BANDARUPALLI MASTANAMMA BEING MINOR Vs. GANGURI ADINARAYANA

JUDGEMENT

(1.) This appeal arises out of a suit brought on 29-3-1957 by the first appellant, Mastanamma, who died during the pendency of the appeal and is now represented by appellants 2 and 3, Musaliah and Nagarattamma, her father and mother respectively. She was a minor aged about six years and was represented in the suit by Nagarattamma as her next friend. She asked in the suit for a declaration of her title and for partition and separate possession of a one-fourth share in the plaint A schedule properties on the foot of Exhibit A. 1, a registered gift deed dated 22-1-1957 executed in her favour by the 1st defendant, Adinarayana. Defendants 2 and 3 were Adinarayanas elder brothers and the 4th defendant was Adinarayanas father. It was alleged in the plaint that defendants 1 to 3 were divided in status from the 4th defendant, but that the plaint A schedule properties belonging to their family were not divided by metes and bounds. Exhibit A-1 recites that defendants 1 to 4 were members of a joint family, that the 1st defendant had determined to live separately, that Nagarattamma, who was his paternal uncles daughter, had promised to maintain him properly and that out of love and affection for the minor Mastanamma, he gave his undivided one-forth share in the joint family properties to her with absolute rights. The gist of the defence was that Nagarattamma with whom the 1st defendant was having illicit intimacy had obtained Exhibit A-1 by misrepresentation as to the nature of Exhibit A-1 and by undue influence and that the 1st defendant has cancelled Exhibit A.1 by the cancellation deed, Exhibit A.2 dated 22-2-1957. The learned Subordinate Judge, after a careful consideration of the evidence, held that the alleged misrepresentation namely, that Exhibit A-1 was a document for initiating proceedings for obtaining his shave in the joint family properties to the 1st defendant, was not made out. But he found that Exhibit A-1 was vitiated by undue influence and that the cancellation thereof under Exhibit A-2 was therefore valid under Section 126 of the Transfer of Property Act. He accordingly dismissed the suit and Masthanamma, being aggrieved, has preferred the appeal.

(2.) Under the second paragraph of Section 126 of the Transfer of Property Act, a gift may be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Under Section 19-A of the Contract Act, when consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the parry whose consent was so caused. It follows that where a gift was obtained by undue influence the donor has power to revoke it. This position is not disputed by Sri M. Venkata Subba Rao, the learned counsel for the appellant. The decisions in Ankamma v. Narasayya, AIR 1947 Mad 127 and Venkatasubhaiah v. Subbamma AIR 1956 Andhra 195, cited by him, dealt with cases where the donor had no power to revoke the gift and are therefore of no assistance to him. For the same reason, the rule enunciated in Villers v. Beaumont (1682) 23 ER 342 that "if a man will improvidently bind himself up by a voluntary deed, and not reserve a liberty to himself by a power of revocation, this court (Eqnity) will not loose the letters he had put upon himself" has also no application.

(3.) The only question that arises for consideration is whether the gift under Exhibit A-1 was induced by undue influence. The doctrine of undue influence is enunciated in Section 16 of the Contract Act. In Ladli Parshad v. Karnal Distillery Co., AIR 1963 SC 1279, his Lordship Shah J., analysed Section 16 thus: A transaction may be vitiated on account of undue influence where the relations between the parties are such that one of them is in a position to dominate the will of the other and no uses his position to obtain an unfair advantage over the other. It is manifest that both the conditions have ordinarily to be established by the person seeking to avoid the transaction; he has to prove (a) that the other party to a transaction was in a position to dominate his will and (b) that the other party bad obtained an unfair advantage by using that position. ***** Clause (2) lays down a special presumption that a person is deemed to be in position to dominate the will of another (i) where he holds a real or apparent authority over the other, or (ii) where he stands in a fiduciary relation to the other or (iii) where he enters into a transaction with a person whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress. Where It is proved that a person is in a position to dominate the will of another (such proof being furnished either by evidence or by the presumption arising under Sub-section (2)) and he enters into a transaction with that other person which on the, face on it or on the evidence adduced, appears to be unconscionable, the burden of proving that the transaction was not induced by undue influence lies upon the person in a position to dominate the will of the other. But Sub-section (3) has manifestly a limited application; the presumption will only arise if it is established by evidence that the party who had obtained the benefit of a transaction was in a position to dominate the will of the other and that the transaction is shown to be unconscionable. If either of these two conditions is not fulfilled the presumption of undue influence will not arise and burden will not shift."