Kerala High Court
Josekutty vs Tom Sojan on 6 February, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
RFA NO. 8 OF 2009
AGAINST THE JUDGMENT DT. 28.11.2008 IN OS 131/2004 OF
SUB COURT, PALA
-----
APPELLANT/2nd PLAINTIFF:
JOSEKUTTY, AGED 65 YEARS,
S/O.THOMAS, MUTTATHU, CHENAPPADY MURI,
ERUMELY SOUTH VILLAGE.
BY ADV SRI.M.NARENDRA KUMAR
RESPONDENTS/DEFENDANTS:
1 TOM SOJAN, AGED 50 YEARS,
S/O.THOMAS, MUTTATHU, CHENAPPADY MURI,
ERUMELY SOUTH VILLAGE.
2 MOLLY, AGED 42 YEARS, D/O.THOMAS,
MUTTATHU, CHENAPPADY MURI, ERUMELY SOUTH VILLAGE.
3 RESMI SOJAN, AGED 20 YEARS,
D/O.TOM SOJAN & MOLLY, MUTTATHU, CHENAPPADY MURI,
ERUMELY SOUTH VILLAGE.
BY ADVS.
SRI.JOY GEORGE
SMT.PRAICY JOSEPH
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = =
R.F.A. No.8 of 2009
= = = = = = = = = = = = = = = = = =
Dated this the 6th day of February, 2024
J U D G M E N T
The suit for cancellation of Exts.A7 to A9 Gift Deeds was dismissed by the trial court. The second plaintiff is in appeal.
2. The first plaintiff is the mother of the second plaintiff. The first defendant is another son of the first plaintiff. The second defendant is the wife of the first defendant. The third defendant is the daughter of defendants 1 and 2.
3. The plaint consists of three items of properties as described in plaint schedule item Nos.1 to 3. Plaint schedule item No.1 is an extent of 38.60 Ares with a residential building thereon. Plaint schedule item No.2 property is 7.65 Ares and plaint schedule item No.3 property is 26.80 Ares with improvements thereon. R.F.A. No.8 of 2009 -: 2 :-
4. On 10.08.2004, the first plaintiff executed Ext.A7 Gift Deed with regard to plaint schedule item Nos.1 and 2 properties in favour of the first defendant, Ext.A9 Gift Deed in favour of the second plaintiff with regard to 10 cents = 4.05 Ares out of plaint schedule item No.3 property, and Ext.A8 in favour of the third defendant for the remaining extent out of the third schedule. The suit was filed seeking to set aside the gift deeds. In the suit, the first plaintiff mother was sought to be represented by the second plaintiff as her next friend, on the allegation that the first plaintiff, due to old age and incapacity is unable to protect her interests. The plaint allegation is that, the first plaintiff mother was of 94 years of age at the time of execution of Ext.A7 to A9 Gift Deeds; that the first plaintiff was residing with the first defendant; that she did not have sufficient physical and mental health, and was unable to understand and comprehend things R.F.A. No.8 of 2009 -: 3 :- correctly; and that the defendants caused Exts.A7 to A9 to be executed by her by exerting undue influence.
5. The defendants challenged the allegation that the first plaintiff did not have sufficient physical and mental capacity. It was contended that she is competent to protect her interests.
6. The trial court on conducting enquiry as mandated under Order XXXII Rule 15 of the Code of Civil Procedure and found that the first plaintiff is competent to represent and protect her interests. Exts.A7 to A9 Gift Deeds were upheld and accordingly the suit was dismissed.
7. I have heard Sri.M.Narendra Kumar, the learned counsel for the appellant and Smt.Praicy Joseph, the learned counsel for the respondent.
8. The points that arises for determination are :-
(i) Is the finding of the trial court that Exts.A7 to A9 Gift Deeds are not vitiated by undue influence, based on the evidence on record?R.F.A. No.8 of 2009 -: 4 :-
(ii) Does the decree and judgment of the trial court warrants any interference?
9. The challenge against ExtsA7 to A9 Gift Deeds is founded upon the plea of "undue influence" under Section 16 of the Contract Act which vitiates a contract. Section 16 reads thus:-
"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 R.F.A. No.8 of 2009 -: 5 :- 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 16(1) states that a contract is vitiated by undue influence where the relationship between the parties to a contract are such that, one is in a position to dominate the will of the other, and such position is used to obtain an unfair advantage over the other.
10. The argument of the appellant is based on Section 16(3) which provides that, when a person is in a dominating position to another, and he enters into a contract with the other, and the contract on the face of it appears to be unconscionable, then burden is on the person who defends the transaction, to prove that it is not vitiated by undue influence. Relying on Section 16(2)(b) the learned counsel for the appellant would contend that, since the first plaintiff was suffering R.F.A. No.8 of 2009 -: 6 :- from lack of mental capacity due to old age, the first defendant is deemed to have been in a position to dominate the will of the first plaintiff mother.
11. Now I shall refer to the decisions relied on by the learned counsel on either side.
12. In Subhas Chandra v. Ganga Prosad AIR 1967 SC 878, the Apex Court held that, a Court trying a case of undue influence is to consider two things - viz. (i) 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. Therein the Apex Court referred to the decision of the Privy Council in Raghunath Prasad v. Sarju Prasad AIR 1924 PC 60 which referred to the three stages for consideration in a case of undue influence. The relevant portion reads thus:-
"In the first place the relations between the parties to each other must be such that one is in a position to dominate the will of the other. Once that position is substantiated the second R.F.A. No.8 of 2009 -: 7 :- stage has been reached - namely, the issue whether he contract has been induced by undue influence. Upon the determination of this issue 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."
The Apex Court further held that, merely because the parties are nearly related to each other, no presumption of undue influence can arise. The Apex Court took note of the judgment in Ladli Prasad Jaiswal v. Karnal Distillery (1964) 1 SCR 270 wherein it was noticed that the law regarding undue influence as embodied in Section 16 of the Indian Contract Act is based on English Common Law. The Court further referred to Halsbury's Laws of England, Third Edition, Vol. 17 Page 678 wherein it is stated that "There is no presumption of undue influence in the case of a gift to a son, grand son or son-in-law, although made during the donors illness and a few days before his R.F.A. No.8 of 2009 -: 8 :- death". The Court further observed that, generally speaking the relationship 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 presumption arises. It was held that, the deeming provision under Section 16(2) with regard to, position to dominate the will of the other, can arise when the donee is in a fiduciary relationship with the donor or holds a real or apparent authority over him. The Apex Court further referred to the judgment of the Privy Council in Ismail Mussajee Mokerdum v. Hafiz Boo (1906) 88 Ind. App 86 (PC) wherein the Privy Council had observed that, "mere relationship of daughter to mother, of course, in itself suggests nothing in the way of special influence or control".
13. In Afsar Sheikh v. Soleman Bibi (1976) 2 SCC 142, the Apex Court held :-
R.F.A. No.8 of 2009-: 9 :-
"22. The law as to undue influence in the case of a gift inter vivos is the same as in the case of a contract. It is embodied in Section 16 of the Indian Contract Act. Sub-section (1) of Section 16 defines 'undue influence' in general terms. It provides that to constitute 'undue influence' two basic elements must be cumulatively present. First, the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other. Second, the party in dominant position uses that position to obtain an unfair advantage over the other. Both these conditions must be pleaded with particularity and proved by the person seeking to avoid the transaction.
23. In view of this sub-section, the court trying a case of undue influence of the kind before us, must, to start with, consider two things, 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 ?
24. Sub-section (2) of Section 16 is illustrative as to when a person is considered to be in a position to dominate the will of the other. It gives three illustrations of such a position, which adapted to the facts of the present case, would be : (a) whether the donee holds a real or apparent authority over the donor, (b) whether he stands in a fiduciary relation to the donor, or (c) R.F.A. No.8 of 2009 -: 10 :- whether he makes the transaction with a person whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress.
25. Sub-section (3) 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 he defendant."
At paragraph 27, the Apex Court held :-
"27. 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 relations of the parties. Were they such as to put one in a position to dominate the will of the other."R.F.A. No.8 of 2009 -: 11 :-
Relying on the judgment of this Court in M.Kunka Kurup and Another v. Lakshmikutty Amma and others 1984 KLJ 786, the learned counsel for the appellant would contend that, there is an alternate way of approaching the issue. When it is found that the donee is in a position to dominate the will of the donor and the transaction is on the face of it unconscionable, the transaction is to be held as vitiated by undue influence unless proved otherwise by the donee. Therefore, the Court has to consider whether the donee was in a position to dominate the will of the donor and whether the transaction is unconscionable. If the answer is in the affirmative, then it is for the donee to prove that the gift is not vitiated by undue influence, it was argued.
14. Now I proceed to consider as to whether the facts at hand disclose that the mental capacity of the 1st plaintiff was affected by reason of age or illness, whether the 1st defendant was in a position to dominate R.F.A. No.8 of 2009 -: 12 :- the will of the mother, and the deeds are, on the face of it unconscionable.
15. As was mentioned first above, the suit was instituted arraying the mother as the first plaintiff, with the second plaintiff son seeking to represent her as her next friend. The first plaintiff mother filed IA 336/2005 under Order XXXII Rule 15 of the Code of Civil Procedure contending that she is of sound health and understanding capacity, and that she need not be represented by the 2nd plaintiff. She prayed for dismissal of the suit. The Court conducted enquiry on the application. The first plaintiff presented herself before the court. The court noticed that all the questions put to her were properly answered. She deposed before the court with specifics regarding her education, the age at which she got married, the place of marriage, all the details with regard to her children including that, two of her daughters had taken perpetual vow. The R.F.A. No.8 of 2009 -: 13 :- Court noticed that she has sufficient memory power and understanding capacity. Based on such examination, the court found that the first plaintiff had sufficient mental capacity, the capacity to understand things and to maintain herself. Accordingly the Court concluded that it is not necessary for the first plaintiff to be represented by the second plaintiff. The second plaintiff was not permitted to prosecute the suit on behalf of the first plaintiff. As noticed by the trial court, the enquiry conducted by the Court supports the conclusion that the first plaintiff was competent enough to represent her interests. The 1 st plaintiff had in her application sought for dismissal of the suit. The application was allowed by the trial, and on the evidence, rightly. In the light thereof, the suit shall be deemed to be one instituted by the second plaintiff alone.
R.F.A. No.8 of 2009-: 14 :-
16. The appellant would contend that, the first plaintiff donor was aged 94 years at the time of execution of Exts.A7 to A9 and her mental capacity was affected by reason of age and illness. The first plaintiff was residing with the first defendant. The transactions under Exts.A7 to A9 are on the face of it unconscionable. Therefore, it was for the defendants to prove that the documents are not vitiated by undue influence. In the year 1981, the first plaintiff had executed Ext.A2 Will dated 20.07.1981. As per Ext.A2, the plaint schedule item Nos.1 and 2 properties were bequeathed in favour of the first defendant as included in 'B' schedule item Nos.1 and 2 therein. Plaint schedule item No.3 property was bequeathed in favour of the second plaintiff as included in 'A' schedule to Ext.A2. Plaint schedule item Nos.1 and 2 having already been bequeathed in favour of the first defendant, there was no necessity to execute Ext.A7 Gift Deed conveying R.F.A. No.8 of 2009 -: 15 :- schedule items 1 and 2 to the first defendant. The second plaintiff was, as per Ext.A3 consent dated 05.01.1995, permitted to put up a residential building in item No.3. Under Ext.A2 Will, plaint schedule item No.3 property was bequeathed in favour of the second plaintiff. It is having due regard to the same that Ext.A3 consent was granted. The second plaintiff put up a building therein pursuant to the consent. However, as per Ext.A9 Gift deed, the second plaintiff is given only 4.05 Ares equivalent to 10 cents in plaint item 3. The remaining extent out of plaint item No.3 was given to the third defendant - the grand daughter, under Ext.A8. Though Ext.A9 Gift Deed purportedly relates to 10 cents with the building, the 10 cents takes in only a portion of the building. To substantiate the same the appellant relies on Exts.A10 and A11 survey plans. Therefore, the transaction is on the face of it unconscionable. The defendants were in a position to dominate the will of R.F.A. No.8 of 2009 -: 16 :- the first plaintiff. Therefore, it is for the defendants to prove that the gift deeds were not vitiated by undue influence. The defendants failed to adduce any evidence to support the gift deeds. Therefore, the gift deeds are to be held as vitiated by undue influence, it is argued. The main contention of the appellant is that the transactions are, on its face, unconscionable, he having been deprived of plaint item No.3 property which was bequeathed to him under Ext.A2 Will and upon which he had constructed a building.
17. Referring to Ext.A1 Partition Deed entered into in the family, between the father, mother and her 14 children, the respondents would contend that, therein, the first defendant was given only one acre as included in 'F' schedule, while the second plaintiff was given 2 acres and 16 cents as included in 'C' schedule. Therefore, there is no uneven distribution of the assets. It is further pointed out that Ext.A2 Will was R.F.A. No.8 of 2009 -: 17 :- executed in the year 1981 and Ext.A3 consent to put up the building was given in 1995. The Gift Deeds Exts.A7 to A9 were executed much later, in the year 2004. Since the third defendant had become of marriageable age, the 1st plaintiff wanted to give some extent of property to her grand child (third defendant) and to raise some money for the marriage by sale of some timber standing in the property. However, the second plaintiff objected to the same and required a conveyance to be executed with regard to the plaint schedule item No.3 property in his favour. This lead to the mother executing Exts.A7 to A9 is the circumstance projected by the defendants in the written statement.
18. It is true that as per Ext.A2 Will the second plaintiff was the legatee of plaint schedule item No.3 property. As evidenced by Ext.A3, he was permitted to put up a building therein. As per Ext. A9 Gift Deed, he was gifted 10 cents of property from the plaint schedule R.F.A. No.8 of 2009 -: 18 :- item No.3 property including the building. It specifically acknowledged that the building that was put up by him. The second plaintiff, relying on Exts.A10 and A11 survey sketches, would claim that only a portion of the building would be included in the 10 cents. However, as noticed by the trial court, the area of the building is only 800 sq. ft. and that 10 cents is more than sufficient to accommodate the same. PW2, the Surveyor who prepared Ext.A10 plan has deposed that if the property is demarcated in 'T' shape, the building will be taken in the 10 cents. The defendants have taken the stand that they have no objection in the ten cents with the building being given to the second plaintiff in the manner the 2nd plaintiff wants.
19. The present suit was tried along with O.S 144/2004. That was a suit filed by the second plaintiff by arraying the mother as the first plaintiff and and himself as the 2nd plaintiff, seeking to represent her R.F.A. No.8 of 2009 -: 19 :- as the next friend, on the very same averments as mentioned in the present suit. The relief claimed therein was to restrain the defendants therein, who are defendants 1 and 2 in the present suit, from creating any document with regard to the plaint schedule property therein which is plaint schedule item No.3 in the present suit in their favour or in the name of any other person, and to restrain the defendants from cutting and removing trees standing thereon and from committing any manner of waste therein. The gift deeds were executed pending O.S.144/2004. It is of significance to note the nature of the relief claimed in O.S.144/2004 and also the fact that the suit was instituted arraying the mother, the owner of the property as a plaintiff. The applications under Order XXXII Rule 15 in both the suits were considered together and the Court, as noticed supra, entered a finding that the first plaintiff is competent to represent her own interests, and the leave R.F.A. No.8 of 2009 -: 20 :- as sought by the second plaintiff was declined. The reliefs claimed in O.S. 144/2004 as noticed just before, to a great extent supports the case of the defendant with regard to the reasons projected for execution of Ext.A7 to A9 Gift Deeds by the mother.
20. Law is well settled that, mere influence is not "undue influence" under Section 16 of the Indian Contract Act. The first plaintiff mother had been admittedly residing with the first defendant and his family. The third defendant had become of marriageable age. These aspects would necessarily have made the mother to give some property to her grand daughter. Such influence could not, in the circumstances be held to be "undue influence". The mere fact that the first defendant had met the expense for the gift by itself is not sufficient to find that the documents are vitiated. The averments in the plaint are that, the 1 st plaintiff who is 94 years of age suffers from hearing and vision R.F.A. No.8 of 2009 -: 21 :- impairment, memory loss, and did not have the capacity to comprehend things. As was noticed earlier, the court in its enquiry under Order XXXII Rule 15 have found the first plaintiff to be a person of sound mental health who was able to recollect details regarding her education, marriage and family with precision. There is no evidence to find that her mental capacity was affected by reason of age. Though the plaintiff examined PW3, the Doctor who had treated the mother, even his evidence does not support the case of the second plaintiff that the mother was physically and mentally weak and not of sound health. PW3 has deposed that except for some heart problem, she had no other issues and was of sound health. There is no medical evidence, much less any evidence to prove that the mother had any physical or mental ailments. There is no material or circumstance to find that the defendants were in a position to dominate the will of the mother. On the R.F.A. No.8 of 2009 -: 22 :- materials discussed supra, it could not be held that the gift deeds are on the face of it, unconscionable.
21. Thus there is nothing in the evidence to show that Exts.A7 to A9 gift deeds are vitiated by undue influence. The evidence was appreciated by the trial court in the right perspective. The decree and judgment of the trial court warrants no interference. The points are answered accordingly.
There is no merit in the appeal. Appeal fails and is dismissed. Considering the relationship between the parties, there shall be no order as to costs.
Sd/-
SATHISH NINAN JUDGE kns/-
//True Copy// P.S. to Judge