between the parties. that is to say, whether one party was in a position to dominate over the other, and then it must be proved that the position was used to obtain an unfair advantage and even though the transaction may be un conscionable, relief cannot be granted until the initial fact of the position to dominate the will is established. If such position is proved and the transaction also appears to be unconscionable, the burden of proof that the contract was not induced‑ by undue influence lies on the person in a position to dominate the will of the other.
" Undue influence" is not established by proof of the relation 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 influ ence may be used wisely, judicially and helpfully.
To prove " undue influence " it must be established that the person in a position of domination has used that position to obtain unfair advantage for himself and so to cause injury to the person relying upon his authority or aid. And where the relation of influence is established, and the second thing is also made clear, viz., that the bargain is with the influence and in itself unconscionable then the person in a position to use his dominating power has the burden thrown upon him and it is a heavy burden of establishing affirmatively that no domination was practised so as to bring about the transaction.
(b) Specific Relief Act (I of 1877)-----
---S: 42‑Application and interpretation.
In the present case the deed of gift in question was tainted with undue influence and was therefore void, illegal and inoperative and the present suit was not barred under section 42 of the Specific Relief Act.
Held, a suit by a reversioner immediate or remote for declaring an alienation by the widow void is not barred under section 42 of the Specific Relief Act.
Prakash Chandra‑ Pakrasi and Sureshchandra Basu for Appellant.
Gopal Chandra Das, Priyanath Bhattachayya and Nandlal Das for Respondents.
JUDGMENT
BADIUZZAMAN, J.‑This appeal arises out of Title Suit No. 18 of 1942 of the Court of the Subordinate Judge, 1st Court, Dacca. The suit was by one Bidhu Mukhi Dassya, widowed daughter of one Bepin Behary Roy for declaring a deed of gift executed by the latter in favour of the defendant No. 1 Sarala Sundari, his wife, void and illegal on the ground that it had been obtained by undue influence and coercion.
Facts relevant for the purpose of this appeal may briefly be put thus: Bepin Behary Roy of Kali Charan Saha Road, Dacca, had hard cash, Government promissory notes, shares of various' limited companies and immovable properties. His first wife Hemangini Dassya. Died leaving behind the plaintiff Bidhu Mukhi Dassya and, Pro forma defendant No, 2, Sashi Mukhi Dassya two daughters and after her death defendant "No. 1 Sarala Sundari came to Bepin's house as his second wife. Plaintiff was given away in marriage, to one Kanailal and of this wedlock three sons Krista Gopal, Ram Gopal and Brojo Gopal and one daughter Indu Mati were born. Shortly after the birth of Indu Mati, Bidhu Mukhi became widow. Pro forma defendant No: 2 Sashi Mukhi had two daughters, Brinda Rani and Radha Rani and a male child died soon after its birth.
Bepin had no child by his second wife Sarala Sundari, and in normal course in the absence of any effective absolute gift by him Sarala Sundari under the Dayabagha School of Hindu Law by which the family was governed would have on her husband's death inherited all his properties as her life estate and thereafter the plaintiff would have inherited the properties as limited owner and on her, death the properties would have gone to her sons absolutely as rever sioners of Bepin, The pro forma defendant No. 2 Sashi Mukhi being the sonless widowed daughter was not entitled to any property of Bepin.
After Sarala Sundari had passed her child bearing age she tried to adopt a son but could not succeed on account of reluctance on the part of her husband whose intention throughout was to spend part of his money for charitable and other purposes and whatever properties would remain would go first to his wife for life' and then' to plaintiff Bidhu M.akhi for life and then to the latter's sons. Krishna Gopai, Rain Gopalyand Brojo Gopal absolutely. Bepin's philanthropic work started after his retirement from service and in the middle of 1928 he set up electric installation at the Postagola Burning Ghat under the Dacca Municipality at a considerable cost for benefit of the public and in 1932‑33 he built a two storied pucca building in his Faridabad locality and started a free Primary School therein in his own name. Defendant No. 1, however, could not look upon these acts of charity with graceful approval and began to coerce her husband to make an absolute gift in respect of all his properties in her favour so that her only brother Dinabandhu Das and on his death his only son Radhasyam might enjoy the properties. Being unable to bear the brunt of coercion, Bepin had to make improvement of the village house of Sarala's brother by converting it into two‑storied in 1345‑1346 B.S. at his own cost amounting to about rupees three thousand. From Baisak, 1347 B. S., Bepin's health began to deteriorate due to old age and high blood‑pressure and many other complicated diseases and taking advantage of his physical and mental weakness Sarala by undue influence and threat induced him to endorse Government security notes in her favour in Poush, 1347 B.S. She did not stop there. On the 5th Sraban, 1348 B.S. (21st July 1941), she at the instigation of her brother Dinabandhu launched another attack on her old ailing husband and induced him to execute a deed of gift in her favour in respect of all his properties together with authority to adopt a son without the knowledge of the plaintiff and her sons and well‑wishers. The plan to obtain a gift from Bepin was conceived by a coterie of designing people long before Bepin's death in an atmosphere . surcharged with ugly conspiracy but it could not be materialised till Bepin became enfeebled with age and protracted illness. The terms of the deed on the face of it are so remarkably unconscionable that one would feel convinced that Bepin was induced to accede to the terms by undue influence. The plaintiff's interest in paternal properties having been clouded by the deed of gift, she brought this action purely for declaring the document illegal, void and inoperative.
Only defendant No. 1 contested the suit. She denied the plaintiff's allegation of undue influence and coercion and also contended that the suit was barred under section 42 of the Specific Relief Act and further averred that in 1331 B.S. Bepin had executed a Will by which he had given away to defendant No. 1 one of the immovable properties in absolute right and the remaining properties for life and further authorised her to adopt three sons successively but that subsequently he revoked the Will and in place thereof executed the deed of gift in question and a separate deed of authority to adopt of her free will.
The pro‑defendant No. 2 also entered appearance and also filed a separate written statement supporting the defence of defendant No. 1.
The learned Subordinate judge after review of the materials furnished by the parties found that the terms of the deed of gift were not unconscionable and that the plaintiff': allegation that the defendant No. 1 induced Bepin to execute, the deed of gift by coercion and undue influence got no foundation at all and on these findings he dismissed the suit. Then followed the present appeal, appellant being the plaintiff.
The only point urged is that the learned Subordinate judge was not justified in dismissing the suit though there were sufficient materials on the record justifying the inference that the deed of gift had been obtained by coercion and undue influence at a time when Bepin was enfeebled with age and illness. Before entering into discussion of the point raised we feel we should give here particulars of the family of the grantor, namely, Bepin Behary Roy and his near relations and other relevant facts for the purpose of enabling those interested in the decision of the case to follow it properly. Bepin started his life as a traveling agent of Messrs Oslar & Co. and in that capacity he earned consider able properties both movable and immovable. While in service he used to live in Calcutta but after his retirement ho shifted to Dacca with his family and began to live in his own house at Kali Charan Saha Road, Dacca, and died there on the 20th Agrahayan, 1348 B.S. corresponding to 6th December 1941, at the age of 85 or 86 Bepin was born in 1858 and on attaining majority he married Hemangini Dassya and by her he got two daughters, viz., plaintiff Bidhu Mukhi and pro forma defendant No. 2 Sashi Mukhi of whom the former (Bidhu Mukhi) was born in 1877 and the latter (Sushi Mukhi) in 1882. About five years after, the birth of Sashi Mukhi, Hemangini died and in 1888 i,e., about a year after Hemangini's death, Bidhu Mukhi was given away in marriage to one Kanailal Das of 17/1, Ram Charan Lane, Dacca, about ten minutes' walk from the house of Bepin Behary Roy. In the same year Bepin married the defendant No. 1, Sarala Sundari, then aged about 12. Bepin was then aged about thirty‑one. Kanailal died in 1904 leaving behind plaintiff. Bidhu Mukhi, a widow, a daughter named Indu Mati, wife of P. W. 4 Nagendra, and three sons Kristo Gopal, Ram Gopal and Brojo Gopal of whom Ram Gopal died in 1941 leaving behind a widow and a son and Brojo Gopal died an 1942, that is, long after Bepin's death, Sashi Mukhij was given away in marriage to one Rai Mohan but after the death of her father‑in‑law she on account of bankruptcy of her husband had to shift to her paternal house with her husband. She became widow in 1901, that is, about three years before the commencement of the widowhood of her elder sister, with two daughters Brinda Rani and Radha Rani. She had also a son but he died after a few hours after his birth. Radha Rani was married to one Krishna Das who died leaving behind a daughter Subhasini, wife of D. W. 2 Radhashyam, son of Dinabandhu, brother of Sarala. An examination of the record discloses that Bidhu Mukhi, Sashi Mukhi and Dinabandhu and the latter's son Radhashyam were all living as parasites on Bepin's family but a tussle was going on between Bidhu Mukhi on one side and Sarala Sundari, Sashi Mukhi, Dinabandhu and Radhashyam on the other from long before Bepin's death, over his property. Sarala Sundari demonstrated a tendency to monopolise the husband's property with an ulterior motive of ‑alienating the same to her paternal relations, namely, her brother and brother's son and Sushi Mukhi being helpless widow pledged an oath of allegiance to her unconditionally in order to protect herself and her grandson‑in‑law, Radhashyam but Bepin proved too strong for the lady and refused to yield to the unreasonable demand of his wife. This stiffness, however, could not subdue the ever increasing lust for worldly gain and anxiety for the amelioration of the financial position of her paternal relation but she went on hammering her husband for a document till in 1924 she succeeded in obtaining a Will in her favour only in respect of one item of property. The will runs as follows :
"Life is transitory; nobody knows what will happen when. Now, being in good health and sound mind, I think that I should make arrangement for all my movable and immovable properties, and in the following manner I have made arrangement for enjoyment and possession of my movable and immovable properties, the said arrangements will take effect after my death.
' My first wife is dead. My second wife Srimati Sarala Sundari Dassya is alive. By this Will I have made this arrangement that after my death the said wife of mine will be in absolute ownership and possession of the properties described in the schedule below owned and possessed by me, with the right of exercising the power of gift and sale, and besides this, my said wife will enjoy and possess all other movable and immovable properties left by me during her life time till her death; but she will not be able to gift away or sell the said properties. After my death my said wife Srimati Sarala Sundari Dassya will take in adoption three sons in succession one after the death of another. After the death of my wife said adopted son will be in absolute ownership and possession of the properties left by me . . . . . . . . . . . . . . . . . . . . . . If my said adopted son separate from my wife, then he will get a monthly allowance of Rs. 20 from the properties left by me. Besides this, during the lifetime of my wife; he will clot get anything more from the properties left by me. If my‑wife does not take a son in adoption or if the adopted son dies childless during the lifetime of my wife, then my two daughters and my other heirs will get my entire pro perties in the manner stated below. My first wife Hemangini Dassya is dead. Her two daughters Bidhu Mukhi Dassya and Sashi Mukhi Dassya are alive. Both these daughters of mine are widows. My first daughter Bidliu Mukhi has got three sons (1) Krishna Gopal. Das; (2) Ram. Gopal Das, (3) Brojo Gopal Das who are, alive. My grandson Ram Gopal Das is of very bad character and has wasted a large amount of money. My two other grandsons are of good character and both of them are earning. My other daughter Sashi Mukhi Dassya is a widow and she is being maintained by me in: my house . . . . . Sashi Mukhi Dassya can, live in my homestead during her lifetime. If, for any reason or other my said daughter falls out with my wife, then my said daughter will be able to use separately two rooms to the east of my homestead and one kitchen and well and privy, and my wife and my said adopted son will be bound to look to the comfort of her living and after my death my adopted son will be bound to look to her comforts.
"By this Will I make this arrangement that after the, death of my wife, my said adopted son will be in ownership and possession in absolute right of all the properties left by me with power to gift and sell the said properties. If my said adopted son dies childless during the lifetime of my wife, then after the death of my wife; my said two daughters will get all my movable and immovable properties for life and possess and enjoy the same during their lifetime and after the death of my one daughter, my other daughter will possess and enjoy all the properties left by me during her lifetime. None of them will be entitled to gift away or sell or transfer the same. After the death of my two daughters, my grandsons Sreeman Krishna Gopal Das and Sreeman Brojo Gopal Das together 'with their sons, grandsons, heirs and representatives will each have 5 as. 6 gads. 2 karas 2 krauts share in absolute right and enjoy and possess the same with power to gift away and sell the same and Srimati Raj Lakshi Dassya wife of my grandson Sreeman Ram Gopal Das, will get the remaining 5 annas 6 pandas 2 karas 2 krauts share, for life and will possess and enjoy the same during her lifetime, but she will not be entitled to gift away, sell or transfer the said properties in any manner. After the death of my grandson Sreeman Ram Gopal Das, if any son or sons are born to him and are found alive, at that time, then he or they will get in equal shares, the said 5 arenas 6 gandas 2 karas 2 krauts share of the remaining properties left by me and my wife and will be in ownership and possession of the same in absolute right. After their death my other two grandson: will be in ownership and possession of the said share in equal shares in absolute right.
"In order to make the terms of this Will effective I appoint my wife Srimati Sarala Sundari Dassya executrix to this Will. She will take Probate of this Will without giving any security and act according to the terms of this Will. This is my last Will and I execute this Will being in sound mind and body and being acquainted with all the circumstances. Finis. 11th Bhadra, 1331 B.S., corres ponding to the 27th August 1924.
Schedule
"The rented Pucca house owned and possessed by me, being holding No. 42, Malakartola Road, in Ward No. 1 on the north‑south of the slope of the Main Road, on the east‑west of the contiguous land of Rama Nath Babu, on the south Malakartola Lane, on the west home‑stead of Jadu Nath De and contiguous to the Khoar of the Municipality.
Written by self. Bepin Behary Roy Witnesses :‑
Jogesh Chandra Guha, Pleader, 22nd Rup Chand Lane, Dacca.
Kunja Lal Das, 21, Rup Chand Lane, Dacca.
Dina Bandhu Saha of Baghair.
Ganga Charan Das, Kaparianagar.
Sarat Chandra Das of Kaparianagar.
Nitya Lal Das, 21, Farashganj, Dacca.
Nagendra Chandra Das of Kaparianagar."
Sarala was made executrix of the Will, given a pucca house and further authorised to enjoy during her lifetime whatever properties her husband would leave. The provision made by the Will was enough for a widow but Sarala won't he satisfied. The plaintiff came up with the allegation that Satala even after the will went on pressing the husband for an absolute gift and that the pressure was not relaxed till the deed of gift in question was executed. It was further alleged that the gift had been obtained by coercion, undue influence at a time when Bepin was bedridden and counting his days due to extreme old age, blood pressure, occasional fever and other diseases. This was stoutly denied by the defendant, No. 1.
At the trial a controversy over the question of onus of proof arose and the trial Court found that onus lay on: 'the plaintiff. This, has been taken exception to by the learned Advocate for he defendant respondent whose contention is that the transaction on the face of‑ it being unconscionable, the trial Judge erred in law in throwing the burden of proof on the plaintiff. In support of his contention he relies on section 16 of the Contract Act and also on the decision in the case of Bhola Nath. Shah v. Bhola Nath Sen. and another (40 C L J 393).
In order to appraise the worth of the appellant's contention it is necessary that we should first look into the section relied on, namely, section 16 of the Contract Act. The section runs as follows
" (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 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 effected 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 lie upon the person in a position to dominate the will of the other."
On careful survey of the section it seems clear that under subsection 1 of the section, three things must be proved before a contract can be said to be induced by undue influence, namely, (1) that the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other ; (2) that he uses that position ; and (3) that an unfair advantage over the other has been obtained 6y the use of that position Subsection (2) lays down rules for determining under what circumstances a person can be said to be in a position to dominate the will of another, and subsection (3) lays down that in a case where a person 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 onus of proving that the Contract was not induced by undue influence rests on the person in a position to dominate the will of the other. The learned Advocate for the appellant takes his stand on the last mentioned subsection, namely, sub section (3).
In order to determine the question of onus in a case attracted by section 16 (b) the first thing to be considered is the relationship between the parties, that is to say, whether one party was in a position to dominate over the other, and then it must be proved that that position was used to obtain an unfair advantage and even though the transaction may be unconscionable, relief cannot be granted until the initial fact of the position to dominate the will is established. If such position is proved and the transaction also appears to be unconscionable the burden of proof that the contract was not induced by undue influence lies on the person in a position to dominate the will of the other. This view will find support s in the decision of the case of Poosathurai v. Kannappa Chettiar (AIR1920PC65), where Lord Shaw observed as follows
"Undue influence is not established by 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, judicially 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'. It must be established that the person in a position of domination has used that position to obtain unfair advantage for himself and so to cause injury to the person relying upon his authority or aid. End where the relation of influence, as above set forth has been established, and the second thing is also made clear, viz., that the bargain is with the 'influencer", and in itself unconscionable then the person in a position to use his dominating power has the burden thrown upon him, and it is a heavy burden of establishing affirmatively that no domination was practised so as to bring about the transaction, but the grantor of the deed was scrupulously advised in the independence of a free agent."
What, therefore, follows is that the burden of proof lies in the first instance on the party who raises that plea. If that party proves that the other party was not only in a position to dominate his will, but that the transaction entered into was also unconscionable, then the burden of proof that he did not use his dominant position to obtain an unfair advantage over the other is shifted on him. When there is evidence of overpowering influence and the transaction is immoderate and irrational, proof of undue influence is complete. It is not necessary that such overpowering influence should be by threat or by committing any act forbidden by law or by unlawful detention, etc. If a person has some influence over other and by means of that influence reduces the will of the other to his subjection, whatever may be the nature of the influence spiritual, moral, social or any other influence, then it is such coercion as is sufficient to constitute undue influence. Undue influence usually arises in contracts made between rela tions or persons in fiduciary position. But as between strangers between whom there exists no fiduciary relation certain forms of coercion, oppression or compulsion may amount to influence invalidating a contract. The terms of the law embodied in section 16 are explicit and admit of no ambiguity. Undue influence is not a matter always, capable of direct proof and must depend in its very nature, on the conclusions to be drawn from the entire circumstances in which the transaction had its origin. The law laid down in the…
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