Undue influence under Indian Contract Act mandates that the burden of proof lies on the party in a position of dominance to prove the absence of coercion in agreements.

J U D G M E N T

The plaintiff in O.S.No.131 of 1998 on the file of the Munsiff Court, Wadakkancherry is the appellant. Suit was filed for setting aside Ext.A1 sale deed and for recovery of possession. Suit was dismissed by the trial court. In appeal, the appellate court reversed the decree and judgment and a decree for declaration and recovery was passed. Parties are hereinafter referred to as the plaintiff and defendant as arrayed in the suit.

2. Plaint schedule property belonged to the plaintiff. The first defendant is the grandson of the plaintiff and the second defendant is the father of the first defendant. Plaintiff is a lady aged 70 years at the time of filing of the suit. Suit property is 3¼ cents of land. The plaint schedule property is the only property belonging to the plaintiff. She has three daughters. She has executed Ext.A1 sale deed in favour of the first defendant. Plaintiff's case is that it was executed when a police case was filed against the first defendant alleging cutting and ::2::

removing a tamarind tree from the neighbouring property. At that time, the defendants told the plaintiff that the neighbour would file criminal proceedings against her and if so, she would have to attend the court and if conveyance of the property is executed they alone need appear. Defendants also promised her that on closing of the litigation the property would be re- transferred. Plaintiff filed the suit on the further allegation that at the time when the incident was happened, she was residing along with her daughter, Sarojini, her son 1st defendant and second defendant, who is the husband of Sarojini. It is also alleged that she was depending on Sarojini, mother of the 1st defendant and further alleged that the defendants dominated the will of the plaintiff, she happened to execute Ext.A1 sale deed.

3. In the written statement filed by the defendants, they denied the plaint averments and prayed for dismissal of the suit. In the written statement it was admitted that there was a police complaint. Further stated that conveyance deed was executed after receiving consideration. It is also stated that the plaintiff had no necessity to depend upon the mother of the first ::3::

defendant as she had other daughters.

4. Suit was filed for setting aside Ext.A1 sale deed on the plea that the defendants exercised undue influence on the plaintiff. Suit was defended by the defendants as if it is a case of undue influence. The lower appellate court referred to Section 16 (1) of the Contract Act. Section 16(1) of the Contract Act recites that “a contract would be affected by undue influence where one in a position to dominate the will of the other uses that domination and obtain unfair advantage.” Sub section (2) of Section 16 stipulates “a person is deemed to be able to dominate the will of another where he holds a real or apparent authority over the other or where he stands in a fiduciary relationship to be other or where the mental capacity of the other is even temporarily affected by reason of age, illness or mental or bodily distress.” Sub Section (3) deals with the nature of proof and burden. It reads as follows:

“Where a persons who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of ::4::

proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other”.

As I said earlier, plaintiff was aged 70 years at the time of filing of the suit. She hails from a poor family. The only asset she owns is the 3¼ cents of land. She has got three daughters. Except the mother of the first defendant the other daughters are not attending to her needs. She is residing along with her daughter Sarojini, who is the mother of the first defendant and wife of the 2nd defendant. In Ext.A1 sale deed the consideration show is Rs.1,000/-. As PW1 plaintiff test