How to prove that will was executed due to undue influence?

 Mr. Kapadia is, of course, correct in saying that generalized allegations of 'undue influence' sans particulars are of no use. They are to be pleaded with specificity, particularity and precision. (Bishnudeo Narain & Anr. v Seogeni Rai & Ors., MANU/SC/0059/1951 : AIR 1951 SC 280; Afsar Shaikh & Anr. v Soleman Bibi & Ors., MANU/SC/0001/1975 : AIR 1976 SC 163.) What we have in this case is a generalized allegation that because Dossa assisted Babubhai therefore it necessarily follows that he exerted undue influence in the making of the will. It has been well-settled for over a century that to constitute undue influence in testamentary law, the testator must be compelled to act against his wishes. It is not enough to show that there was mere influence. There must be undue influence, such that the testator did that which he did not intend or could not reasonably be expected to have intended. (Wingrove v Wingrove,1885 XI PD 81; Hall v Hall, 1868 I XXXI P&D Vict LR 481) Closeness in relations, providing assistance and, within a family, being supportive are not evidence of 'undue influence'. 

IN THE HIGH COURT OF BOMBAY

Testamentary Suit No. 46 of 2008 in Testamentary Petition No. 105 of 2008

Decided On: 20.01.2015

 Yatin Gordhandas Dossa
Vs.
 Supriya Shailesh Patel

Hon'ble Judges/Coram:G.S. Patel, J.

Citation:2015 (5) Mh.L.J. 587

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Whether omission to make an allegation of undue influence specifically is fatal to case of plaintiff?

 If there are facts on the record to justify the inference of undue influence, the , 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.

REPORTABLE

Supreme Court of India

Joseph Johan Peter Sandy vs Veronica Thomas Rajkumar & Anr on 12 March, 2013

Bench: B.S. Chauhan, Fakkir Mohamed Kalifulla

CIVIL APPEAL NOs. 2178-2179 OF 2004

Citation:(2013) 3 SCC 801

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What are three stages for consideration of a case of undue influence?

In Afsar Shaikh & Anr v. Soleman Bibi & 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 inRaghunath 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"

(Emphasis added)

REPORTABLE

Supreme Court of India

Joseph Johan Peter Sandy vs Veronica Thomas Rajkumar & Anr on 12 March, 2013

Bench: B.S. Chauhan, Fakkir Mohamed Kalifulla

CIVIL APPEAL NOs. 2178-2179 OF 2004

Citation:(2013) 3 SCC 801

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Whether it is mandatory for a party pleading fraud to state particulars thereof with dates?

The unfair advantage or the hardship contemplated 

under Section 20 has to be seen   as working against the defendant and not the 
plaintiff.     There   are     no     circumstances   either   making   enforcement   of   specific 
performance of the contract as inequitable.  For these reasons,  this case cannot be 
seen to be  falling  in any of  the instances mentioned in clauses (a)to (c)  of sub­
section (2) of Section 20 of Specific Relief Act. Then, no details of pending litigations 
have been given so as to make out the  case that  the defendant was cheated into 
signing stamp papers,  as required under Order VI Rule 4 of Code of Civil Procedure. 

Order VI Rule 4 makes it mandatory for a party pleading fraud, misrepresentation, 
breach of trust, wilful default or undue influence, to state the particulars thereof 
with dates and items and so on.  This is because to put the other side on sufficient 
notice of the case it has to meet.  Here, neither the particulars nor any evidence has 
been adduced in regard to the pending litigations, dates etc. to make out the case of 
misuse of stamp papers.  I, therefore, find   no substance in the arguments canvassed 
in this regard on behalf of the defendant and find merit in the argument of learned 
counsel for the plaintiff.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL No. 342  OF 1989
Chintaman Sitaram Bajad (DEAD)   
   VERSUS
Shankar Sonaji Shingne   

CORAM :   
 S.B. SHUKRE, J.
             DATE :     JANUARY 07, 2014.
        
   Citation; 2014 (2) ALLMR 156 Bombay

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