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PETITIONER: SUBHAS CHANDRA DAS MUSHIB

       Vs.

RESPONDENT: GANGA PROSAD DAS MUSHIB AND ORS.

DATE OF JUDGMENT: 14/09/1966

BENCH: MITTER, G.K. BENCH: MITTER, G.K. WANCHOO, K.N. SHELAT, J.M.

CITATION:  1967 AIR  878            1967 SCR  (1) 331  CITATOR INFO :  RF         1976 SC 163  (22)

ACT: Indian Contract Act, s. 16-Undue influence-Burden of  proof- necessity of plea being clearly raised in pleadings.

HEADNOTE: The  suit in the present case was for declaring that a  dead of  settlement  executed by the plaintiff’s father  and  the plaintiff’s sister in favour of the plantiff’s brothers  son in  respect of certain properties was fraudulent,  collusive and invalid and for cancellation of the said document.   The trial court dismissed the suit.  However in appeal the  High Court  proceeded on the basis that in the  circumstances  of the case and in view of the relationship of the parties  the trial  court should have made a presumption that  the  donee had influence over the donor and should have asked for proof from the respondents before the High Court that the gift was the spontaneous act of the donor acting under  circumstances which enabled him to exercise an independent will and  which would  justify  the court in holding that the gift  was  the result  of  a free exercise of the donor’s will.   The  High Court  went  on to presume from the great age of  the  donor that  his  intelligence  or  understanding  must  have   de- teriorated with advancing years and consequently it was  for the court to presume that he was under the influence of  the younger son at the date of the gift.  In appeal before  this Court it was contended on behalf of the  defendant-appellant that  the  judgment of the High Court had  proceeded  on  an entirely  erroneous basis and that there was  no  sufficient pleading  of  undue  influence nor was  there  any  evidence adduced at the trial to make out a case of undue influence. HELD:     The whole approach of the High Court was wrong and its decision could not be upheld. (i)  The  law as to undue influence is the same in the  case of  gifts inter vivos as in the case of a contract  and  the court trying a case of undue influence must consider in view of  s. 16(1) of the Indian Contract Act 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

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position to obtain an unfair advantage over the donor ? Sub- s.  (2) of section 16 illustrates as to when a person is  to be  considered to be in a position to dominate the  will  of another.  These are inter alia (-a) where the donee folds  a real  or  apparent authority over the donor or (b)  when  he makes  to  contract with a person whose mental  capacity  is temporarily  or  permanently  affected  by  reason  of  age, illness  or mental or bodily distress.  Sub. 1. (3)  of  the section throws the burden of proving that a contract was not induced  by undue influence on the person benefiting  by  it when two actors are found against him namely that he is in a position to dominate he will of another and the  transaction appears  on the fact of it or on the vidence adduced  to  be unconscionable. (334 D-H] Thums  under s. 16 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.  But  the  High Court neither determined the relationship of the parties  as required  in s. 16(1), nor did it find that the  transaction was  unconscionable.  Therefore the presumptions made by  it were unwarranted by law. [335 D; 339 C] M15Sup.  C.I./66-8 332 (ii) Before 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.  These conditions remained unsatisfied in the present case. [336 C-D] (iii)     On  the evidence in the case the trial  court  was right  in its conclusion that the donor was fully  aware  of the  fact that he had transferred the property to  defendant No.  1. It had not been established that he was  of  unsound mind. [338 E-F] (iv) There could be no presumption of undue influence merely because the donor and the donee were nearly related to  each other.  Nor could the fact that a grandfather made a gift of a portion of his properties to his only grandson a few years before   his   death   show   that   the   transaction   was unconscionable. [335 E; 341 C] Raghunath  Prasad  v.  Sarju Prasad and  Ors.  51  I.A.  101 Poosathurai  v. Kannappa Chettiar and Ors. 47 I.A. 1,  Ladli Prasad Jaiswal v. Karnal Distillery Co. Ltd. & Ors. [1964] 1 S.C.R.  270 and Ismail Mussajeo Mookerdum v. Hafiz  Boo,  33 I.A. 86, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 617 of 1964. Appeal  by special leave from the judgment and decree  dated July  22,  August  12, 1960 of the Calcutta  High  Court  in Appeal from Original Decree No. 193 of 1954. Niren  De, Addl.  Solicitor-General, and Sukwnar Ghose,  for the appellants. P. K. Chatterjee, for respondent No. 1. The Judgment of the Court was delivered by Mitter,  J. This is an appeal from a judgment and decree  of the  High Court of Calcutta on a certificate granted  by  it reversing  a  decision of the Subordinate Judge  of  Bankura dismissing the plaintiff’s suit for declaring that a deed of settlement  (Nirupan  Patra)  executed  by  the  plaintiff’s father   and  the  plaintiff’s  sister  in  favour  of   the plaintiff’s  brother’s  son registered on July 22,  1944  in respect  of  properties  situate  in  village  Lokepur   was

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fraudulent,  ,collusive and invalid and for cancellation  of the  said document.  The Judges of the High Court  proceeded on  the basis that in the circumstances of the case  and  in view  of  the relationship of the parties  the  trial  court should have made a presumption that the donee had  influence over  the  donor and should have asked for  proof  from  the respondents  before  the High Court that the  gift  was  the spontaneous  act  of the donor  acting  under  circumstances which enabled him to exercise an independent will and  which would  justify  the court in holding that the gift  was  the result  of  a free exercise of the donor’s will.   The  High Court  went  on to presume from the great age of  the  donor that   his   intelligence   or   understanding   must   have deteriorated with advancing years and 333 consequently  it  was for the court to presume that  he  was under  the influence of his younger son at the date  of  the gift  It was contended before us by the  learned  Additional Solicitor-General  appearing  for  the  appellant  that  the judgment  of  the High Court had proceeded  on  an  entirely erroneous basis and that there was no sufficient pleading of undue  influence nor was there any evidence adduced  at  the trial to make out a case of undue influence and in the vital issue  raised  before  the  learned  Subordinate  Judge  the expression "undue influence" was not even used. The  main facts which have come out in the evidence  are  as follows.   The  plaintiff’s father,  Prasanna  Kumar,  owned certain  lands  in  two  villages,  namely,  Parbatipur  and Lokepur,  holding an eight annas share in each.   The  exact valuation  of the properties is not known, but it would  not be wrong to assume that the Lokepur properties, the subject- matter  of the suit, were the more valuable ones.   Prasanna Kumar died in January or February, 1948 when he was about 90 years  of age.  He had two sons, namely’ Ganga  Prosad,  the plaintiff,  and Balaram, the second defendant in  the  suit, besides  a daughter Swarnalata, and an only grandson  Subhas Chandra,  who  was the first defendant in the  suit.   Ganga Prosad  had no son.  He had served in the Medical School  at Bankura  from  1932  to 1934.  Thereafter  he  worked  as  a contractor  for  one year.  From November 1944  to  1948  he served  in  Searsole Raj Estate.  The  family  consisted  of Prasanna  and  his  wife, their two sons  and  their  wives, besides the grand-son Subhas Chandra and Prasanna’s daughter Swarnalata  who  became  a widow in her  childhood  and  was residing  with her parents.  It appears that Balaram  always lived  with  his father and was  never  employed  elsewhere. According  to  the plaintiff’s own evidence he  was  looking after  the  property  of his father so long  as  he  was  at Bankura.   The  Lokepur properties were put  to  auction  in execution of a decree for arrears of rent and were purchased by  Prasanna benami in the name of Swarnalata.  The deed  of gift  shows  that the transaction was entered  into  out  of natural  love and affection of the donor for the  donee  and for  the respect and reverence which the grand-son  bore  to the grand-father.  There is no direct evidence as to whether the  plaintiff was present in Bankura at the time when  this deed  was  computed and registered.  It is  the  plaintiff’s case that he was not.  The suit was filed in 1952, more than eight years after the date of the transaction and more  than four  years  after  the  death  of  Prasanna.   There  is  a considerable body of evidence that in between 1944 and  1948 a  number  of  settlements of different  plots  of  land  in village  Lokepur had been effected by Balaram acting as  the natural  guardian  of his son Subhas Chandra and in  all  of them  the  Nirupan Patra had been recited and in  each  case

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Prasanna   had  signed  as  an  attesting  witness.    These settlements  were made jointly with the other co-sharers  of Prasanna.  In 1947 the Muni- 334 cipal Commissioners of Bankura filed a suit against Prasanna for  recovery  of  arrears of  taxes.   Prasanna  filed  his written  statement  in  that suit stating  that  he  had  no interest  in  the  property.   After  Prasanna’s  death  the Municipal  Commissioners did not serve the plaintiff with  a writ  of  summons  in the suit but obtained  a  decree  only against  Balaram  ex  parte.   The  plaintiff  attended  the funeral ceremony of his father in 1948, but he alleges  that the never came to know of any of the settlements of land  in Lokepur after 1944.  He admitted never having paid any  rent to  the superior landlords and stated that he came  to  know about  the  deed  of settlement some two  years  before  the institution  of the suit from his cousins none of whom  were called as witnesses. We  may now proceed to consider what are the  essential  in- gredients  of undue influence and how a plaintiff who  seeks relief  on this ground should proceed to prove his case  and when the defendant is called upon to show that the  contract or  gift  was not induced by undue influence.   The  instant case  is one of gift but it is well settled that the law  as to undue influence is the same in the case of a gift  inter- vivos as in the case of a contract. Under  s.  16 (1) of the Indian Contract Act 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.  This shows that the court trying a 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’? Sub-section (2) of the section is illustrative as to when  a person is to considered to be in a position to dominate  the will  of another.  These are inter alia (a) where the  donee holds  a real or apparent authority over the donor or  where he stands in a fiduciary relation to the donor 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. Sub-section (3) of the section throws the burden of  proving that  a contract was not induced by undue influence  on  the person  benefiting by it when two factors are found  against him, namely that he is in a position to dominate the will of another and the transaction appears on the face of it or  on the evidence adduced to be unconscionable.  335 The  three  stages  for consideration of  a  case  of  undue influence  were expounded in the case of Ragunath Prasad  v. Sarju Prasad and others(1) in the following words :-               "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 stage has been reached-namely,  the               issue whether the 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

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             the  burden of proving that the  contract  was               not induced     by  undue influence is to  lie               upon  the  person who was in  ,I  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 relations  of  these               parties.   Were they such as to put one  in  a               position to dominate the will of the other?"               It must also be noted that merely because  the               parties  were nearly related to each other  no               presumption  of undue influene can arise.   As               was  pointed out by the Judicial Committee  of               the  Privy Council in Poosathurai v.  Kappanna               Cheittiar and others(2) .--               "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". The law in India as to undue influence as embodied in s.  16 of  the Contract Act is based on the English Common  Law  as noted in the judgments of this Court in Ladli Prasad Jaiswal v.  Karnal  Distillery  Co. Ltd. and  ors(3).  According  to Halsbury’s Laws of England, Third Edition, Vol. 17, p.  673, Art.  1298, "where there is no relationship shown  to  exist from which undue influence is presumed, that influence  must be  proved".  Article 1299, p. 674 of the same volume  shows that "there is no presumption of imposi- (1) 51 l.A. 101. (2) 47 I.A. p. 1. at p. 3. (3)  [1964] 1 S.C.R. 270 at 300. 336 tion  or  fraud  merely because a donor is old  or  of  weak character"The  nature  of relations from  the  existence  of which undue influence is presumed is considered at pages 678 to  681 of the same volume.  The learned author notes at  p. 679 that "there is no presumption of undue influence in  the case  of a gift to a son, grandson, or  sonin-law,  although made  during the donor’s illness and a few days  before  his death".   Generally speaking the relation 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.  Section 16(2)  of the  Contract  Act  shows that such a  situation  can  arise wherever the donee stands in a fiduciary relationship to the donor or holds a real or apparent authority over him. 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(1)  above

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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."               In  the fight of the above, it appears  to  us               that there was no sufficient pleading of undue               influence at all in the plaint.  The  relevant               portion  of  paragraph 4 of the plaint  is  as               follows :-               "The  plaintiff’s father along with  defendant               No. 3 (the sister) on the advice of  defendant               No.  2  (the  brother  Balaram)  without   the               knowledge  of  the plaintiff got  a  collusive               Nirupan  Patra  executed  regarding  the  said               property   on   the  6th  Sraban   1351   B.S.               corresponding  to 22nd July, 1944 in the  name               of the defendant No. I son of defendant No.  2               and   had  it  registered-and  the   plaintiff               recently on 13th June, 1952 last, has come  to               know  of  the same through  reports  from  the               people  .... Moreover, the plaintiff’s  father               being 90 years old at the time of execution of               the  said Nirupan Patra and being  subject  to               senile  decay in consequence thereof,  he  was               devoid of the power of discrimination  between               good  and  evil.  Hence he  not  having  sound               disposing  mind  had no power to  execute  the               said deed of Nirupan Patra in favour of               (1)   [1964] 1 S.C.R. 270 at 300.                                    337               the defendant No. 1 being in possession of his               senses and he did not execute the same in good               faith  voluntarily and out of his  free  will.               The plaintiff recently on 13th June 1952  last               came  to  learn that defendant  No.  2  taking               advantage of the absence of the plaintiff  and               exercising undue influence upon him and having               won  over the defendant No. 3 also by  holding               out   temptation   and   by   misleading   and               exercising  undue influence upon her  got  the               said fraudulent deed of Nirupan Patra executed               in  favour  of the defendant No.  1,  his  son               living in joint mess with him." It  will  at  once  be noted from the  above  that  the  two portions  of the extracts from paragraph 4 are  in  conflict with  each  other.   According  to  the  first  portion  the plaintiff ’s father Prasanna colluded with his sister on the advice of his brother to execute the deed of gift.  The word "collusion" means a secret agreement for illegal purposes or a conspiracy.  The use of the word "collusion" suggests that Prasanna knew what he was about and that he did it  secretly or fraudulently with the object of depriving the  plaintiff. According  to the second portion of the  extract,  Prasanna, because  of  his old age, was subject to  senile  decay  and could  not discriminate between good and evil.  This  hardly fits in with the case of collusion which implies that a  man does  something evil designedly.  There is no suggestion  in this  paragraph  of the plaint that Prasanna was  under  the domination  of Balaram and that Balaram exercised his  power over Prasanna to get the document executed and registered by Prasanna.  It will be remembered that nominally the property stood in the name of the sister who was also a party to  the

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document  and according to the extract quoted above  Balaram had exercised undue influence over her also. The  above allegations were generally denied in the  written statements  of  the  1st and the  2nd  defendants.   It  was asserted  in  paragraph 12 of the written statement  of  the first  defendant  that  "Prasanna Kumar  Mushib  was  a  man endowed  with  particular wisdom and  knowledge  of  worldly affairs  and  was  a man of independent  spirit  and  had  a fertile  brain.  It was not possible for anyone to  exercise any  influence upon him..... Up to the time of his death  he himself  was  active  and  strong  and  had  a  sound  brain also  .... Of his own accord in good faith  and  considering the  surrounding circumstances and defendant No. I  being  a bright jewel of the family and out of profound affection for him,  he voluntarily, in good faith and being urged  by  his affection  towards  this defendant has made a  gift  of  the properties  in  suit  to this defendant  by  way  of  family settlement." The only issue out of seven which were framed by the learned Subordinate  Judge  at the trial of the suit which  has  any bearing on this point is issue No. 5. This reads 3 3 8 .lm15 "Is  the deed of gift by the grandfather to defendant No.  I valid  and  true : If so, is the suit  maintainable  without setting aside the deed of gift?" It will be noted at once that even the expression "undue in- fluence"  was not used in the issue.  There was no issue  as to whether the grandfather was a person of unsound mind  and whether he was under the domination of the second defendant. At  the  trial  several  witnesses  were  examined  by   the plaintiff  for  the purpose of showing that Prasanna  was  a person of unsound mind at the time when he executed the deed of  gift.  We have been taken through the evidence  on  this point  and we fully agree with the judgment of  the  learned Subordinate  Judge who was "  unable to hold  that  Prasanna was a man of unsound mind when he executed Ex.  G or that he was  not  aware of the fact of transfer".   The  plaintiff’s only  statement in examination in chief was that his  father was  not  of sound mind for 10 or 12 years from  before  his death.  Is it to be believed that he did not know about  the Nirupan  patra  until  four years after  the  death  of  his father?   This -statement of his can hardly be true  because the  Nirupan Patra -does not stand by itself, but was  given effect  to in several deeds of settlement which came out  in evidence  at  the  trial.  There  was  evidence  before  the Subordinate Judge to show that Prasanna had filed a  written statement  in  money  suit  No. 217 of  1948  filed  by  the Municipal  Commissioners  of  Bankura, that he  was  not  in possession  of the holding.  The learned Subordinate  Judge, in  our  opinion, Tightly came to the  conclusion  that  the document of settlement ,executed after the deed of gift  and Prasanna’s  written statement in the suit by  the  Municipal Commissioners  showed that Prasanna was fully aware  of  the fact  that he had transferred the property to defendant  No. 1. Unfortunately, however, the learned Judges of the High Court ,accepted  the  contention  put forward  on  behalf  of  the plaintiffappellant  that  the onus was upon  the  contesting defendants   to  prove  that  the  deed  in   question   was intelligently  executed by Prasanna with full  knowledge  of its   contents.    The  learned  Judges  referred   to   the circumstances, (a) the deed of gift was a complete departure from  the course of normal inheritance, (b) Prasanna  was  a very old man at the time of the alleged deed of gift and (c)

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the  plaintiff  was away from the family house at  or  about this  time  and concluded ,therefrom that "these  being  the circumstances  under which the deed was executed, the  court below  should  have made a presumption that  the  donee  had influence  over  the donor and the court below  should  have asked  for proof from the respondents that the gift was  the spontaneous  act  of the donor  acting  under  circumstances which enabled him to exercise an independent will and  which would 339 justify the court in holding that the gift was the result of a  free exercise of the donor’s will.  They further went  on to add :-               "This aged man was becoming older from day  to               day  and we may take it for granted  that  his               intelligence or understanding did not  improve               with  age but it must have  deteriorated  with               the advancing years.  If, therefore, the Court               can presume, as it should presume, that he was               under the influence of his younger son at  the               date  of  the gift then the  Court  will  also               presume   that   this  influence   must   have               continued till the death of Prasanna." It  will  be  noted that the High Court did not  come  to  a finding that Balaram was in a position to dominate the  will of  his father (Subhas his son being only about 14 years  of age  at  the date of the deed of gift).  Nor  did  the  High Court  find that the transaction was an unconscionable  one. The  learned  Judges made presumptions  which  mere  neither warranted by law nor supported by facts.  Indeed, it appears to  us  that  the learned Judges  reached  the  third  stage referred to in the case of Raghu Nath Prasad v. Sarju Prasad (1) completely overlooking the first two stages. A  case  very  similar  to  the  instant  one  came  up  for consideration  before  the Judicial Committee of  the  Privy Council  in  Ismail  Mussaiee Mookerdum v.  Hafiz  Boo  (2). There one Khaja Boo, a Mahomedan woman, who died at the  age of 90 years entered into the impugned transactions when  she was  nearly  80.   At that time she had  an  only  son,  the plaintiff  in  the suit, and the defendant  respondent,  her daughter.  It came out in evidence that she was on terms  of bitter hostility with her son and much litigation had  taken place between them.  The daughter was a married woman  whose husband resided in Rangoon, but she herself was living  with her   mother  at  Brander.   The  result  of  the   impugned transactions   was  that  the  daughter  Hafiz  Boo   became possessed  of  nearly  the whole  of  her  mother’s  Rangoon properties or their proceeds.  The son alleged in the plaint that at the time of the occurrence the mother was  suffering from dementia and was not in a fit state of mind to  execute contracts  or to manage her affairs and was until July  1888 (she  having  died  in  the year  1900)  residing  with  the daughter  and  was  completely  under  her  domination   and control.   Before  the learned Trial Judge a large  mass  of evidence  was given directed to the question of Khaja  Boo’s mental  capacity in 1889.  The learned Judge found that  the plaintiff had failed to show that his mother was of  unsound mind  in  1889.   The  Court of  Appeal  came  to  the  same conclusion.   The learned Trial Judge, however, came to  the conclusion  that  Khaja Boo at the period  in  question  was entirely  under the control and domination of  her  daughter and that the latter had unscrupul- (1) 51 I.A. 101. (2) 33 I.A. 88. 340

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ously  used  her power over her mother in order to  get  her mother’s  property  into her own hands and  that  the  whole proceedings  ought  to  be avoided on the  ground  of  undue influence.  This finding was, however, reversed in appeal. The  Judicial Committee took the view that the  question  of undue influence was never properly before the court at  all. No  such  case  was set up in the  pleadings.   The  nearest approach  to  it was in the passage of  the  plaint  already cited in which it was said that Khaja Boo was entirely under the domination and control of her daughter, but that is only said  incidentally  in  connection with  the  allegation  of mental  incapacity which allegation formed the real case  of the plaintiff.  And accordingly when the issues were settled there  was  a clear issue as to Khaja Boo being  of  unsound mind in 1889, but none with regard to undue influence. The  Board  therefore concluded that the question  of  undue influence  was  discussed and considered not  upon  evidence given  with  reference to that question, but  upon  evidence called for a totally different purpose. It  will be noted that in this case no issue was  raised  of Prasanna having been of unsound mind at the date of the deed of gift and, as already noted, no issue was raised on  undue influence at all.  It is true that some evidence was adduced on the point as to whether Prasanna was of sound mind in the year  1944,  but that was wholly negatived  by  the  learned Subordinate  Judge and his finding was not upset  in  appeal except by way of presumption which does not arise in law. It is pertinent also to note the observation of the Judicial Committee in the above case at p. 94 --               "The  mere relation of daughter to mother,  of               course, in itself suggests nothing in the  way               of special influence or control.  The evidence               seems to their Lordships quite insufficient to               establish  any general case of  domination  on               the  part of the daughter, and  subjection  of               the  mother, such as to lead to a  presumption               against any transaction between the two.  With               regard to the actual transactions in question,               there   is  no  evidence  whatever  of   undue               influence brought to bear upon them." The same remarks may justly be made of the pleading and  the evidence adduced in this case. There  was practically no evidence about the  domination  of Balaram  over Prasanna at the time of the execution  of  the deed of gift or even thereafter.  Prasanna, according to the evidence,  seems  to have been a person who  was  taking  an active  interest  in  the management of  the  property  even shortly before his death.                             341 The  circumstances obtaining in the family in the year  1944 do  not  show that the impugned transaction was  of  such  a nature  as to shock ones conscience.  The plaintiff  had  no son.  For a good many years before 1944 he had been making a living elsewhere.  According to his own admission in  cross- examination,  he owned a jungle in his own right  (the  area being given by the defendant as 80 bighas) and was therefore possessed  of  separate  property in which  his  brother  or nephew  had no interest.  There were other joint  properties in  the  village of Parbatipur which were not  the  subject- matter of the deed of gift.  It may be that they were not as valuable as the Lokepur properties.  The circumstance that a grand -father made a gift of a portion of his properties  to his only grandson a few years before his death is not on the face  of  it an unconscionable  transaction.   Moreover,  we cannot lose sight of the fact that if Balaram was exercising

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undue influence over his father he did not go to the  length of having the deed of gift in his own name.  In this he  was certainly acting very unwisely because it was not out of the range  of possibility that Subhas after  attaining  majority might have nothing to do with his father. Once we come to the conclusion that the presumptions made by the  learned Judges of the High Court were not warranted  by law  and  that  they did not take a  view  of  the  evidence adduced at the trial different from that of the  Subordinate Judge on the facts of this case we must hold that the  whole approach  of the learned Judges of the High Court was  wrong and as such their decision cannot be upheld. The  learned  Additional Solicitor-General  also  wanted  to argue that the suit was defective, because the plaintiff was out  of  possession  and  had not asked  for  a  decree  for possession  in  his plaint as he was bound to do if  he  was asking for a declaration of title to the property.  It is to be noted that we did not think it necessary to go into  this question and did not allow him to place the evidence on this point  before  us as we were of the view that  the  case  of undue influence had not been sufficiently alleged either  on the pleadings or substantiated on the evidence adduced. The  result is that the appeal is allowed, the judgment  and decree  of  the High Court set aside and that of  the  trial court  restored.  The respondents must pay to the  appellant costs throughout. G. C.                                Appeal allowed, 342