Jojy George Koduvath, Kottayam, Kerala.

Introspection: Is there incongruity between-

• Order 6 Rule 4 CPC (requires specific pleading on Undue Influence), and
• Sec. 16 Contract Act (full particulars need not be pleaded to attract Undue Influence, for the statute itself stipulates that-
  • (i) a person is DEEMED to be in a position to dominate the will of another if he holds a an authority over the other, or stands in a fiduciary relation to the other [Sec. 16(2) ] ; and,
  • (ii) the BURDEN OF PROVING that there was no undue influence will be upon the ‘person who is in a position to dominate the will of the other‘ [Sec. 16(3) ] ).

Contents in Nutshell

• Though statutory-laxity allowed in pleading on Undue Influence–
  • (i) Sec. 16 itself calls for pleading and evidence as to-
    • (one person’s) authority over the other, or fiduciary relation so as to have a ‘position to dominate the will of another’, and
  • (ii) to attract Sec. 16, it must appear–
    • on the face of the transaction that it is unconscionable.

PART I – ‘UNDUE INFLUENCE’

‘Undue Influence’ in Indian Contract Act, 1872

Sec. 16 defines ‘Undue influence’. It can be simplified as under:

• 1. A Contract will be induced by ‘undue influence’ if-
  • one of the parties dominates the will of the other, and
  • the dominating party uses that position to obtain an unfair advantage.
• 2. A person is deemed to dominate the will of another—
  • (a) where he holds a an authority over the other (e.g., employer and employee, a police officer and an accused), or where he stands in a fiduciary relation to the other (e.g., lawyer and client, doctor and patient); or
  • (b) where the mental capacity of one is affected by reason of age, illness, or mental or bodily distress.

• 3. The burden of proving that there was no undue influence will be upon the person who dominates the will of the other, where-
  • the transaction appears, on the face of it or on evidence, to be unconscionable.

 ‘Undue influence’ defined in Sec. 16 of the Indian Contract Act, 1872.

• “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 lie upon the person in a position to dominate the will of the other.
• Nothing in this sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872).”

Section 111 of the Indian Evidence Act, 1872 reads-

• Sec. 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.”

Dominate the Will- Instances

• In Diala Ram v Sarga,  AIR 1927  Lahore 536, the plaintiff was a money-lender. The defendant was indebted to the plaintiff. He again took a loan from plaintiff and executed a bond agreeing to pay interest. The court found that the contract was unconscionable; and therefore, the burden of proof was put on the plaintiff to show that there was no undue influence.
• In Sher Singh v.  Pirthi Singh, AIR 1975 All 259, an illiterate man of about 90 years, physically in firm and mentally in distress, executed a gift deed of his properties in favour of his nearest relative who was looking after him and managing his cultivation. The court held that donee was in a position to dominate the will of the donor.
• In Krishna Mohan Kul @ Nani Charal Kul v. Pratima Maity, AIR 2003 SC 4351, the executant was more than 100 years of age at the time of alleged registration of the deed in question. He was paralytic and furthermore his mental and physical condition was not in order. He was also completely bed-ridden and though his left thumb impression was taken, there was no witness who could substantiate that he had put his thumb impression.

Undue Influence and Coercion

  Undue influence (Sec. 16 Contract Act)

• The position to dominate his will of another is the criterion.
• No force or criminal force is envisaged.

Coercion (Sec. 15 Contract Act defines it) is attracted on-

• Committing any criminal act or unlawful detaining of any property with the intention of causing any person to enter into an agreement, or
• threatening to commit such acts with the said intention.

Effects of Undue Influence – Agreement Becomes Voidable

According to 14, Contract Act, consent is said to be free when it is not caused by-

•  (1) coercion, as defined in section 15, or
•  (2) undue influence, as defined in section 16,or
•  (3) fraud, as defined in section 17, or
•  (4) misrepresentation, as defined in section 18, or
•  (5) mistake, subject to the provisions of sections 20, 21 and 22.

Sec. 19. Voidability of agreements without free consent.—

• When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.
• A party to a contract whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true.

Sec. 19A. Power to set aside contract induced by undue influence.—

• When consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the party whose consent was so caused.
• Any such contract may be set aside either absolutely or, if the party who was entitled to avoid it has received any benefit thereunder, upon such terms and conditions as to the Court may seem just.

PART II – ‘UNDUE INFLUENCE’ and PLEADINGS

Basic Principles of Pleading

Order VI, rule 1 and 2 of Code of Civil Procedure 1908 lay down the basic principles of pleading. They read as under:

• Rule 1: Pleading: “Pleading” shall mean plaint or written statement.
• Rule 2: Pleading to state material facts and not evidence:
• (1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.
• (2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.
• (3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.

Pleadings – Particulars to be given where necessary

Order 6 rule 4 of the Civil Procedure Code stipulates guidelines for precise pleadings. Order 6 Rule 4 CPC reads as under:

• “Rule 4. Particulars to be given where necessary: In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.”

Under Order 6 rule 4, CPC, vague or general allegations are insufficient in pleading with respect to the matters laid down in this rule_{(f.n. 1)} and it requires ‘full‘ particulars of such matters in pleadings_{(f.n. 2)}.

“All other cases in which particulars may be necessary“

Order 6 rule 4 of the CPC enumerates the following:

• misrepresentation,
• fraud,
• breach of trust,
• willful default,
• undue influence and
• “all other cases in which particulars may be necessary”.

Following are the matters that commonly come for consideration of court under the head, “other cases in which particulars may be necessary”:

• Injury,
• Damages,
• Illegality,
• Collusion,
• Victimisation,
• Mala-fides,
• Bias,
• Unconstitutionality,
• Trust,
• Consent,
• Irregularity.

In short, in pleadings, wherever it is required to make clear ‘abstract’ propositions, it must have been done; otherwise it will be termed ‘vague pleading’.

Guidelines for Precise Pleading undue influence

From the above it is clear that, to attract Sec. 16 of the Indian Contract Act, there should be proper pleading [particulars – with dates and items if necessary] as to-

• 1. (one person’s) ‘position to dominate the will‘ of another by-
  • (first) one’s authority over the other, or
  • from out of the fiduciary relation between the two; and
• 2. the transaction must appear to be unconscionable.

Illegality

While dealing with a matter pertaining to recount of votes, referring Apex Court decisions_(f.n.3), it was held in Indira Devi v. State of Bihar, 2019-1 Pat LJR 670, that the vague pleadings that illegality was committed while counting the ballot papers and that there were improper acceptance of invalid votes and improper rejection of valid votes, were not sufficient to invoke the jurisdiction of the court.

Coercion

When collusion is taken as a ground in a case, full particulars thereof are to be pleaded. In Varanaseya Sanskrit Vishwavidyalaya v. Rajkishore Tripathi, AIR 1977 SC 615, invoking Order VI, Rule 4, CPC and referring Bishundeo v. Seogeni Rai, AIR 1951 SC 280, it was held as under:

• “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.”

Fraud and Collusion

While considering Order VI Rule 4 of CPC in K.S. Mariyappa v. K.R. Siddalinga Setty, AIR 1989 Kar 425, it was observed that in the absence of necessary particulars pleaded by the plaintiffs regarding fraud and collusion, it was not possible to hold that the plaint contains necessary averments as to fraud and collusion.

If Insufficient Pleadings – No Investigation

In Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280: 1951 SCR 548, it was observed as under:

• “… In cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided 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.” : Quoted in Raja Ram v. Jai Prakash Singh, AIR 2019 SC 4374; 2019-8 SCC 701).

In Kamalakanta Mohapatra Vs. Pratap Chandra Mohapatra, AIR 2010 Ori 13, it is held as under:

• The words “undue influence”, “fraud” and “misrepresentation” are cognate vices and may in part overlap in some cases, they are in law distinct categories and in view of Order 6, Rule 4 read with Order 6, Rule 2 of the Code of Civil Procedure required to be separately pleaded, with specificity, particularity and precision. In other words general allegations made in the plaint does not tantamount to particulars required to be pleaded under the said provision of the Code. …
• In the case of Afsar Shaikh v. Soleman Bibi, reported in AIR 1976 SC 163, the Supreme Court has reiterated the same principle and had clearly held that in a case where there are allegations with regard to fraud, undue influence and misrepresentation the said allegation/facts must be specifically indicated in the pleadings. Keeping in mind the provision of Order 6, Rule 4 of the Code of Civil Procedure, if the averments made in the plaint are examined it reveals that the basic requirement of Order 6, Rule 4 of the Code of Civil Procedure was not kept in mind while making the allegations and the same appear to be more on the basis of surmises and conjectures rather than cogent facts.
• So far as the nature of proof of undue influence, fraud or misrepresentation are concerned in he case of Balabhadra Nisanka v. Suka Dibya, reported in 38 (1972) CLT 325, it was held by this Court that ‘fraud’ in a civil proceeding must be established beyond reasonable doubt as in a criminal proceeding. So far as the evidence to establish fraud is concerned, it is held by this Court in the case of Bira Jena v. Tauli Dei, respondent in 38 (1972) CLT 39 : (AIR 1972 Ori 143) that unless the particulars of fraud are pleaded in the plaint, no evidence should be allowed to be led in the suit and if any such evidence has unwittingly been introduced without any pleading, it must be ruled out of consideration. In other words, the standard of proof to establish fraud should be beyond all reasonable doubt. After discussing the evidence threadbare the appellate Court had clearly come to a conclusion that the same does not satisfy the basic requirement of mandatory requirement of law. Even otherwise in the absence of pleadings, the evidence adduced had to be ignored.”

Undue Influence – Presumption, Onus and Lack of Pleadings

It may appear that there is incongruity between-

• Order 6 Rule 4 CPC (requires specific pleading on undue influence), and
• Sec. 16(2) and (3) Contract Act (statutory-laxity in pleading as to undue influence).

Sec. 16 (2) and (3) Contract Act itself stipulates conditions to attract – the burden upon the ‘person in a position to dominate the will of the other‘.

• That is, (i)there must be pleading and evidence as to-
  • (one person’s) authority over the other, or fiduciary relation so as to have a ‘position to dominate the will of another’,
• (ii) the transaction must appear–
  • on the face of it, or on the evidence adduced, to be unconscionable.

Why presumption Under Sec. 16(3) – “Person dominating may suppress evidence“

The Constitution Bench of the Supreme Court, in Laldi Parshad Jaiswal v. The Karnal Distillery Co. Ltd. Karnal, reported in AIR 1963 SC 1279, observed that under Order 6, Rule 4 of the Code of Civil Procedure, in all cases where a party takes a plea of undue influence, particulars thereof should be unambiguously stated in the pleadings so as to enable the adversary to controvert the same. A vague and general plea to that effect would not serve the purpose and the pleading must be always very specific and precise in nature. This rule has been evolved with a view to narrow down the controversy and protect the party charged with improper conduct from being taken by surprise. (See: Kamalakanta Mohapatra Vs. Pratap Chandra Mohapatra, AIR 2010 Ori 13).

The Supreme Court held in Ladli Parshad Jaiswal as under:

• “The doctrine of ‘undue influence’ under the common law was evolved by the Courts in England for granting protection against transactions procured by the exercise of insidious forms of influence spiritual and temporal. The doctrine applies to acts of bounty as well as to other transactions in which one party by exercising his position of dominance obtains an unfair advantage over another. The Indian enactment is founded substantially on the rules of English common law. The first sub-section of S.16 lays down the principle in general terms. By sub-section (2) a presumption arises that a person shall be deemed to be in a position to dominate the will of another if the conditions set out therein are fulfilled. Sub-section (3) lays down the conditions for raising a rebuttable presumption that a transaction is procured by the exercise of undue influence. The reason for the rule in the third sub-section is that a person who has obtained an advantage over another by dominating his will may also remain in a position to suppress the requisite evidence in support of the plea of undue influence.” (Quoted in Joseph Johan Peter Sandy vs Veronica Thomas Rajkumar, AIR 2013 SC 2028)

Onus probandi ‘arises’ on proving relations between the donor and the donee

In Subhash Chandra Das Mushib v. Ganga Prasad Das Mushib, AIR 1967 SC 878, it was held that the Court trying the case of undue influence must consider 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?
• Upon the determination of these two issues a third point emerges, which is that of the onus probandi.

Merely because donor was old, no presumption of undue influence

It is held further in Subhash Chandra Das Mushib v. Ganga Prasad Das Mushib, AIR 1967 SC 878 that, if the transaction appears to be unconscionable then, the burden of proving that the contract was not induced by undue influence lies upon the person who is in a position to dominate the Will of the other. It was further said that merely because the parties were nearly related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arise. Generally speaking the relations of solicitor and client, trustee and cestui que trust, spiritual adviser and devotee, medical attendant and patient, parent and child are those in which such a presumption arises.

If transaction unconscionable, burden upon person dominate

In Afsar Shaikh v. Soleman Bibi, AIR 1976 SC 163, our Apex Court held:

• “The law as to undue influence in the case of a gift inter vivos is the same as in the case of a contract. Sub-section (3) of Section 16 contains a rule of evidence. According to this rule, if a person seeking to avoid a transaction on the ground of undue influence proves-
• (a) that the party who had obtained the benefit was, at the material time, in a position to dominate the will of the other conferring the benefit, and
• (b) that the transaction is unconscionable, the burden shifts on the party benefiting by the transaction to show that it was not induced by undue influence. If either of these two conditions is not established the burden will not shift. As shall be discussed presently, in the instant case the first condition had not been established; and consequently, the burden never shifted on the defendant. The Privy Council in Raghunath Prasad v. Sarju Prasad, (AIR 1924 PC 60) expounded three stages for consideration of a case of undue influence. It was pointed out that the first thing to be considered is, whether the plaintiff or the party seeking relief on the ground of undue influence has proved that the relations between the parties to each other are such that one is in a position to dominate the will of the other. Upto this point, ‘influence’ alone has been made out. Once that position is substantiated, the second stage has been reached – namely, the issue whether the transaction has been induced by undue influence. That is to say, it is not sufficient for the person seeking the relief to show that the relations of the parties have 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. Upon a determination of the issue at the second stage, a third point emerges, which is of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that it was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. Error is almost sure to arise if the order of these propositions be changed. The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relation of the parties. Were they such as to put one in a position to dominate the will of the other.”

If facts justify, Omission (to make allegation of undue influence) is not fatal

In Joseph Johan Peter Sandy vs Veronica Thomas Rajkumar, AIR 2013 SC 2028, after quoting the above passage from Afsar Shaikh v. Soleman Bibi, AIR 1976 SC 163, it was observed as under:

• “13. If there are facts on the record to justify the inference of undue influence, the omission to make an allegation of undue influence specifically, is not fatal to the plaintiff being entitled to relief on that ground; all that the Court has to see is that there is no surprise to the defendant. In Hari Singh v. Kanhaiya Lal, AIR 1999 SC 3325, it was held that mere lack of details in the pleadings cannot be a ground to reject a case for the reason that it can be supplemented through evidence by the parties.”

Undue Influence: Simple Pleading by Plaintiff MAY NOT cast Burden on Defendant

In Chandrika Babu v. Sudhakaran, 2013 4 KLT(SN) 103 it is pointed out that the Apex Court’s judgment in Joseph John Peter Sandy’s case, AIR 2013  SC 2028; (2013) 3 SCC 801, would show that the required materials should be placed  before the court in support of the plea to draw an inference of undue influence.

Even if a person is in a fiduciary relationship with another and his conduct in looking after the other in old age may have influenced the thinking of the other, that per se cannot lead to the only irresistible conclusion that the person was therefore in a position to dominate the will of the deceased. The onus would shift  only after the plaintiff would have established a prima-facie case under Section 16 of the Contract Act read with Section 111 of the Evidence Act.

In Subhas Chandra Das Mushib v. Ganga Prosad Das Mushib, AIR 1967 SC 878; 1967 (1) SCR 331, it was 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.  Influence and undue influence were distinguished in this decision as under:

• “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 in Poosathurai v. Kappanna Chettiar,  (1919) 47 IA 1, AIR 1920 PC 65.
  • “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 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, in the language of the law, undue.”
• “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 Jaiswal v. Karnal Distillery, Co., AIR 1963 SC 1279; (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 influence and the unfair advantage obtained by the other.”

(Quoted in Raja Ram v. Jai Prakash Singh, AIR 2019 SC 4374; 2019-8 SCC 701)

Krishna Mohan Kul , AIR 2003 SC 4351, Stands distinguished

In Krishna Mohan Kul @ Nani Charal Kul v. Pratima Maity, AIR 2003 SC 4351;  2004 KHC 903 (SC), the Supreme Court held that ‘when the party complaining shows such relation, the law presums everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position’. The relevant passage reads as under:

• “When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the letter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of the proving the good faith of the transaction is thrown upon the dominant, party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealousy all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presums everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position.
• This principle has been engrained in Section 111 of the Indian Evidence Act, 1872 …. …..
  • ”When the relation between the donor and donee at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor, the Court sets aside the gift unless the donee can prove that the gift was the result of a free exercise of the donors will….
• 15. The corollary to that principle is contained in Clause (3) of Section 16 of the Indian Contract Act, 1872 (in short Contract Act).

Pratima Chowdhury v. Kalpana Mukherjee, AIR  2014 SC 1304, followed Krishna Mohan Kul @ Nani Charal Kul v. Pratima Maity, AIR 2003 SC 4351; but, specifically ‘illustrating instances of the authority, command and influence’ as under:

• “31. … we must keep in mind the law declared by this Court on the subject of fiduciary relationship. We will also proceed by keeping in mind, … that relationship between Partha Mukherjee and Pratima Chowdhury was a relationship of faith, trust and confidence. Partha Mukherjee was in a domineering position.
  • He was married to Sova Mukherjee. Sova Mukherjee is the daughter of H.P. Roy. Pratima Chowdhury has lived for a very long time in the house of H.P. Roy.
  • During that period (after his marriage) Partha Mukherjee also shared the residential accommodation in the same house with Pratima Chowdhury, for over a decade.
  • In Indian society the relationship between Partha Mukherjee and Pratima Chowdhury, is a very delicate and sensitive one.
  • It is therefore, that Pratima Chowdhury extended all help and support to him, at all times.
  • She gave him her flat when he was transferred to Calcutta.
  • She also extended loans to him, when he wanted to set up an independent business at Bombay.
  • These are illustrative instances of his authority, command and influence.
  • Instances of his enjoying the trust and confidence of Pratima Chowdhury include, amongst others, the joint account of Pratima Chowdhury with Partha Mukherjee, which the latter operated exclusively, and the drafting of the letters on behalf of Pratima Chowdhury.
• In such fact situation, we are of the view, that the onus of substantiating the validity and genuineness of the transfer of flat no. 5D, by Pratima Chowdhury, through the letter dated 11.11.1992 and the document dated 13.11.1992, rested squarely on the shoulders of Kalpana Mukherjee. …”

But, Krishna Mohan Kul (supra) is distinguished in subsequent decisions in Anil Rishi v. Gurbaksh Singh, AIR 2006  SC 1971; (2006) 5 SCC 558, and Raja Ram v. Jai Prakash Singh,  AIR 2019 SC 4374; 2019-8 SCC 701, on facts of Krishna Mohan Kul–

• It was brought on record that the witnesses whose names appeared in the impugned deed and which was said to have been created to grab the property of the plaintiffs were not in existence.
• The executant was more than 100 years of age at the time of alleged registration of the deed in question.
• He was paralytic and furthermore his mental and physical condition was not in order.
• He was also completely bed-ridden and though his left thumb impression was taken, there was no witness who could substantiate that he had put his thumb impression.

Fiduciary relation and active confidence be established to draw undue influence

After quoting the aforesaid portion from Krishna Mohan Kul @ Nani Charal Kul v. Pratima Maity, AIR 2003 SC 4351, it was pointed out in Anil Rishi v. Gurbaksh Singh, AIR 2006  SC 1971; (2006) 5 SCC 558 (S.B. Sinha, P.K. Balasubramanyan, JJ.), as under:

• “But before such a finding is arrived at, the averments as regard alleged fiduciary relationship must be established before a presumption of undue influence against a person in position of active confidence is drawn. The factum of active confidence should also be established.”
• Anil Rishi v. Gurbaksh Singh,  AIR 2006  SC 1971; (2006) 5 SCC 558 is referred to in Raja Ram v. Jai Prakash Singh, AIR 2019 SC 4374; 2019-8 SCC 701.

In Keshav v. Gian Chand, AIR  2022 SC 678 (relying on Ladli Parshad Jaiswal v. The Karnal Distillery Co. Ltd., Karnal, AIR 1963 SC 1279; and Bellachi  v. Pakeeran, (2009) 12 SCC 95), it is held as under:

• “The question whether a person was in a position to dominate the will of the other and procure a certain deed by undue influence is a question of fact, and a finding thereon is a finding of fact, and if arrived at fairly in accordance with the procedure prescribed, it is not liable to be reopened in second appeal.”

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Read Blog: Pleadings Should be Specific; Why?

Foot Notes:

1. Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280; Ladli Prashad Jaiswal v. Karnal Distillery, Co., AIR 1963 SC 1279; Subhash Chandra Das v. Ganga Parsad Das, AIR 1967 SC 878; Varanasaya Sanskrit Vishwavidalaya v. Dr. Raj Kishore Tripathi, AIR 1977 SC 615; Jai Parkash Power Ventures v. State of HP, ILR 2017-6 HP 210.
2. Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280;  Raja Ram v. Jai Prakash Singh, AIR 2019 SC 4374; Ladli Prasad Jaiswal v. Karnal Distillery, Co., AIR 1963 SC 1279.
3. Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249, Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773, Beliram Bhalaik v. Jai Beharilal Khachi, (1975) 4 SCC 417, Suresh Prasad Yadav v. Jai Prakash Mishra, (1975) 4 SCC 822, Bhabhi v. Sheo Govind, (1976) 1 SCC 687, S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, (1980) Supp1 SCC 53,  P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen, (1989) 1 SCC 526, Vadivelu v. Sundaram, (2000) 8 SCC 355, VS Achuthanandan v. P J  Francis (2001) 3 SCC 81, andM. Chinnasamy v. K. C. Palanisamy, (2003) 10 SCALE 103.

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