1. The plaintiff's suit is for the possession of her husband's property and for a declaration that a gift deed and a settlement deed executed by him in favour of Defendants 1 and 2 were invalid as they were executed under undue influence. The District Munsif granted decree to the plaintiff in respect of Ex. IV, the gift deed, and dismissed the suit as regards the settlement deed in favour of the 2nd defendant. The plaintiff appealed against the judgment of the District Munsif and the Subordinate Judge dismissed the appeal agreeing with the District Munsif that Ex. IV was executed under undue influence. The defendants have preferred this second appeal. Mr. T.V. Venkatrama Aiyar for the appellants contends that there is no evidence of undue influence in the case and the lower Courts were wrong in recording a finding on the point without evidence.
2. Mr. Subramania Aiyar, on the other hand, contends that the question of undue influence is one of fact; and both the Courts having found that there was undue influence when Ex. IV was executed it is not open to this Court to go behind the finding. No doubt the question, whether there was undue influence or not, and whether the document was executed under undue influence or not is a question of fact. But it is open to this Court to examine the evidence to see whether there is any evidence to support the finding. If there is no evidence then this Court would surely interfere with the finding of fact.
3. The facts proved in evidence are these: The plaintiff's husband, an old and feeble man, was unable to manage his own affairs for a number of years. The 1st defendant and Venkaji Ammal, his wife, lived with the deceased and looked after him and his affairs. The plaintiff being said to be congenitally deaf was unable to manage the affairs of her husband. Subbier executed a deed of settlement, Ex. B, on 21st May 1909 settling some property upon the 2nd defendant, the son of the 1st defendant and Venkaji Ammal. He also executed a Will, Ex.C, on 24th September 1909, bequeathing his property to his wife, the plaintiff, and to Venkaji Ammal, the wife of the 1st defendant. There is evidence to show that some years afterwards the 1st defendant removed his wife from the house of Subbier and went and lived in his own village which is at some distance from the village of Subbier. Subbier was helpless and finding that the 1st defendant and Venkaji Ammal had disappointed him after getting the settlement deed and the will executed, he executed Ex. D dated 2nd October 1913 revoking or cancelling the settlement deed Ex. B, dated 21st May 1909. He also executed Ex. D/, on 3rd 3-10-1913 revoking or cancelling the will dated 24th May 1909, Ex. C. He executed Ex. E on 3-10-1913 in favour of one Chinaswami Aiyar alias Veeraraghava Aiyar stipulating for Chinnaswami Aiyar looking after him and his wife and in consideration of his protecting him and his wife he should on his demise enjoy the ancestral and self-acquired properties mentioned in A Schedule, worth Rs. 500 and after the demise of his wife he should enjoy some more properties mentioned in B Schedule thereto worth Rs. 500. Subbier was evidently anxious to have the 1st defendant and his wife to look after him and the evidence is that they went back to his house about the end of 1913 or the beginning of 1914. On the 17th April 1914 Subbier executed the settlement deed Ex. III in favour of the 2nd defendant and Ex. IV, the gift deed, in favour of the 1st defendant. The 1st defendant and his wife lived in Subbier's house and looked after him till his death about four years afterwards. Besides evidence that Subbier was an old man and was in need of assistance to look, after him, his wife and his affairs there is no evidence to show that the 1st defendant or his wife Venkaji Ammal had so much influence over Subbier as to be in a position to exercise undue influence over him. Subbier had to get the help of the 1st defendant to look after his affairs and as his wife was deaf and incapable of managing his family affairs he required the help of the 1st defendant's wife who was his wife's sister.
4. The mere fact that Subbier found the help of Venkaji Ammal necessary for the proper management of his affairs is not by itself quite sufficient to enable the Court to presume that Venkaji Ammal was in a position to dominate the will of Subbier. A suggestion was made at a late stage of the case that Subbier had improper relations with Venkaji Ammal. If that was a fact there was every reason for Subbier for making over his property to his mistress. But the evidence on record does not justify any such suggestion. Subbier was an old man and Venkaji Ammal was his wife's sister and he had no child of his own and his wife was incapable of managing his family affairs and so he got his wife's sister and her husband to live in his house and look after his affairs. It may be that the 1st defendant stipulated for a substantial benefit for himself inasmuch as he was obliged to give up his own village and go to Subbier's village and live with him. But that by itself would not constitute undue influence. The learned Subordinate Judge, in paragraph 14 of his judgment, says:
I could not see how the influence which resulted in depriving the plaintiff even of her maintenance and the right of residence can be called influence other than 'undue'. The plaintiff on account of her incapacity appears to have allowed her sister to manage the family affairs, who taking advantage of this, arranged to get Exs. III and IV in the names of her husband and her son.
5. The fact that the plaintiff's maintenance was not provided for in either of the deeds is not by itself sufficient to hold that they must have been executed under undue influence.
6. Section 16 of the Indian Contract Act defines what is undue influence:
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.
7. Do the facts in this case establish that Venkaji Ammal and the 1st defendant were in a position to dominate the will of Subbier? Granting that their presence was indispensable for the comforts of Subbier and that the 1st defendant and Venkaji Ammal stipulated for a substantial if not the whole of Subbier's property being given to them would that alone be sufficient to make the transaction voidable by reason of undue influence? A man may pay a big price for anything that he wants, and if he wants the assistance of a particular individual he may have to pay a fancy price to secure the help of that individual, and however foolish or inconsiderate the man may be in attaining his selfish ends, a Court of equity would not relieve against his own indiscreet, foolish or reckless acts. The Court of equity will relieve a man only where he is unable to exercise his free will owing to his being under the domination of a more powerful or where he is tricked or cheated by the person who obtained some advantage or benefit from him. In this case is there any evidence to show that Subbier was not a free agent at the time when he executed Exs. III and IV. It is vaguely said that he was not in his senses and that he ran about without clothes and so on. But the evidence on this point is not satisfactory. If he was non compos mentis, and was unable to know the effect of what he did, then the transaction would not be valid. But there is no evidence to show that Subbier was either mad or that his mental capacity was such as to disable him from knowing what he was doing. No doubt he was not making any provision for his wife. That no doubt is a circumstance to be taken along with other circumstances in considering whether there was undue influence or not, but that alone by itself is not sufficient to make the transaction voidable as having been brought about by undue influence.
8. A large number of cases on the question of undue influence have been cited before me, but I will examine only a few of them to see what is necessary to prove in order to make out undue influence. So far as the Indian Law is concerned Section 16 of the Indian Contract Act not only defines undue influence, but it also enables the Court to draw the presumption of undue influence in certain cases.
9. Section 16 (2) is:
A person is deemed to be in a position to dominate the will of another (a) where he holds a real or apparent authority over the other or where he stands in a fiduciary relation to the other; 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.
10. The case does not come within Clause (a) or Clause (b) of Section 16 (2) of the Indian Contract Act; for neither Venkaji Ammal nor the 1st defendant had any authority over Subbier nor were they in fiduciary relationship with him and it is not proved that Subbier's mental capacity was either temporarily or permanently affected by reason of age, illness or mental or bodily distress. His executing a Will and a settlement deed in 1909 and cancelling them in 1913, and executing another document in favour of a stranger, Ex. E, in 1913, are said to be evidence of his mental in capacity, but I do not think that the execution of these documents show any mental incapacity on the part of Subbier. On the other hand it shows that the man was anxious to secure proper management of his property and fully believing that the 1st defendant would help him he made certain dispositions, but when he was disappointed by the 1st defendant and his wife he straightaway revoked the deeds executed in their favour and disposed of the property in favour of a stranger and when the persons for whom he really entertained some regard were willing to go back to him, he revoked all his previous deeds and executed the said deeds in their favour.
11. In Allcard v. Skinner  36 Ch. D. 145 the facts were these: A was introduced by. N, her spritual director and confessor, to S, the lady superior of the sisterhood and became an associate of that society. N was one of the founders, also a spiritual director and confessor of the society, a Protestant institution known as 'The Sisters of the Poor,' a voluntary association of ladies who resided together in Mark Street, Finsbury, and devoted themselves to work of charity under the direction of Miss Skinner. In April 1870, Miss Allcard became a novice. In August 1871, she became a professed member of the society and bound herself to observe inter alia the rules of poverty, chastity and obedience. In March 1870, she, after becoming a postulant, made a Will leaving all her property to the confessor and she made over two cheques amounting to 1,050 in 1871, and in July 1874, some preference stock for about 937-10-0. On the 8th July 1874, ordinary stock for 3,943. On the 28th March 1876, eleven preference shares valued at 990. In May 1879, Miss Allcard left the society. She revoked her Will and claimed the return of her property in 1885. Mr. Justice Kekewich dismissed her suit. On appeal, Cotton, L. J., held that she was entitled to set aside the transfer as she was made to part with her property under influence. Lord Lindley, who delivered a long and exhaustive judgment, held that there was no undue influence at the time when the transfer was made. After referring to the leading cases on the subject he sums up the law thus:
There are the cases in which there has been some unfair and improper conduct, some coercion from outside, some overreaching, some form of cheating, and generally, though not always, some personal advantage obtained by a donee placed in some close and confidential relation to the donor. The second group consists of cases in which the position of the donor to the donee has been such that it has been the duty of the donee to advise the donor, or even to manage his property for him. In such cases the Court throws upon the donee the burden of proving that he has not abused his position, and of proving that the gift made to him has not been brought about by any undue influence on his part.
12. In the case of Allcard v. Skinner  36 Ch. D. 145 though the plaintiff was at that time a member of the sisterhood, and though according to the rules she had taken the vows of poverty and made gift of the property to the confessor yet Lord Lindley and Bowen, L. J., held that there was no evidence of undue influence. There is a difference between the case of Wills and the cases of contracts or gifts or settlement deeds as regards the burden of proof. In the case of Wills it is for the person who impeaches the Will as having been executed under undue influence to set up and prove it. But in the case of gifts or settlements where the donee or the settlee, if such an expression might be used, is shown to have been a person in real or apparent authority or in a fiduciary relationship to the donor or settlor or where the donor or settlor's mental capacity was temporarily or permanently affected by reason of age, illness, or mental or bodily distress, the onus is upon the donee or the settlee to prove that the gift or settlement was not brought about by undue influence. There are quite a number of relationships which come within the rule laid down in Section 16, Clause (2) (a) and (b) of the Indian Contract Act, such as that of attorney and client, doctor and patient, confessor and penitent, Guru and Sishya and others, too numerous to enumerate here. It is unnecessary in this connexion to consider in detail the case Boyse v. Bossborough  10 E. R. 1192 and the case Wingrove v. Wingrove  11 P. D. 81.
13. Mr. T. V. Venkatarama Aiyar urges strongly that in order to constitute undue influence there must be coercion. He relies upon the observation of Sir James Hannen, President of the Probate Division in Wingrove v. Wingrove  11 P. D. 81:
To be undue influence in the eye of the law there must be--to sum it up in a word--coercion. It is only when the will of the person is coerced into doing that which he or she does not desire to do, that it is undue influence.
14. Coercion, as used by Sir James Hannen, should not be understood in the sense in which it is used in Section 15 of the Indian Contract Act. Section 15, Indian Contract Act, defines coercion as:
the committing, or threatening to commit, any act forbidden by the Indian Penal Code, or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to eater into an agreement.
15. Coercion as used in the English cases with regard to undue influence must be understood as meaning that the person coerced is not able to exercise his free volition owing to the domination of the Will of some other person. It is not necessary that coercion should be by threat of or by committing any act forbidden by the Indian Penal Code or by unlawful detention, etc. If a person has such influence over another and by means of that influence reduces the will of the other to his subjection, whatever may be the nature of the influence, spiritual moral, social or any other influence, then it is such coercion as is sufficient to constitute undue influence.
16. In Rajarajeswara Sethupathi v. Kuppuswami Aiyar : AIR1921Mad394 the Madras High Court declined to set aside a deed which was executed by the late Rajah of Ramnad as it was not proved that the document was executed under undue influence. Justice Sadasiva Aiyar observed at page 481:
From the evidence, I am clear that the 1st defendant's position towards the late Rajah was not such that the Rajah's volition could be overborne by or could be subjected to domination of the 1st defendant's will. Undue influence and coercion were not clearly distinguished in the old English Law and though there is a well-defined distinction now, the two are similar in this respect that their legal effect in making transactions voidable depends on the will of the person subjected to either being influenced to such a degree as to lose its freedom.
17. In Ismail Mussajee Mookerdam v. Hafiz Boo  33 Cal. 773 there was no evidence that the transaction was brought about by undue influence. Their Lordships of the Privy Council observed at page 784:
The mere relation of a 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 lend 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.
18. Not only should there be evidence of general undue influence, but there should be specific evidence that the transaction in question was brought about by undue influence in order to make that transaction voidable.
19. Mr. Subramania Aiyar relies upon Earl of Aylesford v. Morris  8 Ch. A. 484 Sital Prasad v. Parbhu Lal  10 All. 535 Mannu Singh v. Umadat Pande  12 All. 523 and Parfitt v. Lawless  2 P. D. 462 in respect of his position that Ex. 4 was brought about by undue influence. In Earl of Aylesford v. Morris  8 Ch. A. 484 the facts were: The Earl of Aylesford who had attained majority, but had no income of his own and had depended entirely upon the allowance made to him by his father, which did not exceed 500 a year, was said to have borrowed before he came of age money from one John Graham, a Solicitor, and Graham introduced him to the defendant Morris who paid Graham 3,000 and advanced 3,800 to the plaintiff taking acceptance at three months for 8,000. At the same time an insurance for 6,000 on the plaintiff's life was effected and the 1st premium was paid by the plaintiff out of the money advanced. The Court held that there was undue influence at the time when the transaction in question was entered into. In the case of a moneylender who is able to dominate the will of an extravagant youth the Court would look into the transaction very carefully to see whether it is vitiated by undue influence. Lord Selborne, Lord Chancellor, observed:
The real truth is that the ordinary effect of all the circumstances by which these considerations are introduced is to deliver over the prodigal helpless into the hands of those interested in taking advantage of his weakness, and we so arrive in every such case at the subtance of the conditions which throw the burden of justifying the righteousness of the bargain upon the party who claims the benefit of it.
20. This case has no application to the present case. In Sital Prasad v. Parbhu Lal  10 All. 535 there was evidence:
That when Gulal Kuar died leaving his property behind her, it by some means or another became known to the defendant that the plaintiff was the person who was entitled to that property but that he was opposed by his wealthy relatives that he was helpless to resist them, being entirely without means, having up to her death subsisted in his sister-in-law's charity, that he was a poor Brahman and, therefore, likely to be extremely susceptible to the influence of the defendant, that knowing all these the defendant got the plaintiff to his house and kept him there and that during the time the quarrels were going on between him and his relatives, he did find him with money, how much it does not appear though it could not have been a very large sum for the purpose of instructing pleaders to look after his interest in the mutation proceedings.
21. The matter, therefore, stands thus:
That the defendant, a well-to-do Brahman, with no special claim to do so was entertaining the plaintiff in his house under the circumstances described and that first in the month of April 1885, he sold half of his property and afterwards in December of the same year a deed of gift of the remaining half is obtained from him with the result that he is left as poor as he was when he first came into the defendant's hands.
22. Justice Straight who considered all the leading cases on the subject came to the conclusion, after an examination of the evidence, that the deeds were brought about by the exercise of undue influence.
23. The case in Mannu Singh v. Umadat Pande  12 All. 523 does not help the defendant; for, on the facts it was found that there was a fiduciary relation between the parties. The plaintiff was a Chatri by caste, well advanced in years and that the defendant was his Guru or spiritual advisor, a Brahman held in high consideration in the locality where he resided. The gift comprised the whole of the plaintiff's property and the only reason for its execution was the plaintiff's desire to secure benefits to his soul in the next world and his having heard the defendant recite the sacred book called 'Bagwat.' The Court held that having regard to the fiduciary relations subsisting between the parties, the improvidence of the gifts, the absurdity of the reason alleged for it and the principle recognized by Section 111 of the Evidence Act, the burden rested upon the defendant to show that the transaction was made without undue influence and in good faith and in the absence of such proof the plaintiff was entitled to obtain a cancellation of the deed.
24. In Parfitt v. Lawless  2 P. D. 462 it was held that a will by a Roman Catholic in favour of the priest who was her husband's chaplain and for a time her confessor was not brought about by undue influence, Lord Penzance observes in the course of his judgment:
It is a very different thing to presume without a particle of proof that a person so situated has abused his position by the exercise of dominion or the assertion of adverse control. For these reasons it seems to me that it would be improper and unjust to throw upon a man in the position of the plaintiff without any proof that he had any hand whatever in the making of this will, the onus of proving negatively that he did not coerce the testatrix into devising the residue of her land to him. I say 'coerce' for this is the only matter involved in the plea of undue influence.
25. Though it appears unconscionable that the 1st defendant and his son should take the whole of the property of Subbier without any provision for his widow who is no other than the wife's sister of the 1st defendant and the maternal aunt of the 2nd defendant, yet in the absence of any evidence of undue influence I am constrained to come to the conclusion that the plaintiff's case as regards Ex. 4 must fail. It is to be regretted that the plaintiff who is deaf and unable perhaps to look after herself had been driven out of the house by the 1st defendant and the result of this litigation would probably be that she would not have the means of subsistence. But this consideration ought not to influence the Court in considering whether there is evidence of undue influence or not.
26. The next point urged is one of limitation. In view of my finding on the question of undue influence it is unnecessary to give my decision on the point. But inasmuch as this point has been argued at some length I will briefly indicate my view as regards the article applicable to a case of this nature. In order to set aside a document which is voidable the suit must be brought within three years of the date of the execution of the document. Art. 91 of the Limitation Act applies for the cancellation or setting aside of instruments not otherwise provided for. It was held in Janki Kunwar v. Ajit Singh  15 Cal. 58 that the three years, rule was applicable. In Rajarajeswara Sethupathi v. Kuppuswami Aiyer : AIR1921Mad394 it was held that Art. 91 applied to cases of this kind.
27. Mr. Subramania Aiyer for respondent relies upon Vithai v. Hari  25 Bom. 78 and Singarappa v. Talari Sanjivappa  28 Mad. 349. If the transaction is only a sham transaction then it need not be set aside for the very idea of sham transaction means that the transaction is not intended to have any effect. In Vithai v. Hari  25 Bom. 78 the allegation was that the mortgage was not acted upon, but that the plaintiff remained in possession of the property. It was held:
There is no finding in this allegation of possession and so it is imposible for us to come to a definite conclusion on the question of limitation.
28. In Singarappa v. Talari Sanjivappa  28 Mad. 349 which followed the Bombay case, the cause of action was held to be from the date of trespass.
29. It is next urged that the cause of action did not arise within the lifetime of Subbier for the undue influence continued till his death and that the plaintiff came to know about the transaction only quite recently. It is unnecessary to consider in this case whether the continuance of the undue influence would prevent limitation running against the executant of the document. There is no evidence that the undue influence subsisted nor was such a case put forward in the pleadings.
30. It is, therefore, unnecessary to consider the cases in Rajah Rajeswara Dorai v. Arunachala Chettiar  38 Mad. 321 Rajarajeswara Sethupathi v. Kuppuswami Aiyar : AIR1921Mad394 and Sri Kishan Lal v. Mussammat Kashmiro  31 M. L. J. 362.
31. In the result I allow the second appeal and dismiss the plaintiff's suit but, in the circumstances of the case and on account of the heartless behaviour of the 1st defendant I disallow his costs throughout.