M.N Shukla, J.:— This is a plaintiff's appeal arising out of a suit for declaration to the effect that the plaintiff was the owner of the houses in suit and entitled to recover rent of house No. 1 from defendants Nos. 9 and 10 and for possession over house No. 3.
2. The suit was filed on the allegations that the plaintiff's uncle Mahadeo was the exclusive owner of the aforesaid houses, Smt. Bachohi, defendant No. 1 was his widow, Dullar, defendant No. 2 was his daughter, defendant Nos. 3 to 6 were the sons of his another daughter, defendants Nos. 7 to 10 were the sons of Mahadeo's yet another daughter Sudama and defendants Nos. 11 and 12 were the tenants of house No. 1. Since Mahadeo had no son, he used to treat the plaintiff as his son since his childhood and had great affection for him. The plaintiff also used to serve Mahadeo and look after him. In Nov., 1964, he fell ill. Hence, the plaintiff with the consent of defendant No. 1 got him admitted in the Railway hospital on 9-11-1964. It is alleged that the plaintiff had served him during the said illness also and Mahadeo expressed his desire to make a gift of the said houses to the plaintiff. Accordingly he executed a gift deed (Ex. 7) on 17-11-1964 which was duly accepted by the plaintiff. According to the terms of the gift deed the plaintiff was entrusted with the responsibility of maintaining defendants Nos. 1 and 2. Later, however, defendant No. 1 and the other daughters of Mahadeo brought pressure on him and under coercion and undue influence got another gift deed, Ex. A-2, executed in favour of defendants Nos. 1 to 8 on 7-12-1964. Mahadeo died on 2-6-1965. It was averred that by virtue of the first gift deed, Mahadeo was left with no interest in the property and accordingly the later gift deed was illegal and invalid. Apart from this, the subsequent gift deed was also alleged to have been got executed under undue pressure and was, therefore, vitiated and did not confer any right of the first gift deed, (sic) the plaintiff claimed to be entitled to recover rent from the tenants-defendants Nos. 11 and 12. The defence, in short, to the suit was that the plaintiff had been living separately from Mahadeo since long and did not serve him at all during his lifetime, that when Mahadeo fell ill in Nov. 1964 he was 80 years old and the plaintiff represented to him that he being a Railway employee could secure better treatment in the Railway Hospital. Therefore, the defendant No. 1 agreed to allow him to be admitted in the Railway Hospital. He returned home on 18-11-1964 and thereafter the plaintiff disclosed that he had got a registered gift deed executed from Mahadeo. When the latter learnt of it, he made enquiries and on finding that a gift deed had been procured from him in those circumstances, he made complaints to the authorities concerned. Thereafter, on legal advice, he executed another gift deed on 7-12-1964 as stated above and got it registered in the office of the Sub-Registrar. He actually cancelled the earlier gift deed by the latter. It was pleaded that the gift deed in favour of the plaintiff was illegal and void as it was not executed by Mahadeo knowingly and out of his free will but was got executed while he was ill in the hospital. At all events, it was never given effect to and hence the plaintiff had no right or interest in the property in dispute.
3. The trial Court came to the conclusion that the earlier gift deed was void and ineffective and the circumstances in which it had been secured proved that it was not a result of free will. With those findings, the suit was dismissed. Hence, the plaintiff has preferred this appeal.
4. The sole question, therefore, which arises for determination is as to whether the gift deed dated 17-11-1964 in favour of the plaintiff was void and ineffective as alleged by the defendants. [After considering the evidence the court proceeded.—Ed.].
5. Thus, from an appraisal of the oral evidence in the case, it appears that the first gift deed had been got executed from Mahadeo in abnormal circumstances, i.e, when he was not in possession of his mental faculties and was suffering from serious ailment and the plaintiff was alone with him and just a day before Mahadeo left the hospital. Apart from the oral evidence, there are some important corroborating circumstances which have been taken into consideration by the trial Judge for coming to the conclusion that the first gift deed had been secured from Mahadeo under undue influence and it was not an act of his free will. The admissibility of such evidence has been seriously impugned by the learned counsel for the appellant and he has also strenuously urged that the court below wrongly applied the law with regard to burden of proof and acted illegally in disregarding the law of presumption. We shall now deal with this legal question which has been canvassed on behalf of the appellant.
6. The first question which has been urged is as to the onus of proof. Ordinarily, a person can rely on a registered deed executed in his favour and it is not surprising that the plaintiff founded his entire case on the gift deed dated 17-11-1964. In ordinary circumstances a heavy burden is cast on the person, who impeaches such transaction and tries to assail the validity of a registered gift deed. But law recognised certain exceptions to the general rule and those exceptions flow from either the extraordinary physical or mental condition of the executant or the peculiar relationship between him and the person in whose favour the deed is executed. On behalf of the respondents reliance was placed upon S. 111 of the Indian Evidence Act which reads:
“Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.”
7. The gravamen of the charge against the plaintiff in the present case is that the gift deed (Exhibit 7) was not secured by him in good faith. Obviously as between persons dealing on the footing of complete equality, there is no presumption against good faith. The law presumes, prima facie, in favour of the deeds being duly executed. So ordinarily the person who challenges the validity of a transaction on the ground of fraud, undue influence etc. and charges his opponent with bad faith has to discharge the burden of proof which rests on him. But the major exception to this rule is that the initial burden would not shift to the party who challenges the transaction and will instead be cast on the person who relies on such deed if a relationship of “active confidence” or fiduciary relationship subsists between the contracting parties, such as guardian and ward, agent and principal, doctor and patient spiritual adviser and disciple, trustee and cestui que trust etc. The underlying principle of engrafting such exception to the general rule is that on account of the existence of such relationship as mentioned above, one of the contracting parties is in a position to exert undue influence or ‘dominate’ over the other and extort benefit from him. In such case justice demands that the burden of proving good faith of the transaction must be thrown upon the dominant party, i.e the party who is in a position of “active confidence”. The probability of dominating over the will of another party arises either directly from the very nature of the relationship existing between the parties or sometimes from a peculiar handicap or disability from which the other party suffers. Thus S. 111 of the Indian Evidence Act has to be read along with the provisions of S. 16 of the Indian Contract Act.
8. It is submitted on behalf of the appellant that the respondents were not entitled to invoke the aid of S. 111 of the Indian Evidence Act on the facts of the present case as this section in terms did not apply. In other words, it was contended that the fiduciary relationship of the nature aforementioned did not apparently exist between the plaintiff and Mahadeo. This objection is not well founded. Firstly, fiduciary relationship is not exhausted by the few well-known patterns of relationship to which we have adverted above. Any relationship in which one party enjoys the “active confidence” of another party who is to lean on him and is inclined to repose implicit confidence in him is enough to approximate to the kind of relationship which may attract the provisions of Section 111 of the Evidence Act with regard to the rule of burden of proof. Consequently, even if restricted and technical construction were put on the term fiduciary relationship, the principle enshrined in Section 111 should be extended to cases where there is proof of a person dependent, by virtue of his physical or mental infirmity or disability on another party and the circumstances have been proved to show that the other party, taking advantage of such position, has secured a deed or instrument for his own benefit.
9. But, as we have said earlier, the provision of law which is directly applicable to a case like the one before us and which is very salutary for safeguarding the rights and interest of a party whose will can be dominated over by another person, is S. 16 of the Contract Act which provides:
“16(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.”
10. Obviously the provisions of this section are wide enough in their scope to cover all such cases where “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”. In such circumstances, this section categorically enacts that “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”. There is thus no manner of doubt that if it be established that Mahadeo suffered from such disability or was a victim of such physical or mental handicaps and the plaintiff was so situate qua him, that he could dominate over the will of the former, the burden of proof would be cast entirely on the plaintiff to prove that the gift deed had not been induced by undue influence.
11. The Indian law on the point is founded substantially on the rules of English law in which the principle of conveyances being impeachable by reason of position of parties is well recognised. We may refer to the leading case on this point in which the law was elaborately stated. In Allcard v. Skinner, (1887) 36 Ch.D 145, Lindley L.J explained the rule in these words:
“The principle must be examined. 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, imprudence, or want of foresight on the part of donors. The Courts have always repudiated any such jurisdiction. Huguenin v. Baseley, (1807) 14 Ves 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, trickled or misled in any way by others into parting with their property in one of the most legitimate objects of all laws.”
12. The crux of the law applicable to such transactions was explained by Cotton, L.J in the same case in these words:
“In the second class of cases the Court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent the relations which existed between the parties and the influence arising therefrom being abused.”
13. The law relating to the effect of undue influence on conveyances has been summed up in Halsbury's Laws of England, Third Edition, Vol. 17 in para. 1297 at page 672:
“1297. Classification. Undue influence by reason of which courts of equity will interfere to set aside an agreement should be distinguished from duress which is a ground on which an agreement may be set aside also at common law. Duress is the compulsion under which a person acts through fear of personal suffering to himself or a near relative, as from injury to the body or from confinement, actual or threatened. The basis of the jurisdiction which the courts of equity exercised to grant relief in cases of undue influence was fraud, in the sense in which that term was used in those courts, that is to say, as including what is described as constructive fraud. There are two classes of cases in which gifts are set aside by courts of equity on the ground of undue influence, though the division between them is not always clear cut: first where the court has been satisfied that the gift was the result of influence, in the form of some unfair or improper conduct, coercion from outside or cheating, expressly used, in general, though not always, by a donee placed in some close and confidential relation to the donor to obtain some personal advantage, and, secondly, where the position of the donor to the donee, or other “party has been such that it has been the duty of the donee or other party to advise the donor, or even to manage the property for him, and a presumption that the donee or other party had influence over the donor is raised by the relationship between them.
In cases where undue influence is presumed the court sets aside the gift unless it is proved that it was in fact the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justify the court in holding that the gift was the result of the free exercise of the donor's will.
The first class of cases may be considered as depending on the principle that no one shall be allowed to retain any benefit arising from his own fraud or wrongful act. In the second class of cases the court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent relations which existed between the parties and the influence arising therefrom being abused.”
14. All the salient ingredients of the doctrine of undue influence flowing from the existence of a particular relationship between the parties have been seized in Section 16 of the Indian Contract Act which is very widely worded so as to include a myriad of circumstances which may give rise to the possibility of a person being able to dominate over the will of another. They include handicap suffered by a person on account of mental capacity affected by reason of age, illness etc. or a likelihood of a person holding a real or apparent authority over the other or standing in a fiduciary relation to the other. The word ‘fiduciary’ as contained in the Webster's New International Dictionary connotes “a person in trust, a person or thing holding something in trust”. The other meaning given in the dictionary is “of or pertaining to a trust, pertaining to or of the nature of trusteeship.” Thus, whenever it is brought to the notice of the courts that a person on account of some reason of the nature indicated above was not in a position to exercise his independent will, the courts always insist on placing the burden of proof on the person who was in such advantageous position to establish that he did not abuse his position. The principle was originally confined to cases of pardahnashin ladies who manifestly suffered from such inhibition and limitation. Gradually the area covered by this rule was enlarged and it was extended to females who, though not strictly observing pardah, yet were prone to labour under such infirmities and handicap by virtue of their lesser experience of the world and their inability to cope with the complexities of life.
15. In Parasnath Rai v. Tileshra Kuar, 1965 All LJ 1080. Gangeshwar Prasad, J. followed the decision of the Calcutta High Court in Chinta Dasya v. Bhalku Das, AIR 1930 Cal 591, wherein Mitter, J. held, that rules regarding transactions by a pardahnashin lady were equally applicable to an illiterate and ignorant woman, though she may not be pardahnashin. We are unable to comprehend as to why the broad principle which has been accepted and widely applied in the numerous decisions to which we have adverted should not also embrace within its sweep the cases of males who by reasons of their apparent physical or mental incapacity or infirmity or being placed in circumstances where they are greatly amenable to the overpowering influence of another person are induced to enter into conveyances and transaction relating to their property. The basic principle is the same and where it is proved to the satisfaction of the court either that the bargain was on the face of it unconscionable or the executant was the victim of physical or mental handicap or that he was subdued by the complexity of circumstances in which another person had an upper hand, the burden must be cast squarely on the person enjoying the dominating position to show that he secured the deed in good faith.
16. Our attention was drawn to a decision of this Court in Sher Singh v. Pirthi Singh, AIR 1975 All 253, where the learned single Judge extended the principle to the case of an old and illiterate male who on account of long illness had lost his capacity to understand things and was persuaded to execute a gift deed in favour of the defendants at a time when the old man was away even from his daughter whose advice alone he could have sought for his guidance. We respectfully agree with the ratio of that case. In the case with which we are dealing it has been proved by cogent evidence that Mahadeo was lying seriously ill in the hospital where he was taken by the plaintiff and was under his control and his wife and children were net allowed to remain with him. It was net even alleged that he had any opportunity to consult anybody about the execution of the gift deed. He was an old and infirm person and having none else except the plaintiff to look after him in the hospital was made to execute the gift dead on a sick bed. He was manifestly in a vulnerable position and the plaintiff was master of the situation and could shape events according to his heart's desire. In such suspicious circumstances the law does throw the onus on the plaintiff to establish that the transaction was not procured by undue influence. The facts were more or less similar in Debi Prasad v. Chhotey Lal AIR 1666 All 438. It was held in that case that the deed of gift was an unconscionable transaction as the appellant was in dominating position and the plaintiffs were old and infirm persons having none to look after them. We are not satisfied that in the instant case the plaintiff has been able to discharge the heavy burden cast on him and it is (not?) proved that Mahadeo executed the gift deed dated 17-11-1964 in the plaintiffs favour out of his free will.
17. The same controversy was raised with regard to another circumstance which according to the respondents clearly showed that the aforesaid gift was not a spontaneous act of Mahadeo. It is alleged that Mahadeo sent an application dated 2-12-1964 Exhibit A-1 signed by him to the District Registrar in which he made the averment that the plaintiff Daya Shanker taking undue advantage of the former's illness and mental infirmity had fraudulently obtained from him the gift deed dated 17-11-1964 the contents of which were not explained to him. It will be noticed that this was shortly followed by the second gift deed dated 7-12-1964 in favour of respondents Nos. 1 to 10 and within a few months thereafter Mahadeo died on 2-6-1965. The complaint Exhibit A-1 was relied upon by the trial Judge as another important piece of substantial evidence to corroborate the defence case that the first gift deed had been fraudulently obtained. Sri Jagdish Swarup, learned counsel for the appellant vehemently contended that the said document Exhibit A-1 was not admissible in evidence as no evidence had been examined on behalf of the defendants to prove the document Exhibit A-1 in accordance with law. It is true that no oral evidence was examined in the case to formally prove the signature and handwriting of Mahadeo. Nevertheless the document bears the endorsement of the plaintiff's counsel to the effect “formal proof dispensed with”. On the basis of this endorsement the document was actually exhibited as A-1 and without any demur by the plaintiff's counsel. Ordinarily it would not have been necessary in the present case to deal with this point because on the remaining evidence we have already recorded a finding but since this raises the question of the legal implication of following a certain procedure which is often resorted to in trials we propose to deal with this point. In the first place, one of the pragmatic and peremptory rules which have emerged from judicial decisions is that once a document has been assigned an exhibit mark in the court of the first instance without any objection by the party who later challenges its admissibility, such objection must be overruled. See Bhagat Ram v. Khetu Ram, AIR 1929 PC 110. The same principle was reiterated in Gopal Das v. Sri Thakurji, AIR 1943 PC 83 wherein it was observed:
“Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of Appeal and then complain for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial.”
18. If the plaintiff's counsel had not made the endorsement whereby he dispensed with the formal proof of the document it would have been possible for the defendants to adduce necessary evidence in order to prove the document formally. They were virtually disarmed by the unequivocal endorsement made by the plaintiff's counsel, and it would be highly prejudicial to the respondents if the objection was allowed to be raised at the appellate stage. In our opinion when an endorsement of the nature made in the present case is allowed to go on record it amounts to dispensing with the formal proof not only of the signature or thumb impression of the executant but also of the contents of the document. The long and extensive practice in the trial courts would bear out the position that whenever such endorsements are made, the parties take it for granted that the person relying upon the document is absolved from the necessity of adducing formal proof thereof. An endorsement of this kind is not a half-hearted endorsement confined to the signature or thumb impression but covers the whole document and therefore in such circumstances the document becomes admissible in evidence without formal proof.
19. The effect of endorsements made by a party or his counsel with regard to the formal proof of a document was judicially interpreted in Ajodhya Pd. Bhargava v. Bhawani Shanker Bhargava, 1956 All WR (HC) 866 : (AIR 1957 All 1) (FB). In that case the appellant produced certain letters in the court before the commencement of the hearing. They were shown to the learned counsel for the respondent for admission or denial and the latter admitted them and they were thus exhibited by the court as evidence in the case But when later an the respondent appeared in the witness-box these admissions were not put to him in cross-examination. At the time of arguments when it was attempted to utilise these letters as containing admissions of the respondent contrary to what he had stated on oath in the witness-box, the learned Civil Judge relying upon the Privy Council decision in Bal Gangadhar Tilak v. Shrinivas Pandit, AIR 1915 PC 7 and the decision of the Lahore High Court in Firm Malik Das Rai Faqir Chand v. Firm Piara Lal Aya Ram, AIR 1946 Lah 65 (FB), ruled these documents as inadmissible under S. 145 of the Evidence Act on the ground that under that provision such admissions could not be relied upon or be proved to contradict the appellant's statement on oath unless they were put to him while he was in the witness box. The High Court did not agree with that view and it held that the respondent's counsel having admitted these letters which were exhibited as evidence in the case, they could be re bed upon as substantive evidence and the technical requirement of Section 145 of the Evidence Act stood substantially waived in view of the endorsement of admission made by the respondent's counsel.
20. We think that really speaking their may be two kinds of endorsements, complete or unqualified and restricted or qualified. An example of qualified endorsement is found in the case of Pandit Vidheshwar Pathak v. Budhiram Barai, 1963 All WR (HC) 447 (448) : (AIR 1964 All 345) where the endorsement was like this:
“Admitted subject to all just exceptions.”
21. This kind of limited endorsement was considered as not waiving the requirements of S. 145 and it was held that if it was intended to contradict the witness by any previous writing, it was necessary to draw his attention to such writing. It is apparent that the endorsement Exhibit A-1 in the instant case was a complete endorsement and therefore there was no necessity of formal proof of either the signature or the contents of that document. When the parties counsel makes such untrammelled endorsement, he must be understood as having done so with full realisation of its legal consequences and it must be deemed that the formal proof of the contents of the document has also been dispensed with.
22. Sri Jagdish Swarup appearing for the appellant submitted that the contents of a document must be proved by examining the author of the document and in the present case Mahadeo being dead, the writer of the complaint had never appeared in the witness-box, and hence the contents of that document should not be deemed to have been proved notwithstanding the endorsement. We are unable to accept this contention. After all the mode of proof of execution of documents is contained in Ss. 67 to 71 of the Indian Evidence Act. Broadly stated, some of the very common modes of proving a signature or a writing which the Indian Evidence Act recognises are:
1. By calling the person who signed or wrote the document.
2. By calling the person in whose presence the document was signed or written.
3. By calling the person acquainted with the handwriting of the person by whom the document was written.
23. If the person in whose presence Exhibit A-1 was written or the one who was acquainted with the handwriting of Mahadeo were examined, it would have been sufficient formal proof of the document but in view of the endorsement made by the plaintiffs counsel such formal proof was certainly dispensed with and the document must be regarded as admissible in evidence and proved according to law. Sri Jagdish Swarup relied on the case of Bishwanath Rai v. Sachhidanand Singh, (1972) 4 SCC 707 : AIR 1971 SC 1949 (at p. 1953); in which it was held:
“It is true that, in the absence of examination of Swamiji the correctness of those statements cannot be held to be proved. Thus, the evidence of Ram Ghandra Sharma proves the contents of the letter, but not the correctness of those contents. The letter was, therefore, admissible to the extent to which the fact that Swamiji wrote such a letter to Ram Chandra Sharma with its contents has bearing on the issues involved in this case.”
24. In our opinion the above observation militates against the appellant's contention. It is made clear that the letter with its contents was admissible. Of course, in that case the contents had been proved by the oral evidence of the witness that he knew the handwriting of the writer of the letter. Sri Jagdish Swarup argued that even though the signature on a document may be proved by other evidence, the contents can be proved only by the author thereof. In view of the above observations of the Supreme Court this submission is untenable. On behalf of the appellants great emphasis was laid on the observations occurring in that passage that the evidence of Ram Chandra Sharma proved the contents of the letter but not the correctness of those contents (emphasis added). In our opinion in the context in which the word ‘correctness’ was used what was implied was the veracity of the allegation or averments made in the letter and not its inaccuracy in the sense that it was not a correct reproduction of the letter. To the same effect are the observations of the Supreme Court in P.C Purshothama Reddiar v. S. Perumal, (1972) 1 SCC 9 : AIR 1972 SC 608 (Para 19):
“Once a document is properly admitted, the contents of that document are also admitted in evidence though those contents may not be conclusive evidence.”
25. Therefore, we are of the opinion that the application dated 2-12-1964 (Exhibit A-1) was an important piece of evidence which was admissible and it was rightly relied upon by the court below for throwing out the plaintiffs case.
26. Consequently the first gift deed falls through and the later gift deed Exhibit A-2 which was fully proved would govern the rights of the parties.
27. For these reasons we find no force in this appeal and it is dismissed with costs.
28. Appeal dismissed.
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