UNDUE INFLUENCE AND FREE CONSENT

Introduction

One of the biggest
issues with a Will is whether it has been obtained by fraud or undue influence.
If yes, then it is invalid. Section 61 of the Indian Succession Act, 1925
states that any Will which has been caused by such importunity which takes away
the free agency of the testator is void. The Law Lexicon, 4^th
Edition, Lexis Nexis, states that importunity (insistence
or cajolery) must be such which the testator is too weak to resist; which would
render the act no longer the act of the deceased, not the free act of a capable
testator.

Similarly, in the
context of a contract, the Indian Contract Act, 1872 states that all
agreements are contracts only if they are made by the free consent of the
parties. Free consent is that which is not caused by undue influence. Section
16 of this Act defines ‘undue influence’ as follows:

‘(1)      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;

(2)        In particular and
without prejudice to the generality of the foregoing principle, 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

(3)        Where
a person 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 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.’

Hence, both in the
context of a Will and a contract, ‘undue influence’ is a major factor. While it
would render a Will void, it makes a contract voidable at the option of the
party whose consent was so caused.

Let us examine this very
vital concept in a bit more detail, especially in the light of a Supreme Court
decision rendered in the case of Raja Ram vs. Jai Prakash Singh, CA No.
2896/2009, order dated 11^th September, 2019 (SC). What makes
this decision even more important is that the facts are such that they could be
relevant even in a host of cases. The key questions considered in this decision
were whether mere old age and infirmity of the executor of an agreement could
be considered as grounds for undue influence? Further, whether the fact that
the agreement was executed by the executor in favour of those with whom he was
living was also grounds for undue influence? While the Supreme Court examined
these questions in the context of a non-testamentary instrument, i.e., a sale
deed, they would be equally relevant in the case of a Will.

FACTS
OF THE CASE

The decision in the case
of Raja Ram (Supra) would be better appreciated in the light of
its facts. The opposite parties to the case were two brothers and their
respective families. The parents of the brothers were living with one of the
brothers. The father was 80 years old. He executed a registered sale deed of a
parcel of land in favour of the son with whom he was living. The father died
within ten months of executing the sale deed.

The other brother
alleged that the deed was obtained by his brother fraudulently, by deceit and
undue influence because of old age and infirmity of the father who was living
with him. It was alleged that the father was old, infirm and bedridden and sick
for the last eight years; his mental faculties were impaired and he was
entirely dependent upon the defendants who were in a position to exercise undue
influence over him. It was pleaded that the father by reason of age and
sickness was unable to move and walk and had a deteriorated eyesight due to cataract.
It was also pleaded that he was deaf.

The Supreme Court stated
that there were two main questions which it had to consider:

(a)   The physical condition of the
father and his capacity to execute the sale deed; and

(b)  Whether the defendants could exercise
undue influence over the father.

DECISION
OF THE COURT

The Court considered the
definition of undue influence as appearing in section 16 of The Indian
Contract Act (Supra). It also noted that under the Indian Evidence Act,
1872 the onus of proving good faith in a transaction is on the party who is in
a position of active confidence to another. It noted the following facts and
gave important verdicts on each of them:

(a)   Except for a mere statement,
no evidence was produced to show that the father’s mental capacity was
impaired. Mere old age cannot be a presumption of total loss of mental
faculties, such as in the case of senility or dementia. The father had executed
another sale deed in favour of a third party and the same was not challenged.
There was no evidence of rapid deterioration in condition after the same.

(b)   Merely being old, infirm and
having a cataract cannot be equated with being bedridden. The fact that the
father went to the Sub-Registrar’s office for registration demolishes the
theory of him being bedridden. Hardness of hearing could not be equated with
deafness.

(c)   The Court referred to its
earlier decision in the case of Subhas Chandra Das Mushib vs. Ganga
Prosad Das Mushib and Ors., 1967 (1) SCR 331 wherein it was held that
there was no presumption of imposition or fraud merely because a donor was old
or of weak character.

Thus, as regards the
first question, the Court concluded that the physical condition of the father
and his capacity to execute the sale deed was not in doubt.

It next turned to the
important question of undue influence. The allegations of the same were
completely bereft of any details or circumstances with regard to the nature,
manner or kind of undue influence exercised by the defendants over the father.
A mere bald statement was made attributed to the infirmity of the deceased. The
Court held that the defendants were in a fiduciary relationship with the
deceased and their conduct in looking after him and his wife in old age may have
influenced the thinking of the deceased. However, that, per se, could
not lead to the only irresistible conclusion that the defendants were therefore
in a position to dominate the will of the deceased, or that the sale deed
executed was unconscionable. The Court held that the onus of proving there was
no undue influence would come on the defendants only once the plaintiffs
established a prima facie case.

The Supreme Court
referred to its earlier decision in the case of Anil Rishi vs. Gurbaksh
Singh, (2006) 5 SCC 558 where it had held that under the Indian
Evidence Act if the plaintiff fails to prove the existence of the fiduciary
relationship or the position of active confidence held by the
defendant-appellant, the burden would lie on him as he had alleged fraud. Next,
it proceeded to lay down certain important principles in the context of whether
undue influence could be presumed merely because a relative is taking care of
his / her elders:

(i)    In every caste, creed,
religion and civilized society, looking after the elders of the family was a
sacred and pious duty;

(ii)   If one were to straightway
infer undue influence merely because a sibling was looking after the family
elder, it would result in an extreme proposition which could not be allowed
without sufficient and adequate evidence. The Court held that any other
interpretation by inferring a reverse burden of proof straightway, on those who
were taking care of the elders, as having exercised undue influence, could lead
to very undesirable consequences;

(iii)  While such a contrary view
might not lead to neglect of the elders, it would certainly create doubts and
apprehensions leading to lack of full and proper care under the fear of
allegations with regard to exercise of undue influence;

(iv)  If certain members of the
family were looking after the elders (either by choice or out of compulsion)
there was bound to be more affinity between them and the elders. This is a very
crucial principle established by
the Court.

The Court reiterated the
principles laid down by it in its earlier decision of Subhas Chandra Das
(Supra) wherein it was held that merely because two parties were
closely related to each other no presumption of undue influence could arise.
Even if one party naturally relied upon the other for advice, and the other was
in a position to dominate the will of the first, it only proved ‘influence’.
Such influence might have been used wisely, judiciously and helpfully. However,
the law required that more than mere influence, there was undue influence. In
that decision the Supreme Court observed that Halsbury’s Laws of England,
Third Edition, Vol. 17, states that there was no presumption of fraud
merely because a donor was old or of weak character and there was no
presumption of undue influence in the case of a gift to a son, grandson, or
son-in-law, although made during the donor’s illness and a few days before his
death. In Poosathurai vs. Kappanna Chettiar, (1920) 22 BomLR 538, the Bombay High Court
held that where the relation of influence has been established, and it is also
made clear that the bargain is with the ‘influencer’ and is in itself
unconscionable, then the person in a position to use his dominating power has
the burden thrown upon him of establishing affirmatively that no domination was
practised so as to bring about the transaction.

The Apex Court also
distinguished its earlier decision rendered in the case of Krishna Mohan
Kul vs. Patima Maity, (2004) 9 SCC 468. In that case, it was established
that the executor of a deed was more than 100 years of age. He was paralytic
and his mental and physical conditions were not in order. He was practically
bedridden with paralysis and though his left thumb impression was stated to be
affixed on the document, there was no witness who could substantiate that he
had in fact put his thumb impression. Hence, based on such specific facts, it
held that the executant was an illiterate person, was not in proper physical
and mental state and, therefore, the deed of settlement and trust was void and
invalid. Hence, the Apex Court concluded that Raja Ram’s case
could be distinguished on facts from this decision.

APPLICABILITY
TO WILLS

As
discussed above, the applicability of the ratio descendi of the case of Raja
Ram is pari passu applicable to Wills. A similar decision was
rendered by the Supreme Court in the case of Surendra Pal vs. Saraswati
AIR 1974 SC 1999. In that case, a testator under his Will bequeathed
his entire estate to his second wife, excluding his first wife and her
children. The excluded relatives alleged undue influence on the part of the
second wife. The Supreme Court set aside such allegations. It held that if
undue influence, fraud and coercion is alleged, the onus is on the person
making the allegations to prove the same. If he does not discharge this burden,
the probate of the Will must necessarily be granted if it is established that
the testator had full testamentary capacity and had, in fact, executed it
validly with a free will and mind. In order to understand what the testator
intended and why he intended so, one had to sit in his armchair to ascertain
his frame of mind and the circumstances in which he executed the Will. The
Court observed that the testator was at complete loggerheads with the children
from his first marriage. Hence, with a family so hostile towards him, it was
but natural for the testator to provide for his second wife even without her
asking him or importuning him to do so. There was no suggestion that the
testator was feeble-minded or completely deprived of his power of independent
thought and judgement.

In
the case of Bur Singh vs. Uttam Singh (1911) 13 BOMLR 59, it was
held that in order to set aside a Will there must be clear evidence that the
undue influence was in fact exercised, or that the illness of the testator so
affected his mental faculties as to make them unequal to the task of disposing
of his property.

In
several cases, the testator excludes a close relative from his Will. In such
cases, the question of undue influence of the beneficiaries inevitably crops
up. Various Supreme Court decisions have time and again held that such
circumstances alone cannot lead to an inference of the Will being void due to
undue influence. In the cases of Uma Devi Nambiar vs. TC Sidhan (2004) 2
SCC 321 and Rabindra Nath Mukherjee vs. Panchanan Banerjee, 1995 SCC (4) 459,
the Supreme Court held that deprivation of the natural heirs by the testator
should not raise any suspicion because the whole idea behind execution of a
Will was to interfere with the normal line of succession. So natural heirs
would be debarred in every case of a Will; it may be that in some cases they
are fully debarred and in others only partially. Again, in Pentakota
Satyanarayana vs. Pentakota Seetharatnam (2005) 8 SCC 67, this view was
held when the testator’s wife was given a smaller share than others.

Similarly,
in Mahesh Kumar (D) By Lrs vs. Vinod Kumar, (2012) 4 SCC 387, the
Supreme Court was dealing with a case where a testator bequeathed all his
wealth to one son in preference to the others since he was living with that son
and the attitude of the other sons was extremely hostile towards their parents.
The Court held that the fact that one son took care of the parents in their old
age showed that there was nothing unnatural or unusual in the decision of the
testator to give his property only to him. Any person of ordinary prudence
would have adopted the same course and would not have given anything to the
ungrateful children from his / her share in the property. Thus, the Court held
that there was nothing invalid in the Will.

In the case of Narayanamma
vs. Mayamma, 1999 (5) KarLJ 694, the Karnataka High Court held that no
cogent reason was given in the Will as to why one daughter of the testator was
preferred over the other two daughters and hence the Will appeared circumspect.
While one may not entirely agree with the reasoning of this decision, it is
always advisable that in all such cases an explanation is given in the Will as
to the reason why the natural heirs are excluded. It is better to play safe and
avoid protracted litigation for the beneficiaries.

CONCLUSION

To sum up, the question
of free consent in the case of a Will / contract would always be one which
would be decided on the basis of surrounding facts and circumstances. Those
deprived, in most cases, might raise an objection of undue influence. However,
as the above decisions have very clearly established, mere old age or closeness
of relations or taking care of the executor is no ground for undue influence.