Judgement

Appeal from a judgment and decree of the High Court (July 30, 1912) reversing a decree of the Subordinate Judge of Madura.

The appellant sued defendants now represented by respond ents, for cancellation of a deed of sale dated March 17, 1906, executed by him in favour of the respondent Kannappa Chettiar (the third defendant) on the ground of fraud and undue influence. The undue influence alleged by the plaint was that of the first and second defendants, maternal uncles of the appellant the plaint also alleged misrepresentation by the first three defendants and want of consideration.

The Subordinate Judge, after a consideration of the evidence, said that he had no doubt that the transaction was unconscionable and unfair, and that the plaintiff was induced to enter into it by the representations and influence of the first defendant, who stood in a fiduciary relation to the plaintiff; and that the first defendant influenced the plaintiff partly to benefit himself at the plaintiffs expense, also undue pressure which the third defendant was able to exercise upon him. He also found that

23 Law. Rep. 47 Ind. App. 1 ( 1919- 1920)

Poosathurai V. Kannappa C hettiar 124

certain debts, stated as being part of the consideration, did not exist. In the result the Subordinate Judge made a decree setting aside the deed conditionally upon the appellant paying to the first respondent the sum of Rs. 6,725 and interest.

The High Court on appeal reversed the decision of the Subordinate Judge and dismissed the suit. The learned judges after summarizing the evidence said that there was nothing to suggest that the first defendant obtained any benefit out of the sale, that the plaintiff had failed to show that the first defendant, in concert with the third defendant, had induced the plaintiff to enter into the transactions to his detriment. With regard to the debts referred to, they said that the evidence was not satisfactory, but that the amount was subject to litigation and it was impossible to say that the figure stated in the deed was such as to raise an inference that the first defendant had acted dishonestly in accepting it on behalf of the plaintiff.

1919. Oct. 23, 24, 27. Sir Erle Richards K.C. and Dube for the appellant.

De Gruyther K.C. and Kenworthy Brown (who were not called upon) for the respondents.

Nov. 18. The judgment of their Lordships was delivered by Lord Shaw of Dunfermline. This suit has been brought by the present appellant for the cancellation of a deed of sale executed by him on March 17, 1906. Cancellation was decreed by the Subordinate Judge, and the decision was reversed by decree of the High Court of Judicature at Madras.

The real and only point at issue between the parties is whether the deed in question should be cancelled on the ground of undue influence. In the Court of the Subordinate Judge this point did not clearly appear from the issues which were framed. But an examination of the proceedings and evidence shows that it is to an issue of this kind that the plaintiff was throughout groping. The High Court properly discerned that; and the learned counsel for the appellant properly presented the case from that point of view.

It is not necessary to speculate whether the provisions of the Indian Contract Act differ in any particulars from the doctrines of the English law upon this subject. For no such differences are suggested to have any bearing on the issue between these parties. The issue in the present suit is an issue of fact, and there does not appear to the Board to be any sufficient reason for doubting that the judgment arrived at in the High Court is sound.

The Indian Contract Act by s. 14 provides that " Consent is said to be free if it is not caused by .... undue influence as defined by s. 16." By s. 16, sub-s. 1, " the contract is said to be induced by ‘undue influence where the relations existing between the parties are such that one of the parties is in a position to dominate the will of the other, a