Whether Undue Influence' Can Be Inferred if Family Member Was Taking Care Of Elderly Person?

That leads us to the question of undue influence. The

pleadings in the plaint are completely bereft of any details or

circumstances with regard to the nature, manner or kind of undue

influence exercised by the original defendants over the deceased. A

mere bald statement has been made attributed to the infirmity of

the deceased. We have already held that the deceased was not

completely physically and mentally incapacitated. There can be no

doubt that the original defendants were in a fiduciary relationship

with the deceased. Their conduct in looking after the deceased and

his wife in old age may have influenced the thinking of the

deceased. But that per se cannot lead to the only irresistible

conclusion that the original defendants were therefore in a position

to dominate the will of the deceased or that the sale deed executed

was unconscionable. The onus would shift upon the original

defendants under Section 16 of the Contract Act read with Section

111 of the Evidence Act, as held in Anil Rishi vs. Gurbaksh Singh

(supra), only after the plaintiff would have established a prima facie

case. The wife of the deceased was living with him and had

accompanied him to the office of the subregistrar.

The plaintiff has

not pleaded or led any evidence that the wife of the deceased was

also completely dominated by the original defendants. In every cast,

creed, religion and civilized society, looking after the elders of the

family is considered a sacred and pious duty. Nonetheless, today it

has become a matter of serious concern. The Parliament taking

note of the same enacted the Maintenance and Welfare of Parents

and Senior Citizens Act, 2007. We are of the considered opinion, in

the changing times and social mores, that to straightway infer

undue influence merely because a sibling was looking after the

family elder, is an extreme proposition which cannot be

countenanced in absence of sufficient and adequate evidence. Any

other interpretation by inferring a reverse burden of proof

straightway, on those who were taking care of the elders, as having

exercised undue influence can lead to very undesirable

consequences. It may not necessarily lead to neglect, but can

certainly create doubts and apprehensions leading to lack of full

and proper care under the fear of allegations with regard to exercise

of undue influence. Law and life run together. If certain members

of the family are looking after the elderly and others by choice or by

compulsion of vocation are unable to do so, there is bound to be

more affinity between the elder members of the family with those

who are looking after them day to day.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 2896 OF 2009

RAJA RAM  Vs JAI PRAKASH SINGH 

NAVIN SINHA, J.

Dated:SEPTEMBER 11, 2019.

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How to prove that will was invalid as it was executed due to undue influence?

As to the case on 'undue influence',⁴⁸ there is no evidence at all. To invalidate a Will, undue influence must be established as a fact. The actual exercise of that undue influence on the testator, and which is in the nature of coercion and fraud, must also be demonstrated.⁴⁹ It is not enough to show that one person was in a position or had the power to overbear the testator; it must be shown that Will was the result of the exercise of that power.⁵⁰ Generalized allegations will not do: undue influence is to pleaded with specificity, particularity and precision.⁵¹

IN THE HIGH COURT OF BOMBAY

Testamentary Suit No. 74 of 2011 in Testamentary Petition No. 970 of 2009

Decided On: 14.10.2016

 Panna Surendra Mehta

Vs.

Purnima Latik Shah

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Whether review application is maintainable if divorce decree is granted ignoring statutory procedure?

 Assuming that it was not an application under Section 13-B of the Act, but one under Section 13 of the Act, the law requires that it should be any one or more of the grounds enumerated under Section 13 of the Act which should be alleged and proved like any other fact. Section 13 of the Act further requires that where the ground taken in the petition for divorce is that the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse, it must be also proved that the applicant has not in any manner been accessory to or connived at or condoned the act or acts complained of. It further requires that the court must be satisfied, when a divorce is sought on the ground of mutual consent, that such consent has not been obtained by force, fraud or under influence. Law requires that in any proceeding under this Act whether defended or riot the court is required to be satisfied on the above points.

7. Learned counsel appearing for the opposite party has contended that the application having not been contested, the court could pass a decree without making any enquiry as to the correctness of the allegations made in the application. As already stated, the Statute itself requires that the court must be satisfied about the absence of any connivance or condonation of any act complained of and absence of any force, fraud or undue influence being used for obtaining consent for divorce even where the' case is not defended. In other words, a duty has been cast on the court itself to be satisfied that the applicant praying for a decree of divorce has not been guilty of practising fraud, force or undue influence in order to obtain consent from the other party and that he or she has not been accessory to the alleged adultery or has not condoned the same.

8. The court in the present case did not consider any of the aforesaid circumstances and passed a decree for divorce on the basis of the statement made by the petitioner. Be it an application alleging adultery within the meaning of Section 13 of the Act, or one under Section 13-B of the Act the court has utterly failed to discharge its duties while disposing of that: application. Therefore, it was a fit case for' review.

9. By the impugned order, the learned court below did not entertain the application for review on its merits saying that the court became functus officio after the judgment was passed in the original case. As per the analysis made in the preceding paragraphs, I am of the view that a good case has been made out for review of the judgment inasmuch as the court has failed to exercise jurisdiction vested in it by law and has passed the decree for divorce ignoring the statutory procedure prescribed under the Act and the Rules framed there-under. 

IN THE HIGH COURT OF ORISSA

Civil Revision No. 446 of 1989

Decided On: 29.03.1991

Smt. Kanchan Mohanty
Vs.
 Kulamani Mohanty

Hon'ble Judges/Coram:
Purna Chandra Mishra, J.

Citation: AIR 1992 Orissa 165

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Whether court can grant probate on basis of compromise?

What is more surprising is that the Probate application, although became contentious, was disposed of in terms of compromise which is not permissible under the law of the land. As pointed out by a Division Bench of this Court in the case of A.E.G. Carapiet vs. A.Y. Darderianreported in AIR 1961 Calcutta 559, the Probate Court being a Court of conscience, the Probate cannot be granted on the basis of compromise. In a proceeding for grant of Probate it is the duty of the Probate Court to see whether the Will was the last Will of the testator, whether he had full mental capacity to execute the Will, whether the same was executed and attested after compliance of the requirements of the Indian Succession Act and whether the same was executed without being vitiated by force, fraud, undue influence etc. Apart from those questions, a Probate Court cannot go into the question of title of the testator in the subject-matter of bequest nor can a Court grant a Probate which is at variance with the terms of the Will. (See: Uma Addhya vs. Biren Mondal and others reported in 2006(2) CHN 680).

Even if any compromise is recorded after actual grant of Probate on proof of the Will for keeping it on record, the same is never made part of the Probate and separate suit is to be filed for specific performance of such agreement if the same is not respected by the parties. (See:Saraswati Mondal vs. Sachidulal Saha reported in AIR 2005 Cal 257 ;) In the case before us, it appears from the certified copy of the relevant order-sheet that Probate was granted solely on compromise and the same was made part of the decree which is not permissible.

Calcutta High Court (Appellete Side)

Paresh Chandra Majhi & Ors vs Sri Biswanath Majhi & Ors on 10 July, 2009

Present:
 Mr. Justice Bhaskar Bhattacharya
                  And
 Mr. Justice Prasenjit Mandal

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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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When there will be no arbitrable dispute to exercise power U/S 11 of Arbitration Act?

In the decision rendered in Union of India vs. Master Construction

Co.(2011) 12 SCC 349

 this court observed as under:

“18. In our opinion, there is no rule of the absolute

kind. In a case where the claimant contends that a

discharge voucher or no-claim certificate has been

obtained by fraud, coercion, duress or undue influence

and the other side contests the correctness thereof, the

Chief Justice/his designate must look into this aspect to

find out at least, prima facie, whether or not the dispute

is bona fide and genuine. Where the dispute raised by the

claimant with regard to validity of the discharge voucher

or no-claim certificate or settlement agreement, prima

facie, appears to be lacking in credibility, there may not

be a necessity to refer the dispute for arbitration at all.

19. It cannot be overlooked that the cost of arbitration

is quite huge—most of the time, it runs into six and seven

figures. It may not be proper to burden a party, who

contends that the dispute is not arbitrable on account of

discharge of contract, with huge cost of arbitration

merely because plea of fraud, coercion, duress or undue

influence has been taken by the claimant. A bald plea of

fraud, coercion, duress or undue influence is not enough

and the party who sets up such a plea must prima facie

establish the same by placing material before the Chief

Justice/his designate. If the Chief Justice/his designate

finds some merit in the allegation of fraud, coercion,

duress or undue influence, he may decide the same or

leave it to be decided by the Arbitral Tribunal. On the

other hand, if such plea is found to be an afterthought,

make-believe or lacking in credibility, the matter must be

set at rest then and there.

In our considered view, the plea raised by the respondent is bereft of

any details and particulars, and cannot be anything but a bald assertion.

Given the fact that there was no protest or demur raised around the time or

soon after the letter of subrogation was signed, that the notice dated

31.03.2011 itself was nearly after three weeks and that the financial

condition of the respondent was not so precarious that it was left with no

alternative but to accept the terms as suggested, we are of the firm view that

the discharge in the present case and signing of letter of subrogation were

not because of exercise of any undue influence. Such discharge and signing

of letter of subrogation was voluntary and free from any coercion or undue

influence. In the circumstances, we hold that upon execution of the letter of

subrogation, there was full and final settlement of the claim. Since our

answer to the question, whether there was really accord and satisfaction, is

in the affirmative, in our view no arbitrable dispute existed so as to exercise

power under section 11 of the Act. The High Court was not therefore

justified in exercising power under Section 11 of the Act.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10784 OF 2014 @

SPECIAL LEAVE PETITION (CIVIL) NO.24652 OF 2013

NEW INDIA ASSURANCE COMPANY LTD …. Appellant

Versus

GENUS POWER INFRASTRUCTURE LTD. …. Respondent

Uday U. Lalit, J.

Dated:December 04, 2014

Citation:AIR 2015 SC (SUPP)136

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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 insurance companies can withhold admitted claim amount till insured gives receipt of full and final settlement?

The insurance companies cannot deny the payment of the
admitted claim amount to the insured unless a complete discharge is
given by the insured. The insistence of the insurance company to sign
a discharge voucher of full and final settlement before release of
admitted claim amounts to coercion and undue influence as defined in
Sections 15 and 16 of the Contract Act and such contracts are 
voidable under Section 19 and 19A of the Contract Act.
The withholding of the admitted amount by the insurance
companies unless complete discharge is given, amounts to deficiency
in service within the meaning of Section 2(1)(g) of the Consumer
Protection Act, 1986 as the insurance companies are not expected to
withhold the admitted claim amount till the insured gives the receipt
of full and final settlement.
IN THE HIGH COURT OF DELHI AT NEW DELHI
ARB.P. 459/2015
Date of Decision: 11th December, 2015
WORLDFA EXPORTS PVT.LTD

v
UNITED INDIA INSURANCE CO. LTD

CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
Dated;DECEMBER 11, 2015.

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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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Whether appeal against decree of Divorce by mutual consent is maintainable?

 Legislature has cast obligations upon Court entertaining the proceedings under section 13[B] to record a finding that consent for divorce has not been obtained by force, fraud or undue influence. Thus legislature has visualised that there may be a case in which consent for divorce may be obtained and decided to provide a safeguard against abuse of this provision. Hence obligation has been cast upon the court to verify the same, and to record a satisfaction that the consent given by the parties is free and voluntary. Thus having visualized abuse of such provision for grant of divorce by mutual consent by use of force, fraud etc., it cannot be accepted that legislature did not provide for a remedy to the spouse aggrieved in such matters. To hold that remedy of appeal is not available to such aggrieved spouse, will be rendering nugatory the exercise of obligation cast upon the trial court by the Legislature. I therefore find that the arguments of Advocate Shri De about tenability 

of appeal against such consent divorce decree are liable to be rejected.

13. In view of this consideration, it has to be held that the appeal as filed by the appellant / wife before the Lower Appellate Court and before this Court is legally maintainable and question no.2 needs to be answered accordingly in affirmative in her favour. Question no.3 about indulgence in perjury by the appellant wife cannot be answered at this stage in absence of sufficient material, as it is found to be premature. No remand or calling of report from trial court in that respect is necessary as even otherwise the trial court has to look again into the voluntary nature of wife's consent. Question no.1 is answered in favour of the wife by holding that there is no compliance with provisions of Section 23[1][bb] of the Hindu Marriage Act.

Bombay High Court

Sau. Sushama  vs Shri Pramod on 17 March, 2009

Bench: B. P. Dharmadhikari

Citation; 2009 (4) MHLJ 81 Bom

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Whether Court can recall its own judgment when divorce decree was obtained by way of fraud?

Family - Recall of Decree - Revision filed against an appellate decision upsetting an order of the Trial court recalling a decree passed by it under Section 13B of the Hindu Marriage Act dissolving the marriage between the Petitioner and the opposite party by a decree of divorce by mutual consent - Whether a consent decree obtained by exercise of fraud, undue influence or coercion is liable to be recalled or set aside by the court passing the decree in exercise of its inherent power - Held, Court has inherent power to correct its own proceedings when it is satisfied that in passing a particular order it was misled by one of the parties. It was urged before us on behalf of the defendants-appellants that the only remedy is by suit and that once the decree has been signed there is no jurisdiction in the Court to set it aside on the ground of fraud - Section 13B(1) requires a petition jointly presented to the court by both the parties to the marriage - It must clearly and categorically indicate (a) that the parties have been living separately for a period of one year or more before the presentation of the petition (b) that they have not been able to live together and (c) that they have mutually agreed that the marriage should be dissolved - One of the essential pre-conditions, for maintaining an action under Section 13B was wanting in the petition as well as in the evidence, the decree for divorce disclosed an error apparent on the face of the record - As all the three elements of Section 13B(1) are cumulative, no decree under Section 13B can be supported by only two of them - Therefore, the case was a fit one for review under Order 47, Rule 1 of the Code - Petition allowed

 AIR1987Ori1, 1986(2)OLR751

Court can recall its own judgment in case of fraud.-There are occasions where the parties do not approach the court with clean hands and obtain a decree of divorce by way of fraud or misrepresentation of the facts. Under such circumstances the court granting the decree of divorce has the power to recall its own judgment under its inherent power. In Pushplata Rout v. Damodar Rout, MANU/OR/0001/1987 : AIR 1987 Ori 1: (1987) 1 Hindu LR 213, the High Court of Orissa held that the court has to be satisfied apart from other provisions of Section 23 of the Act in particular and the provisions in Section 23(1), clause (bb) namely that the consent of any party has not been obtained by force or fraud.

IN THE HIGH COURT OF ORISSA

Civil Revn. No. 469 of 1984

Decided On: 15.05.1986

Appellants: Smt. Puspalata Rout
Vs.
Respondent: Damodar Rout1

Hon'ble Judges/Coram:
R.C. Patnaik, J.

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