K. K. Mathew, J.
1. This is an appeal by the 1st defendant from a decree in a suit for setting aside a settlement deed and a will executed toy the plaintiff. The suit was instituted toy the next friend of the plaintiff. The plaintiff died since the filing of the appeal. The plaintiff was about 75 years of age at the time when fie executed these documents. He was a Havik Brahmin toy caste. He had married thrice, but had no children by his first two wives. The third wife is the 2nd defendant. She had two daughters Parameswarl Amma and Adlthiamma by him. The latter is the next friend of the plaintiff. Parames-wari Amma has 7 children, 5 males and 2 females; the 1st defendant is the eldest of them. Adlthlamma has two children, a son and a daughter. The husband of Adithiamma died sometime In 1937 and their children were very young at that time. The properties left by the husband could not be looked after by them. The plaintiff and his wife therefore stayed with Adlthlamma and her children at Madakatte from 1938 and looked after their affairs till 195W. In 1950 they shifted their residence to Fathur village 1. e. to Sodankur alter having constructed a house there and were residing there. The 1st defendant was residing with them since 1955 and was assisting the 2nd defendant as the plaintiff was sufferring from diabetes. The case of the plaintiff was that the 1st defendant by taking advantage of the weak condition of the plaintiff, got a will executed by him bequeathing almost all his properties to the 1st defendant. Plaintiff's further case was that in December, 1955, he was taken to Mangalore under the pretext of giving him medical treatment, and that while he was there, he was made to execute a settlement of his properties Ext. B 3, that he was unable to understand the nature and the contents of Ext. B 3 when he executed the same, that at the time he was unable to manage his affairs on account of his weak Intellect and old age, that his affairs were being managed by the 1st defendant and that he took undue advantage of his helpless position. Under the settlement, the bulk of the properties belonging to the plaintiff were given to the 1st defendant, the plaintiff reserving a life Interest for himself and making a provision for the maintenance of his wife, the 2nd defendant. The document was registered on 15-12-1955. The substantial ground on which the settlement was sought to be set aside was that the 1st defendant under the guise of assisting the 2nd defendant was really managing the affairs of the plaintiff; that the plaintiff on account of his illness became weak in mind and body and that ha was unable to understand and appreciate the nature of the documents he executed; that the settlement was executed under undue influence and on account of fraud of the first defendant; that the settlement did not disclose the true state of affairs; that the debts alleged to be due to the 1st defendant's father and his uncle and set out therein were not really due; that the debt actually due from the plaintiff under a promote executed in favour of the son of the next friend was omitted to be mentioned, that but for the undue influence and compulsion of the 1st defendant, the plaintiff would have given the properties to his two daughters and all their children and would not have given the 1st defendant the bulk of the properties; that the provisions in Ext. B 3 were unconscionable; and that the recital therein that the plaintiff's next friend was given large amounts in the past was false.
2. The substantial contention of the 1st defendant was that he was not in a position to domlnata the will of the plaintiff, that the plaintiff, although he was suffering from diabetes was not of weak intellect, that he was able to manage his affairs and did not require the assistance of any person; he further contended that Adlthlamma and her son proved ungrateful to the plaintiff and that It was because of that they were excluded from his bounty in the settlement, that the plaintiff was taken to Mangalore for treatment as advised by Dr. K. F. Ganesan and not for the purpose of making him execute any document clandestinely, that while the plaintiff was in Mangalore he expressed his desire to execute a settlement, that on 13-1)2-1955 the settlement was executed and it was attested by two doctors and was registered by the Sub Registrar, that the allegation in the plaint that the doctors attested text. B 3 under the influence of the 1st defendant was false, that item No. 2 in the plaint A schedule which is a garden and in Bayar village was not the subject matter of the settlement deed, that the movable properties described in the B schedule were not included in the settlement, it was further contended that the document was executed by the plaintiff voluntarily of his own free-will and judgment and that it was not liable to be set aside on any of the grounds mentioned in the plaint.
3. The 2nd defendant supported the plaintiff's case,
4. The findings of the trial court are that the settlement was executed by the plaintiff without understanding the real implication of the document, that he was not in a sound disposing state of mind at the time when he executed it, that the settlement deed and the will referred to were vitiated by fraud and undue Influence, that the plaintiff was a person of weak Intellect and was unable to manage his affairs. On these findings it decreed the plaintiff's suit.
5.When the appeal was originally Heard by this court, the court directed the evidence of some of the witnesses to be taken by the court below and the court below in pursuance to the direction of this court has recorded the evidence of these witnesses and that evidence also was available to us at the time when the case was finally argued.
6. From the evidence it is clear that the plaintiff was a man who had considerable properties. He got these properties under Ext. A S, ,his family partition and at the time he got the properties he had debt of its. 14,000/-. He sold one item of property for Rs. 3,000/- and made a gift of a small portion of another property to his nephew P. W. 2 and his brother on 14-7-1942. He filed a petition before the Debt Conciliation Board, Ext. A 9, for a settlement of his debts. He was residing in Bodankur from 1950. Before that he and the 2nd defendant were residing with their daughter Adlthlamma at Madakatte. The husband of Adl-thiamma died sometime in 1937. Plaintiff and Ms wife began to reside there from 1938 as Adl-thiamma's children were minors and were unable to look after their family affairs, it is also clear from the evidence that the plaintiff and his wife left Madakatte where Adithlamma and her children were residing sometime in 1950. P. W. 5, the next friend, in her evidence stated that the plaintiff used the Madakatte funds i. e., the funds available from the Madakatte properties belonging to Adithiamma and her children for acquiring some properties in his own name. There is no evidence to substantiate that case. it appears that some misunderstanding arose between the plaintiff and Ishwara Bhatt, the son of Adithlamma when he came of age and that was probably the reason why the plaintiff and his wife left Madakatte. Before they left Madakatte they had constructed a building in Sodankur. There is no evidence to show that the plaintiff during his stay at Madakatte expended any part of his Income for the benefit Adithlamma and her children. The statement in Ext. B 3 that he had given sufficient properties to Adithlamma has not been proved in the case. There is no evidence to support the contention tion of the 1st defendant that any property belonging to the plaintiff had been given to Adithlamma as stated in Ext. B 3. it is stated in the evidence of P. Ws. 3 and 5 and some of the other witnesses of the plaintiff that in 1955 March the plaintiff had a fall and that thereafter he became unable to look after his affairs. The version of P. W. 3, his Wife and P. W. 5, the next friend as well as of P. Ws. 7 and 8 that after the fail the plaintiff was unconscious, was unable to, move about, was answering the calls of nature in his bed, and was unable to recognise persons has not only been not substantial but stands disproved by the other reliable evidence in the case. The plaintiff was suffering from dibetes and that from 1955 his disease took a, serious turn. He was being treated by a doctor C. W. 3. C. W. 3 has stated that he was treating the plaintiff under the advice of Dr. Ganesan, D. W. 1 it is very clear that the case set up by the plaintiff's witnesses that the plaintiff was unconscious and was therefore unable to understand the nature and the contents of the settlement cannot be sustained for a moment. For reasons which will be given shortly it is impossible to sustain the findings of the court below that the plaintiff was not in a sound state of mind at the time he executed the settlement Ext, B-3, But it does not follow that merely because the plaintiff's witnesses gave an exaggerated version about the mental and physical condition of the plaintiff that the alternative case or undue influence pleaded by him in the plaint is untrue. Therefore we have to consider also the alternative case namely whether the 1st defendant, was in a position to dominate the will of the plaintiff and whether undue influence was actually exercised and that it was as a result of the exercise of undue influence by the 1st defendant that Ext. B-3 deed has been executed.
7. The first question is whether the plalntiff was in a sound disposing state of mind and whether he became so weak in intellect and mind by reason of old age and bodily distress at the time of the execution of Ext. B-3 and that he was unable to understand and appreciate the nature and contents of the document he was executing. From the evidence in the case it is seen that the plaintiff was a veteran litigant and that other people used to consult him about their litigations, and that he was a clever man. The evidence of P. W. 3 is clear that her husband was a person well-versed in litigation and that he was clever. So also is the evidence of P. W. a. Therefore, unless there are circumstances to show that at the time of the execution of Ext. B-3 the plaintiff became a person of weak intellect it has to be presumed that the plaintiff continued to possess that mental capacity when he is said to have possessed. The evidence in this case points to the conclusion that at the time when he executed Ext. B-3, he had a sound disposing mind. D. W. 1 Dr. Ganesan is categoric that the mental capacity of the plaintiff was not in any way impaired by the disease for which he was treating him, He has sworn that the plaintiff was in possession of his mental faculties, that his answers to the questions put to him were rational and that he was not in any way weak in intellect or in mind, D. W. 1 examined the plaintiff first on 27-11-1955 in Sodankur in the-company of C. W. 3 and thereafter he examined him at Mangalore. He is an attestor to Ext. B-3. We think that his evidence to the effect that at the time when the plaintiff executed Ext, B-3 he had a sound disposing mind has to be accepted. The evidence of D. W. 7 Dr. Mallayya is to the effect that the plaintiff was under the treatment of Dr. Ganesan in the Hama-krishna Nursing Home which was being conducted by him in partnership and that the plaintiff had the capacity to understand and appreciate the nature of the document at the time he executed Ext. B-3 and tnat his mental faculties were not in any way materially impaired by the disease. C. W. 2 is Dr. M. S. .Prabhu. He treated him under the instruction of Dr. Ganesan while the plaintiff was in Rama-Krishna Nursing Home at Mangalore. (He does not say any material evidence), it is not possible to say that D Ws. l and 7 were in any way partial towards the 1st defendant. The evidence of these witnesses, therefore, would show that the case put forward by the plaintiff's witnesses P. W. 3 and P. W. 5 that after the fall in 1955 the plaintiff was unconscious and that he was unable to recognise persons cannot be accepted as correct, it is also clear from the complaint Ext. B 8, made by the son of Adltniamma to the Police at Manjeshwar to the effect that the plaintiff was being kept in unlawful custody by the 1st defendant and was trying to Influence him to get a document executed by mm, that the plaintiff had a sound disposing mind at that time.
8. On the side of the plaintiff we have the evidence of P. ws. 1 and 6 as regards the mental and physical condition of' the plaintiff. P. W. 1 is a doctor who examined the plaintiff on 10-3-1956. lie has Issued a certificate Ext. A-14 on 6-6-1956, and from his evidence it would appear that at the time when the plaintiff executed Ext. B-3, plaintiff was not in a tit mental condition, it may be noted that the certificate Ext. A-14 relates to the mental condition of the plaintiff on 10-3-1956 and that is after the date of the execution of the document Kxt, B-3. The evidence of P. W. 6 the Opthalmic Burgeon is to the same effect. He Issued a certificate Ext. A-19 on 8-11-1957 and the certificate shows that the plaintiff''s mental faculties were impaired on account of Arteric-Sclerosls and that he was in a weak condition on account of old age. P. W. 6 examined the plaintiff on 11-3-1956. The certificate and the evidence of these witnesses are not of much assistance for proving the condition of the plaintiff on 13-12-19S5 when Ext. B-3 was executed, in Shiddubai v. Nilappagauda, AIR 1924 Bom 457 at p. 459 it is observed that the evidence of a medical witness, however eminent he may be, relating to the previous condition of a patient is not of much evidentiary value when there is positive evidence as to his actual condition at that time. To the same effect is the ruling reported in Ham Bundar V. Kali Narain, AIK 1927 cal 889). D, W. 4 the Sub-Registrar who registered the document is positive that the plaintiff had, a sound disposing mind at the time when the document was registered. He has made a note of the statement made by the 'Plaintiff at the time of the registration, and that is Ext. B-7. Ext. B-7 would indicate that the plaintiff was able to understand and appreciate the contents of the document which he: executed. Ext, B-7 would also indicate that the plaintiff was in normal mental condition at that time. The evidence of 1). W. 4 was attacked on the ground that he had no business to make a record like Ext. B-7 as he was not authorised to enquire into the mental condition of the plaintiff. Rule S88 occurring at p. 193 of Part 11 of the Madras Registration Manual would seem to indicate that a person registering a document has to ascertain that the executant of the document is conscious of what he is doing and should normally record a statement from him to show that he is conscious of what he is doing. The evidence of U. W. 4 is to the effect that the document was read over to the executant and he understood the contents of the document and that D. W. 4 was satisfied that the document was being executed by the plaintiff by exercising his free-will and judgment.
9. it wag argued that D. W. 4 is a person against whom there were complaints and that his conduct in connection with the registration of another document was being enquired into by his superiors, it was also argued that the fact that he refused to issue a copy of Ext. B-7 to Ishwara Bhatt, the son of Adithiamma when an application for the same was made is proof that D. W. 4 was biased in favour of the 1st defendant. We are not able to come to the conclusion that D. W. 4 was in any way favouring the 1st defendant merely because on a wrong view of the matter he refused to issue a certified copy of Ext. B7 to the son of Adithiamma.
10. In this connection the evidence of Upendra Naik, JJ. W. 5, in the case is material. Upendra Naik has sworn that he came to Mangalore on the llth December 1955, and saw the plaintiff, that he then expressed his desire to execute a settement deed and asked Upendra Naik to bring Sudarsan Rao, the document writer. He went and brought Sudarsan Rao, and in his presence the plaintiff dictated the terms of the settlement deed to be executed to Suda-rsan Rao, it is clear from the evidence of Upendra Naik that Ext. B-3 was prepared in accordance with the direction given by the plaintiff to Sudarsan Rao. Sudarsan .Kao was no stranger to the plaintiff as he had written another document for the plaintiff in 1944. Therefore there was nothing strange in the plaintiff calling for Sudarsan Rao for the purpose of writing the document. Sudarsan Kao was not originally examined by the trial Court, but he was examined as U. W. 1 in pursuance to the direction of this Court and his evidence also is available, in his evidence he has said that Upendra Naik did not meet him or ask him to go over to the plaintiff and that he did not meet the plaintiff on the llth, that he wrote the document at the instance of the 1st defendant and one Ramayya Naik who came to his house and it was they who gave him the terms of the document to be executed. We do not think that we can believe the evidence of U. W. 1 when he sayg that Upendra Naik did not ask him to go over to the plaintiff and that it was not the plaintiff who dictated the terms of the document to be executed. The further statement by C. W. 1 that he was not acquainted with Upendra Naik does not appear to be correct because he appears to have executed a document for Upendra Naik sometime ago.
11. The plaintiff was taken to the Kamakrishna Nursing Home at Mangalore on the advice of Dr. Ganesan. The evidence of Dr. Ganesan is very positive that he advised that the plaintiff should toe taken to Mangalore for examination and treatment. The plaintiff came to Mangalore on the 10th and he was X-rayed at Bharatha Clinic and it was after that that the plaintiff was taken to the Ramakrishna Nursing Home as he could not get admission in any other nursing home. The 2nd defendant was with the plaintiff at the time and she had taken sufficient money. with her for the purpose of their stay at Mangalore. It is also clear that the title deeds in respect of all the properties were with the 2nd defendant because Upendra Naik has stated that the 2nd defendant gave the prior documents to Sudarsan Rao for preparing Ext. B-3, and Ext. B-3 would indicate that it was prepared after looking into the prior title deeds. It is averred in the plaint that the plaintiff executed a will sometime in September 1955, and by that will he had disposed of almost all his properties in favour of the 1st defendant. The 1st defendant, no doubt, denied the existence of the will in the written statement, but it seems that in the enquiry in the pauper petition he admitted the existence of the will. The contents of that will are not known as the will itself is not forthcoming. If a will of the nature as alleged by the plaintiff was executed. It shows a determination on the part of the plaintiff to give the properties to the 1st defendant. The plaintiff might probably have intended to execute Ext. B-3 in Mangalore. Bo far as the plaintiff is concerned1 there was nothing strange in his executing the document in Managlore as the plaintiff had executed another document in Mangalore on a previous occasion with the assistance of Sudarsan Rao. In these circumstances the finding of the Court below that the plaintiff was not in a sound disposing state of mind when he executed Ext. B-3 cannot be sustained.
12. The second question to be considered is whether the 1st defendant was in a position to dominate the will of the piaintiff, whether the plaintiff executed the document under that influence, and whether the provisions in the document are so unconscionable that no person exercising a freewill and free-judgment would have executed a document of this nature. The fact that the provisions in a document are so unconscionable that no right-minded man in his senses would have executed a document of that type is presumptive evidence of undue influence. Under Section 16 of the Contract Act if it is proved that a person was in a position to dominate the will of another and that the provisions in the document executed by the latter are unconscionable, there is a presumption that the document was executed under undue influence and the burden of proving that it was not so is upon the person who takes the benefit under the document.
13. in Kaghunath Prasad v. Sarju Prosad, ILR 3 Pat 279, at p. 284: (AIR 1924 PC 60 at p. 63) at is observed:
'if the transaction appears to be unconscious able the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position-to dominate the will of 'the other.'
It is an essential condition for the application of section 16 of the Contract Act that one party should be in a position to dominate the will of the other. No further question wilt arise until this is proved, in commenting upon Section 16 of the Contract Act, Lord Shaw said in the abovementioned case as follows:
'By that section three matters are dealt with, 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, the burden of proving that the contract was not induced by undue influence is to He 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 unconsciousness 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?'
14. it was argued on behalf of the appellant that the provisions in Ext. B-3 would not show that it was an unconscionable transaction. The argument was that although the plaintiff denuded himself of almost 'all his property, he reserved for himself a life interest in the properties and also made ample provision for the maintenance of his wife and that the mere fact that if the plaintiff did not execute a will bequeathing his properties to other persons, the property would have devolved on his two daughters, would not show that the document was unconscionable. The test to decide whether the provisions in a particular document are unconscionable is whether a right-minded person would have executed a document of the type. (See the decision of the Privy Council in Mohammed Buksh Khan v. Hosseln Bibi, ILK 15 Cal 684 (PC).
15. The burden of proof as regards undue influence is upon the plaintiff in the case. There is no case that the 1st defendant was in a fiduciary relationship to the plaintiff similar to that of parent and child, guardian and ward, teacher and pupil, solicitor and client, or trustee and cesti que trust. The relationship of a grandson to his grandfather cannot be said to resemble that relationship. Therefore that mere fact cannot give rise to a presumption of undue Influence unless there is sufficient evidence to establish a general case of domination. In Tsmail Mussajee v. Haflz Boo, ILR 33 Cal 773 the Privy Council observed:
'The mere relation of daughter to mother in Itself suggested nothing in the way of special Influence or control; and the evidence was insufficient to establish any general case of domination on the part of the daughter, and subjection of the mother, such as to lead a presumption against any transaction between the two, and with regard to the actual transactions there was no evidence whatever of undue influence brought to bear upon them.'
In Pollock on Contract, 13th Edn. 485, it is observed:
'On the other hand the mere existence of a fiduciary relation of some kind is not enough to raise a presumption of undue influence. A widow whose son is managing the father's estate is not disabled by any rule of law from making a free gift to her son if she thinks fit. Nor is independent advice necessary, in cases outside the specially guarded classes, save so far as it is material to show that the act was not only voluntary but understood.
In the absence of any special relation from which influence is presumed, the burden of proof IS on the person impeaching the transaction, and he must show affirmatively that pressure or undue influence was employed.'
16. Though there was an allegation in the plaint that the 1st defendant was residing with the plaintiff after 1950 and assisting the 2nd defendant, there is no specific averment that the 1st defendant was managing the entire affairs of the plaintiff, that the plaintiff was unable to manage his affairs and that confidence was reposed in him by the plaintiff. As regards the question whether the 1st defendant was in a position to dominate the will of the plaintiff the allegation in the plaint, as already stated, was that the 1st defendant was residing with the plaintiff and was helping the 2nd defendant in managing the affairs of the plaintiff. It is not a case where the plaintiff was entirely dependent upon the 1st defendant. There is no evidence to show that the plaintiff was completely unable to manage his affairs or that he was dependent upon the 1st defendant for all his needs. The case of P. w. 3 and P. W. 5 and the other witnesses of the plaintiff that the plaintiff was unconscious, was bed-ridden and was unable to recognise persons cannot be believed. If that be so, the mere fact that the 1st defendant was helping the 2nd defendant in managing the affairs of the plaintiff is no reason for holding that the 1st defendant was in a position to dominate the will of the plaintiff especially when it is seen that the plaintiff was a clever man with a strong will. In ILR 33 Cal 773 (PC) it was held that a person who managed the affairs of another cannot be said to be in such intimate relation as to be in a position to dominate the win of the person whose affairs were being managed, and that the mere fact that a gift deed was executed in favour of the agent does not lead to any presumption that undue influence was exercised. The situation in this case appears to be more or less the same as in ILK 33 Cal 773 (PC).
17. The plaintiff had no case that the 1st defendant was in a position to dominate his will and was trying to get a document executed by the plaintiff in his favour at any time previous to the suit. There was no whisper of any undue influence or domination by the 1st defendant in Ext. B-8, complaint filed by the son of the next friend. In Ext. B-4, the notice Issued by the plaintiff there was no case that the 1st defendant was in a position to dominate, or that undue Influence was exercised by him and that Ext. B-3 was executed as a result of It. On the other hand Ext. B-4 would indicate that the only case then was that the plaintiff was not in a fit mental condition to execute the document and that the document was executed by the plaintiff while he was not in a fit condition, of mind for executing it.
18. The contention that the plaintiff was taken to Mangalore in order to have the document executed clandestinely does not appear to be correct. The plaintiff had executed at Mangalore Ext. A-13 in 1944 and that was in respect of the properties situate in Manjeshwar District. The defendant, no doubt, has denied that he had anything to do with the execution of Ext. B-3. But it was he who purchased the stamp paper and he had asked Dr. Ganesan on 11-12-1955 to attest the document. But these circumstances would not show that the document was executed under undue influence. Even though the 1st defendant disclaimed any knowledge of the contents of the document before its execution, he stated to Dr. Ganesan the nature of the document that was going to be executed. From that it does not follow that he exercised: undue influence over the plaintiff for executing the document.
19. The plea of undue influence was not properly set forth m the plaint. The plaintiff's witnesses had no case that the 1st defendant got Ext. B-3 executed by the plaintiff by exercising undue influence. The only case spoken to by P. Ws. 2, 3, 5, 7 and 8 is that the plaintiff was unconscious at the time when he executed the document and was unable to understand the nature of the disposition he was making. The case of undue Influence is really inconsistent with the case of want of mental capacity. The lower Court seems to have mixed up these issues and has come to the conclusion that the plaintiff was not in sound disposing state of mind at the time he executed Ext. B-3 and that it was executed under undue influence. In Sayeed Muhammed v. Fatten Muhammed, ILK 22 cal 34 at p. 33G (PC) it is observed by Lcrd Halsbury:
'Under these circumstances their Lordships are of the clear opinion that the evidence establishes sufficiently that the Diwan was in a state of mind which showed that he knew what he was doing, and that the act which he did was one which he Intended to do, and that he was capable of understanding the nature of consequences of the act which he had done.
The Chief Court appear to their Lordships to have mixed up the questions of undue influence and incapacity. They are totally different issues.'
The plaintiff had no specific case in the plaint of undue Influence except the vague allegation that the 1st defendant was residing with the plaintiff and that he managed to get the document executed to his advantage. Particulars of undue Influence were not specifically pleaded in the plaint. The Supreme Court has held m (sic). Parshad v. Karnal Distillery Co., Karnal, AIR 1963 SC 1279 that the particulars of undue influence must be set forth in the plaint in sufficient detail so as to enable the defendant to meet the case of the plaintiff. Although there is the allegation, that the 1st defendant was residing with the plaintiff for some time, that is not sufficient to warrant an Inference that the plaintiff's condition was such that he was in a position of being dominated by the 1st defendant. The witnesses examined in the case as to the mental condition of the plaintiff at the time when he executed Ext. B-3 are positive that his mental condition was such that he was able to understand the nature of the document. Considering the fact that the plain-tiff was a clever litigant and a man of strong will, it is difficult to disregard the evidence of these witnesses. The fact that the plaintiff was suffering from diabetes is no reason to Infer that this mental faculties were Impaired or that he became a man of weak Intellect at the time of the execution of Ext. B-3 Even assuming that the plaintiff was suffering from Arterio-Sclerasis, that does not mean that he became weak in intellect and mind and was unable to appreciate the nature and contents of Ext. B-3. In Ext. B-3 he had provided for a life Interest for himself; he has also provided in Ext, B-3 that Ms wife should be maintained by the 1st defendant and that if she does not want to reside in the house at Sodankur she was to get the value of 2 candies of area. These would show that he has provided for himself and his wife. The fact that he did not specifically provide for a right of residence for his wife in the house at Sodankur was pointed out by counsel for the respondent as a circumstance that he was making an unconscionable disposal of his properties. We are not satisfied that that would in any way indicate that the plaintiff was acting under the influence of the 1st defendant. Even though the plaintiff did not provide for a right of residence for his wife in the house, that would not show that he made an improvident settlement of his properties. No doubt the executant did not make any provision for his daughters in Ext. B-3. But the Court is not entitled to take into account these matters as it is a matter exclusively for the owner of the properties. He hart full dominion over his properties and as to whom he should give them was a matter entirely within his discretion. Even if he made an improvident settlement of his properties the Court cannot relieve him from that. In Alleard v. Skinner, (1887) 36 Ch D 145 Lindley L,. j., said:
'What then is the principle? is it that it is right 'and expedient to save persons from the consequences of their own folly? Or is it that it is right and expedient to save them from being victimised by other people? in my opinion, the doctrine of undue influence is founded upon the second of these two principles. Courts of Equity have never set aside gifts on the ground of the folly, improvidence or want of foresight on the part of the donor. The Courts have also repudiated any such jurisdiction. Huguenin v. Bascley, (1807) 14 Yes. 273 is itself a clear authority to this effect. It would obviously be to encourage folly, recklessness, extravagance, and vice. If persons could get back property which they foolishly made away with whether by giving it to charitable institutions or by bestowing it on less worthy objects. On the other hand, to protect people from being forced, tricked, or misled in any way by others into parting with their property is one of the most legitimate object of all laws.'
The plaintiff may have developed affection for the 1st defendant and the fact that he voluntarily gave the bulk of his properties to the 1st defendant cannot be the ground for setting aside that document if there is no proof of undue influence by him. I We think that there is no presumption that because the bulk of the properties were given to the 1st defendant the plaintiff was acting under undue influence of the 1st defendant. Although some English cases would seem to lend some support in favour of a presumption of that nature, the correct view appears to be what is stated by Pollock in his Tagore Law Lectures on 'fraud' :
'It is sometimes said that the mere fact of a large voluntary gift being made throws on the receiver the burden of proving that the donor was a person of general capacity to dispose of his or her property. There are some few dicta which seem to go that length, but it is not the accepted doctrine in England, in fact I have heard it laughed out of court (not in a reported case) by Sir U. Jessel.'
(See The Law of Fraud in Br, India by Pollock, . page (57.)
In Henry v. Armstrong, (1881) 18 Ch. D. 668; Kay J., said:
'No doubt there are to be found in reported cases dicta to the effect that the onus of supporting a voluntary deed rests upon those who set it up; but I do not think these dicta go so far as to say that, whenever a voluntary settlement is impeached' on any ground whatever, the onus is at once thrown on those who maintain it. As I understand it, the law is that anybody of full age and sound mind who has executed a voluntary deed, by which he had denuded himself of his own property, is bound by his own act, and if he himself comes to have the deed set aside--especially if he comes a longtime afterwards -- he must prove some substantial reason why the deed should be set aside.'
we think that the gift was the spontaneous act of the plaintiff, acting under circumstances which enabled him to exorcise an independent will. We do not think that the terms of Ext. B-3 wereof such an unconscionable nature that no reason able man would have executed a document of this,type.
20. We are not very much concerned with the actual extent of the properties or the Income which the plaintiff had from these properties. They have no material bearing on the decision of this case. We think that the finding of the Court below that Ext. B-3 was liable to be set aside on the ground that the executant was not in a sound disposing state of mind cannot be sustained. We also think that there is no sufficient allegation in the plaint of undue influence, and that even assuming that the allegation in the plaint can be said to be sufficient plea of undue influence, there is no proof that the 1st defendant was in a position to dominate the will of the executant or that the executant was in a weak state of mind or intellect due to old age, sickness or other mental or bodily distress in order to make a presumption that the 1st defendant was in a position to dominate. We, also do not think that the disposition under Ext. B-3 is so unconscionable as to warrant an inference of undue influence.
21. We therefore set aside the decree of the court below, allow the appeal and dismiss the suit. in the circumstances of the case, we make no order as to costs.