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TMI Blog2013 (3) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... old age, he decided to transfer/settle his two houses bearing Nos. 22 and 23, Peria Palli Street, Raja Annamalai Puram, Chennai-28 in favour of his youngest son and daughter (the contesting parties herein) respectively. Therefore, the father of the parties executed two registered settlement deeds on 27.8.1981 bearing Nos. 1690/81 and 1691/81 at the office of Sub-Registrar, Mylapore, Chennai, transferring House No. 23 in the name of his daughter (Respondent No. 1) and House No. 22 in the name of his son (Appellant). B. It is alleged by the Appellant that the father of the parties had only at a later point of time realised that the House No. 23 which was given to the daughter, ought to have been given to him and House No. 22 to the daughter. Thus, the parties to give effect to the real intention of their father decided to exchange the properties given to them, and in furtherance thereof, executed a Agreement Deed to exchange the same on 1.6.1982. The said document was witnessed by Sheila Doss and Mrs. Mary Doss, who were neighbours and teachers and colleagues of the daughter - Respondent No. 1. Since, the said agreement dated 1.6.1982 (Ex. A-3) had not been given effect to by the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment of the trial court ought not to have been reversed by the appellate court. The parties having jointly taken a loan, an agreement was reached between the parties that in consideration for the Appellant paying the entire loan taken for the marriage and maintenance of the Respondent No. 1, she would transfer the property stood in her name. Thus, the appeals deserve to be allowed. 4. Shri Shyam D. Nandan, learned Counsel appearing on behalf of the Respondent No. 1, has submitted that the High Court has rightly reversed the judgments and decree of the trial court interpreting and applying the statutory provisions in correct perspective. It was a clear cut case of undue influence. The Rectification Deed (Ex. A-6) executed by the father and Appellant ought not to have been given effect to. In the instant case, as the Respondent No. 1 was not a party to the document Ex. A-6, she was not bound by it. Also, the Appellant could not have file the suit for rectification of settlement deed- Ex. A-1, as there was no mistake in the understanding or execution by the parties. The father of the parties was neither impleaded, nor examined before the trial court, though he was still alive a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. 8. In Bishundeo Narain and Anr. v. Seogeni Rai and Jagernath AIR 1951 SC 280, while dealing with the issue, this Court held: ...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. 9. The Privy Council in Poosathurai v. Kannappa Chettiar AIR 1920 PC 65, reasoned that it is a mistake 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rally 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. 12. In Afsar Shaikh and Anr. v. Soleman Bibi and Ors. AIR 1976 SC 163, this 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 thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of witnesses and documents and has a statutory flavour in that it is given not merely by an administrative officer but under the authority of a Statute, its probative value would indeed be very high so as to be entitled to great weight. The probative value of documents which, however ancient they may be, do not disclose sources of their information or have not achieved sufficient notoriety is precious little. 15. Reiterating the above proposition in Madan Mohan Singh and Ors. v. Rajni Kant and Anr. AIR 2010 SC 2933, this Court held that a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. (See Also: H. Siddiqui (dead) by L.Rs. v. A. Ramalingam AIR 2011 SC 1492; Laxmibai (dead) thr. L.Rs. and Anr. v. Bhagwantbuva (dead) thr. L.Rs. and Ors. JT 2013 (2) SC 362 IV. ONUS OF PROOF: 16. In Thiruvengada Pillai v. Navaneethammal and Anr. AIR 2008 SC 1541, this Court held that when the execution of an unregistered document put forth by the Plaintiff was denied by the Defendants, the ruling that it was for the Defendants to establish that the document w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. 19. The instant case is required to be exercised in the light of the aforesaid settled proposition of law. 20. There is no dispute that by the settlement deed dated 27.8.1981, late Shri B.P. Sandy had given House No. 23 admeasuring 2413 Sq. Ft. to the daughter - Respondent No. 1 and House No. 22 admeasuring 730 Sq. Ft. to the son - Appellant. None of the attesting witnesses to these documents had been examined by either of the parties, to ascertain whether late B.P. Sandy, father of the parties, had expressed any intention in respect of the properties before them. Ex. A-6 dated 28.10.1983 a unregistered document is subsequent to Exs. A1 A2, by which the father had expressed his will that House No. 23 should be given to the son - Appellant. The Appellant has examined one of the attesting witnesses Shri A. Bernard but the High Court came to the right conclusion that as the Respondent No. 1 was not a party to the document, it has no effect, whatsoever in law, on the case. Thus, in such a fact-situation, it remains to be seen as what is the effect of document dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous to the natural human conduct and if the settlor i.e. the father of the parties, had so intended to rectify the mistake, he could have very well registered the rectification deed. The court further held that once the Trial Court came to the conclusion that Ex. A-6 was not worth of acceptance, it was not permissible for it to grant an equitable relief of rectification of deed. After relying upon a large number of judgments of this Court, the High Court further came to the conclusion that it was a case of undue influence and as on the date of executing the alleged document Ex. A-3, the Respondent No. 1 was unmarried and was dependent on her father and brother for settling her marriage and for sustenance, as her marriage was solemnised only on 1.6.1983. The Respondent No. 1 having contended that the Plaintiff was in a position to dominate her will, thus, the document Ex. A-3 was termed as an unconscionable. It was a case, wherein, after obtaining the signatures of the Respondent No. 1 on some papers, the document had been scribed. With respect to the document, the High Court held that the said document Ex. A-3 being a typed document, ought to have contained the name of the person w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property mortgaged jointly by both the parties, to one Advocate Krishnaswamy, with whom the deeds of title Ex. A1 and Ex. A2 had been kept as security. The said mortgagee has not been examined by the Appellant to show as to whether the Respondent No. 1 was also a party to the mortgage and who had placed the title deed of her property with him. v) In his examination-in-chief, the Appellant had made a false statement that he was not made aware of the settlement deed Ex. A-1 till 26th June of 1982, as it was given to him by his mother on that date before her death. Such a statement stands completely falsified, as the document Ex. A-1 reveals, that he had been put in possession by his father, with the permission of Respondent No. 1, as the property in Door No. 23 had been given to her and it was made clear that the Respondent No. 1 had absolute right of enjoyment to the said property. vi) Document Ex. B3 dated 29th July 1983 is subsequent to document Ex. A-6, wherein settlor Mr. Sandy had written to Respondent No. 1 that he had given Door No. 23 to her. Thus, the settlor never intended otherwise. vii) The document Ex. A3 shows that the mistake was discovered in the last week of May 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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